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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, concluding 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 applicable 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 rendered and no exception to the statutory four month limitation period

was applicable: the plaintiff neither claimed nor attempted to prove that

the exceptions to the four month limitation period, namely, fraud, duress,

and mutual mistake, applied in the present case, and the trial court did

not make such a finding but, rather, opened the judgment of dismissal

on the ground that it was erroneous as a matter of law; moreover,

contrary to the trial court’s conclusion that compelling equitable circumstances required the court to rectify an injustice by opening the judgment

of dismissal, the defendants did not present the case in a manner that

was deceptive or inconsistent with the complaint, because the plaintiff

had failed to file a written opinion of a similar health care provider as

required by 52-190a, neither the filing nor the granting of the motions

to dismiss on that ground was a violation of the law or an injustice,

even if there may have been lack of consent or lack of informed consent

claims included in the complaint, the first trial court dismissed the

complaint because it failed to comply with § 52-190a, and the existence

of these other claims did not make the dismissal of the action manifestly

unjust, and opening a judgment after the four month limitation period

on the ground that a court improperly dismissed an action in full rather

than in part was beyond the authority of the court.
Argued April 20—officially released September 5, 2017

Procedural History

Action to recover damages for, inter alia, the defendants’ alleged medical malpractice, and for other relief,

brought to the Superior Court in the judicial district of

Stamford-Norwalk, where the court, Lee, J., granted the

defendants’ motions to dismiss and rendered judgment

for the defendants; thereafter, the court, Povodator,

J., granted in part the plaintiff’s motion to open the

judgment, from which the named defendant and the

defendant Scott Brown et al. filed separate appeals with

this court. Improper form of judgment; judgment

directed.

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 rendered 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 relevant to our review of the defendants’ claim. This medical malpractice action arose from a surgery in which

Weiss, a podiatrist, amputated two of the plaintiff’s toes.

According to the plaintiff, Weiss, without ‘‘any real

examination,’’ recommended the amputation of the

plaintiff’s right foot, to which the plaintiff responded

that amputation was unnecessary. Instead, the plaintiff

underwent two surgeries at the hospital to open, scrape,

and flush his right foot, both of which were performed

by Weiss. During the second surgery, Weiss ‘‘amputated

[two] noninfected perfectly normal toes.’’ Brown is a

physician’s assistant who was an employee of the hospital at the time of the surgeries and who provided medical care to the plaintiff while he was an in patient at the

hospital. The plaintiff, thereafter, brought this action

against the defendants.

On November 21, 2014, the hospital and Brown

moved to dismiss the action pursuant to General Statutes § 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 defendants 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 hospital 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. ‘‘Ordinarily, the granting of a motion to open a prior judgment

is not a final judgment, and, therefore, not immediately

appealable. . . . Our Supreme Court, however, has

carved out an exception to that rule where a colorable

claim is made that the trial court lacked the power to

open a judgment.’’ (Internal quotation marks omitted.)

Nelson v. Charlesworth, 82 Conn. App. 710, 712, 846

A.2d 923 (2004). The defendants argue that 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 interpreted the phrase, ‘[u]nless otherwise provided by law,’ as

preserving the common-law authority of a court to open
a judgment after the four month period.’’ Id., 713–14. It

is well established that ‘‘[c]ourts have intrinsic powers,

independent of statutory provisions authorizing the

opening of judgments, to vacate [or open] any judgment

obtained by fraud, duress or mutual mistake.’’ In re

Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992).

In the present case, on February 23, 2015, the court

granted Weiss’ motion to dismiss, and it issued judicial

notice of that decision on February 27, 2015. Therefore,

the four month period within which the plaintiff had

to file his motion to open expired on Monday, June 29,

2015.2 The plaintiff, however, filed the motion to open

on July 10, 2015. This is beyond the four month period

in which the plaintiff properly could have filed a motion

to open a judgment without an applicable exception.

See Practice Book § 17-4.

Similarly, on March 2, 2015, the court granted the

motion to dismiss filed on behalf of the hospital and

Brown, and it issued judicial notice of that decision on

March 4, 2015. Therefore, the four month period within

which the plaintiff had to file his motion to open expired

on Monday, 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 Povodator was without authority to open the judgment pursuant 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 transferee in a fraudulent conveyance action. The judgment

violated Connecticut law at the time, which provided

that ‘‘a successful claim of fraudulent conveyance could

not result in a judgment of liability against the transferee, joint and several or otherwise, on the underlying

debt obligations owed by the transferor.’’ Id., 355. Thus,

we concluded that ‘‘[t]o allow the plaintiff to benefit

from a judgment against the defendant in excess of

$41,000 that was contrary to law at the time of its rendition ‘shocks the 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 ‘‘troubled by the seeming lack of forthrightness [by the defendants’ 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 relevant 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 inconsistent with the complaint such that Judge Lee’s decision

to dismiss the complaint shocks the conscience. Consequently, 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, therefore, did not have the authority to open the judgment

unless an exception applied. The trial court, however,

opened the judgment on the basis that Judge Lee’s judgment of dismissal was erroneous as a matter of law.

This, however, is not an exception to the four month

rule. As such, the trial court exceeded its authority

and improperly granted in part the plaintiff’s motion

to open.

The form of the judgment is improper, the trial court’s

ruling on the plaintiff’s motion to open the judgment

is reversed, and the case is remanded with direction to

dismiss the motion to open.

In this opinion the other judges concurred.

1 General Statutes § 52-190a provides in relevant part: ‘‘(a) . . . The complaint . . . 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 formation of such opinion. . . .

‘‘(c) The failure to obtain and file the written opinion required by subsection (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 attorney inform the insurance carrier of the outstanding judgment and the accruing 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 concluding 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.