DAVID SIMMONS v. SCOTT WEISS ET AL.
(AC 38610) (AC 38657)
Appellate Court of Connecticut
September 5, 2017
Alvord, Mullins and Bear, 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 plaintiff sought to recover damages for, inter alia, medical malpractice from the defendants, W, a podiatrist, B, a physician‘s assistant, and a hospital, in connection with a surgery in which two of the plaintiff‘s toes were amputated, allegedly without the plaintiff‘s informed consent. Thereafter, the hospital and B filed a motion to dismiss the action as against them on the ground that the plaintiff had failed to obtain and file a written opinion of a similar health care provider as required by statute (
- This court had jurisdiction over the defendants’ appeals; although the granting of a motion to open a judgment generally is not immediately appealable, an exception to that general rule is applicable when, as in the present case, an appellant asserts a colorable claim that the trial court lacked the authority to open the judgment.
- This court concluded that the trial court improperly granted the plaintiff‘s motion to open the judgment of dismissal and remanded the case with direction to dismiss the motion to open, the trial court having lacked authority to open the judgment because the plaintiff filed his motion to open more than four months after the judgment of dismissal was rendered and no exception to the statutory four month limitation period was applicable: the plaintiff neither claimed nor attempted to prove that the exceptions to the four month limitation period, namely, fraud, duress, and mutual mistake, applied in the present case, and the trial court did not make such a finding but, rather, opened the judgment of dismissal on the ground that it was erroneous as a matter of law; moreover, contrary to the trial court‘s conclusion that compelling equitable circumstances required the court to rectify an injustice by opening the judgment of dismissal, the defendants did not present the case in a manner that was deceptive or inconsistent with the complaint, because the plaintiff had failed to file a written opinion of a similar health care provider as required by
52-190a , neither the filing nor the granting of the motions to dismiss on that ground was a violation of the law or an injustice, even if there may have been lack of consent or lack of informed consent claims included in the complaint, the first trial court dismissed the complaint because it failed to comply with§ 52-190a , and the existence of these other claims did not make the dismissal of the action manifestly unjust, and opening a judgment after the four month limitation period on the ground that a court improperly dismissed an action in full rather than in part was beyond the authority of the court.
Argued April 20—officially released September 5, 2017
Procedural History
Action to recover damages for, inter alia, the defendants’ alleged medical malpractice, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Lee, J., granted the defendants’ motions to dismiss and rendered judgment for the defendants; thereafter, the court, Povodator, J., granted in part the plaintiff‘s motion to open the judgment, from which the named defendant and the defendant Scott Brown et al. filed separate appeals with this court. Improper form of judgment; judgment directed.
Michael G. Rigg, for the appellants (defendant Scott Brown et al.).
Opinion
MULLINS, J. The defendants, Scott Weiss, Norwalk Hospital (hospital), and Scott Brown, appeal following the trial court‘s granting
The following facts and procedural history are relevant to our review of the defendants’ claim. This medical malpractice action arose from a surgery in which Weiss, a podiatrist, amputated two of the plaintiff‘s toes. According to the plaintiff, Weiss, without “any real examination,” recommended the amputation of the plaintiff‘s right foot, to which the plaintiff responded that amputation was unnecessary. Instead, the plaintiff underwent two surgeries at the hospital to open, scrape, and flush his right foot, both of which were performed by Weiss. During the second surgery, Weiss “amputated [two] noninfected perfectly normal toes.” Brown is a physician‘s assistant who was an employee of the hospital at the time of the surgeries and who provided medical care to the plaintiff while he was an in patient at the hospital. The plaintiff, thereafter, brought this action against the defendants.
On November 21, 2014, the hospital and Brown moved to dismiss the action pursuant to
On July 10, 2015, the plaintiff filed a motion to open the judgment of dismissal on the grounds of “[l]ack of legal assistance and . . . poor [response] from defense [attorney‘s] office,” to which the defendants objected. On September 8, 2015, the trial court, Povodator, J., issued an order in which it stated, sua sponte, that the defendants’ motions to dismiss improperly had been granted by Judge Lee because the plaintiff‘s complaint included a claim for lack of informed consent, which exists outside the scope of
On November 24, 2015, Judge Povodator issued a memorandum of decision in which he ordered that “the motion to open the judgment is granted in part, limited to the claims of the plaintiff asserting lack of consent and/or lack of informed consent, i.e., issues fairly within the scope of the complaint but not asserting medical negligence. The motion is denied with respect
As a threshold matter, we must first determine whether we have jurisdiction over the appeals. “Ordinarily, the granting of a motion to open a prior judgment is not a final judgment, and, therefore, not immediately appealable. . . . Our Supreme Court, however, has carved out an exception to that rule where a colorable claim is made that the trial court lacked the power to open a judgment.” (Internal quotation marks omitted.) Nelson v. Charlesworth, 82 Conn. App. 710, 712, 846 A.2d 923 (2004). The defendants argue that
We next set forth our standard of review and relevant law. “Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.” (Internal quotation marks omitted.) Id., 713.
“[Section] 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 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 following the date on which it was rendered or passed. . . .’ Practice Book § 17-43 contains similar language. Courts have interpreted the phrase, ‘[u]nless otherwise provided by law,’ as preserving the common-law authority of a court to open a judgment after the four month period.” Id., 713–14. It is well established that “[c]ourts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate [or open] any judgment obtained by fraud, duress or mutual mistake.” In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992).
In the present case, on February 23, 2015, the court granted Weiss’ motion to dismiss, and it issued judicial notice of that decision on February 27, 2015. Therefore, the four month period within which the plaintiff had to file his motion to open expired on Monday, June 29, 2015.2 The plaintiff, however, filed the motion to open on July 10, 2015. This is beyond the four month period in which the plaintiff properly could have filed a motion to open a judgment without an applicable exception. See Practice Book § 17-4.
Similarly, on March 2, 2015, the court granted the motion to dismiss filed on behalf of the hospital and Brown, and it issued judicial notice of that decision on March 4, 2015. Therefore, the four month period within which the plaintiff had to file his motion to open expired on Monday,
The exceptions to
Notwithstanding the foregoing, however, and relying primarily on our decision in Connecticut Savings Bank v. Obenauf, 59 Conn. App. 351, 758 A.2d 363 (2000), Judge Povodator concluded that compelling equitable circumstances required the court to rectify an injustice by opening the judgment. In Connecticut Savings Bank, we held that it was proper to open a judgment seven years after it was rendered because the judgment was facially inconsistent with the complaint. Id., 355–56. In that case, the plaintiff obtained a money judgment against a defendant where that defendant was the transferee in a fraudulent conveyance action. The judgment violated Connecticut law at the time, which provided that “a successful claim of fraudulent conveyance could not result in a judgment of liability against the transferee, joint and several or otherwise, on the underlying debt obligations owed by the transferor.” Id., 355. Thus, we concluded that “[t]o allow the plaintiff to benefit from a judgment against the defendant in excess of $41,000 that was contrary to law at the time of its rendition ‘shocks the
The circumstances of this present case do not rise to the level of deception presented in Connecticut Savings Bank. According to Judge Povodator, the compelling equitable circumstances in the present case were that the defendants had misled Judge Lee, and, as a result, Judge Lee rendered a judgment that was erroneous. Specifically, Judge Povodator stated that he was “troubled by the seeming lack of forthrightness [by the defendants’ counsel] with the court about the nature of the claims and the applicability of
We do not agree with Judge Povodator. First, we do not agree that the defendants presented the case in such a manner that it was deceptive or inconsistent with the complaint. Indeed, the complaint was not a model of clarity but certainly included claims of medical malpractice without the requisite
Second, with respect to the fact that there may have been lack of consent or lack of informed consent claims included in the complaint, given that Judge Lee would have been able to view the operative complaint himself before deciding the motions to dismiss, it is unclear to this court on appeal how the defendants deceived Judge Lee or suppressed the truth regarding what claims were being presented in the complaint. Judge Lee dismissed the complaint because it failed to comply with
Absent equitably compelling circumstances, Judge Povodator‘s only ground for opening the judgment of dismissal was that Judge Lee improperly had dismissed the action in full, when the complaint actually contained two claims, one for medical malpractice and one for lack of informed consent, and, therefore, two separate legal analyses were required when considering the motions to dismiss. Opening a judgment on such a ground, after the expiration of a four month period, however, is beyond the authority of the trial court. “After the expiration of the four month period . . . a judgment may not be vacated [or opened] upon the sole ground that it is erroneous in matter of law, except by a court exercising appellate or revisory jurisdiction, unless such action is authorized by statute or unless the error is one going to the jurisdiction of the court rendering the judgment.” (Internal quotation marks omitted.) Gallagher v. Gallagher, 29 Conn. App. 482, 483-84, 616 A.2d 281 (1992).
Here, the four month period had expired when the plaintiff filed his motion to open. The trial court, therefore, did not have the authority to open the judgment unless an exception applied. The trial court, however, opened the judgment on the basis that Judge Lee‘s judgment of dismissal was erroneous as a matter of law. This, however, is not an exception to the four month rule. As such, the trial court exceeded its authority and improperly granted in part the plaintiff‘s motion to open.
The form of the judgment is improper, the trial court‘s ruling on the plaintiff‘s motion to open the judgment is reversed, and the case is remanded with direction to dismiss the motion to open.
In this opinion the other judges concurred.