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PRACTICE AND PROCEDURE, Vol. 13 No. 3 (1995) By William F. Gallagher Editor CONNECTICUT APPELLATE PROCEDURE: AN OVERVIEW Editor's Note: This paper was prepared for the CTLA Appellate Practice Seminar held April 8, 1995. 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 (Section 51-197a); B. From certain decisions concerning mechanic's liens, prejudgment remedies, and summary process decisions (Sections 49-35c; 52-2781; 52-325c; and 47a-35); C. From temporary injunctions in labor cases (Section 31-118); D. 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); E. From election disputes (Section 9-325); F. From court closure orders (Section 51-164x); G. From Workers' Compensation Commissioner decisions in wrongful discharge cases (Section 31-290a); H. From decisions in zoning cases (Sections 8-8; 8-9; 8-28; and 8-30) after certification is granted; I. From decisions of the Appellate Court, to the Supreme Court, by certification (Section 52-197f); J. From a judgment ordering an accounting (Section 52-405); K. From criminal appeals by the State, with permission (Section 54-96); L. From certain habeas corpus appeals (Section 52-470); after certification, and M. 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 (1995 Edition), pp. 24-49. 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. . . 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, 52-2781 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 post-marked 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 from 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. 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 postjudgment 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. 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 chapters 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. 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. 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: Supreme Court Appellate Court Entry: $250.00 $250.00 Record: none none The only other fee 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. Section 4071, 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: No cross appeal Cross appeal Time 45/30/20 45/30/30/20 Pages 35/35/15 35/50/40/15 Colors requirement for briefs (4070): Appellant: Light blue Appellee: Pink Reply Brief: White Amicus: Green 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. 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. 3. Transcript, one copy (Section 4078). 4. Motions - an original and 15 copies (Section 4042). 5. The brief - original and 20 copies (Section 4070). 6. The record - original and 20 copies (Section 4092). 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. 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).[fn1] 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. 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. 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. A sample appeal form, docket sheet, transcript order form, preargument conference statement form, and 4013 documents in various types cases appear in the seminar materials. [fn1] DS1 merely has the names of the parties and counsel. DS2 is the docket sheet that has all of the entries in the file, along with computer numbers. Because the rule now requires computer numbers on the designation, it is desirable, but not required, that the DS2 be obtained from the clerk when obtaining the DS1. This should be done before filing the appeal. The computer numbers can also be obtained by going through the court file. The number is usually written in ink at the bottom of the first page of the document. |