Georges v. OB-GYN Services, P.C. ( 2020 )

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GEORGES v. OB-GYN SERVICES, P.C.—CONCURRENCE
D’AURIA, J., with whom PALMER, J., joins, concur-
ring in part and dissenting in part. I agree with part I
A and B of the majority opinion but dissent from part
II. Although the court’s holdings today in both part I A
and B establish or clarify the law in a confusing area
of the law, I ultimately agree that the majority properly
applies our law and that the defendants’ appeal from
the judgment on the jury’s verdict was untimely. The
Appellate Court therefore properly granted the motion
filed by the plaintiff Marie Leoma1 to dismiss that part
of the appeal that ‘‘relates to the October 28, 2016 judg-
ment . . . .’’ I disagree with part II of the majority
opinion, however, which holds that the Appellate Court
properly denied the motion for permission to file a late
appeal, which was filed by the defendants, OB-GYN
Services, P.C., and Brenda Gilmore. Instead, I believe
that the defendants’ appeal should be heard on its
merits.
The majority holds in part I A and B of its opinion
that, after a favorable jury verdict, a plaintiff’s motion
for interest pursuant to both General Statutes §§ 52-
192a (c) (prejudgment offer of compromise interest)
and 37-3b (postjudgment interest) neither delays entry
of a final judgment for purposes of appeal nor tolls the
appeal period pursuant to Practice Book § 63-1 (c) (1)
(motion that, ‘‘if granted, would render a judgment,
decision or acceptance of the verdict ineffective,’’ cre-
ates a new appeal period). Given the circumstances
of this case and the confusion that preceded today’s
decision in this area of appellate practice, I believe
that the Appellate Court incorrectly determined that
the defendants lacked good cause to justify filing a
late appeal. I reach this conclusion fully aware of the
deferential standard of review we apply to such rulings
of the Appellate Court. Our case law commands that,
to call this ruling an error, we must conclude that the
Appellate Court abused its discretion. In my view, we
should make clear—to ourselves and to the Appellate
Court—that, when exercising discretion to accept a late
appeal, an appellate court must consider whether there
exists an objectively reasonable basis for confusion,
uncertainty or mistake about when the appeal period
has run or has been tolled. If so, this factor should
weigh heavily—if not dispositively—in the balance in
determining whether to accept the late appeal. If objec-
tively reasonable good faith confusion exists, and no
other factors weigh against granting the motion to file
a late appeal—such as prejudice or undue delay beyond
the delay normally associated with a timely filed
appeal—in my view, an appellate court abuses its dis-
cretion by denying a party permission to file a late
appeal. For example, if reasonable good faith confusion
exists and the only factor weighing against granting
permission is docket control, I do not believe an appel-
late court properly exercises its discretion by denying
permission to file a late appeal. Punishing a party by
disallowing its appeal from being heard is a drastic
sanction when—as in a case like the present one—
there was not clear guidance for determining an appeal
deadline. Applying a proper standard, I believe that,
under the circumstances of this case, it was an abuse
of discretion not to grant a motion to file a late appeal.
I
The majority and I do not disagree on the material
facts and procedural history that the record discloses.
On May 16, 2013, the plaintiff filed an offer of compro-
mise to settle her medical malpractice claim against
the defendants for $2 million. The defendants did not
accept. On October 28, 2016, the jury returned a $4.2
million verdict in favor of the plaintiff. The trial court
accepted the verdict that same day.
On November 8, 2016, during the twenty day appeal
period, the plaintiff filed a motion with the trial court
seeking offer of compromise interest pursuant to § 52-
192a (c) and postjudgment interest pursuant to § 37-
3b. No other entries appear on the electronic docket
for the next fifteen days: no party filed a pleading, and
the court undertook no action. In the plaintiff’s view,
the defendants would have had to file any appeal by
November 17, 2016.
On November 23, 2016—the day before Thanksgiv-
ing—the trial court issued an order directing the parties
to appear on December 8, 2016, for argument on the
plaintiff’s motion. The following Monday, November 28,
2016, an entry appeared on the docket, stating, ‘‘judg-
ment on verdict for plaintiff.’’
According to the plaintiff’s counsel, the issue the
court was to address at the December 8, 2016 hearing
was: ‘‘[O]n what date does offer of compromise interest
stop and does postjudgment interest begin?’’ Each stat-
ute establishes a different interest rate and provides
alternate dates for when each type of interest begins.
However, § 52-192a (c) does not provide for when pre-
judgment offer of compromise interest ends, including
in cases in which both types of interest are awarded.2
On December 12, 2016, the trial court issued a deci-
sion concluding that the ‘‘end date’’ for calculating offer
of compromise interest was the date judgment entered,
which it clarified was October 28, 2016, the date the
verdict was accepted.3 This meant that no interest
would accrue for twenty days after the verdict. Post-
judgment interest under § 37-3b would then begin to
accrue if the defendants did not satisfy the judgment.4
On December 16, 2016, four days after the trial court’s
ruling on interest, the defendants appealed to the Appel-
late Court, challenging both that ruling and the jury’s
verdict.5 On December 22, 2016, the plaintiff moved to
dismiss the defendants’ appeal from the October 28,
2016 judgment on the jury verdict. On December 30,
2016, the defendants opposed the motion and, at the
same time, moved the Appellate Court for permission
to file a late appeal, pursuant to Practice Book § 60-2 (5).
On February 8, 2017, the Appellate Court granted the
plaintiff’s motion to dismiss the defendants’ appeal, ‘‘as
it relates to the October 28, 2016 judgment,’’ and denied
the defendants’ motion for permission to file a late
appeal. The defendants filed a petition for certification
to appeal with this court, which we dismissed because
their appeal to the Appellate Court had not been finally
determined. See General Statutes § 51-197f.
The defendants’ appeal concerning the trial court’s
December 16, 2016 interest determinations proceeded,
and the Appellate Court affirmed the judgment of the
trial court. Georges v. OB-GYN Services, P.C., 182 Conn.
App. 901, 184 A.3d 840 (2018). The defendants then filed
another petition for certification to appeal from the
Appellate Court’s dismissal of their previous appeal,
which we granted. Georges v. OB-GYN Services, P.C.,
330 Conn. 905, 192 A.3d 426 (2018).
II
The Appellate Court is indisputably the ‘‘workhorse’’
of our appellate system, administering and adjudicating
more than 450 appeals annually. See W. Horton & K.
Bartschi, ‘‘2016 Appellate Review,’’ 90 Conn. B.J. 221,
231 (2017). Without sacrificing fairness, our Appellate
Court colleagues handle hundreds more appeals annu-
ally than this court, with a dispatch we aspire to emu-
late. ‘‘[A]ppellate tribunals must exercise their discre-
tion to determine whether a late appeal should be
permitted,’’ and ‘‘we review the Appellate Court’s deci-
sion under the abuse of discretion standard.’’ (Internal
quotation marks omitted.) Alliance Partners, Inc. v.
Voltarc Technologies, Inc., 263 Conn. 204, 210, 820 A.2d
224 (2003). I take seriously both the size of the Appellate
Court’s caseload and this deferential standard of
review. Thus, I would ordinarily be reluctant to con-
clude that a coordinate appellate tribunal has abused
its discretion in enforcing rules regarding the timeliness
for taking appeals. Several observations about this stan-
dard of review are in order, however, as I undertake
to apply it.
First, although we have acknowledged that the Appel-
late Court has ‘‘broad authority to manage its docket’’;
id., 212; we have provided very little guidance on how
that court should go about exercising that discretion,
including when it applies the very same rules we apply
in determining whether to permit a late filing. We have
indicated that an appellate court appropriately consid-
ers a ‘‘variety of factors,’’ including, but not limited to,
the reason for the late filing, the nature of the underlying
case, whether the application for permission is opposed,
and the interests of judicial economy. See Janulawicz
v. Commissioner of Correction, 310 Conn. 265, 274, 77
A.3d 113 (2013) (application for permission to file late
petition for certification to appeal); see also Ramos v.
Commissioner of Correction, 248 Conn. 52, 61–62, 727
A.2d 213 (1999) (petitioner’s late appeal fell within
Appellate Court’s policy of permitting such appeals only
in exceptional circumstances). Consistent with these
factors, it is also appropriate to consider the extent
of any prejudice to the objecting party. See Meribear
Productions, Inc. v. Frank, 193 Conn. App. 598, 606,
219 A.3d 973 (2019) (‘‘allowing the defendants to file a
late appeal will not prejudice the plaintiff’’); see also
Janulawicz v. Commissioner of Correction, supra,
274–75 (‘‘because there frequently is no material preju-
dice arising from the late filing, as we have indicated, we
often agree to consider the merits of untimely petitions
otherwise in compliance with our rules of practice’’).
Beyond that, we have provided almost no direction,
including in situations in which the timeliness of the
filing of an appeal is subject to legitimate question.
It is true that we have stated that the Appellate Court
‘‘legitimately has adopted a policy of docket control
‘that, in other than exceptional cases, the need to
address cases that were filed timely outweighs the need
to permit appeals that are in fact late.’ ’’ Alliance Part-
ners, Inc. v. Voltarc Technologies, Inc., supra, 263 Conn.
212, quoting Ramos v. Commissioner of Correction,
supra, 248 Conn. 61. We have also recognized, however,
that ‘‘[j]udicial discretion . . . is always a legal discre-
tion, exercised according to the recognized principles
of equity.’’ (Internal quotation marks omitted.) Burton
v. Browd, 258 Conn. 566, 569–70, 783 A.2d 457 (2001).
This discretion ‘‘should be exercised in conformity with
the spirit of the law and should not impede or defeat the
ends of substantial justice.’’ (Internal quotation marks
omitted.) Id., 570. A ruling denying permission to file
a late appeal forecloses entirely a party’s statutory right
to appellate review. We have therefore been careful to
note that deference to the Appellate Court ‘‘does not
mean . . . that any exercise of discretion by the Appel-
late Court in denying a late appeal will find a welcoming
eye in this court.’’ Alliance Partners, Inc. v. Voltarc
Technologies, Inc., supra, 214. I interpret this to mean
that we can and should construe and apply our rules—
including rules concerning late appeals—to provide the
Appellate Court with appropriate guidance on how to
exercise its discretion.
Second, unlike the situation in most instances of a
trial court’s exercise of discretion, we have very little in
the record explaining the basis of the Appellate Court’s
ruling. Other than the cryptic orders granting the plain-
tiff’s motion to dismiss (in part) and denying the defen-
dants’ motion to permit a late appeal, we do not know
precisely how the Appellate Court exercised its discre-
tion, including which of the previous listed factors it
considered, how close it found the question or whether
it would have permitted a late appeal if any factors
were different, such as if the defendants had recognized
their mistake earlier and appealed more promptly. I
intend no criticism by this observation. Both this court
and the Appellate Court routinely and appropriately
issue such orders without explanation. Cf. Meribear
Productions, Inc. v. Frank, supra, 193 Conn. App. 599,
602 (published opinion in which Appellate Court exer-
cised discretion to grant, nunc pro tunc, defendants’
motion to file late appeal and denying plaintiff’s motion
to dismiss where defendants improperly filed appeal
too early when judgment was not final, which became
apparent only after Supreme Court review). However,
given that appellate courts must consider a ‘‘variety of
factors’’ when ruling on motions to accept late appeals;
Janulawicz v. Commissioner of Correction, supra,
310 Conn. 274; the absence of any explanation for the
ruling, in my view, makes entirely deferential review prob-
lematic. Said another way, I am reluctant to defer reflex-
ively to discretion exercised in a fashion that is not man-
ifest.6 Cf. State v. Fernando V., 331 Conn. 201, 213, 202
A.3d 350 (2019) (declining to rule on claim advanced,
for first time, on appeal seeking to sustain evidentiary
objection at trial because ‘‘[w]e cannot determine whether
the trial court abused an exercise of discretion that it
neither made nor was asked to make’’).
Finally, and relatedly, unlike when we review a dis-
cretionary trial court ruling,7 our review of this discre-
tionary Appellate Court ruling does not involve an exer-
cise of discretion entirely unique to the Appellate Court.
By that I mean that the deference we afford to the
Appellate Court when ruling on a motion to permit a
late appeal is not a function of our being ill-equipped
to rule on such motions. In fact, this court also rules
on motions to dismiss appeals and motions for permis-
sion to file late appeals. See, e.g., Francis v. Fonfara,
303 Conn. 292, 295 n.6, 33 A.3d 185 (2012) (motion for
permission to file late writ of error granted after adverse
trial court ruling). Rather, the deference we afford our
fellow tribunal in the appellate system is rooted in the
fact that it handles a greater volume of appeals than
this court. Most—but not all—appeals are filed first in
the Appellate Court. See General Statutes §§ 51-197a
and 51-199. Therefore, it is one thing when reviewing
a trial court’s discretionary ruling to recite the familiar
refrain that, on appeal, ‘‘the question is not whether
any one of us, had we been sitting as the trial judge,
would have exercised our discretion differently.’’
(Emphasis added; internal quotation marks omitted.)
State v. Cancel, 275 Conn. 1, 18, 878 A.2d 1103 (2005).
However, I find it harder to disclaim any obligation to
scrutinize with some rigor the denial of a motion to
permit a late appeal because this court is called on to
make similar rulings (albeit not as often). Under these
circumstances, one appellate court applying different
criteria than another in assessing a late filed appeal
borders on the arbitrary.
Our rules require that a party seeking permission to
file a late appeal must show good cause for the late
filing. See Practice Book § 60-2 (5). An appellate court
will customarily allow a late filing if ‘‘unusual circum-
stances’’ or ‘‘exceptional cases’’ justify granting such
permission. (Internal quotation marks omitted.) Alli-
ance Partners, Inc. v. Voltarc Technologies, Inc., supra,
263 Conn. 212, 213. Consistent with our case law and
our rules of practice, I would hold that an objectively
reasonable basis for confusion, uncertainty or mistake
about when the appeal period has run, or whether the
appeal period has been tolled, must weigh heavily in
an appellate court’s determination of whether ‘‘good
cause’’ justifies permitting a late appeal. Cf. Morici v.
Jarvie, 136 Conn. 370, 371, 71 A.2d 556 (1950) (‘‘[w]here
counsel mistakenly but in good faith proceed on the
assumption that a finding is necessary, file a request
for a finding and draft finding and, under the second
provision in [former Practice Book] § 341, do not file
assignments of error with the appeal, it certainly would
not ordinarily be just to preclude them from filing
assignments when they discover that a finding is not
necessary, and thus prevent them from prosecuting an
appeal’’). Although I agree that a delinquent appellant
should not ‘‘obtain the benefit of the appellate process
after contributing to its delay, to the detriment of others
with appeals pending who have complied with the rules
and have a right to have their appeals determined exped-
itiously’’; (internal quotation marks omitted) Alliance
Partners, Inc. v. Voltarc Technologies, Inc., supra, 213;
I do not agree that an objectively reasonable, good faith
mistake of law does not constitute good cause in the
absence of countervailing factors. If objectively reason-
able confusion exists, and no other factor weighs
against granting permission to file a late appeal, such
as prejudice or undue delay beyond the delay normally
associated with a timely filed appeal—in my view,
docket control alone does not outweigh this good cause.
See footnote 14 of this opinion.
In the present case, in which no prejudice or allega-
tion of undue delay has been raised, beyond the delay
normally associated with a timely filed appeal while
postjudgment interest is running, and the granting of
the appeal would not have caused an undue delay, the
Appellate Court either did not consider the defendants’
objectively reasonable good faith confusion or deter-
mined that the defendants’ confusion was either unrea-
sonable or outweighed by the need for docket control.
Either way, I conclude on this record that the Appellate
Court abused its discretion by denying the defendants
permission to file a late appeal.
III
The benchmark against which the majority measures
the Appellate Court’s denial of the defendants’ late
appeal is this court’s unforgiving decision in Alliance
Partners, Inc., a case I find entirely distinguishable.
The plaintiff filed its appeal in Alliance Partners, Inc.,
a single day late. Alliance Partners, Inc. v. Voltarc Tech-
nologies, Inc., supra, 263 Conn. 207. Upon the defen-
dant’s motion, the Appellate Court dismissed the appeal
and denied the plaintiff permission to file a late appeal.
Id. The plaintiff argued that its one day delay in filing
the appeal arose from a misunderstanding of law,
namely, the plaintiff’s counsel ‘‘[mis]read [Practice
Book § 63-2] . . . to not include the first and last days
of filing for purposes of counting the [twenty day]
appeal period. Consequently, [the plaintiff] filed [its]
appeal on the [twenty-first] day and not the twentieth
day.’’ (Internal quotation marks omitted.) Id., 208.
Central to the court’s reasoning rejecting the plain-
tiff’s argument in Alliance Partners, Inc., was that it
could ‘‘perceive no reasonable basis’’ for any ‘‘assertion
of confusion’’ about the last day for filing an appeal,
given that Practice Book 63-2 provides in relevant part:
‘‘[I]n determining the last day for filing any [documents]
. . . [the] last day shall, and the first day shall not, be
counted.’’ (Internal quotation marks omitted.) Id., 211.
If there were any doubt, the court noted, consulting
‘‘an authoritative treatise on our appellate practice’’
would have dispelled any confusion, as it ‘‘made the
same point in clear language. ‘In determining the last
day for filing papers, the last day is included and the
first day is not.’ ’’ Id., 212, quoting C. Tait & E. Prescott,
Connecticut Appellate Practice and Procedure (3d Ed.
2000) § 4.11, p. 153.
In contrast to the situation in Alliance Partners, Inc.,
the events that transpired in the present case after the
jury’s verdict were, in my view, susceptible to reason-
able confusion sufficient to constitute ‘‘good cause’’
and to justify the defendants’ late appeal. Specifically, as
the plaintiff’s counsel acknowledged at oral argument
before this court, a motion for offer of compromise
interest need not be filed during the appeal period and
is most often filed after the appeal period. In fact, it is
unclear that any motion needs to be filed at all; instead,
the court adds offer of compromise interest as a ministe-
rial matter.8 An arguably unnecessary motion, filed dur-
ing the appeal period and raising new issues concerning
calculation of interest, can be viewed objectively as
adding confusion to whether the judgment was final.
As for postjudgment interest, no appellate court has
definitively determined whether the 1997 amendment
to § 37-3b9 makes 10 percent interest in all ways manda-
tory or whether the trial court retains some discretion
over the extent of an award of interest.
In the present case, the plaintiff—the prevailing
party—filed a motion seeking awards of both types of
interest, did so within the twenty day appeal period,
and the trial court set the motion down for a hearing.
The question posed by the defendants’ appeal is
whether that motion either (1) delayed the entry of a
final judgment, or (2) tolled the appeal period under
Practice Book § 63-1 (c).
A
Ultimately, I agree with the majority’s well reasoned
opinion that a motion for offer of compromise interest
neither delays entry of a final judgment nor tolls the
appeal period. Specifically, I agree with the majority
that offer of compromise interest ‘‘does not entail any
examination of matters encompassed within the merits
of the underlying action’’ and that interest under § 52-
192a (c) is ‘‘collateral to the judgment and does not
affect its finality for purposes of appeal.’’ We have, at
least in dictum, said as much in Earlington v. Anastasi,
293 Conn. 194, 196 n.3, 976 A.2d 689 (2009). I also agree
that a motion for offer of compromise interest is not one
that, ‘‘if granted, would render the judgment, decision
or acceptance of the verdict ineffective’’; Practice Book
§ 63-1 (c) (1); and a trial court’s ruling on such a motion
therefore does not create a new appeal period. How-
ever, as it concerns the defendants’ motion for permis-
sion to file a late appeal in the present case, two things
are true.
First, on the issue of whether a motion for offer
of compromise interest tolls the appeal period under
Practice Book 63-1 (c), the majority candidly admits
that ‘‘our research has not revealed any pertinent Con-
necticut appellate authority . . . .’’ In fact, to conclude
that the plaintiff’s motion did not toll the appeal period
requires rejecting the application of one of our cases,
In re Haley B., 262 Conn. 406, 815 A.2d 113 (2003), and
relying solely on the ‘‘persuasive’’ reasoning of a United
States Supreme Court case, Buchanan v. Stanships,
Inc., 485 U.S. 265, 108 S. Ct. 1130, 99 L. Ed. 2d 289
(1988).10 Moreover, unlike the situation in Alliance Part-
ners, Inc., resort to the rules of practice or a pertinent
treatise would not have authoritatively resolved the
question. As one prominent treatise states, ‘‘[t]his area
of the law is like threading a needle.’’ W. Horton &
K. Bartschi, Connecticut Practice Series: Connecticut
Rules of Appellate Procedure (2019–2020 Ed.) § 61-1,
p. 84, authors’ comments.
Second, the plaintiff’s motion sought more than just
offer of compromise interest. It also sought postjudg-
ment interest pursuant to § 37-3b. There is also no bind-
ing authority on whether a motion for postjudgment
interest remains in any way discretionary (at least as
to the rate of interest) or delays entry of a final judg-
ment.11 Cf. Nolan v. Milford, 86 Conn. App. 817, 819,
862 A.2d 879 (2005) (judgment was not final for purpose
of appeal until rate of prejudgment interest was deter-
mined when General Statutes § 37-3a provided for inter-
est rate of ‘‘ten per cent a year, and no more,’’ because
trial court retained discretion to determine interest
rate). Although I agree with the majority that a motion
for postjudgment interest does not alter the judgment
under Practice Book § 63-1 (c) (1), I do not believe that
this was clear at the time of the plaintiff’s postverdict
motion in the present case.
But even more particularly—and this is the real final
judgment brainteaser—the plaintiff’s motion asked the
trial court to determine on what date offer of compro-
mise interest at 8 percent (under § 52-192a (c)) ended
and postjudgment interest at 10 percent (under § 37-
3b) began. At the hearing on this motion, the plaintiff’s
counsel explained that, because the plaintiff sought
awards of both types of interest, ‘‘the debate . . . is,
on what date does offer of compromise interest stop
and does postjudgment interest begin.’’ The trial court
decided the question adversely to the plaintiff’s posi-
tion. See footnote 4 of this opinion. There is at least a
straight-faced argument that, until the trial court
resolved this issue, which would affect what interest
rate applied, a final judgment had not been rendered,
especially as it was unclear whether the court retained
any discretion in determining the postjudgment rate of
interest. Cf. Nolan v. Milford, supra, 86 Conn. App. 819
(judgment is not final until rate of prejudgment interest
under § 37-3a is determined);12 see also footnote 11 of
this opinion.
In fact, the plaintiff’s motion itself suggests that the
plaintiff might have believed (mistakenly, the majority
now makes clear) that judgment had not yet been ren-
dered. Specifically, the plaintiff argued that § 52-192a
(c) directs the court to add 8 percent annual interest
from the date the complaint was filed ‘‘to ninety days
following the rendering of the verdict, which occurs
on January 26, 2017.’’ (Emphasis added.) The quoted
language concerning ‘‘ninety days following’’ the verdict
appears not in § 52-192a, but in § 37-3b, which provides
for the recovery of 10 percent annual interest ‘‘com-
puted from the date that is twenty days after the date
of judgment or the date that is ninety days after the
date of verdict, whichever is earlier . . . .’’ (Emphasis
added.) General Statutes § 37-3b (a). The only way for
January 26, 2017, to have been the ‘‘earlier’’ date, of
course, would be if judgment had not yet been rendered
at the time of the plaintiff’s motion, as the plaintiff’s
pleading suggests. If judgment had been rendered on
the day of the verdict (October 28, 2016), as the trial
court ultimately ruled, November 17, 2016, would have
been the ‘‘earlier’’ date (twenty days after the judg-
ment). The plaintiff’s own confusion over when judg-
ment was rendered for purposes of calculating interest
certainly is consistent with the defendants’ confusion
in determining the correct appeal period.
B
Because there is a need for bright lines in applying
our rules, I agree with the majority that the defendants
filed their appeal past the appeal deadline, as the major-
ity determines it to be. But the record reflects more
than a modicum of confusion (including on the plain-
tiff’s part) about when the judgment became final or
whether the appeal period was tolled, which I find rea-
sonable in light of the state of the law at the time the
verdict was returned. The plaintiff’s motion triggered
ongoing proceedings in the trial court, and the parties
had been in court together just eight days before the
defendants filed their appeal. After the trial court ruled
on the plaintiff’s motion regarding the proper applica-
tion of the two interest statutes in play, the defendants
appealed promptly (within four days). Neither the plain-
tiff, the Appellate Court nor the majority suggests that
the defendants’ arguments that they filed timely are
frivolous or that they filed the late appeal in bad faith.
Moreover, the plaintiff did not argue that she would
have suffered any prejudice or undue delay from the
granting of permission to file a late appeal beyond the
delay normally associated with a timely filed appeal.
See footnote 15 of this opinion. I would hold that it must
weigh heavily in an appellate court’s determination of
whether ‘‘good cause’’ justifies permitting a late appeal
when a party has delayed filing an appeal when there
is an objectively reasonable basis for confusion, uncer-
tainty or mistake about when the appeal period has run
or whether the appeal period has been tolled. In the
present case, such good cause existed, and it was an
abuse of discretion by the Appellate Court to fail either
to consider this good cause or to weigh it properly in
light of the absence of any other factors justifying the
court’s denial of the defendants’ motion for permission
to file a late appeal.
In contrast, the majority holds that, although ‘‘good
cause’’ may arise from an objectively reasonable mis-
take of law, the defendants’ confusion in the present
case was not reasonable. Unlike the situation in Alli-
ance Partners, Inc., in which the appellant could easily
have looked at a treatise to determine the last day for
filing an appeal, in the present case, this court had to
clarify the law to determine when the appeal period
began and whether it was tolled. Moreover, Lucisano
v. Lucisano, 200 Conn. 202, 206, 510 A.2d 186 (1986),
on which the majority relies for the proposition that a
mistake of law regarding the date of judgment does not
compel the granting of permission to file a late appeal, is
plainly distinguishable from the present case. Lucisano
did not involve an arguable mistake of law regarding
the date of judgment or a tolling of that judgment for
appeal purposes. Rather, the plaintiff in Lucisano, not
recognizing that the trial court had not incorporated a
provision of the parties’ separation agreement into the
judgment of legal separation, attempted to include in
his appeal of a ruling more than two years later a chal-
lenge to the trial court’s error, claiming that the issue
was not apparent to him at the time. Id., 205–206. This
court held that ‘‘[t]he fact that the need for an appeal
may not have been evident until after the mandated
filing period passed is not a circumstance that impels
us to bypass the requirements of our rules of practice.’’
Id., 206. We did not have reason to address whether a
reasonable mistake of law regarding the date of judg-
ment compels the court to grant a motion to file a late
appeal when no other factors weigh against granting
the motion.
The majority suggests that, ‘‘[a]lthough there was no
prior appellate decision holding that [Practice Book]
§ 63-1 (c) (1) does not apply to this type of motion, the
absence of a case directly on point, although something
that the Appellate Court could consider, does not mean
that there was ‘confusion’ in the law to such an extent
as to render the Appellate Court’s refusal to hear a late
appeal a manifest abuse of discretion.’’ (Emphasis in
original; footnote omitted.) Text accompanying foot-
notes 16 and 17 of the majority opinion. We do not
know, of course, whether, in exercising its discretion,
the Appellate Court in fact considered that there was
an absence of a case on point. Nor, in my view, is the
question of whether, objectively speaking, there was
uncertainty in the law at the time a matter on which
we should appropriately defer to the Appellate Court.
Rather, given the barren state of the law in light of
the record before us, I would conclude that there was
objectively reasonable, good faith confusion sufficient
to constitute good cause and that the Appellate Court
abused its discretion by denying the defendants permis-
sion to file a late appeal.
IV
If my position appears lenient to the objective
observer, this does not derive from my own charitable
spirit. Rather, I take my cues from several legal and
policy declarations, including from our case law and
rules of practice.
First, the legislature has provided litigants with a
statutory right to appeal. See General Statutes §§ 51-
197a and 52-263. Although time deadlines in our rules
of practice are important, they are not statutory and
therefore not a jurisdictional condition of this right. See
Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586,
604, 181 A.3d 550 (2018); LaReau v. Reincke, 158 Conn.
486, 493–94, 264 A.2d 576 (1969). The twenty day time
period in Practice Book § 63-1 (a) for filing an appeal
is not mandatory. See, e.g., Connecticut Light & Power
Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 103, 900
A.2d 1242 (2006). It is directory: Intended to encourage
‘‘dispatch in the proceedings . . . .’’ (Internal quotation
marks omitted.) Meadowbrook Center, Inc. v. Buch-
man, supra, 598.13 Also, although a condition of the
right to appeal is that the judgment is ‘‘final,’’ it has
been left to the courts (and, principally, this court) to
flesh out what ‘‘final’’ means. In certain contexts, we
have done that with only a modicum of success. See,
e.g., U.S. Bank National Assn. v. Crawford, 333 Conn.
731, 738, 219 A.3d 744 (2019) (discussing ‘‘doctrinal
confusion’’ over final judgment rule in application); see
also id., 760 (McDonald, J., dissenting) (discussing
‘‘murky state of our final judgment jurisprudence’’).
Clearly, our appellate courts have discretion to per-
mit the late filing of any documents, including appeals.
See Practice Book §§ 60-1 and 60-2 (5). This discretion,
as in all appellate rules of practice, is to be applied
consistent with the very first provision in our appellate
rules of practice, which directs: ‘‘The design of these
rules [of appellate procedure] being to facilitate busi-
ness and advance justice, they will be interpreted liber-
ally in any appellate matter where it shall be manifest
that a strict adherence to them will work surprise or
injustice.’’ Practice Book § 60-1. Finally, we have articu-
lated a considered preference for having cases decided
on their merits, rather than by the enforcement of nonju-
risdictional rules. See, e.g., Coppola v. Coppola, 243
Conn. 657, 665, 707 A.2d 281 (1998) (‘‘[o]ur practice
does not favor the termination of proceedings without
a determination of the merits of the controversy where
that can be brought about with due regard to necessary
rules of procedure’’ (internal quotation marks omit-
ted)). I do not agree that, when a litigant presents a
nonfrivolous reason for confusion over when it must
file an appeal, our justice system does not afford that
litigant the grace to file a late appeal when that litigant’s
judgment turns out to be wrong and no other factors
except for docket control justify the denial of permis-
sion to file a late appeal. Although we do indeed afford
a good deal of discretion to the Appellate Court in
managing its docket, a policy of docket control that
does not account for good faith, but mistaken, interpre-
tations of the rules does not in my view constitute an
appropriate exercise of that discretion. Instead, a policy
of docket control in the absence of such countervailing
factors, such as prejudice and undue delay, merely con-
stitutes another way of enforcing a de facto jurisdic-
tional appeal period where the legislature has pre-
scribed none.14
The holding in the present case means that these
defendants accidentally forfeited their statutory right
to appeal a $4.2 million judgment against them for mal-
practice. The size of this verdict has absolutely nothing
to do with my view, just as I am confident it has nothing
to do with the majority’s or the Appellate Court’s consid-
ered views. When an objectively reasonable but mis-
taken understanding of the rules or the case law leads
to a late filed appeal, this result would have to be the
same whether the appellant were plaintiff or defendant,
or a juvenile, criminal or family litigant. I find this inflex-
ibility inconsistent with our rules of practice, which are
designed to advance justice. In my view, the complete
forfeiture of a party’s legislatively provided right to
appeal under these circumstances is wildly out of pro-
portion to any procedural violation in the case. Cf. Rid-
gaway v. Mount Vernon Fire Ins. Co., 328 Conn. 60,
71, 176 A.3d 1167 (2018) (sanction of nonsuit must be
proportionate to violation); Millbrook Owners Assn.,
Inc. v. Hamilton Standard, 257 Conn. 1, 17–18, 776
A.2d 1115 (2001) (same).15
If the answer to my point of view is that, only by
enforcing the rules strictly—or, in this case, allowing
the Appellate Court to do so—do we have any hope
of securing compliance with those rules, count me as
doubtful. Mistakes happen. Misjudgments, too. I do not
recognize a system of justice that does not tolerate the
potential for imperfection. Rather, this court ‘‘eschew[s]
a mechanistic interpretation of our appellate rules in
recognition of the fact that an unyielding policy requir-
ing strict adherence to an appellate time limitation—
no matter how severe or unfair the consequences—does
not serve the interests of justice.’’ (Internal quotation
marks omitted.) Alliance Partners, Inc. v. Voltarc Tech-
nologies, Inc., supra, 263 Conn. 213–14. ‘‘It is the courts,
the legal profession and the public generally, not just
the plaintiffs, who are the losers when serious cases
like this one fail to be resolved on their merits because
of some procedural deficiency.’’ Hughes v. Bemer, 200
Conn. 400, 405, 510 A.2d 992 (1986) (Shea, J., dis-
senting).16
Nor do I believe that, when there is objectively rea-
sonable confusion over an appeal deadline, parties—
counseled or otherwise—will be less careful if my view
were to prevail because they can rely on an appellate
court to entertain and grant a motion to file a late
appeal. That is a dangerous game. Litigants have a great
incentive to interpret rules correctly in the first
instance. I see no floodgates of late appeals bursting
open if appellate courts were to take account of such
confusion when considering whether to permit late
appeals.
Finally, I do not believe a malpractice action is the
answer if an attorney were responsible for the mistake
in the present case or in an analogous case. Demonstra-
ting causation or prejudice under such circumstances
(i.e., the appeal would have succeeded) is practically
impossible. See Bozelko v. Papastavros, 323 Conn. 275,
284, 147 A.3d 1023 (2016) (‘‘the plaintiff must prove
that, in the absence of the alleged breach of duty by
her attorney, the plaintiff would have prevailed [in] the
underlying cause of action and would have been entitled
to judgment’’ (internal quotation marks omitted)).
Moreover, I do not believe that creating the need for
another case in our court system ‘‘advances justice.’’
Accordingly, I respectfully concur in part and dissent
in part.
1
Although Jenniyah Georges also is a plaintiff, in the interest of simplicity,
we refer to Maria Leoma as the plaintiff throughout this opinion.
2
General Statutes § 52-192a (c) provides in relevant part: ‘‘After trial the
court shall examine the record to determine whether the plaintiff made an
offer of compromise which the defendant failed to accept. If the court
ascertains from the record that the plaintiff has recovered an amount equal
to or greater than the sum certain specified in the plaintiff’s offer of compro-
mise, the court shall add to the amount so recovered eight per cent annual
interest on said amount . . . . The interest shall be computed from the
date the complaint in the civil action or application under section 8-132 was
filed with the court if the offer of compromise was filed not later than
eighteen months from the filing of such complaint or application. If such
offer was filed later than eighteen months from the date of filing of the
complaint or application, the interest shall be computed from the date the
offer of compromise was filed. . . .’’
General Statutes § 37-3b (a) provides in relevant part: ‘‘[I]nterest at the
rate of ten per cent a year, and no more, shall be recovered and allowed
in any action to recover damages for injury to the person, or to real or
personal property, caused by negligence, computed from the date that is
twenty days after the date of judgment or the date that is ninety days after
the date of verdict, whichever is earlier, upon the amount of the judgment.’’
3
The trial court indicated that the docket ‘‘entry of ‘judgment on verdict
for plaintiff’ entered by the courthouse clerk on November 28, 2016,’’ did
not ‘‘intend to indicate that the date of judgment was November 28, 2016
. . . .’’ This was a ‘‘misimpression [that] shall be corrected.’’ Under the
plaintiff’s theory—confirmed by this court’s decision today—the defendants’
appeal was already twenty-five days late at this belated point of clarity.
4
The trial court awarded the plaintiff $1,639,496.55 in offer of compromise
interest (8 percent), which it determined ran from the date the complaint was
filed to the date judgment entered. It also awarded postjudgment interest,
to be calculated at 10 percent per year, beginning twenty days from the
date of judgment. Thus, under the trial court’s order, interest did not run
under either theory during the twenty day appeal period. The plaintiff had
argued that offer of compromise interest should run from the date the
complaint was filed to ninety days following the return of the jury verdict
and that postjudgment interest should run from the ninety days following
the date of the verdict so that there was no break in the interest.
5
The defendants’ preliminary statement of issues indicated that the defen-
dants intended to raise on appeal a claim that the trial court had improperly
admitted certain expert testimony and provided the jury with an incorrect
instruction on damages.
6
For example, the majority states: ‘‘Although there was no prior appellate
decision holding that [Practice Book] § 63-1 (c) (1) does not apply to this
type of motion, the absence of a case directly on point, although something
that the Appellate Court could consider, does not mean that there was
‘confusion’ in the law to such an extent as to render the Appellate Court’s
refusal to hear a late appeal a manifest abuse of discretion.’’ (Emphasis in
original; footnote omitted.) Text accompanying footnotes 16 and 17 of the
majority opinion. I will address whether it is appropriate to conclude that
the Appellate Court abused its discretion. It is enough for now to point out
that we have no idea whether the Appellate Court considered the absence
of on point case law or whether it simply enforced deadlines in an uncompro-
mising fashion. Either way, I would conclude that the Appellate Court abused
its discretion. Either it did not consider this issue, which should have fac-
tored into its decision, or it incorrectly determined that there was not
objectively reasonable, good faith confusion.
7
To cite just two examples, we have explained the need to defer to a
trial court’s rulings on evidence and awards of attorney’s fees because the
trial court is in the unique position of having conducted the trial. See, e.g.,
State v. Collins, 299 Conn. 567, 593 n.24, 10 A.3d 1005 (‘‘the abuse of discre-
tion standard reflects the context specific nature of evidentiary rulings,
which are made in the heat of battle by the trial judge, who is in a unique
position to [observe] the context in which particular evidentiary issues arise
and who is therefore in the best position to weigh the potential benefits
and harms accompanying the admission of particular evidence’’ (internal
quotation marks omitted)), cert. denied, 565 U.S. 908, 132 S. Ct. 314, 181 L.
Ed. 2d 193 (2011); Bobinski v. Kalinowski, 107 Conn. App. 622, 628–29, 946
A.2d 283 (‘‘‘we may not alter an award of attorney’s fees unless the trial
court has clearly abused its discretion, for the trial court is in the best
position to evaluate the circumstances of each case’ ’’), cert. denied, 289
Conn. 919, 958 A.2d 150 (2008). Thus, I find distinguishable the cases the
majority cites, such as State v. Holley, 327 Conn. 576, 628, 175 A.3d 514
(2018), which reviewed trial court rulings for abuse of discretion.
8
Section 52-192a (c) contains no mention of either the need for a motion
or a time period for a motion for offer of compromise interest to be filed.
Instead, it directs the trial court to ‘‘examine the record to determine whether
the plaintiff made an offer of compromise which the defendant failed to
accept.’’ General Statutes § 52-192a (c). If the plaintiff ‘‘has recovered an
amount equal to or greater than the sum certain specified in the plaintiff’s
offer of compromise, the court shall add to the amount so recovered eight
per cent annual interest on said amount . . . .’’ General Statutes § 52-192a
(c). Conventionally, counsel often file a motion to assist the trial court with
the math.
9
See footnote 11 of this opinion.
10
It is true that Practice Book § 17-2 provides that, if no motions pursuant
to Practice Book §§ 16-35 and 17-2A are filed, the date of the judgment
‘‘shall be the date the verdict was accepted.’’ Section 63-1 (b) provides
similarly, pertaining to how notice of a judgment or decision is given. These
provisions beg the question, as they do not purport to countermand Practice
Book § 63-1 (c), concerning how the filing of certain motions creates a new
appeal period.
11
Before 1997, interest pursuant to § 37-3b was discretionary, not manda-
tory. The statute was amended by Public Acts 1997, No. 97-58, § 2. Although
the amended version of § 37-3b was not at issue in DiLieto v. County
Obstetrics & Gynecology Group, P.C., 310 Conn. 38, 54, 74 A.3d 1212 (2013),
we indicated in that case that this amendment made awards of interest
under § 37-3b mandatory on the basis of the legislature’s replacement of
the term ‘‘may’’ with the term ‘‘shall.’’ Id., 42 n.5. Although this court has
interpreted this amendment to require an award of interest; id., 48; we have
not addressed whether the rate of interest awarded must be 10 percent.
The Appellate Court has previously interpreted a similar rate of interest
provision to provide the trial court with discretion in setting the interest
rate and then determined that this discretion meant that the judgment was
not final until the trial court set the interest rate. See Nolan v. Milford, 86
Conn. App. 817, 819, 862 A.2d 879 (2005) (trial court retained discretion to
determine prejudgment interest rate under General Statutes § 37-3a, as long
as rate was 10 percent or lower, where statutory interest rate was set at
‘‘ten per cent a year, and no more’’).
12
‘‘Threading the needle’’ under Nolan, the defendants might even have
had the better argument on this score. In light of the majority’s opinion on
this final judgment question, which I join, Nolan now seems to be of doubtful
precedential value or, at least, should be confined precisely to the facts of
that case.
13
The plaintiff benefited from similar maxims in this very case. The defen-
dants claimed that the plaintiff’s offer of compromise was defective because
it cited to the wrong section of our rules of practice. They argued that the
trial court should strictly construe the applicable provision of the rules of
practice and not award the plaintiff any interest under § 52-192a (c). The
plaintiff responded that there was no mandatory rule requiring citation to
the rules of practice but, rather, that the rule was directory and that the
failure to comply with this directory rule was not fatal, as long as the
pleading provided the defendants with sufficient notice. The defendants’
argument did not persuade the trial court, and the Appellate Court rejected
it in a memorandum decision. See Georges v. OB-GYN Services, P.C., supra,
182 Conn. App. 901.
14
Both the plaintiff and the majority point out that the defendants could
have avoided this predicament in a number of ways. Of course, they could
have recognized the final judgment and filed a timely appeal, notwithstanding
the plaintiff’s motion for interest, within the appeal period. They also could
have moved to extend the time within which to file an appeal. Or, if there
were any doubt, they could have appealed multiple times, as some commen-
tators suggest, and ‘‘let the appellate court judges sort [it] out . . . .’’ W.
Horton & K. Bartschi, supra, § 61-1, p. 84, authors’ comments; see also E.
Prescott, Connecticut Appellate Practice and Procedure (5th Ed. 2016) § 4-
2:6.2e, p. 245. Putting aside that hedging your bets and following the ‘‘appeal
early and often’’ approach burdens both our clerks’ offices and the opposing
party, the defendants obviously wish they had taken one of these actions.
But that these options would have been more prudent is simply a truism.
If all litigants managed to navigate our final judgment case law and our
rules of practice successfully, and always filed their appeals timely, there
would be no need for a provision permitting the filing of late documents,
including appeals, and no need for an appellate court to exercise its discre-
tion to permit late filings. See Practice Book §§ 60-2 and 60-3. The question
is whether good cause exists to permit a late appeal when an appeal is not
timely filed.
15
I am not indifferent to delay in appellate filings. It is possible that, in
some cases, a three week delay in filing an appeal might in fact constitute
prejudice. In the life of an appeal, that would be a very unusual case, where
preargument conferences are scheduled and rescheduled and litigants are
(appropriately) afforded extensions of time to file—or correct the filing of—
every other document that our rules require. When measured against the
forfeiture of a statutory right to appeal, and in consideration of the uncer-
tainty in our final judgment law and the lack of expressed prejudice to the
plaintiff, who took no steps in reliance on there not having been an appeal,
three weeks delay is not significant.
16
This court has come a long way since the days of Hughes v. Bemer,
supra, 200 Conn. 400, Simko v. Zoning Board of Appeals, 206 Conn. 374,
538 A.2d 202 (1988), and Burton v. Planning Commission, 209 Conn. 609,
553 A.2d 161 (1989). Both this court and the legislature have since acknowl-
edged that ‘‘an overly strict adherence’’ to procedural requirements ‘‘would
result in unnecessary unfairness.’’ (Internal quotation marks omitted.) Fedus
v. Planning & Zoning Commission, 278 Conn. 751, 768, 900 A.2d 1 (2006).