Morneau v. State

Feb 4, 2014
AC35594
Versions:148 Conn. App. 68
83 A.3d 729
2014 WL 297978
2014 Conn. App. LEXIS 40

favor of the correctness of the court‘s decision to deny the motion to open, we are left to conclude on the basis of our review of the limited record provided that the court acted reasonably and did not abuse its discretion in denying the defendant‘s motion.10

The judgment is affirmed.

In this opinion the other judges concurred.

Opinion

PER CURIAM. The plaintiff, Ricky A. Morneau, appeals from the judgment of the trial court, Wiese, J., rendered when the court denied the plaintiff‘s motion to open the judgment, which he filed on October 5, 2012. Previously, on November 25, 2009, the trial court, Pittman, J., rendered judgment of dismissal in favor of the defendants, the state of Connecticut and the State Marshal Commission,1 due to the lack of subject matter jurisdiction on the ground of sovereign immunity. Judge Wiese found that the plaintiff‘s motion to open the judgment failed to comply with Practice Book § 17-42 and that the plaintiff had failed to demonstrate that any exception to the four month limitation in that rule was applicable. See General Statutes § 52-212a.3 On the basis of our review of the record, the briefs of the parties and their oral arguments in this court, we conclude that Judge Wiese did not abuse his discretion in denying the plaintiff‘s motion to open the judgment, which was filed almost three years after the judgment was rendered. We, therefore, affirm the judgment of the trial court.

The judgment is affirmed.

Notes

1
The defendants Timothy Bennett and John Harvey, administrator of the estate of Albenie Gagnon, are not parties to this appeal.
2
Practice Book § 17-4 (a) provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court.” (Emphasis added.)
3
General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment . . . rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered . . . .” (Emphasis added.); but see Nelson v. Charlesworth, 82 Conn. App. 710, 713, 846 A.2d 923 (2004) (judgment may be opened after four month limitation if judgment was obtained by fraud or mutual mistake).
10
Pursuant to Practice Book § 61-10, which was amended to take effect after the defendant filed his second motion to open, this court will no longer decline to review a claim on appeal solely on the basis of a party‘s failure to seek an articulation. See Practice Book § 61-10 (b). As stated in the commentary to the rule, however, the new subsection (b) that was created by the amendment was not intended to preclude this court from “declining to review an issue where the record is inadequate for reasons other than solely the failure to seek an articulation, such as, for example, the failure to procure the trial court‘s decision pursuant to [Practice Book §] 64-1 (b) . . . .” Practice Book § 61-10, commentary. The new subsection also in no way alters the responsibility of an appellant to ensure that the appellate record is perfected for proper presentation of all claims raised. In the present case, we do not decline to review the defendant‘s claim, rather we review the claim on the record provided. Nor is our resolution founded solely upon the defendant‘s failure to seek an articulation, but upon his failure to procure a memorandum of decision.