Simmons v. Weiss

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DAVID SIMMONS v. SCOTT WEISS ET AL.
(AC 38610)
(AC 38657)
Alvord, Mullins and Bear, Js.

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 (§ 52-190a) in medical malpractice actions. W subsequently filed
a motion to dismiss the action as against him on the same ground. The
trial court granted the defendants’ motions to dismiss and rendered
judgment dismissing the action, from which the plaintiff did not appeal.
The plaintiff thereafter filed an untimely motion to open the judgment
of dismissal. The trial court granted in part the motion to open, conclud-
ing that the first trial court had improperly granted the defendants’
motions to dismiss with respect to the entire complaint because the
complaint included a claim of lack of informed consent, which fell
outside the scope of § 52-190a, and, therefore, the motions were applica-
ble only to the medical malpractice claims. The court also concluded
that compelling equitable circumstances required the court to rectify
an injustice by opening the judgment of dismissal because the defendants
had misled the first trial court by misstating the law in arguing that the
entire complaint asserted claims governed by § 52-190a. Thereafter, W
filed an appeal, and B and the hospital filed a separate appeal, with this
court. On appeal, the defendants claimed that the trial court improperly
had opened the judgment of dismissal more than four months after it
was rendered when no exception to the statutory (§ 52-212a) four month
limitation period for opening judgments was applicable, and, therefore,
that court lacked the authority to open the judgment. Held:
1. 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.
2. 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 ren-
dered 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 circum-
stances 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 defen-
dants’ 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.
Liam M. West, for the appellant (named defendant).
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 in part of the motion filed by
the plaintiff, David Simmons, to open a prior judgment
that had been rendered against him. On appeal, the
defendants claim that the trial court improperly opened
the judgment more than four months after it was ren-
dered when no exception to the timeliness requirement
existed. We conclude that the trial court did not have
the authority to open the judgment. Accordingly, we
reverse the trial court’s ruling on the motion to open and
remand the case with direction to dismiss the motion
to open.
The following facts and procedural history are rele-
vant to our review of the defendants’ claim. This medi-
cal 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 hospi-
tal at the time of the surgeries and who provided medi-
cal 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 General Stat-
utes § 52-190a1 on the ground that the plaintiff had failed
to obtain and file a written opinion of a similar health
care provider. On November 25, 2014, Weiss filed a
motion to dismiss on the same ground. On February
23, 2015, the trial court, Lee, J., granted the motion to
dismiss filed by Weiss, and, on March 2, 2015, it granted
the motion to dismiss filed by the hospital and Brown.
The trial court thereafter rendered judgment dismissing
the action. The plaintiff did not appeal from that
judgment.
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 § 52-190a, and, therefore,
the motions to dismiss should have been applicable
only to part of the complaint. Consequently, Judge
Povodator ordered the defendants to brief the issue of
whether Judge Lee erred in granting the motions to
dismiss the entire complaint, with which the defen-
dants complied.
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 to the
claims of medical negligence, for which § 52-190a is
applicable.’’ Thereafter, Weiss, and Brown and the hos-
pital filed separate appeals with this court. Additional
facts will be set forth as necessary.
As a threshold matter, we must first determine
whether we have jurisdiction over the appeals. ‘‘Ordi-
narily, 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 General
Statutes § 52-212a bars a trial court from opening a
judgment after four months, absent a common-law
exception. They further argue that, in the present
action, Judge Povodator did not make a finding of any
of the common-law exceptions upon which he relied
to open the judgment of dismissal. Consequently, they
argue, the trial court lacked the authority to open the
judgment after the four month period had expired. As
the defendants’ claim is a colorable claim that the trial
court lacked the authority to open the judgment, we
have jurisdiction over the appeals.
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 interpre-
ted 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, July 6, 2015.3 The plaintiff, however, filed
the motion to open on July 10, 2015, which 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. Thus,
because the plaintiff filed his motion to open beyond the
requisite four month time restriction, Judge Povodator
would have had the authority to open the judgment of
dismissal only if one of the exceptions to the four month
period was applicable. Accordingly, we now turn to the
exceptions to § 52-212a.
The exceptions to § 52-212a that authorize a trial
court to open a judgment when the four month period
has expired are fraud, duress, and mutual mistake.4 See,
e.g., In re Baby Girl B., supra, 224 Conn. 283. The
plaintiff neither claimed nor attempted to prove the
existence of any one of these exceptions when he filed
his motion to open the judgment of dismissal. See
Trumbull v. Palmer, 123 Conn. App. 244, 257, 1 A.3d
1121 (burden of proof in motion to open is on moving
party), cert. denied, 299 Conn. 907, 10 A.3d 526 (2010).
Also, Judge Povodator did not make a finding that any
of these exceptions applied. Consequently, Judge Povo-
dator was without authority to open the judgment pur-
suant to § 52-212a.
Notwithstanding the foregoing, however, and relying
primarly 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.5 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 trans-
feree 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 trans-
feree, 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 rendi-
tion ‘shocks the judicial conscience’ . . . and violates
the principles of equity that govern our application of
the law.’’ (Citations omitted.) Id., 357.
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 ‘‘trou-
bled by the seeming lack of forthrightness [by the defen-
dants’ counsel] with the court about the nature of the
claims and the applicability of § 52-190a.’’ Moreover, he
found that by characterizing the entire claim as one of
medical malpractice, the defendants’ counsel led to the
‘‘distortion of adjudication . . . .’’ In essence, Judge
Povodator suggested that the defendants misstated the
law with regard to § 52-190a (c) and, consequently, led
Judge Lee to treat the one count complaint solely as a
medical malpractice claim rather than as two separate
claims of medical malpractice and lack of consent, each
requiring separate legal analysis. In Judge Povodator’s
view, these ‘‘equitably compelling circumstances,’’
which appear to be based on his conclusion that the
defendants perpetrated a fraud upon the court, were
sufficiently compelling to constitute an injustice and
thus supported the opening of the judgment.
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 § 52-190a letter.
Because the complaint lacked that letter, neither the
filing nor granting of a motion to dismiss the complaint
on that basis was a violation of the law or an injustice.
See Rios v. CCMC Corp., 106 Conn. App. 810, 822, 943
A.2d 544 (2008); see also Votre v. County Obstetrics &
Gynecology Group, P.C., 113 Conn. App. 569, 580–81,
966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d
661 (2009).
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 § 52-
190a. The fact that other claims may have been in the
complaint does not make the dismissal of the action
manifestly unjust. Indeed, § 52-190a (c) provides in rele-
vant part that ‘‘failure to obtain and file the written
opinion letter . . . shall be grounds for dismissal of
the action.’’6 (Emphasis added.) This simply is not a
case in which the original judgment is facially inconsis-
tent with the complaint such that Judge Lee’s decision
to dismiss the complaint shocks the conscience. Conse-
quently, we do not find that an injustice occurred in
connection with the original judgment of dismissal that
violates the principles of equity and, thus, justifies Judge
Povodator’s opening of the judgment.
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, there-
fore, 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 judg-
ment 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.
1
General Statutes § 52-190a provides in relevant part: ‘‘(a) . . . The com-
plaint . . . shall contain a certificate of the . . . party filing the action . . .
that such reasonable inquiry gave rise to a good faith belief that grounds exist
for an action against each named defendant . . . . To show the existence
of such good faith, the claimant . . . shall obtain a written and signed
opinion of a similar health care provider . . . that there appears to be
evidence of medical negligence and includes a detailed basis for the forma-
tion of such opinion. . . .
‘‘(c) The failure to obtain and file the written opinion required by subsec-
tion (a) of this section shall be grounds for the dismissal of the action.’’
2
The four month period ended on June 27, 2015. Because June 27 fell on
a Saturday, however, the period within which the plaintiff had to file his
motion did not expire until Monday, June 29, 2015.
3
The four month period ended on July 4, 2015. Because July 4 fell on a
Saturday, however, the period within which the plaintiff had to file his
motion did not expire until Monday, July 6, 2015.
4
Pursuant to § 52-212a, parties also may waive the four month limitation
period. The defendants, however, did not waive the statutory limitation and,
instead, objected in part to the motion to open on the ground that it was
not timely filed.
5
Judge Povodator also relied on our holding in Nelson v. Charlesworth,
supra, 82 Conn. App. 710, in which we found that the running of the four
month limitation period was vitiated by the fraudulent behavior of the
plaintiff’s attorney, and, thus, the trial court properly granted the defendant’s
motion to open. Id., 714–15. In Nelson, after the defendant or her insurance
carrier failed to answer the complaint, the trial court rendered a default
judgment and awarded the plaintiff damages. Id., 711. Subequently, the
plaintiff’s attorney engaged in settlement negotiations with the defendant’s
insurance carrier, but at no time during negotiations did the plaintiff’s attor-
ney inform the insurance carrier of the outstanding judgment and the accru-
ing interest. Id., 711–12. The parties did not reach an agreement, and the
defendant subsequently filed a motion to open the judgment after the four
month period had expired. Id., 712.
Judge Povodator acknowledged that the lack of candor he attributed to
the defendants in the present case was far less egregious than the deceitful
conduct in Nelson.
6
We note that the Superior Court judges are divided on the issue of
whether an action can be dismissed in part. The majority of judges rule that
dismissal of a portion of a complaint is not authorized; see Recinos v.
McCarthy, Superior Court, judicial district of Waterbury, Complex Litigation
Docket, Docket No. X06-CV-15-6028101-S (January 6, 2016, Zemetis, J.) (61
Conn. L. Rptr. 567) (citing numerous Superior Court decisions and conclud-
ing that ‘‘[t]he majority view of the judges of the Superior Court appears
to be that § 52-190a authorizes only dismissal of the action not sections of
it’’ and, therefore, the court does not have authority to dismiss only part of
plaintiff’s action under §52-190a [internal quotation marks omitted]); the
minority view is that partial dismissal is authorized.
We need not resolve that division of authority today because for purposes
of the present case, Judge Lee clearly did not render a judgment that was
so inequitable or unjust that compelling circumstances permitted Judge
Povodator to open the judgment after the four month limitation period had
expired. Also, as mentioned previously in this opinion, none of the recognized
exceptions to the four month rule applied.