Final Judgments–Arggghhhh!!Posted: August 21, 2013
I have the utmost respect for our judges and courts, particularly the Connecticut Appellate and Supreme Courts in which I frequently argue. But my good feelings for the courts are tested when they publish decisions that suggest I filed an appeal either too early or too late. I’m an appellate advocate after all; my pride and reputation are both at stake. 🙂
On Monday, the Appellate Court issued a decision that said I filed an appeal prematurely. Ouch. So, allow me to push back, with respect of course.
The substance of the case is irrelevant; it was a med-mal case and I was trying to persuade the Appellate Court to flip a $10 million plaintiffs’ verdict. I knew it was an uphill battle, although I’m pleased to say that the Appellate Court agreed that there was error in the admission of a key document because the plaintiff had failed to authenticate it. I’m less pleased that the Court concluded that the error was harmless. But I digress.
Here is what troubles me. The Appellate Court said that my original appeal–filed within 20 days after the trial court denied our post-verdict motions to set aside the verdict, for a new trial, and to reduce the verdict–was premature because the judgment was not yet final. Huhh? Practice Book section 17-2 is pretty darn clear that when post-verdict motions are filed, judgment on a jury verdict enters when the court decides those motions. The Appellate Court said the judgment was not final because the trial court had not resolved a collateral source payment issue. The court thus dismissed the original appeal for lack of jurisdiction. (See fn. 9 of the decision.)
This is where I respectfully disagree with the Appellate Court. Yes, we had raised a collateral source reduction issue in the post-verdict motions–the ones the trial court denied. But the trial court’s written decision denying those motions did not address the collateral source argument. Still, it had denied our post-verdict motions. Under Practice Book section 17-2, I say the judgment was final. So I filed a timely appeal. I also then filed a motion reminding the trial court that it had failed to address the collateral source issue and asking it to do so. Months later the trial court issued a decision granting our collateral source reduction request in part. I then filed an amended appeal, which identified the original judgment and the collateral source ruling as the judgments/orders from which I was appealing.
The Appellate Court said the filing of the amended appeal saved me. My apparent error in filing a premature original appeal was thus harmless. But I stand by my position that the original appeal was NOT premature. If I had waited for three months, or six months, or a year after the denial of the post-verdict motions before filing the appeal, how much do you want to bet that the Appellate Court (not to mention opposing counsel) would have said my appeal was untimely? Would the judgment have remained non-final indefinitely, i.e., as long as the collateral source issue remain unresolved? Or suppose the trial court had simply denied the post-verdict motions with a postcard ruling; I wouldn’t have known that the court simply forgot to address the collateral source issue. Would there still be no final judgment? I don’t think so.
Is there a lesson to be learned from this story? I think there are several. First, I think the Appellate Court is confused about what constitutes a final judgment. When a trial court denies post-verdict motions–even if it forgets to address an issue raised by one of the motions–the judgment is final for appellate review purposes. The unaddressed issue is deemed denied. The proper response is to do what I did: file a timely appeal AND ask the trial court to address the issue it forgot to address, and then file an amended appeal.
Second, I think we lawyers need to be aware that the Appellate Court is confused on this issue.
Third, given the second lesson, it is better to file a premature original appeal followed by a timely amended appeal, than to risk having your entire appeal dismissed.
[P.S. For my earlier video-posts on the final judgment rule, click here.]