ADRIANA RUIZ ET AL. v. VICTORY PROPERTIES, LLC
AC 39381
Appellate Court of Connecticut
April 10, 2018
Prescott, Elgo and Beach, Js.
******************************************************
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
******************************************************
Syllabus
The plaintiffs, O and her minor daughter, A, sought to recover damages from the defendant, V Co., the owner of an apartment building where the plaintiffs resided, for personal injuries sustained by A as a result of V Co.‘s alleged negligence. Following the commencement of the action, the court granted the plaintiffs’ motion to cite in as a defendant K, the managing member of V Co., and I Co., a company for which K was the president and a director. The plaintiffs then filed an amended complaint alleging negligence against V Co. in the first two counts and fraudulent transfer against V Co. and I Co. in the third count, and, in the fourth count, they sought to pierce the corporate veil to hold K personally liable for any wrongful conduct alleged in count three against V Co. and I Co. Thereafter, V Co. filed a motion for summary judgment, and I Co. and K filed a separate motion for summary judgment as to counts three and four. The trial court granted V Co.‘s motion and rendered summary judgment in its favor. The next day, the trial court granted the motion for summary judgment filed by I Co. and K and rendered judgment thereon, concluding that the counts against them were derivative of the counts against V Co. The plaintiffs thereafter appealed to this court challenging only the summary judgment rendered in favor of V Co. This court reversed the summary judgment and, on the granting of certification, V Co. appealed to our Supreme Court, which affirmed this court‘s judgment. Subsequently, the plaintiffs filed a motion to open the summary judgment rendered in favor of I Co. and K pursuant to the applicable statute (
Argued December 6, 2017—officially released April 10, 2018
Procedural History
Action to recover damages for, inter alia, personal injuries sustain by the named plaintiff as a result of the defendant‘s alleged negligence, and for other relief, brought to the Superior Court in the judicial district of New Britain, where the court, Vacchelli, J., granted the plaintiffs’ application for a prejudgment remedy; thereafter, the court, Swienton, J., granted the plaintiffs’ motion to join John R. Kovalcik and Interpros, Inc., as defendants; subsequently, the defendant John R. Kovalcik et al. filed an apportionment complaint against Saribel Cruz et al.; subsequently, the court, Pittman, J., granted the defendants’ motions for summary judgment and rendered judgment thereon, from which the plaintiffs appealed to this court, which reversed the trial court‘s judgment as to the named defendant and remanded the case to the trial court with direction to deny the motion for summary judgment filed by the named defendant and for further proceedings; thereafter, the named defendant, on the granting of certification, appealed to our Supreme Court, which affirmed this court‘s judgment; subsequently, the court, Swienton, J., denied the plaintiffs’ motion to open the judgment as to the defendant John R. Kovalcik et al., and the plaintiffs appealed to this court. Affirmed.
Lorinda S. Coon, with whom, on the brief, were John M. O‘Donnell and
Opinion
PRESCOTT, J. In this appeal from the judgment of the trial court denying a motion to open a summary judgment, we consider the interplay between (1)
The plaintiffs, Adriana Ruiz and Olga Rivera,3 claim on appeal that the trial court improperly declined to open a summary judgment on counts three and four of their complaint that had been rendered years earlier in favor of the defendants, Victory Properties, LLC (Victory), John R. Kovalcik, and Intepros, Inc. (Intepros). In the plaintiffs’ view, the fourth month limitation period contained in
The following procedural history is relevant to this appeal. The plaintiffs initiated this personal injury action in January, 2009, against Victory, their landlord, to recover money damages arising from injuries that Ruiz sustained while playing in the rubble strewn backyard of the apartment building where she lived. Specifically, the plaintiffs alleged in counts one and two of their complaint that Ruiz, who was seven years old at the time, suffered serious head injuries when her ten year old neighbor took a piece of a cinder block from the backyard, “carried it up to his family‘s third floor apartment and dropped it onto [her] head from a window or the balcony of that apartment.” See Ruiz v. Victory Properties, LLC, 315 Conn. 320, 323, 107 A.3d 381 (2015). The plaintiffs asserted that Victory was negligent because it had failed to remove loose concrete and other debris from the apartment building‘s backyard where it knew or should have known that children were likely to play, and that Victory‘s negligence was the proximate cause of Ruiz’ injuries.
In May, 2009, the plaintiffs filed an application for a prejudgment remedy of attachment with respect to five buildings owned by Victory. According to the plaintiffs, Victory had informed them that it did
On November 30, 2009, the plaintiffs filed a motion to cite in as additional defendants in the action Kovalcik, who was the managing member of Victory, and Intepros, a company for which Kovalcik was the president and a director. According to the plaintiff, Kovalcik, acting on behalf of Victory, granted a $500,000 mortgage to Intepros with respect to the attached real properties, presumably with the goal of shielding those assets in the event Victory was found liable on the negligence counts. The court granted the motion on December 23, 2009, and the plaintiffs filed and served an amended complaint that included two additional counts. Counts one and two of the amended complaint continued to sound in negligence against Victory. Count three alleged violations of the Uniform Fraudulent Transfer Act,
On April 23, 2010, Victory filed a motion for summary judgment, arguing that it had no legal duty to protect a tenant from injuries caused by the intentional act of another tenant. That same day, Kovalcik and Intepros filed a motion seeking summary judgment with respect to the fraudulent transfer counts. They argued that those counts were derivative of the negligence counts in that the plaintiffs would be precluded from recovering against Kovalcik and Intepros if the court rendered summary judgment in favor of Victory on the negligence counts. The plaintiffs filed an objection directed at both motions for summary judgment, arguing that the defendants had “failed to show that they were entitled to judgment as a matter of law on any of the counts or on any legal theory.” They also filed a memorandum of law in support of their objection that focused entirely on the negligence counts, failing to address in any way the argument that if the court rendered summary judgment on the negligence counts it also should render summary judgment on the fraudulent transfer counts.
The court, Pittman, J., issued a memorandum of decision on October 5, 2010, granting Victory‘s motion for summary judgment. The court concluded that the material facts were not in dispute and that there was no evidence from which a reasonable trier of fact could conclude that the type of incident that led to Ruiz’ injuries was reasonably foreseeable by Victory, nor was there a compelling public policy reason to impose a duty on the landlord in this case.7
The plaintiffs, on October 21, 2010, filed a motion seeking reconsideration and an opportunity to reargue both summary judgment decisions. Although the discussion in the motion was limited to the court‘s analysis regarding the negligence counts, the request for relief asked the court to reconsider its decisions on both motions for summary judgment. The court denied the motion the same day without discussion.
The plaintiffs filed an appeal with this court on November 2, 2010. The corresponding appeal form indicates that the plaintiffs sought to challenge only the summary judgment rendered on October 5, 2010, which was the summary judgment granted in favor of Victory. On November 12, 2010, however, Kovalcik and Intepros filed a motion asking this court to dismiss the appeal as to them. This court denied that motion on February 9, 2011, issuing an order to all parties clarifying that it was unnecessary to dismiss the appeal as to Kovalcik and Intepros because the plaintiffs’ appeal was filed only from the summary judgment rendered in favor of Victory and the plaintiffs had not sought permission to amend the appeal to include the summary judgment rendered on October 6, 2010.
Despite notice that the Appellate Court did not consider the October 6, 2010 summary judgment rendered in favor of Kovalcik and Intepros to be part of the judgment challenged on appeal, the plaintiffs never sought permission to file a late amended appeal or to indicate otherwise their intent to challenge the October 6,
On May 1, 2012, this court issued its decision reversing the trial court‘s summary judgment in favor of Victory. Ruiz v. Victory Properties, LLC, 135 Conn. App. 119, 43 A.3d 186 (2012), aff‘d, 315 Conn. 320, 107 A.3d 381 (2015). This court agreed with the plaintiffs that the trial court improperly had concluded on the evidence submitted that Victory owed them no duty of care as a matter of law. Our Supreme Court subsequently granted Victory‘s petition for certification to challenge the judgment of this court. On January 20, 2015, our Supreme Court issued its decision affirming our reversal of the trial court‘s summary judgment in favor of Victory, concluding that there were genuine issues of material fact that must be left for the trier of fact. Ruiz v. Victory Properties, LLC, supra, 315 Conn. 347. Victory filed a motion for reconsideration en banc, which our Supreme Court denied on March 4, 2015.
On April 24, 2015, the plaintiffs filed a motion pursuant to
Kovalcik and Intepros filed a joint objection to the motion to open. They argued that although our Supreme Court had ruled in favor of the plaintiffs, the case was remanded for a trial only as to the counts against Victory, that the plaintiffs had chosen not to appeal from the October 6, 2010 judgment in favor of Kovalcik and Intepros, and that “four and one-half years postdecision, the plaintiffs have long waived any claim or motion to reopen the [judgment].” Both sides filed memoranda of law in support of their respective positions.
On June 7, 2016, the court, Swienton, J., heard oral argument on the motion to open. On June 17, 2016, it denied the motion. After briefly setting forth the relevant facts and applicable law, the court concluded as follows: “Although the plaintiff[s] argue that ‘good cause’ exists for the judgment to be opened, good cause is not the proper standard for the court to consider in opening the judgment. The defendants argue that the proper procedure for challenging the judgment would have been to file an appeal. The plaintiffs make the argument that the matter was stayed due to the filing of the appeal [against Victory] and, therefore, time somehow stood still while the appeal was pending. However, the judgment entered against
The plaintiffs’ sole claim on appeal is that the court abused its discretion by denying their motion to open as untimely. The plaintiffs argue, as they did before the trial court, that the automatic stay provision of
We begin with our standard of review and applicable legal principles. Ordinarily, our review of a court‘s decision to deny a motion to open is limited to whether the court abused its discretion. See Flater v. Grace, 291 Conn. 410, 419, 969 A.2d 157 (2009) (“We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” [Internal quotation marks omitted.]). Nevertheless, to the extent that our consideration of the court‘s exercise of its discretion in this case turns on the proper application of statutory provisions or our rules of practice, this involves a question of law over which we exercise plenary review. See Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010).
Turning to the applicable law, we begin by discussing the doctrine of finality of judgments, which is implicated in the present appeal. Generally, courts recognize “a compelling interest in the finality of judgments which should not lightly be disregarded. Finality of litigation is essential so that parties may rely on judgments in ordering their private affairs and so that the moral force of court judgments will not be undermined. The law favors finality of judgments . . . .” 46 Am. Jur. 2d 543–44, Judgments § 164 (2017). This court has emphasized that due consideration of the finality of judgments is important and that judgments should only be set aside or opened for a strong and compelling reason. See Lewis v. Bowden, 166 Conn. App. 400, 403, 141 A.3d 998 (2016); see also Brody v. Brody, 153 Conn. App. 625, 631-32, 103 A.3d 981, cert. denied, 315 Conn. 910 (2014), and cases cited therein. It is in the “interest of the public as well as that of the parties [that] there must be fixed a time after the expiration of which the controversy is to be regarded as settled and the parties freed of obligation to act further in the matter by virtue of having been summoned into or having appeared in the case. . . . Without such a rule, no judgment could be relied on.” (Citation omitted; internal quotation marks omitted.) Bruno v. Bruno, 146 Conn. App. 214, 229, 76 A.3d 725 (2013). “[T]he modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments . . . .” Urban Redevelopment Commission v. Katsetos, 86 Conn. App. 236, 241, 860 A.2d 1233 (2004), cert. denied, 272 Conn. 919, 866 A.3d 1289 (2005).
Protecting the finality of judgments is the primary purpose behind the legislature‘s enactment of
Our Supreme Court has instructed courts to look to the date when the judgment the party seeks to open or set aside became final in calculating the start of the four month limitation period in
Nelson thus stands for the proposition that, under limited circumstances, the date a judgment is deemed final shifts from the date the judgment was rendered by the court until such time as that court disposes of any postjudgment motions that, if granted, would affect the substantive rights of the parties. In Kim v. Magnotta, supra, 249 Conn. 109, our Supreme Court also recognized that, “in some situations, the principle of protection of the finality of judgments must give way to the principle of fairness and equity.” Neither Nelson nor Kim, however, concludes, or can be read to imply, that the filing of an appeal from a related judgment suspends the finality
Turning to the present case, the court rendered summary judgment in favor of Kovalcik and Intepros on October 6, 2010. The stated ground for the court‘s decision was that the claims against them were “derivative” of the plaintiffs’ negligence claims against Victory and, because the court had granted Victory‘s motion for summary judgment in a separate decision dated October 5, 2010, the claims against these latter defendants “cannot survive.”12 Irrespective of the reasons for granting the motion for summary judgment, the court‘s judgment disposed of all counts of the complaint brought against Kovalcik and Intepros. Thus, it constituted a final judgment with respect to those parties. See
Our Supreme Court has indicated that the four month limitation period in
Finally, we turn to the plaintiffs’ primary argument on appeal, namely, that
First, construing the automatic appellate stay provision in the expansive manner suggested by the plaintiffs would be in direct conflict with existing case law. In this state, the filing of an appeal does not divest the trial court of jurisdiction or authority to continue to act in the matter on appeal.13 To the contrary, our Supreme Court has clarified on numerous occasions that trial courts in this state continue to have the power to conduct proceedings and to act on motions filed during the pendency of an appeal provided they take no action to enforce or carry out a judgment while an appellate stay is in effect. See RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 682, 691-92, 899 A.2d 586 (2006) (trial court properly may open judgment despite pending appeal and may even reverse itself rendering appeal moot); Ahneman v. Ahneman, 243 Conn. 471, 482, 706 A.2d 960 (1998) (“[i]t is well established that a trial court maintains jurisdiction over an action subsequent to the filing of an appeal“), and cases cited therein. The automatic stay prohibits only those actions that would execute, effectuate, or give legal effect to all or part of a judgment challenged on appeal. See Caruso v. Bridgeport, 284 Conn. 793, 803, 937 A.2d. 1 (2007); Cunniffe v. Cunniffe, 150 Conn. App. 419, 435 n.12, 91 A.3d 497 (2014).
Second, the plaintiffs appear to misconstrue the scope and purpose of the automatic stay provision of
We recognize that our jurisprudence regarding the finality of judgments, preservation of appellate issues, and limitations on a party‘s right to seek collateral relief from a judgment is, at times, somewhat opaque and fraught with potential pitfalls for attorneys and self-represented litigants. The plaintiffs in the present case appear to have misapprehended these rules, as is apparent from their failure to appeal from the October 6, 2010 judgment on the mistaken belief that the unchallenged judgment could later be opened and set aside by the trial court if they were successful in overturning the summary judgment in favor of Victory. Nevertheless, Kovalcik and Intepros were entitled to rely upon the finality of the decision rendered in their favor once the applicable appeal period had passed. The plaintiffs’ attempt to revive the claims against them by filing a motion to open well outside the statutorily prescribed time period was not, as the trial court indicated, a proper substitute for an appeal.
The judgment is affirmed.
In this opinion the other judges concurred.