Ruiz v. Victory Properties, LLC

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning 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 Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ADRIANA RUIZ ET AL. v. VICTORY PROPERTIES, LLC
(AC 39381)
Prescott, Elgo and Beach, Js.
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 deriva-
tive 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 (§ 52-212a). The trial court denied the plaintiffs’
motion to open on the ground that it was untimely because it was not
filed within four months following the date on which the judgment was
rendered as required by § 52-212a. On appeal to this court, the plaintiffs
claimed that the trial court abused its discretion in denying their motion
to open the summary judgment because the four month limitation period
contained in § 52-212a had been tolled by the filing of their first appeal.
Held that the trial court properly denied the plaintiffs’ motion to open:
the plaintiffs’ claim that the automatic stay provision in the relevant
rule of practice (§ 61-11 [a]) operated to preserve the entire procedural
posture of the case during the pendency of the prior appeal was not
supported by established case law or the plain language of § 61-11 (a),
as our Supreme Court has clarified that trial courts in this state 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, the plain
language of the automatic stay provision in § 61-11 (a) creates only a
stay of execution regarding the judgment from which the appeal was filed
and because the plaintiffs did not appeal from the summary judgment
rendered in favor of I Co. and K, any protection afforded by the automatic
stay related to the prior appeal did not extend to that judgment; more-
over, although our Supreme Court has indicated that the four month
limitation period in § 52-212a may be tolled on equitable grounds in
certain circumstances, the plaintiffs did not argue on appeal that the
limitation period should be tolled on equity grounds nor did they identify
any particular equitable principles or cite to relevant case law regarding
the doctrine of equitable tolling, and given that the plaintiffs provided no
justification for their failure to challenge directly the summary judgment
rendered in favor of I Co. and K as part of their prior appeal, it was not
clear that they could prevail in a balancing of the equities involved.
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 plain-
tiffs’ 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 sum-
mary 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 proceed-
ings; 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.
Matthew D. Paradisi, for the appellants (plaintiffs).
Lorinda S. Coon, with whom, on the brief, were John
M. O’Donnell and Herbert J. Shepardson, for the appel-
lees (defendant John Kovalcik et al.).
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) Gen-
eral Statutes § 52-212a,1 which places a four month limit
on the trial court’s inherent authority to open or set
aside a judgment; (2) the doctrine of finality of judg-
ments; and (3) the automatic stay provision of Practice
Book § 61-11 (a),2 which, in applicable civil cases, pro-
hibits any proceeding to enforce or carry out a final
judgment or order during the appeal period and, if an
appeal is filed, until a final determination of that appeal.
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 (Vic-
tory), John R. Kovalcik, and Intepros, Inc. (Intepros). In
the plaintiffs’ view, the fourth month limitation period
contained in § 52-212a had been stayed by the filing
of an earlier appeal by them challenging a summary
judgment rendered in favor of Victory on counts one
and two of their complaint. We affirm the judgment of
the trial court denying the plaintiffs’ motion to open.
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 back-
yard of the apartment building where she lived. Specifi-
cally, the plaintiffs alleged in counts one and two of
their complaint4 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 win-
dow 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 neg-
ligent because it had failed to remove loose concrete
and other debris from the apartment building’s back-
yard 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 not have liability
insurance. Furthermore, the plaintiffs believed that Vic-
tory was in the process of selling one or more of its
properties. On August 14, 2009, the court granted a
prejudgment remedy in the amount of $100,000
against Victory.5
On November 30, 2009, the plaintiffs filed a motion
to cite in as additional defendants in the action Koval-
cik, who was the managing member of Victory, and
Intepros, a company for which Kovalcik was the presi-
dent 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, Gen-
eral Statutes § 52-552a et seq., against Victory and
Intepros, and in count four the plaintiffs sought to
pierce the corporate veil and to hold Kovalcik person-
ally liable for any wrongful conduct alleged in count
three against Victory or Intepros.6
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 defen-
dants 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 judg-
ment 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 next day, on October 6, 2010, Judge Pittman
issued a separate memorandum of decision granting
the motion for summary judgment filed by Kovalcik
and Intepros. According to the court, ‘‘[b]ecause the
issue of liability has been resolved against the plaintiffs
and in favor of the primary defendant Victory, and
because the claims of the remaining defendants Koval-
cik and Intepros are derivative only, the claims as to
these latter defendants cannot survive.’’
The plaintiffs, on October 21, 2010, filed a motion
seeking reconsideration and an opportunity to reargue
both summary judgment decisions. Although the discus-
sion 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 indi-
cates 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 con-
sider 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, 2010 judgment. In other words, the plaintiffs failed
to indicate in any manner that in the event that they
were successful in overturning the summary judgment
on the negligence counts, they also sought to overturn
the summary judgment rendered on the fraudulent
transfer counts in favor of Kovalcik and Intepros, a
judgment that was predicated on the disposition of the
negligence counts.
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 subse-
quently 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 pursu-
ant to Practice Book § 17-48 and General Statutes § 52-
212a, asking the trial court to open the October 6, 2010
summary judgment rendered in favor of Kovalcik and
Intepros. The plaintiffs argued that the trial court had
rendered that judgment solely on the basis that the
plaintiffs’ claims against Kovalcik and Intepros were
derivative of the claims against Victory, and that
because our Supreme Court had upheld this court’s
judgment reversing the summary judgment rendered in
favor of Victory, ‘‘there now exists good cause’’ for the
trial court to open the judgment disposing of the claims
against Kovalcik and Intepros.
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 Vic-
tory, 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 rele-
vant 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 [Kovalcik and
Intepros] was a final judgment from which the only
remedy would have been to file an appeal.’’ This
appeal followed.
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 Practice
Book § 61-11 (a) operates ‘‘to preserve the entire proce-
dural posture of a case’’ during the pendency of an
appeal. They conclude, therefore, that the four month
period for filing a motion to open pursuant to § 52-
212a was tolled by the filing of their prior appeal and,
contrary to the assertion of the trial court, had not
yet run when the plaintiffs filed the motion to open.
We disagree.
We begin with our standard of review and applicable
legal principles. Ordinarily, our review of a court’s deci-
sion 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 under-
take 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 rea-
sonable 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 ple-
nary 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 impli-
cated 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 impor-
tance 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 § 52-212a.
See Rosado v. Bridgeport Roman Catholic Diocesan
Corp., 276 Conn. 168, 222 n.60, 884 A.2d 981 (2005);
Kim v. Magnotta, 249 Conn. 94, 102, 733 A.2d 809 (1999).
Although it is undisputed that courts of general jurisdic-
tion have the inherent power to open, correct, or modify
their own judgments, ‘‘the duration of this power is
restricted by statute and rule of practice.’’ Batory v.
Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied,
215 Conn. 812, 576 A.2d 541 (1990). In particular, § 52-
212a constrains the trial court’s general authority to
grant relief from a final judgment, providing in relevant
part that ‘‘[u]nless 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.
. . .’’ (Emphasis added.)9
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 § 52-212a. See Nelson
v. Dettmer, 305 Conn. 654, 674, 46 A.3d 916 (2012) (indi-
cating that plain meaning of ‘‘rendered and passed’’ as
used in § 52-212a ‘‘contemplates finality’’ of judgment).
The court in Nelson concluded that for the purpose of
determining finality with respect to § 52-212a and, thus,
the commencement of the four month limitation period
in which to file a motion to open, a judgment granting
a motion for summary judgment did not become final
until the trial court denied a motion to reargue that was
filed within the applicable appeal period.10 Nelson thus
stands for the proposition that, under limited circum-
stances, 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
of a judgment for purposes of complying with the four
month limitation period in § 52-212a.11
Turning to the present case, the court rendered sum-
mary judgment in favor of Kovalcik and Intepros on
October 6, 2010. The stated ground for the court’s deci-
sion 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 sum-
mary 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 judg-
ment with respect to those parties. See Practice Book
§ 61-3. A motion to reargue, however, was filed on Octo-
ber 21, 2010, and denied that same day. Accordingly,
pursuant to our Supreme Court’s decision in Nelson v.
Dettmer, supra, 305 Conn. 654, the four month period
to file a motion seeking relief from that judgment under
§ 52-212a began to run on October 21, 2010, and expired
in February, 2011.
Our Supreme Court has indicated that the four month
limitation period in § 52-212a may be tolled on equitable
grounds in certain circumstances. See Kim v. Magnotta,
supra, 249 Conn. 109. Nevertheless, the plaintiffs have
not argued on appeal that the four month limitation
period in § 52-212a should give way in the present case
on account of principles of equity nor have they identi-
fied any particular equitable principles or cited to rele-
vant case law regarding the doctrine of equitable tolling.
Moreover, given that the plaintiffs have provided no
justification for their failure to challenge directly the
summary judgment on the fraudulent transfer counts
as part of their prior appeal, which would have elimi-
nated the need for a late motion to open, it is not clear
that they could prevail in a balancing of the equities
involved.
Finally, we turn to the plaintiffs’ primary argument
on appeal, namely, that the running of the four month
limitation period was tolled in this case because, for
all intents and purposes, the underlying action was ‘‘pro-
verbially preserved in amber upon the filing of [the
prior] appeal.’’ That argument is not supported either
by the plain language of Practice Book § 61-11 (a) or
existing case law.
First, construing the automatic appellate stay provi-
sion 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 con-
duct 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 ren-
dering 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
Practice Book § 61-11 (a). As previously noted, Practice
Book § 61-11 (a) provides that, with limited exceptions
not relevant here, ‘‘proceedings to enforce or carry out
the judgment or order shall be automatically stayed
until the time to file an appeal has expired. If an appeal
is filed, such proceedings shall be stayed until the final
determination of the cause.’’ Accordingly, by its plain
language, the automatic stay provision creates only a
stay of execution regarding the judgment from which
the appeal was filed. In other words, the automatic
appellate stay, ‘‘merely denies [the successful litigant]
the immediate fruits of his or her victory . . . in order
to protect the full and unhampered exercise of the right
to appellate review.’’ (Citation omitted; internal quota-
tion marks omitted.) Preisner v. Aetna Casualty &
Surety Co., 203 Conn. 407, 414, 525 A.2d 83 (1987). As
the plaintiffs conceded at oral argument, there is no
express language in that provision that gives rise to any
blanket prohibition against all further proceedings in
the trial court upon the filing of an appeal.14
Lastly, the plaintiffs did not appeal from the judgment
rendered in favor of Kovalcik and Intepros, and, there-
fore, any protection afforded by the automatic appellate
stay did not extend to that judgment. We have recently
held that if the trial court renders multiple but separate
judgments in the same case, this results in distinct and
separate appeal periods, and ‘‘any automatic stay that
is extended as the result of filing an appeal from [one
judgment] will not stay proceedings to enforce or carry
out the judgment on the [other].’’ Sovereign Bank v.
Licata, 178 Conn. App. 82, 99, 172 A.3d 1263 (2017)
(holding automatic stay arising as result of appeal taken
from judgment on counterclaims in foreclosure action
did not stay proceedings to enforce or carry out judg-
ment of strict foreclosure rendered on complaint). Even
after this court notified the parties in response to the
motion to dismiss filed by Kovalcik and Intepros that
we construed the plaintiffs’ prior appeal as challenging
only the judgment rendered in favor of Victory, the
plaintiffs took no action to amend the prior appeal.
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 appar-
ent 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.
1
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 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. . . .’’
2
Practice Book § 61-11 (a) provides in relevant part: ‘‘Except where other-
wise provided by statute or other law, proceedings to enforce or carry out
the judgment or order shall be automatically stayed until the time to file
an appeal has expired. If an appeal is filed, such proceedings shall be stayed
until the final determination of the cause. . . .’’
3
Rivera is Ruiz’ mother, and she brought the action both individually and
as Ruiz’ next friend and parent.
4
Count one was brought by Rivera on behalf of Ruiz and sought compensa-
tory damages for Ruiz’ injuries. Count two was brought by Rivera in her
individual capacity and sought compensation for expenses that she incurred
in obtaining treatments for Ruiz’ injuries.
5
In their application for a prejudgment remedy, the plaintiffs had sought
to secure an order allowing them to attach property of Victory up to a sum
of $1,000,000. Although the court found that there was probable cause that
the plaintiffs would prevail on their negligence claim against Victory, the
court believed that because of the availability of apportionment of liability,
Victory ultimately would be found to be only 10 percent responsible, and,
accordingly, it granted the application allowing attachment only up to the
amount of $100,000.
6
Prior to the court’s rendering summary judgment, Kovalcik and Intepros
filed an apportionment complaint against two individuals, Delis Cabrera
and Saribel Cruz, who allegedly were responsible for supervising Ruiz and
the child that injured her. Cabrera and Cruz did not appear before the trial
court and have not participated in the present appeal.
7
As previously indicated, Victory was a named defendant with respect to
the first three counts of the operative complaint. Victory, however, did not
specifically indicate in its motion for summary judgment whether it sought
summary judgment only with respect to the two negligence counts of the
operative complaint or, conversely, all counts in which it was named. The
trial court’s decision granting Victory’s motion for summary judgment also
did not state explicitly on which counts the court had rendered judgment.
We raise this ambiguity for two reasons. First, if the October 5, 2010 summary
judgment did not resolve count three as to Victory, this would raise a
significant question regarding whether the prior appeal was taken from a
final judgment. Because such a judgment would not have disposed of all
counts brought against Victory, the appeal from that judgment would have
been jurisdictionally defective. See Mazurek v. Great American Ins. Co.,
284 Conn. 16, 33, 930 A.2d 682 (2007). Second, if the October 5, 2010 summary
judgment encompassed count three, then the decision by our Supreme Court
to reverse the summary judgment also encompassed count three.
We construe the court’s summary judgment in favor of Victory to encom-
pass all claims brought against it because neither the parties, this court nor
our Supreme Court ever questioned the jurisdictional footing of the prior
appeal. In other words, it appears that this court and our Supreme Court
construed the summary judgment as having disposed of all three counts
brought against Victory because they could not have decided the merits of
the prior appeal if all counts had not been disposed of by the trial court.
There is also nothing in the underlying pleadings or in the trial court’s
October 5, 2010 memorandum of decision that directly contradicts this
construction of the judgment. See Chapman Lumber, Inc. v. Tager, 288
Conn. 69, 91–92, 952 A.2d 1 (2008) (construction of judgments is question
of law for reviewing court and effect must be given not only to that which
is expressed but to that which is clearly implied as well). Accordingly, on
remand, count three of the complaint against Victory remains pending before
the trial court in addition to the two negligence counts.
8
Practice Book § 17-4 (a), which largely mirrors the language of § 52-
212a, provides in relevant part: ‘‘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. . . .’’
9
The plaintiffs do not argue that any exception to the four month limitation
period contained in § 52-212a is applicable in the present case.
10
In so holding, our Supreme Court in Nelson relied on language from its
decision in Weinstein v. Weinstein, 275 Conn. 671, 698–99, 882 A.2d 53
(2005), in which it indicated that the filing of a motion to reargue or for
reconsideration of a judgment within the applicable appeal period ‘‘should
be treated as suspending the finality of judgment’’ and ‘‘suspends the appeal
period.’’ Nelson v. Dettmer, supra, 305 Conn. 677. It is axiomatic that we
are bound by the decisions of our Supreme Court. See Stuart v. Stuart, 297
Conn. 26, 45–46, 996 A.2d 259 (2010). We nevertheless take this opportunity
to note an apparent tension between our Supreme Court’s reasoning and
our rules of practice. Our Supreme Court suggests by its language in
Weinstein that the filing of a motion to reargue ‘‘suspends’’ finality and,
thus, the time to file an appeal. The plain language of Practice Book § 63-
1 (a) and (c) (1), however, provides that the filing of such a postjudgment
motion creates a new appeal period in which to challenge the original
judgment, but that the original appeal period, which runs from the time
the judgment was initially rendered continues to run, and that a proper
appeal from the initial judgment may be filed in either the original or
newly created appeal period. If the finality of a judgment truly is suspended
by the filing of a motion to reargue, a party could not file such a motion
and also file an appeal in the original appeal period because that appeal
arguably would not be taken from a final judgment—a jurisdictional defect.
See, e.g., Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d
1063 (1985).
11
Support for a rule that the filing of an appeal does not toll the time
period in which to seek relief from a judgment from the trial court is found
in our federal courts’ treatment of this issue. The analogous federal rule
authorizing motions to open judgments is found in Rule 60 (b) of the Federal
Rules of Civil Procedure, and requires that parties move for relief from a final
judgment ‘‘within a reasonable time,’’ although motions based on mistake,
excusable neglect, previously undiscovered evidence, or fraud must be filed
‘‘no more than a year after the entry of the judgment or order . . . .’’ Federal
courts have held that ‘‘[b]y its terms, the one-year time limit in Rule 60 (b)
runs from the date the judgment was ‘entered’ in the district court; it does
not run from the date of an appellate decision reviewing that judgment, nor
does the pendency of an appeal toll the one-year period.’’ (Emphasis added.)
Tool Box, Inc. v. Ogden City Corp., 419 F.3d 1084, 1088–89 (10th Cir. 2005).
12
The plaintiffs place great weight on the fact that the court referred to
the counts against Kovalcik and Intepros as having been ‘‘derivative’’ of
the negligence counts. We are unpersuaded that this designation has any
meaningful significance in our consideration of the issue before us. It may
be accurate that the plaintiffs’ sole motivation for bringing the fraudulent
transfer counts was to aid their ability to secure any judgment that they
might obtain as a result of their negligence action against Victory and, thus,
absent the negligence counts, neither they nor the court had any incentive
to pursue those counts. The causes of action, however, are legally distinct
and require proof of different facts, and, therefore, the court’s judgments
on those counts were separate and distinct for purposes of an appeal.
13
Although a majority of states hold that an appeal divests the trial court
of jurisdiction to act in the matter on appeal, Connecticut is among the
substantial minority of jurisdictions that recognize a trial court’s continuing
jurisdiction. See 46 Am. Jur. 2d 30–31, Judgments § 647 (2017), and cases
cited therein.
14
In support of their assertion that an appeal effectively preserves ‘‘in
amber’’ the procedural posture of a case on appeal, the plaintiffs cite lan-
guage from our decision in Pavliscak v. Bridgeport Hospital, 48 Conn. App.
580, 589, 711 A.2d 747, cert. denied, 245 Conn 911, 718 A.2d 17 (1998), in
which we reversed a trial court order that significantly altered the judgment
being considered on appeal. Our Supreme Court, however, impliedly over-
ruled Pavliscak when it reaffirmed in RAL Management, Inc. v. Valley View
Associates, supra, 278 Conn. 691–92, that a trial court properly may alter a
judgment that is the subject of a pending appeal even if by doing so the trial
court rendered the appeal moot. Any reliance upon this court’s discussion
in Pavliscak is, therefore, misplaced.