OVERVIEW OF AND RECENT CASES ON CONNECTICUT

OVERVIEW OF AND RECENT CASES ON CONNECTICUT

APPELLATE PROCEDURE, AND AMENDMENTS TO RULES

OF APPELLATE PRACTICE

William F. Gallagher, Esq.

Gallagher, Gallagher & Calistro

1377 Boulevard, P.O. Box 1925

New Haven, Connecticut 06509

Telephone: 203-624-4165

Fax: 203-865-5598

June 22, 199

SUMMARY OF CONTENTS

Part I

Overview of Connecticut Appellate Procedure

Part II

Recent Cases on Connecticut Appellate Procedure

Part III

A Summary of Amendments to Rules of Appellate Practice

Effective September 3, 1996

Part IV

Amendments to Rules of Appellate Practice

Effective September 3, 1996

PART I

OVERVIEW OF CONNECTICUT APPELLATE PROCEDURE

TABLE OF CONTENTS

Extensive revisions to the Rules of Appellate Procedure have been adopted, effective September 3, 1996. When these revisions are referred to in the text they appear in the same manner that this note is italicized.

Page

1. Statutory Basis for Appeal 1

2. Time Limits for Filing Appeal 3

3. Where to Appeal 4

4. Event Which Triggers Appeal Time 5

5. Tolling of the Appeal Time 9

6. Stays of Execution 12

7. Extension of Time to Appeal 14

8. Summary of Connecticut Appellate Procedure 16

Part I

Overview of Connecticut Appellate Procedure

Part III

A Summary of Amendments to Rules of Appellate Practice

Effective September 3, 1996

Part II

Recent Cases on Connecticut Appellate Procedure

Part IV

Amendments to Rules of Appellate Procedure

Effective September 3, 1996

1. STATUTORY BASIS FOR APPEAL

An appeal is purely a statutory right. In re Judicial Inquiry No. 85-01, 221 Conn. 625, 633 (1992); Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479 (1988); State v. Audet, 170 Conn. 337, 342 (1976).

By statute, an appeal can be taken of right in the following cases:

A. From final judgments or actions of Superior Court (Sections 51-197a and 52-263);

B. From a decision setting aside a verdict (Section 52-263);

C. From certain decisions concerning mechanic's liens, prejudgment remedies, and summary process decisions (Sections 49-35c; 52-278l; 52-325c; and 47a-35);

D. From temporary injunctions in labor cases (Section 31-118);

E. From any order or decision which involves a matter of substantial public interest and in which delay would work a substantial injustice (Section 52-265a);

F. From election disputes (Section 9-325);

G. From court closure orders (Section 51-164x);

H. From Workers' Compensation Commissioner decisions in wrongful discharge cases (Section 31-290a);

I. From decisions in zoning cases (Sections 8-8; 8-9; 8-28; and 8-30) after certification is granted;

J. From decisions of the Appellate Court, to the Supreme Court, by certification (Section 52-197f);

K. From a judgment ordering an accounting (Section 52-405);

L. From criminal appeals by the State, with permission (Section 54-96);

M. From certain habeas corpus appeals (Section 52-470); after certification, and

N. From evidentiary nonsuits (Section 52-211).

The final judgment rule is often problematic to apply. There is no end to the litigation on the subject. A recent decision on the issue is Madigan v. Madigan, 224 Conn. 749, 753 (1993), holding that temporary orders for custody and visitation, like temporary alimony and support orders, are immediately appealable. It is useful to quote the Chief Justice in Madigan at length (224 Conn. at 752-754):

With the exception of certain statutory rights of appeal that are not relevant here, appellate jurisdiction is limited to appeals from final judgments. See General Statutes §§ 51-197a, 51 -199 and 52-263; see also Practice Book § 4000. Interlocutory appeals must, therefore, be dismissed. See, e.g., Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 254, 520 A.2d 605 (1987). Limiting appeals to judgments that are final serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings. See id., 258 E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 626, 356 A.2d 893 (1975).

Although the rule requiring an appealable order to be final is well settled, it is difficult to devise a comprehensive definition of what constitutes a final judgment. "It is apparent that there are certain judgments which are undoubtedly final and others that are clearly interlocutory and not appealable. The problem, of course, arises in the gray area between these obvious certainties . . . " E.J. Hansen Elevator, Inc. v. Stoll, supra, 627. To evaluate those orders that lie in the "gray area," we have in recent years relied on the standard articulated in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). That standard permits the immediate appealability of an order "in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them." Id., 31; Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 769, 613 A.2d 1320 (1992).

Applying the Curcio standard and its antecedents, we have allowed the immediate appeal of arguably interlocutory orders in a variety of circumstances. See, e.g., Solomon v. Keiser, 212 Conn. 741, 747-48, 562 A.2d 524 (1989) (order opening a judgment if issue raised is power of trial court to open the judgment); Kerite Co. v. Alpha Employment Agency, Inc., 166 Conn. 432, 438, 352 A.2d 288 (1974) (order to interplead); Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173 (1949) (order for temporary alimony and support); Wardell v. Killingly, 96 Conn. 718, 722, 115 A. 539 (1921) (order denying mandamus). We have, however, denied the immediate appealability of other orders in civil cases, despite their serious consequences for the litigants. See, e.g., Burger & Burger, Inc. v. Murren, 202 Conn. 660, 667, 522 A.2d 812 (1987) (disqualification of attorney); Melia v. Hartford Fire Ins. Co., supra, 254-59 (discovery orders); see also State v. Parker, 194 Conn. 650, 656-58, 485 A.2d 139 (1984) (denial of motion to dismiss charges pursuant to then existing accelerated rehabilitation statute not immediately appealable, because, even if a defendant had a right to dismissal before trial, the right to dismissal could be vindicated on appeal after trial).

There is an excellent discussion of what is appealable, and what has been construed to be final and what is not final in Horton and Cormier, Connecticut Practice Book Annotated, Rules of Appellate Procedure (1996 Edition), pp. 24-51.

2. TIME LIMITS FOR FILING APPEAL

A. From final judgments (Section 51-197a), the time limit is set out in Section 4009 of the Rules of Practice at 20 days. The rule provides:

The party appealing shall, within 20 days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal . . .

The revisions change this part of the rule as to civil jury cases, providing that the appeal time will run from the expiration of the period for filing a Section 320 or Section 321 motion. The time for these motions is 10 days from the acceptance of verdict, so that in such cases the appeal time is 30 days from verdict. If a Section 320 or 321 motion is filed, the time runs from the issuance of notice of decision on the motion.

B. Zoning appeals. Petition for certification within 20 days (Sections 8-8, 8-9, 8-28 and 8-30).

C. Decisions of the Appellate Court to the Supreme Court - 20 days for filing petition for certification (Section 4129).

D. Decisions concerning mechanic's liens, prejudgment remedies, and discharge of lis pendens - 7 days (Sections 49-35c, 52-278l and 52-325c).

E. From summary process decisions - 5 days (Section 47a-35).

F. Temporary injunction in labor cases - 14 days (Section 31-118).

G. From any order or decision which involves a matter of substantial public interest and in which delay may work a substantial injustice - 14 days (Section 52-265a).

H. From a judgment ordering an accounting - 20 days (Section 52-405).

I. From election disputes - 15 days (Section 9-325).

J. From court closure orders - 72 hours (Section 51-165x).

K. Writs of error - 14 days (Sections 52-273 and Section 4144).

L. Certain habeas corpus appeals - 10 days to obtain certification (Section 52-470).

M. Certain petitions for new trial - 10 days to obtain certification (Section 54-95(a)).

3. WHERE TO APPEAL

All appeals go to the Appellate Court, except that the following go to the Supreme Court (Section 51-199):

A. Original jurisdiction of Supreme Court in reapportionment cases under 51-199, and constitutional amendment, Article 16, Section 2. See Fonfara v. Reapportionment Commission, 222 Conn. 166 (1992).

B. Decision declaring statute or constitutional provision unconstitutional.

C. Capital, Class A or other felony convictions involving possible (not actual) punishment over 20 years.

D. Election or primary disputes, under 9-323 and 9-325.

E. Reprimand or censure of probate judge under 45-11g.

F. Decision regarding judicial removal, 51-51j.

G. Decision of judicial review council, 51-51r.

H. Important public issue cases under 52-265a.

I. Writ of error, Section 52-272.

As a practical matter, all civil appeals go to the Appellate Court initially. Note that even if the appeal is taken directly to the Supreme Court, the court can still transfer the case to the Appellate Court. State v. Jones, 8 Conn. App. 177, 178, note 1 (1986). See Practice Book 4023.

Zoning appeals in the past were appealable of right. This changed in 1983. Zoning appeals now go to the Appellate Court on certification under 8-8, 8-28 or 8-30.

4. EVENT WHICH TRIGGERS APPEAL TIME

Appeals, as noted, are from judgments which are final, except where a statute provides differently. The questions are: when is a judgment final, and what motions, if any, toll the appeal time?

Section 4009 also provides that judgment enters in a criminal case where there has been a conviction when sentence is pronounced; in a civil jury case when the verdict is accepted in open court; and in a civil court case when the issuance of notice of the decision is made, whether from the bench, or by mail by means of a memorandum of decision, or, as sometimes occurs, a postcard. If notice is by mail, the rule provides that the notice is deemed to have issued on the date of mailing by the clerk.

The clerk of the court is obligated under Practice Book Section 398 to give notice to the attorneys of record, inter alia, of all judgments, decisions, orders, rulings, etc., and is obligated to note on the docket the date of the issuance of such notice. The rule provides in part:

In case of appellate proceedings thereon, the time limited by law for commencing such proceedings shall date from the time when such notice is issued by such clerk.

Section 4009 now provides that if notice of the rendition of the judgment or decision is by mail, the judgment shall be deemed to have been rendered when mailed by the clerk.

The court is entitled to rely on the clerk's notation that notice of judgment was sent to a party and absent a finding to the contrary, the court may assume that notice was received. DiSimone v. Vitello, 6 Conn. App. 390, 393, 505 A.2d 745 (1986); Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 533, 457 A.2d 656 (1983).

The duty of the clerk to notify counsel in writing is mandatory. "Although notice of the rendition or entry of judgment is not essential to a valid judgment; . . . , where notice is required by statute such notice should be given." Graham v. Zimmerman, 181 Conn. 367, 371, 435 A.2d 996 (1980).

There is very often a delay of three to four days in the "issuance of notice" and the actual receipt of the memorandum or postcard by counsel. For example, the memorandum is mailed by the clerk when filed by the judge, and the docket noted accordingly. All that counsel receives is a stamped copy of the memorandum. As often happens, the memorandum is dated when the judge's secretary types it, and for purposes of illustration we can assume that this date is October 1. The judge does not get around to filing it until October 5, and counsel gets it in the mail on October 9. The appeal time under the rule commences when the clerk mails it and notes the docket that he has issued notice, which is usually the same date as the filing stamp. The clerk does not always note on the memo the date of mailing. It is usually the same date as the filing stamp, but not always. The time is not computed from the date that the memorandum is received by counsel, nor is it computed from the date on the memorandum, which, as indicated, merely indicates when the judge's secretary typed it. If in doubt, check the court file. And by all means save the postmarked envelope from the clerk.

Section 4009 now defines "issuance of notice" as mailing by the clerk to counsel. This is consistent with Tilo Co. v. Fishman, 164 Conn. 212, 214, 319 A.2d 409 (1972).

In Tilo, the memorandum was dated July 24, 1970, and "judgment in favor of the plaintiff was rendered on August 3, 1970," apparently meaning that the memorandum was filed on that date. The parties were not notified until November 4, 1970, and the plaintiff, assuming that he had lost his right to appeal, initiated a petition for new trial, to which the defendant demurred, claiming that the plaintiff should have appealed. The demurrer was sustained, and the Supreme Court affirmed, citing Section 398 of the Practice Book, above quoted. The court observed that there was "no need to determine when in fact the notice was issued as the demurrer admitted the date of November 4, 1970" (164 Conn. at 214).

There is no question that the memorandum of decision is the judgment of the court, and the later preparation of the judgment file is not the judgment for purposes of appeal. "The judgment file is merely a clerical document ... as the pronouncement by the court ... is the judgment." Lucisano v. Lucisano, 200 Conn. 202, 206, 510 A.2d 186 (1986); see also LaPre v. Nibo Films, Ltd., 10 Conn. App. 669, 673 n. 4, 525 A.2d 140 (1987); Lento v. Sproul, 9 Conn. App. 441, 519 A.2d 1214 (1987). Judge Shapiro's observations in Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 535, n.2, 294 A.2d 573 (1972) are exactly to the point in this respect:

A judgment is in fact rendered in a cause tried to the court when the trial judge officially announces his decision orally in open court, or, out of court, signifies orally or in a writing filed with the clerk in his official capacity the decision pronounced by him.

Ordinarily a memorandum of decision is the judgment of the court and the subsequent clerical action in writing out of the judgment file, no matter how long it may be postponed, will relate back to the time that the memorandum was filed. (citations omitted).

See also, DeTeves v. DeTeves, 202 Conn. 292, 296 n.6, 502 A.2d 608 (1987); Segretario v. Stewart-Warner Corporation, 9 Conn. App. 355, 360, 519 A.2d 76 (1986); State v. Nardini, 187 Conn. 109, 127, 445 A.2d 304 (1982) ( ". . . In criminal cases subject to sentence review, the imposition of the modified sentence following the action of the sentence review division is merely formal and ministerial).

Sometimes there is no memorandum of decision, nor even a postcard, as the decision is issued from the bench. This is not the common practice in court trials, nor in the court's ruling on a post-trial motion, but it certainly is the common practice in pendente lite and post-judgment divorce motions. In this circumstance, Section 4009 now clearly provides that notice issues when the ruling is pronounced in open court. Even where the rule requires that a memorandum be filed, if the decision is pronounced from the bench, clarification from the court is warranted as to whether a later memorandum will be filed in compliance with the rule, and if so, whether the ruling of the court is deferred until then. If not, the appeal time commences form the pronouncement in open court.

A recent Appellate Court decision has resolved the controversy over statutes that set the triggering event at the "entry of judgment." The appeal time is from issuance of notice of the event appealed from, and a statute providing that an appeal must be filed "within ten days after the entry of" the workers’ compensation commissioner’s award was held to mean within ten days of the issuance of notice of such award. Conaci v. Hartford Hospital, 36 Conn. App. 298, 300-301 (1994).

Citing fundamental due process considerations, the Appellate Court, in a well reasoned decision by Judge Heiman, held that §31-301(a), which provides for an appeal "within ten days after the entry of such award by the commissioner" to the CRB means within ten days after the issuance of notice of the entry of the award. The court stated that it has long been established that the most reasonable interpretation of a limitation provision applicable to appeals to the compensation review board is one that takes into consideration notice to the party aggrieved by the commissioner’s decision. Fundamental rights to procedural due process mandate such a construction. 36 Conn. App. at 301.

The court also noted that the Supreme Court in Kron v. Thelen, 178 Conn. 189, 197 (1979) held that an appeal period for a probate decision commences on the date that the probate court sends notice, and held in Hubbard v. Planning Commission, 151 Conn. 269, 271-272 (1964) that the appeal period for zoning decision commences on the date of publication of the notice of the commission’s decision.

The plaintiff appealed from the commissioner’s decision to the CRB sixteen days after the entry of the commissioner’s decision, and eight days after she had received notice. The Appellate Court remanded for a determination of the date on which notice of the commissioner’s decision was sent to the parties, as the issuance of notice date is essential to assess whether the plaintiff’s appeal was timely. 36 Conn. App. at 304.

The Tort Reform Legislation of 1986 and 1987 have impacted the event from which the appeal is taken. The reason for this is because the court is required to conduct a collateral source hearing before entry of judgment, so that the issuance of notice of the decision on the motion to set aside is no longer, in those cases where the collateral source issue has not been resolved, the "issuance of notice" of the judgment. This is discussed infra. The revisions effective September 3, 1996 have clarified and revised Section 4009. These changes are discussed infra in Part III.

5. TOLLING OF THE APPEAL TIME

Section 4009 of the Practice Book provides in part:

The party appealing shall, within twenty days, . . . from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken, file an appeal . . . ; but if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, . . . the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion . . .

Usually in a criminal case post-trial motions have been resolved prior to sentencing. There is rarely an occasion to file a motion after sentencing so that the time within which to appeal in a criminal case is seldom tolled by the filing of a post trial motion, except a motion for waiver of fees, costs and expenses.

The contrary is usually the rule in a civil case, as entry of "judgment" from which the appeal runs is not deferred to any later date, but either enters when the verdict is accepted in open court, or a ruling is announced in open court, or issuance of notice of the memorandum of decision at a later time is made. On the civil side, as indicated by the rule, the timely filing of a motion which, if granted, would render the judgment ineffective will toll the appeal time until notice is issued of the decision on the motion.

A motion to reargue following a trial court's rendition of judgment tolls the appeal time. Contrary to the established practice of many trial judges, the Appellate Court expressly recognized a motion to reargue as within the inherent power of the Superior Court. It also held that the Section 4009 test for tolling of the appeal time is met by a motion for reargument. K.A. Thompson Electric Co. v. Wesco, Inc., 24 Conn. App. 758, 760 (1991).

The Appellate Court held that where a party files a motion to reargue following the trial court's rendition of judgment, the filing of the motion to reargue tolls the running of the period in which to file an appeal from that judgment. In an unusual memorandum of decision on a motion to dismiss, the court pointed out, 24 Conn. App. at 759, that no statute or trial court rule of practice (at the time the decision was published) specifically authorized the filing of a motion to reargue following the rendering of a judgment. It also pointed out that it has long been recognized to be within the inherent power of the trial court to determine whether such a motion should be considered, and if so, to act on the motion, citing Springfield-Dewitt Gardens, Inc. v. Wood, 143 Conn. 708, 709, n. 1 (1956).

The Appellate Court reasoned that if the trial court has the inherent power to decide motions to reargue, Practice Book Section 4009 provides for tolling, as it expressly provides that if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, the time for filing the appeal is delayed until the issuance of notice of the decision on that motion.

The court also observed that it is the substance of the motion, rather than the title, that controls. Since it is obvious that the granting of a motion to reargue might render the judgment or decision ineffective, it was held to satisfy the test of Section 4009.

This was the first appellate decision which expressly recognized a motion for reargument and which held that it tolled the appeal time. There has been divided authority on the point, with many trial judges even refusing to consider motions for reargument because it was not authorized by statute or rule of court. Effective October 1, 1994 Practice Book Sections 204A and 204B expressly provide for motions to reargue before the Superior Court. The rules make a distinction between those motions which have the effect of tolling the appeal time, and those that do not.

Notwithstanding the language in K.A. Thompson Electric that it is the substance of the motion, rather than the title, that controls, the Appellate Court still has difficulty with the concept of tolling. In Jaser v. Jaser, 37 Conn. App. 194 (1995) the court held that a motion for "reargument, reconsideration, and to set aside judgment" filed within 20 days of the appeal time in a divorce case was in fact a post-judgment motion to modify, and reversed because no showing of substantial change in circumstance was made. The decision is patently wrong. It decided that the motion to reargue was a motion to modify because of the language the trial court used in its memorandum of decision granting relief. The trial court changed some of its orders in response to the motion to reargue. It heard no evidence, but did hear reargument of what had transpired on the trial. For example, the trial court disposed of what it thought was a family asset - a condominium in Quebec. It was pointed out in reargument that the parties had agreed that this asset had been disposed of prior to trial. In addition, an argument was made that the court had misapplied the Child Support Guidelines, which the trial court agreed and reduced child support in accordance with the guideline, and in accordance with the claim made on the trial for child support by the wife. The only real change in the decision came in deferring a $100,000 lump sum alimony award. Instead of payment commencing at the rate of $20,000 per year on the date of the decree, the trial court deferred the commencement of payment of this sum for five years post-decree, based on the husband’s rearguing the financial burden imposed on him by the orders in the decree. The Appellate Court held that this was an impermissible post-judgment modification of a lump sum alimony award. The decision is likely to turn the post-judgment motion practice in divorce cases on its head.

A motion for articulation does not toll the appeal time. In Matka Corp. v. Automated Material Handling, 34 Conn. App. 723 (1994), judgment was rendered March 28, 1994. The defendant filed a motion for articulation requesting that the court articulate the basis for its decision. This motion was filed on April 13, 1994, and the appeal filed April 22, 1994 from the judgment, and from the denial of the motion for articulation.

The court noted that it is inappropriate appellate procedure for defendant to seek review of the denial of a motion for articulation by way of an appeal. The correct procedure is by way of motion for review pursuant to §4054 after the appeal is pending. 34 Conn. App. at 724 n. 1.

The court's analysis was that 4009 expressly provides that if within the appeal period any motion is filed which if granted "would render the judgment or decision ineffective" the period for filing the appeal shall commence from the issuance of notice of the decision on the motion. The motion for articulation seeking to clarify an ambiguity or some incompleteness in the decision of the trial court does not seek to render the judgment or decision ineffective. 34 Conn. App. at 725.

The Tort Reform legislation has the same effect on tolling as it does on the event from which the appeal time runs. The reason for this is because the statutes involved directly refer to the requirement of the court to hold the collateral source hearing prior to the entry of judgment, or to enter a supplemental judgment in certain circumstances. This is discussed infra.

Section 4009 as rewritten preserves tolling and clarifies the rule. These changes are discussed infra, Part III.

6. STAYS OF EXECUTION

Connecticut practice, unlike federal practice and the practice in a great number of states, provides for automatic stays of execution. Section 4046 provides:

In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause; and, if the case goes to judgment on appeal, until ten days after the decision is announced; but if the judge who tried the case is of the opinion that an extension to appeal is sought or the appeal is taken only for delay or that the due administration of justice so requires that judge may at any time, upon motion and hearing, order that the stay be terminated. This section shall not apply to actions concerning attorneys pursuant to chapter 2, to periodic alimony and support orders, as well as to custody or visitation orders in domestic relations matters brought pursuant to chapter 17, to criminal matters brought pursuant to chapter 22 through 30 or to juvenile matters brought pursuant to chapters 31 through 40, other than any transfer orders to the regular criminal docket.

A motion to terminate the stay of execution may be filed before judgment; if it is, it may be ruled upon when judgment is entered. If such a motion is filed before the judgment, or after judgment but before an appeal, it shall be filed in triplicate with the clerk of the superior court. If it is filed after the appeal is filed, an original and three copies shall be filed with the appellate clerk and forwarded to the judge who tried the case and that judge shall file any ruling thereon with the appellate clerk and with the clerk of the trial court wherein the matter was tried. If the judge who tried the case is unavailable, the motion shall be forwarded to the clerk of the court in the judicial district where the case was tried, and shall be assigned for a hearing and decision to any judge of the superior court.

The new rule adds a paragraph which deals with stays pending the filing of a motion to reargue the decision on appeal. If there is no stay of proceedings to enforce the judgment while the appeal was pending, this paragraph provides that there is no stay by reason of the filing of the motion to reargue unless the decision results in any party being in a position different from that which the party was in while the appeal was pending. Prior to this proposed change, all appeals were stayed pending the filing of and decision on a motion to reargue.

Section 4047 of the Practice Book applies to the procedure to be used where the stay of execution is not automatic. An application for stay must be filed with the judge who tried the case unless that judge is unavailable, in which case the application may be made to any judge of the superior court. The application can be filed before judgment, and may be ruled on at the time judgment is rendered, unless the court concludes that a further hearing is necessary.

Section 4048 provides for stays of execution in criminal cases. The rule provides:

If the defendant is admitted to bail, as provided by statute, the appeal shall operate as a stay of execution pending the final determination of the case. If the defendant shall be in custody when admitted to bail, the clerk of the trial court shall forthwith notify the person having custody of the defendant and that person shall release the defendant from custody. If the defendant is committed after being sentenced and before being admitted to bail, the period of imprisonment shall be counted toward satisfaction of the sentence. If the defendant is admitted to bail, but subsequently surrenders and is remitted to custody while an appeal is pending, the period of imprisonment served shall be counted toward satisfaction of the sentence.

In an appeal from a presentence order where the defendant claims that an existing right, such as a right not to be tried, will be irreparably lost if the order is not reviewed immediately, or in any appeal by the state, there shall be a stay after the appeal has been taken which shall continue until final determination of the appeal. This stay is subject to termination by the trial judge in the manner provided in Sec. 4046. The defendant shall be released pending determination of an appeal by the state from any judgment not resulting in a sentence.

Injunctions are not automatically stayed. In a recent case , Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641 (1994) the court held that mandatory and prohibitory injunctions are not automatically stayed pending appeal. A party seeking a stay of an injunction must seek the stay from the trial court. The court explained the difference between permanent mandatory injunction (court order commanding a party to perform an act) and permanent prohibitory injunction (court order prohibiting party from performing an act), 230 Conn. at 652, and held that in both cases a stay is not automatic pending appeal. 230 Conn. at 655. Rather, it is necessary for a party to request a stay of the injunction pending appeal from the trial court. See, §§52-476 and 52-477 of the General Statutes, which provide for injunctions on appeal. A claim was made that the statutes, which do not provide for an automatic stay, were in conflict with the rule and presented a constitutional separation of powers issue, relying on 2 Stephenson, Connecticut Civil Procedure (2d Ed. 1971), §269, p. 1113. The court held that there was no conflict, as Stephenson’s analysis was written before the rule was changed to provide "except where otherwise provided by statute or other law" to the provision governing stays.

7. EXTENSIONS OF TIME TO APPEAL

Subsection (a) of Section 4040 provides for an extension of time to appeal as follows:

If an appeal has not yet been filed, the judge who tried the case may, for good cause shown, extend the time provided for filing the appeal, except as may be otherwise provided in these rules. In no event shall the trial judge extend the time for filing the appeal to a date which is more than twenty days from the expiration date of the original appeal period. Where a motion for extension of the period of time within which to appeal has been filed at least ten days before expiration of the time limit sought to be extended, the party seeking to appeal shall have no less than ten days from issuance of notice of denial of the motion to file the appeal.

The revised rule has added a paragraph at the beginning of the rule which provides that the trial judge has no authority to extend the appeal time if the appeal time is set by statute and is a time limit that the legislature intended as a limit on the subject matter jurisdiction of the court to which the appeal is taken. See Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757 (1993).

Section 4005 provides that filing and form of cross appeals and extensions of time for filing cross appeals are the same as though the cross appeal were an original appeal, except that no entry or record fee need be paid.

Section 4132 provides that motions for extension of time for filing a petition for certification or a statement in opposition shall be governed by Section 4040. Subsection (c)(2) of Section 4040 sets a standard of "extraordinary cause" for the granting of a motion to extend time to file a petition for certification.

An assertion that counsel has been so overburdened by other assignments that he could not reasonably be expected to file a brief within the time allowed cannot be deemed as a matter of law to constitute "extraordinary cause" required by Practice Book Section 4040(c)(2) for an extension of time. State v. Weber, 221 Conn. 84 (1992)

The defendant was convicted of assault and on August 20, 1990, sentenced to five years. The transcript was completed January 8, 1991. The Appellate court granted the defendant three extensions of time within which to file his brief. When granting the third extension, the court added the proviso that the appeal will be dismissed unless the appellant's brief is filed by June 2, 1991. The extensions of time were predicated on defense counsel being a public defender with a heavy appellate and trial caseload. On May 30, defense counsel filed a motion to rescind or amend the final extension seeking an additional thirty days. In his motion he detailed his assignments including a protracted murder trial. This motion was denied and defendant filed a motion for review and a petition for certification which were denied. On October 15, 1991, he filed his brief in the Appellate Court with a motion for permission to file a late brief. The brief and motion were returned by the clerk because the case had been dismissed. On October 16, he filed the brief with a motion to rescind the dismissal order and to reopen. The State supported defendant's motions. The Appellate Court denied these motions and the Supreme Court denied certification.

The Supreme Court noted that defendant may pursue a habeas corpus petition based upon ineffective assistance of counsel.

An assertion that counsel has been so overburdened by his other assignments that he could not reasonably be expected to file a brief within the time allowed cannot be deemed as a matter of law to constitute "extraordinary cause" required by Practice Book Section 4040(c)(2) for an extension of time. If agreement between the defendant and the state were to mandate an extension, the Appellate Court would have little control over its docket. Dismissal is a sanction authorized by Practice Book Section 4055 for failure to file a brief within the time allowed, there is no basis for reviewing this exercise of discretion by the Appellate Court regulating the progress of appeals in that court. 221 Conn. at 84.

DISSENT (Berdon): The Appellate Court abused its discretion. The factual basis is documented in the State's response to defendant's petition for cert:

The State of Connecticut does not, and has not, opposed the limited relief requested by the petitioner because the interests of justice dictate otherwise. There are, of course, instances when the conduct of the defendant, or his counsel, disentitle him to appellate redress. Further, the integrity of the appellate process itself may warrant the kind of action taken by the Appellate Court. In the state's view, however, this is not a case warranting such action. Had there been an indication in the record that...[defense counsel] had been dilatory in the prosecution of this appeal, or that the defendant had, through his own conduct, disentitled himself to an appellate forum, the state would have advocated dismissal of the appeal and opposed its reinstatement. But the record does not indicate this. Rather, it indicates an overworked public defender doing his best to protect his client's appellate rights without sacrificing his [other] clients' rights to a fair trial and effective assistance of counsel at their criminal trials. The delay in this appeal, then, appears to be due to counsel's mammoth caseload and not from his lack of regard for his responsibility to the Appellate Court.

Id. at 91.

8. SUMMARY OF CONNECTICUT APPELLATE PROCEDURE

Since 1978 appellate practice has been centralized, and everything except the appeal is now filed with the appellate clerk in Hartford. We no longer struggle with requests for finding, draft findings, findings, and seek extensions of time for various deadlines from the trial judge. Everything goes to the appellate clerk.

The appeal is filed with the clerk of the trial court, who under Section 4012 is required in non-criminal matters to deliver a docket sheet (DS1) to appellant's counsel, who then files a stamped copy of the appeal with the docket sheet and the 4013 documents, discussed below, with the appellate clerk, whose address is:

Chief Clerk of Supreme/Appellate Court

Drawer Z, Station A

Hartford, CT 06106

There is a form for the appeal, which is available at the clerk's office. The fees are paid to the clerk of the trial court at the time of filing the appeal as follows:

The only other fees required is a $75.00 filing fee on the filing of a petition for certification, payable to the clerk of the trial court as provided in Section 4129; a $60.00 fee for a motion for reargument (P.A. 95-176, Sec. 5(b)) payable to the trial court clerk; and $250.00 for writs of error (P.A. 95-176, Sec. 4)) also payable to the trial court clerk.

Section 4071 (4064B), as amended October 1, 1992, provides for the time for filing and page limitations of briefs in the Appellate and Supreme Court. They are summarized below:

Pre-appeal motions should be filed with the clerk of the trial court even though they directly affect the appeal. For example, a motion to extend time within which to file the appeal under 4040, or a motion for waiver of fees, costs and expenses in prosecuting the appeal under 4017 or 4018 should be filed with the clerk of the trial court.

Under Section 4084 the trial court clerk makes two certified copies of the file and sends them to the appellate clerk within ten days of the filing of the appeal. The appellate clerk gets everything thereafter, so that there is one central control of all aspects of all appeals.

Section 4014 provides that except for the "transcript of evidence or where otherwise indicated, an original and 15 copies of all papers shall be filed with the appellate clerk." There are lots of exceptions, as follows:

1. Section 4012 provides that the appeal is to be filed in triplicate, with sufficient copies for all counsel of record. The revisions change this rule. Now counsel need file only an original, and the clerk makes his or her entries on the original, makes a photocopy and returns the photocopy to counsel.

2. Section 4013 documents, discussed below, which are to be sent to the appellate clerk with an endorsed copy of the appeal and docket sheet, are filed in duplicate (the original and one copy). These are the preliminary statement of issues, designation of pleadings, transcript documents, docketing statement, and the preargument conference statement. The revisions add a draft judgment file as a new requirement, and provide for the "preliminary" designation of pleadings. The "revised" designation of pleadings is now to be filed with the brief.

3. Transcript, one copy (Section 4078) (revised: 4019).

4. Motions - an original and 15 copies (Section 4042).

5. The brief - original and 20 copies (Section 4070) (revised: original and 25 copies for the Supreme Court; original and 15 copies for the Appellate Court (4064A)).

6. The record - original and 20 copies (Section 4092) (The revisions provide under the revised 4092 that the appellant must file the record "in accordance with the instructions which accompany it.")

7. Petition for certification - original and one copy with trial court clerk. After trial court clerk returns the original with clerk's endorsement, petitioner files original plus ten additional copies with appellate clerk (Section 4129).

8. Motions to extend time - original only (Section 4040).

9. Motions to terminate stay of execution - original and 3 copies (Section 4046).

10. Motions for rectification and motions for articulation - original and 3 copies (Section 4051).

11. Withdrawal of appeal or writ of error - original only. Section 4038 does not state the number of copies required, but the practice is to file only an original.

Section 4014 provides that all appellate papers must be certified to other counsel, except the transcript, in which case the clerk gives notice of its filing (Section 4078). The certification must have the names, addresses and telephone numbers of all counsel served. The new rule adds fax numbers. Under the revised Section 4019 a certification requirement is provided on the filing of the transcript. Counsel must now file with it a list itemizing what has been filed, and certify this pleading to all counsel.

Section 4013 provides for the filing with the appellate clerk of the following:

1. An endorsed copy of the appeal form and the docket sheet.

2. A preliminary statement of issues intended for presentation on appeal.

3. Designation of the specific pleadings in the trial court case file which the appellant deems necessary to include in the record, including dates of filing, and, if applicable, their computer number listed on the docket sheet (DS2, not DS1). The revised rules provide for a "preliminary" designation. The "revised" designation must be filed at the time of the filing of the brief.

4. A certificate stating no transcript is necessary, or a copy of the transcript order acknowledgment form (JD-ES-38) filed with the official court reporter pursuant to Section 4019(b); or if the transcript is already in hand, a detailed statement of the transcript to be relied on.

5. A docketing statement (DS1).

6. In non-criminal cases, a preargument conference statement.

7. The revised rules now provide that in non-criminal cases, a draft judgment must be filed. There is an elaborate provision for objection and resolution of disputes concerning the contents of the judgment file by the trial judge.

Section 4013 permits an appellee to raise issues by filing a statement of issues stating alternate grounds upon which the judgment made be affirmed; present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial; assert a claim that a new trial rather than directed judgment should be ordered if the appellant's appeal is successful. The appellee's preliminary statement of issues must be filed 14 days from the filing of the appellant's preliminary statement of issues. (Revised is 20 days).

Either party may of right file amendments to the statement of issues or the designation of pleadings to the time the brief is filed. Amendments to the docketing statement may be filed at any time, and amendments to the transcript statement may be made only with permission of the court. Amendments to the preargument conference statement, if any, should be presented at the preargument conference.

CHANGES TO THE RULES OF APPELLATE PROCEDURE

EFFECTIVE SEPTEMBER 3, 1996

1. Right of appeal: Section 4000 now reads:

An aggrieved party may appeal from a final judgment except as otherwise provided by law.

The rule previously had mirrored the language of §52-263 of the General Statutes, which provided that a party:

. . . may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in §8-8 and §8-9.

Although the commentary to the new rule states that the rule has been "clarified" to refer only to "final judgment," and that the new rule is not meant to restrict appeals from non-final orders where allowed by statute or otherwise, the change will no doubt engender substantial confusion. At a time when the superior court rules are being amended to reflect provisions in statutes, the appellate rules are being "clarified" to delete reference to statutory provisions. The practitioner will not be able to determine what is appealable by looking at the rule. It will be necessary to review the general statutes in order to ascertain, for example, that in Connecticut, unlike federal practice, a decision setting aside a verdict is appealable. In federal practice the grant of a new trial for exactly the same reason that a verdict might be set aside in state practice is not appealable.

2. Appeals from judgments disposing of part of issues, or part of the parties, but not terminating the litigation: This vexing area of appellate practice has now been clarified in §§4002A, 4002B, 4002C and 4002D.

(a) Appeal of judgment on entire complaint, counterclaim or cross complaint. §4002A expands the rule. The previous rule referred only to judgments obtained by rulings on motions to dismiss, motions to strike and motions for summary judgment. The new rule clarifies that so long as an entire complaint, counterclaim or cross complaint is disposed of, it is an appealable final judgment regardless of whether it was obtained by a ruling on a motion to dismiss, to strike, or for summary judgment. The rule has added the phrase "or otherwise," such as following a bifurcated trial. If such a judgment is rendered, an appeal must be taken or notice of intent to appeal under the new §4002D must be filed to preserve the right of appeal. If it is not filed, it will be lost.

(b) Appeal of judgment on part of complaint, counterclaim or cross complaint that disposes of all claims brought by or against one or more parties. If the judgment does not dispose of the case against everyone, but does dispose of all claims against a particular party or parties, such a judgment is now construed as final regardless of whether the judgment was rendered by the granting of a motion to strike, motion to dismiss, or motion for summary judgment "or otherwise." The appeal from this kind of a judgment may also be deferred by filing a notice of intent to appeal under §4002D.

(c) Appeal of judgment that does not dispose of all claims. The rule provides that when a judgment has been rendered that disposes of fewer than all the causes of action in a complaint, counterclaim or cross complaint, and that the judgment does not dispose of all claims against a particular party, the judgment shall not constitute a final judgment for purposes of appeal unless the trial court makes a written determination that the issues resolved by the judgment are of such significance to the outcome of the case that the delay incident to an appeal would be justified. The chief justice or chief judge of the appellate court must concur in the trial court’s determination. The rule sets out the procedure for obtaining written determination of the trial court and the chief justice’s or the chief judge’s concurrence.

(d) Notice of intent to appeal, and objection. Section 4002D provides for deferring the appeal until final judgment is rendered that disposes of the case for all purposes as to all parties. The rule provides that a judgment described in §4002A or §4002B may be deferred by the filing of a notice of intention to appeal within the appeal time. There is a significant change, however, as the rule provides that an objection to deferring the appeal may be made by any party who is no longer a party by reason of the ruling in question. The objection has to be filed within 20 days of the filing of the notice of intent to appeal. If the objection is filed, the appeal "shall not be deferred, and the appellant shall file the appeal within 20 days of the filing of such notice of objection."

The rule also specifically provides in subsection (b) that failure to file a notice of intent to appeal when required is fatal, and raising of such issues in a later appeal will be subject to dismissal as untimely. The rule also provides that the use of notice of intent to appeal is abolished in all instances except those provided in this rule.

3. Responsibility of appellant to provide adequate record. Section 4007 now provides:

It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this rule, the term "record" is not limited to its meaning pursuant to Sec. 4013(a)(2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.

The comment to this rule clarifies that it is not the responsibility of the appellant to provide an adequate record for issues raised by the appellee.

4. Appeal period, the event which triggers it, and extensions. Section 4009 has been completely revised. It is now broken up into four subsections, dealing with the appeal period, the effect of motions filed prior to taking appeal, the effect of motions filed after appeal but before the expiration of the appeal period, and adds the requirement that motions be filed simultaneously.

(a) The appeal period and event which triggers it. The rule now provides that a party has 20 days from the commencement of the appeal period to file the appeal. The period commences on the date notice of the judgment or decision is given. If notice is given in open court, the appeal period commences at that time. If notice is given by mail, the appeal period shall commence on the date the notice was mailed to the parties by the trial court clerk. In a criminal case, where the appeal is from the judgment of conviction the appeal period commences when sentence is pronounced in open court.

In civil jury cases, if no 320 or 321 motions are filed, the appeal period commences upon the expiration of the period, or any extension thereof, for the filing of such a motion. If a 320 or 321 motion is filed, or if a motion for determination of collateral source payments is filed within the appeal time, the appeal time is deferred until the issuance of notice of the decision on the last such outstanding motion.

(b) Motions filed before the appeal is filed. Subsection (b) of the rule contains the tolling language that if any party files a motion, which, "if granted would render the judgment or decision appealed from ineffective, a new appeal period shall commence upon the issuance of notice of the decision on the last such outstanding motion." The rule gives examples of the motions that would render a judgment or decision ineffective. They include, but are not limited to:

Motion to open judgment

Motion for new trial

Motion to set aside verdict

Motion for judgment notwithstanding the verdict

Motion to reargue the judgment or decision being appealed

Motions for collateral source reduction

Motions for clarification, motions for articulation, and motions made pursuant to §334A do not toll the appeal time. The rule also specifically refers to a motion for additur or remittitur, provides that if such a motion is filed within the appeal period, including any extension of the appeal period, a new appeal period shall commence upon the earlier of the acceptance of the additur or remittitur or the expiration of the time set for such acceptance. If the motion for additur or remittitur is denied, a new appeal period commences upon the denial of the motion in open court, or the date the notice of the denial is mailed by the trial court clerk.

The rule also now contains a provision that when a new appeal period has commenced, such period may be extended pursuant to §4040(a) unless there has already been an extension.

(c) Effect of a motion filed after the appeal but before the expiration of the appeal period. In this uncommon situation subsection (c) of the rule provides that if the motion is timely, that is, filed within the appeal period, and it is a motion which, if granted would render the judgment or decision ineffective, further processing of the appeal shall be stayed. When all such motions have been decided, the appellant, within 20 days of the notice of the decision on the last such outstanding motion, is now required to file a statement with the appellate clerk that such motions have been decided, together with a copy of any decision on such a motion. The filing of this statement by the appellant terminates the stay of appellate proceedings, and the date of the filing of the notice shall be treated as the date of the filing of the appeal for the purpose of filing further appellate papers.

(d) Motions must be filed simultaneously. This new provision of the rule provides that motions under §320 or §321 or any motion which, if granted would render the judgment or decision appealed from ineffective, "shall be filed simultaneously, insofar as simultaneous filing is possible."

5. Documents that must be filed with the appeal (§4013). Come September 3, 1996 it will be necessary in civil cases to file the following documents with the appeal:

(a) Preliminary statement of issues. There is no change, except that the appellee now has 20 days instead of 14 days to file his preliminary statement of issues.

(b) Preliminary designation of pleadings in the trial court file. The rule now provides that a preliminary designation be filed. A revised designation must now be filed at the time the brief is filed.

(c) Transcript documents. Either a certificate stating no transcript is necessary, or that the transcript has already been received, or a copy of the transcript order form.

(d) Docketing statement. There is no change in this provision.

(e) Preargument conference statement. There is no change in this provision.

(f) A draft judgment file prepared in the form prescribed by §336 of the Practice Book. Section 336 refers to form 107.1. In this connection it is useful to refer to the 2 Connecticut Practice Book Annotated 286, which has an extensive commentary on form 107.1. A procedure is set out in the new rule which gives the appellee an opportunity within 20 days of the filing of the draft judgment file to disagree with it, with a specific statement, or a separate draft judgment file. The appellate clerk then transmits the appellant’s draft and whatever the appellee files, if anything, to the trial court clerk. The trial court clerk is required within 20 days of the receipt of the documents from the appellate clerk, after consultation with the trial judge if necessary, to file the original judgment file. The appellate clerk then sends copies to all counsel of record.

(g) If the constitutionality of a state statute has been challenged, a notice identifying the statute, the name and address of the party challenging it, and whether the statute’s constitutionality was upheld by the trial court must be filed. The appellate clerk is then required to send a copy of the notice to the attorney general.

The rule has not been changed with respect to the amendment of 4013 documents. The preliminary statement of issues and designation can be amended of right until the brief is filed. The docketing statement can be amended at any time. Amendment to the transcript documents may not be made without permission of the court. If permission is granted the opposing party shall have the right to move for permission to file a supplemental brief and for an extension of time. Amendments to the preargument conference statement are not to be presented in writing, but may be presented orally at the preargument conference, if one is held.

The rule continues to provide in subsection (c) that failure to comply "shall be deemed" as sufficient reason to schedule a case for sanctions or for dismissal.

6. Fees and security. Section 4015 has been amended to delete the requirement for security for costs. The rule now merely covers fees, and expressly provides that security for costs is not required to take an appeal, but security may at any time, on motion and notice to the appellant, be ordered. If security is ordered, it shall be filed with the trial court.

7. Transfer of cases. Section 4023 now provides that when the Supreme Court transfers a case from the Appellate Court to the Supreme Court, or transfers a case from the Supreme Court to the Appellate Court, the clerk is required to notify all parties and the trial court clerk that the appeal has been transferred. There shall be no fee on the transfer. The appellate clerk may require the parties to take such additional steps as may be necessary to make the appeal conform to the rules of the court to which it has been transferred. This refers to the newly created difference in the number of copies of the record and briefs between the Appellate and Supreme Courts.

Section 4024 now requires a party to move for transfer from the Appellate Court to the Supreme Court. The motion, addressed to the Supreme Court, must specify the reasons why the party believes that the transfer should be made. It is no longer permissible to send a letter to the clerk requesting transfer. The filing of a motion for transfer with the Supreme Court does not stay proceedings in the Appellate Court.

8. Extensions of time. Section 4040 now has a provision that the time to appeal may be extended by the trial judge up to 20 days, except that the extension "shall be of no effect if the time within which the appeal must be taken is set by statute and is a time limit that the legislature intended as a limit on the subject matter jurisdiction of the court to which the appeal is taken." The quoted language is new, and is based on Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757 (1993), which held that compliance with a statutory appeal period may effect the court’s jurisdiction over an appeal, and is an issue that must be determined on a statute-by-statute basis.

Subsection (c)(1) has been amended to provide expressly that only an original need be filed, and that certification must comply with §4014 and must also indicate that a copy has been sent to each of the movant’s clients.

9. Automatic stay of execution. Section 4046 has been amended to provide that any stay of proceedings in effect during the pendency of the appeal shall continue until the time for filing a motion for reargument has expired, and if a motion is filed, until is disposition, and if granted until the appeal is finally determined. The rule also provides that if no stay was in effect during the pendency of the appeal and the appellate decision would change the position of any party from its position during the pendency of the appeal, all proceedings to force or carry out the appellate decision shall be stayed until the motion for reargument time has expired, or, if filed, until its disposition.

Section 4048 now provides for a stay of execution where the death penalty is imposed. In this circumstance, pretty much any proceeding seeking a new trial or a reversal will effect an automatic stay.

Section 4049 continues to provide that the sole remedy of any party desiring the court to review an order concerning a stay of execution is by motion for review under §4053. In the past an order terminating the stay of execution was stayed for only five days in order to allow time to file a motion for review. This has been now changed to 10 days.

10. Articulation and rectification. An original and three copies of the motion for articulation or rectification must be filed with the appellate clerk. Statements in opposition are also filed with an original and three copies. If any party requests a hearing, and it is "deemed necessary" by the trial court, that court will hold a hearing. The trial judge is now required to file the decision on the motion with the appellate clerk. The rule now provides that the sole remedy of any party desiring review of the trial court decision on such a motion shall be by motion for review under §4054.

The most significant change is that time limitations have now been imposed. A motion for rectification or articulation "shall be filed within 35 days after the delivery of the last portion of the transcripts or, if none, after the filing of the appeal." If no memorandum of decision was filed before the filing of the appeal, the 35 days will run from the filing of the memorandum of decision. The 35 day deadline can be extended. The rule expressly provides that no motion for rectification or articulation shall be filed after the filing of the appellant’s brief, except for good cause.

A motion for further articulation may be filed by any party within 20 days after the issuance of notice of the filing of an articulation by the trial court.

The comment to the rule points out that "good cause" for the filing of a motion for articulation after the appellant’s brief has been filed would include surprise to the appellee caused by the raising of an issue in the appellant’s brief that was not included in the preliminary statement of issues.

11. Motion for review. Changes in §4053 now make it clear that the existence of an appeal is not a prerequisite to the filing of a motion for review, and that a motion for review can be filed with regard to rulings relating to an appeal that is contemplated but not yet filed. The period for filing a motion for review is 10 days from the issuance of notice of the order sought to be reviewed.

12. Forcing the trial court to write a decision. Section 4059 has been revised "for clarity." It now provides that in decisions which constitute a final judgment for purposes of appeal the court is required to either orally or in writing state its decision on the issues. If the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision, the appellant can file with the appellate clerk a notice that the decision has not been filed in compliance with the rule. The notice must specify the trial judge, the date of the ruling for which no memorandum of decision was filed, and the appellate clerk will "promptly" notify the trial judge.

13. Briefs. The provisions concerning briefs are now contained in §4064 to §4064J. They previously had been contained in §§4065 to 4078. Important changes are:

(a) §4064. Section 4064 now provides, as does §4064A, that the plaintiff and defendant shall be referred to as such rather than as appellant and appellee wherever it is possible to do so.

(b) Format; copies (§4064A).

(1) Unless ordered otherwise, the brief shall be copied on one side of the page only. The font cannot be smaller than 12 point and "no attempt should be made to reduce or condense the typeface in a manner that would increase the content of the document." Script typeface cannot be used. Although the rule states that "unless otherwise ordered" the brief shall be copied on one side of the page, the comment to the rule states that it is the "intent of the Supreme Court that briefs initially filed in that court be printed on both sides of the page." The rule doesn’t say this, and the comment, to say the least, is puzzling.

(2) In the Supreme Court, an original and 25 copies of the brief and appendix must be filed. The certification need be attached to the original brief only. It is necessary to certify that the brief has been sent to counsel and to the trial judge.

(3) If the appeal is in the Appellate Court, an original and 15 copies must be filed.

(4) An appendix of any length can be reproduced on both sides of a page. An appendix in excess of 50 pages must be reproduced on both sides. An appendix in excess of 100 pages must be separately bound.

(5) The color code is the same: light blue for appellants; pink for appellees; white for reply briefs; light green for amicus curiae. A back cover is not necessary, but if one is used, it must be white.

(g) Page limitations and time for filing (§4064B).

(1) There has been no change in page limitations or time for filing briefs. The chart below sets out the page limitations and time requirements:

(2) A party whose interest will not be affected by the appeal and who does not intend to file a brief must inform the appellate clerk of this intent before the deadline for filing the appellee’s brief. If an appellee supports the position of an appellant, that appellee must meet the appellant’s time schedule for filing a brief.

(3) Permission for oversized briefs must be addressed to the chief justice or the chief judge by letter, filed with the appellate clerk, stating the "compelling" reason for the request and the number of additional pages sought.

(4) If a state constitutional issue is raised as an independent ground for relief, the clerk "shall, upon request by letter, grant an additional five pages for the appellant and appellee briefs, and an additional two pages for the reply brief, which pages are to be used for the state constitutional argument only."

(h) Appellant’s brief (§4064C). Although the comment to this rule says that some sections of the rule were "rewritten for clarity," there are three changes:

(1) The argument on each point raised must include a separate "brief" statement of the standard of review that the appellant believes should be applied.

(2) Unless essential to review a claimed error, a "verbatim statement of the entire charge" to the jury should not be included in the brief or appendix. It is difficult to understand how an appellate court can review the charge "as a whole" without the entire charge being reproduced in the appendix.

(3) Organization of brief: The brief must now be organized in the following order:

Table of Contents

Statement of Issues

Table of Authorities

(For Amicus) Statement of Interest of the Amicus Curiae

Statement of Facts

Argument

Conclusion and Statement of Relief Requested

Signature

Certification Pursuant to §4014

The only change is that the table of contents, if used, as it is not required, now comes first. In the past the universal practice was to put the statement of issues first, and then the table of contents, if used.

(i) Appellee’s brief (§4064D).

(1) The appellee must include a separate brief statement of the standard of review that should be applied.

(2) The organization of the brief is the same as for the appellant.

(3) If there is a cross appeal, the brief must clearly label which sections of the brief refer to the appeal and which to the cross appeal.

(j) Amicus brief (§4064F). An application for permission to appear as amicus curiae and to file a brief must be filed within 20 days after the filing of the brief of the party whom the applicant intends to support, if any. If none, the application must be filed no later than 20 days after the filing of the appellee’s brief. The length of the amicus brief, if amicus status is permitted, "shall not exceed ten pages unless a specific request is made for a brief of more than that length." If the amicus wants a longer brief, the application must specifically set forth the reasons to justify the filing of a brief in excess of ten pages.

The rule now provides that an amicus curiae "may argue orally only when a specific request for such permission is granted by the court in which the appeal is pending.

Provision is now made for the Attorney General to appear and file a brief as amicus of right if an appeal in a non-criminal matter involves an attack on the constitutionality of a state statute. The Attorney General must give notice of his intention to appear and file a brief on the same time frame that the brief is due of the party whom the Attorney General supports. The Attorney General’s brief will be due 20 days after the filing of this party’s brief.

(k) The appendix (4064G).

(1) The rule now provides that multiple appendices are not permitted. It also sets out what the court considers the "appropriate" function of an appendix. The rule now provides that an appendix is not required in either a court or jury case, except where an opinion is cited that is not officially reported, in which case the text of the opinion has to be in the appendix. The rule suggests that the appendix may be used to excerpt lengthy exhibits or quotations from the transcript, or to include portions of the charge or the requests to charge. The rule states that to "reproduce a full transcript or lengthy exhibit when an excerpt would suffice is a misuse of an appendix."

(2) The pagination is now set out. Pages must be numbered consecutively and preceded by the letter "A," for example A1, A2, A3. Besides a table of contents, if testimony is excerpted the appendix "shall also have an index of the names of witnesses whose testimony is cited within it. If part of the testimony of a witness is omitted, this must be indicated by asterisks, and after giving the name of the witness, the appendix must indicate the party who called the witness, and whether the testimony was elicited on direct, cross or other examination.

(3) Section 4064H requires that a decision not officially reported must be included in the appendix.

14. Preargument conference. Section 4103 now sets out the matters to be considered at a preargument conference. They are:

(a) Possibility of settlement;

(b) Simplification of issues;

(d) Transfer to the supreme court;

(e) Timetable for the filing of briefs;

(f) En banc review; and

(g) Such other matters as the conference judge shall consider appropriate.

15. Oral argument. Section 4108 provides that the time "occupied in the argument of any case shall not exceed one half hour on each side, without special leave of the court, granted before argument begins." The Appellate Court beginning in April 1996 has restricted argument to twenty minutes for each side. The Appellate Court assignment list beginning in April 1996, citing Practice Book §4108, states:

The time for oral argument is limited to twenty minutes for each side.

It is always a mistake to read an argument from a prepared text. Section 4109(a) states that "oral argument should clarify and focus arguments in the written briefs. The court discourages oral argument read from a prepared text and lengthy quotations from legal precedents, the transcript, or the record." The same rule also now provides that "counsel should assume that the court has read the briefs in advance of oral argument." It also now states that rebuttal argument must be confined to points presented by the argument of opposing counsel.

16. Consideration en banc and reconsideration when the court is evenly divided. Section 4111 provides that when the court is evenly divided as to the result, it shall "reconsider the case, with or without oral argument, with an odd number of justices or judges."

Section 4112, now captioned "Consideration en Banc" provides that before a case is assigned for oral argument the chief justice or chief judge may order on motion of a party or suo motu that the case be heard en banc. After argument but before decision the entire court may order that the case be considered en banc. If this occurs, either reargument en banc shall be ordered, or the justices or judges who did not hear oral argument shall listen to the tapes of oral argument before participating in the decision.

17. Costs. Section 4118 now provides that a bill of costs must be filed with the Appellate clerk no later than 30 days after the notice of the appellate decision or the denial of a motion for reargument, or the denial of a petition for certification, whichever is latest.

18. Motions for reargument or reconsideration and motions for en banc reargument (§4121). The rule has been modified slightly to require that the motion filed with the appellate clerk be accompanied by a receipt showing that the fee for the motion was paid or waived. The ten day requirement has not been changed. The time runs from the date of official release of the decision. The fee may be paid to any trial court clerk in the state.

It is no longer necessary to file a separate motion for reargument en banc. The rule now specifically states that as part of the motion for reargument or reconsideration, a party may also request reargument en banc by captioning the motion "for reargument or reargument en banc" and requesting such relief in the alternative.

The fee for the motion for reargument is new, created in Public Act 95-176, §5(b), and is $60.00.

19. Petition for certification. There has been no change except that if a waiver of fees, costs and expenses has been granted no fee need be paid the trial court clerk. In addition, no fee is charged in workers’ compensation cases. Subsection (b) of the rule restores the cross petition for certification practice which existed before 1986. The rule now provides for a cross petition within 10 days of the filing of the original petition. If the petition is granted §4138 now provides that security is unnecessary. All the appellant need do upon the granting of a petition is certify that the fees have been paid and file a docketing statement.

20. Writs of error. The procedure for writs of error has been clarified and amplified in §4144. Public Act 95-176, §4 requires a filing fee in the amount of $250.00. Upon payment of the filing fee, the writ, if in proper form and if presented for signature within two weeks after the rendition of the judgment or decree complained of, "shall be allowed and signed by a judge or clerk of the court in which the judgment or decree was rendered."

The manner of service and return of the writ is set out in subsection (b).

21. Reservations (§4147). The rule has been rewritten to provide guidance to the practitioner in the preparation and filing of reservations. The rule now requires that before any issue is reserved, counsel must file a stipulation which states the question upon which advice is desired, that the determination of this question by the appellate court having jurisdiction would be in the interest of simplicity, directness and economy in judicial action, that the answers to the questions will determine or are reasonably certain to enter into the final determination of the case. The stipulation must also designate the pleadings which are necessary for the presentation of the questions to be reserved, and shall state the facts which are essential for the determination of the issue.

RECENT CASES ON APPELLATE PRACTICE AND PROCEDURE

TABLE OF CONTENTS

Page

1. Aggrievement 1

2. Appealability 3

3. Appealability as Affected by Tort Reform 15

4. Appellate Counsel 19

5. Appellate Courts 22

6. Appellate Jurisdiction 24

7. Articulation and Rectification 31

8. Cross Appeal and Alternate Grounds 43

9. Dismissal of Appeal 45

10. Error 47

(a) Preservation of error 47

(i) Charge 47

(ii) Rulings 61

(iii) On appeal 63

(iv) Miscellaneous 68

(b) Harmless error 70

(d) Plain error 71

11. Frivolous Appeal 77

12. General Verdict Rule 78

13. Judicial Notice 86

14. Motion to Set Aside - Jury Cases 87

15. Motion to Set Aside - Court Cases 92

16. Oral Argument 94

17. Remand 96

18. Reservation 98

19. Sanctions 100

20. Scope of Review 101

21. Standards of Review 103

22. Statutory Construction 113

23. Video Appeals 114