204 Conn.App. 163
Conn. App. Ct.2021Background
- Landlord (Atlantic St. Heritage Assocs., LLC) obtained a judgment of possession in a commercial summary process action after the tenant (Paul N. Bologna) was defaulted for failure to plead. Judgment entered December 8, 2020.
- Defendant filed a motion to open the judgment on December 9, 2020 (within the five‑day statutory appeal period of Conn. Gen. Stat. § 47a‑35). The court denied the motion to open on December 16; notice issued December 18.
- The defendant filed an appeal on December 18, 2020 (the same day notice issued). The plaintiff moved in the trial court seeking a determination that no appellate stay existed because (a) the appeal was not filed within five days of the judgment and (b) a motion to open does not extend the appeal period.
- The trial court agreed with the plaintiff and ruled there was no automatic appellate stay; defendant sought appellate review under Practice Book § 61‑14.
- The Appellate Court granted the defendant’s motion for review, concluded Young v. Young controlled, held the timely‑filed motion to open tolled the initial five‑day appeal period, found the defendant’s appeal timely from the notice of denial, and vacated the trial court’s order (execution stayed pending final determination).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a motion to open filed within the § 47a‑35 five‑day appeal period tolls/suspends that period and the automatic stay. | Motion to open does not extend or toll the five‑day appeal period; appellant failed to appeal within five days of the judgment, so no stay exists. | A motion to open filed within the statutory period is a motion that, if granted, would render the judgment ineffective under Practice Book § 63‑1(c)(1), and thus suspends the five‑day period until ruling. | Held for defendant: motion to open filed within five days suspended the initial appeal period; new appeal period began on notice of denial; appeal timely. |
| Whether the trial court’s reliance on earlier App. Sess. precedent (Maccio) or Lopez undermines Young. | Cited older authority to argue motion to open does not toll appeal period in summary process. | Argued Young controls and supersedes any inconsistent earlier authority. | Held Young controls; Maccio to the extent inconsistent with Young is no longer good law; Lopez limited to situations where motion to open was filed after the five‑day period. |
| Effect of a timely appeal after denial of a motion that tolled the initial period on execution/stay. | No stay because initial five‑day window expired without a direct appeal from the judgment. | If appeal taken within the new period (after denial), § 47a‑35(b) stays execution until final determination. | Held execution is stayed under § 47a‑35(b) because the appeal was timely following denial of the motion to open. |
Key Cases Cited
- Young v. Young, 249 Conn. 482 (1999) (a timely motion that could render a judgment ineffective suspends the § 47a‑35 five‑day appeal period until denial, and a new appeal period begins on notice of that denial)
- HUD/Barbour‑Waverly v. Wilson, 235 Conn. 650 (1995) (the five‑day appeal limitation in § 47a‑35 is jurisdictional)
- Lopez v. Livingston, 53 Conn. App. 622 (1999) (filing a motion to open after the § 47a‑35 period does not stay execution; case does not control where motion was filed within the statutory period)
- Bayer v. Showmotion, Inc., 292 Conn. 381 (2009) (summary process is an expedited statutory remedy that must be narrowly construed)