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*********************************************** 
MERIBEAR PRODUCTIONS, INC. v. JOAN E.

FRANK ET AL.

(AC 42602)

Alvord, Keller and Prescott, Js.

Syllabus

The plaintiff, M. Co., which had obtained a default judgment in California

against the defendants, J and G, brought this action seeking to enforce

that judgment in Connecticut, alleging claims for breach of contract and

quantum meruit. Following a trial, the trial court rendered judgment in

favor of M Co., from which the defendants jointly appealed to this court,

which affirmed the decision of the trial court. Thereafter, the defendants,

on the granting of certification, appealed to our Supreme Court, which

reversed this court’s judgment, concluding that it did not have jurisdiction over the appeal due to a lack of a final judgment as to G, and

remanded the case to this court with direction to dismiss the appeal.

M Co. subsequently filed in the trial court a withdrawal of the action

as to the breach of contract and quantum meruit counts against G, and

the defendants jointly filed the present appeal to this court. M Co. filed

a motion to dismiss the appeal, arguing that it was untimely and, thus,

subject to dismissal. The defendants subsequently filed a motion for

permission to file a late appeal, which this court granted nunc pro tunc.

Held that M Co.’s motion to dismiss the appeal was denied; contrary to

M Co.’s claim that this court should dismiss the appeal because its

untimeliness constituted a jurisdictional defect, the twenty day time

limit for filing an appeal pursuant to the applicable rule of practice

(§ 63-1) is not subject matter jurisdictional and this court may, in its

discretion, allow a party to file an untimely appeal, and although the

general rule against hearing untimely appeals is necessary, in the present

case good cause existed for allowing the defendants’ appeal to proceed,

as the policy considerations that ordinarily weigh against granting

untimely appeals either were not present or were overborne by competing considerations, the defendants did not strategically employ delay

tactics for their own benefit, and allowing the defendants to file a late

appeal would not prejudice M Co., whereas, if this court were to decline

to allow the appeal to go forward, the defendants would be unduly

deprived of their appellate rights.

Considered June 26—officially released October 15, 2019

Procedural History

Action to, inter alia, enforce a foreign judgment rendered against the defendants in California, and for other

relief, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Tyma, J.; judgment for the plaintiff, from which the defendants

appealed to this court, which affirmed the trial court’s

judgment; thereafter, the defendants, on the granting

of certification, appealed to our Supreme Court, which

reversed the judgment of this court and remanded the

case to this court with direction to dismiss the defendants’ appeal; subsequently, the plaintiff filed a withdrawal of action as to two counts of its complaint, and

the defendants appealed to this court; thereafter, the

plaintiff filed a motion to dismiss the appeal; subsequently, the defendant filed a motion for permission to

file a late appeal. Motion to dismiss denied; motion

for permission to file late appeal granted.

Anthony J. LaBella, in support of the motion to dis-
miss and in opposition to the motion for permission to

file late appeal.

Michael S. Taylor, in opposition to the motion to

dismiss and in support of the motion for permission to

file late appeal.
Opinion

PRESCOTT, J. The plaintiff, Meribear Productions,

Inc., filed a motion to dismiss the appeal of the defendants, Joan Frank and George Frank. The plaintiff

argued that the defendants’ joint appeal was untimely

and, thus, subject to dismissal. See Practice Book §§ 63-

1 and 66-8. In response, the defendants filed a motion

for permission to file a late appeal. The defendants

argued that permission to file a late appeal was warranted because they would suffer a loss of their appellate rights if the appeal was not allowed. We agreed

with the defendants and, therefore, granted nunc pro

tunc the defendants’ motion to file a late appeal, and

denied the plaintiff’s motion to dismiss the appeal as

untimely, indicating in our order that an opinion would

follow. We write to explain our reasons for permitting

this late appeal.

The following procedural history is relevant to our

discussion of the parties’ motions. In 2011, the defendants, who were selling their home in Westport, hired

the plaintiff to provide home staging services. See Meribear Productions, Inc. v. Frank, 328 Conn. 709, 711–12,

183 A.3d 1164 (2018). The defendants ultimately

defaulted on their payment obligations to the plaintiff

and, in 2012, the plaintiff, a California corporation, filed

an action against the defendants in California Superior

Court. The California court entered a default judgment

against the defendants in the amount of $259,746.10.

Thereafter, in 2013, ‘‘the plaintiff commenced the

present action in Connecticut seeking to hold the defendants jointly and severally liable under the foreign

default judgment and to recover additional attorney’s

fees, costs, and postjudgment interest. In response to

the defendants’ assertion of a special defense that the

judgment was void because the California court lacked

personal jurisdiction over them, the plaintiff amended

its complaint to add two counts seeking recovery

against both defendants under theories of breach of

contract and quantum meruit. Prior to trial, a prejudgment attachment in the amount of $259,746.10, together

with 10 percent postjudgment interest, pursuant to provisions of the California Code of Civil Procedure, was

entered against the Westport real property owned by

Joan Frank.

‘‘In a trial to the court, the plaintiff litigated all three

[counts of the complaint]. In its posttrial brief, the plaintiff requested that the court give full faith and credit to

the California judgment, plus postjudgment interest;

‘[i]n the alternative,’ find that the defendants had

breached the contract and award damages in the same

amount awarded in the California judgment, plus interest, fees and costs; and, ‘[f]inally, in the event [that]

neither request is . . . granted,’ render judgment in the

plaintiff’s favor on the quantum meruit count in the
same amount.

‘‘The court issued a memorandum of decision finding

in favor of the plaintiff on count one against George

Frank and on count two against Joan Frank. The court

acknowledged at the outset that the three count complaint was for ‘common-law enforcement of a foreign

default judgment, and alternatively, for breach of contract and quantum meruit.’ Turning first to count one,

the trial court determined that, as a result of the manner

in which process was served, the California court

lacked personal jurisdiction over Joan Frank but had

jurisdiction over George Frank. In rejecting George

Frank’s argument that the exercise of jurisdiction did

not comply with the dictates of due process, the court

cited his admission ‘that he signed a guarantee of the

staging agreement . . . that provides that Los Angeles

is the appropriate forum.’ Consequently, the court

stated that it would render judgment on count one for

Joan Frank and against George Frank.

‘‘In resolving the remaining counts, the court made

no further reference to George Frank. As to count two,

the court concluded that Joan Frank had breached the

contract, that she could not prevail on her special

defenses to enforcement of the contract, and that judgment would be rendered for the plaintiff and against

Joan Frank. As to count three, the court cited case

law explaining that parties routinely plead alternative

counts of breach of contract and quantum meruit, but

that they are only entitled to a single measure of damages. The court concluded: ‘The plaintiff has proven

that Joan Frank breached the contract. Therefore, the

court need not consider the alternative claim for quantum meruit.’

‘‘The court awarded damages against George Frank

on count one and against Joan Frank on count two.

Although both awards covered inventory loss and lost

rents, the California judgment included prejudgment

interest and attorney’s fees, whereas the breach of contract award included late fees related to the rental loss.

The judgment file provided: ‘The court, having heard

the parties, finds the issues for the plaintiff. Whereupon

it is adjudged that the plaintiff recover of the defendant

Joan E. Frank $283,106.45 damages and that the plaintiff

recover of the defendant George A. Frank $259,746.10.’

The court indicated that a hearing would be scheduled

on attorney’s fees, but did not address the subject of

postjudgment interest.’’ Meribear Productions, Inc. v.

Frank, supra, 328 Conn. 712–14.

On December 18, 2014, the defendants jointly

appealed from the judgment, and this court affirmed

the decision of the trial court. Meribear Productions

Inc. v. Frank, 165 Conn. App. 305, 140 A.3d 993, rev’d,

328 Conn. 709, 183 A.3d 1164 (2016). The defendants’

certified appeal to our Supreme Court followed.
During the course of oral argument before our

Supreme Court, the court inquired as to whether George

Frank’s appeal had been taken from a final judgment

because the trial court’s ruling had not disposed of all

of the counts in the operative complaint brought against

him. Meribear Productions Inc. v. Frank, supra, 328

Conn. 715. Thereafter, the parties submitted supplemental briefs addressing whether there was a final judgment as to George Frank. Id. All parties posited that a

final judgment existed as to George Frank. Id., 715–16.

Our Supreme Court concluded to the contrary, however, indicating that ‘‘the trial court’s failure to dispose

of either the contract count or the quantum meruit

count as to George Frank resulted in the lack of a final

judgment.’’ Id., 716. On the basis of the lack of a final

judgment as to George Frank, our Supreme Court apparently concluded that it did not have jurisdiction over

the entire appeal, including with respect to Joan Frank,

and, therefore, it remanded the case to this court with

direction to dismiss the appeal. Id.

In a footnote, our Supreme Court explained its conclusion that it was proper to dismiss the entire appeal,

even though it had concluded ‘‘that the judgment as to

Joan Frank was final’’ and, therefore, a final judgment

was lacking only as to one of the two defendants. Id.,

716–17 n.4, 724. Specifically, the court stated: ‘‘In the

defendants’ supplemental brief on this issue, there was

no request for this court to consider Joan Frank’s appeal

separately should we conclude that the judgment is not

final as to George Frank. Nor did they contend that

the issues as to each defendant overlapped to such an

extent that we should consider both. This court has

recognized that, [i]n some circumstances, the factual

and legal issues raised by a legal argument, the appealability of which is doubtful, may be so inextricably

intertwined with another argument, the appealability of

which is established, that we should assume jurisdiction

over both. . . . However, that circumstance is not

applicable in the present case. We have previously

relied on this exception when there is a final judgment

as to all of the parties before the reviewing court, and

the question is whether we can also consider an interlocutory ruling affecting those parties properly before

us. . . . In the present case, the judgment is final as

to Joan Frank only. In addition, we have invoked this

exception when resolution of the interlocutory ruling

would control or bear on the resolution of the final

judgment or the case generally. . . . In the present

case, our resolution of George Frank’s jurisdictional

challenge to the California judgment could have no

bearing on Joan Frank’s challenge to the judgment

against her for breach of contract or on any potential

liability under quantum meruit. Nor would it be dispositive of the challenge to the damages awarded.’’ (Citations omitted; internal quotation marks omitted.) Id.,
716–17 n.4.1

Following our directed dismissal of the appeal on

remand, the plaintiff filed in the trial court a withdrawal

of the contract count and the quantum meruit count

against George Frank, thereby rendering a final judgment as to him. On February 15, 2019, the defendants

filed the present joint appeal.

On February 22, 2019, the plaintiff filed a motion to

dismiss the appeal as to both defendants claiming that

the appeal was untimely. The plaintiff argued that ‘‘this

court lacks the jurisdiction to entertain the appeal by

virtue of the fact that this is a joint appeal . . . wherein

the final judgment from which Joan Frank appeals was

rendered on October 14, 2014.’’ On March 4, 2019, the

defendants filed a memorandum in opposition to the

plaintiff’s February 22, 2019 motion to dismiss, arguing

that the appeal was timely. The defendants further

argued that even if the appeal was untimely, this court

has the power to allow it to continue.

Thereafter, on March 8, 2019, the defendants filed a

motion to file a late appeal. In this motion, the defendants argued that they should be permitted to file a late

appeal because the ‘‘[p]laintiff could not be prejudiced

by permitting a late appeal and [the] defendants will

suffer a loss of their appellate rights if the appeal is

not allowed.’’ On March 13, 2019, the plaintiff filed an

objection to the defendants’ March 8, 2019 motion for

permission to file a late appeal. On June 26, 2019, this

court granted nunc pro tunc the defendants’ March 8,

2019 motion to file a late appeal, and denied the plaintiff’s February 22, 2019 motion to dismiss the appeal,

indicating that this opinion would follow.

At the outset, we note that, contrary to the plaintiff’s

argument that this court should dismiss the defendants’

appeal because its untimeliness constituted a jurisdictional defect, the twenty day time limit for filing an

appeal as articulated in Practice Book § 63-1 (a)2

is not

subject matter jurisdictional. Alliance Partners, Inc. v.

Volatarc Technologies, Inc., 263 Conn. 204, 209, 820

A.3d 224 (2003). Thus, this court may, in its discretion,

allow a party to file an untimely appeal. Parlato v.

Parlato, 134 Conn. App. 848, 850 n.1, 41 A.3d 327 (2012).

This principle is articulated in Practice Book § 60-2,

which provides in relevant part: ‘‘[The court] may . . .

on its own motion or upon motion of any party . . .

order that a party for good cause shown may file a late

appeal . . . .’’ The burden to establish ‘‘good cause’’

for failing to file a timely appeal falls on the party

seeking permission to file a late appeal. Alliance Partners, Inc. v. Volatarc Technologies, Inc., supra, 263

Conn. 211.

‘‘[If] a motion to dismiss that raises untimeliness is,

itself, timely filed pursuant to Practice Book § 4056

[now § 66-8], it is ordinarily our practice to dismiss the
appeal if it is in fact late, and if no reason readily appears

on the record to warrant an exception to our general

rule. This practice is based in part on the fact that if the

untimely appeal is entertained, a delinquent appellant

would 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 expeditiously. Appellees are given the right under our rules

to object to the filing of a late appeal and should be

given the benefit of that rule, barring unusual circumstances or unless they waive the benefit of that rule.

. . . We ordinarily dismiss late appeals that are the

subject of timely motions to dismiss, knowing also that

our discretion can be tempered by Practice Book § 4183

(6) [now § 60-2 (6)], which provides for the filing of

late appeals for good cause shown. . . .

‘‘We acknowledge that we eschew a mechanistic

interpretation of our appellate rules in recognition of

the fact that an unyielding policy requiring strict adherence to an appellate time limitation—no matter how

severe or unfair the consequences—does not serve the

interests of justice.’’ (Citations omitted; internal quotation marks omitted.) Alliance Partners, Inc. v. Volatarc

Technologies, Inc., supra, 263 Conn. 213–14.

Although we are cognizant that the general rule

against hearing untimely appeals is necessary for the

reasons explained in Alliance Partners, Inc., we conclude that, in the present case, good cause exists that

warrants allowing the defendants’ late appeal to proceed. The policy considerations that ordinarily weigh

against granting untimely appeals either are not present

here, or are overborne by competing considerations.

For example, the defendants do not ask us to allow

them to obtain the benefit of appellate review after

contributing to its delay. To the contrary, on December

18, 2014, the defendants diligently filed their first

appeal, which they and the plaintiff believed was taken

from a final judgment as to both of them. Thus, the

defendants did not strategically employ delay tactics for

their own benefit. Moreover, allowing the defendants

to file a late appeal will not prejudice the plaintiff, which

argued that the prior judgment was final as to both

defendants when the first appeal was before our

Supreme Court and which was ready to litigate the

merits of the appeal at that time. The plaintiff has not

proffered any reason why circumstances have changed

in the intervening period that would render unfair the

adjudication of the defendants’ appellate claims now.

Finally, if we were to decline to allow the appeal to go

forward, the defendants would be prejudiced in that

they would be unduly deprived of their appellate rights.

In considering the defendants’ motion for permission

to file a late appeal, we also acknowledge that the timing

of the filing of the present appeal had far less to do
with the defendants’ diligence in litigating their claims

than with the natural consequence of our Supreme

Court’s dismissal of the defendants’ first appeal in its

entirety. If our Supreme Court had elected to dismiss

the prior joint appeal only as to George Frank and

allowed the appeal to proceed with respect to Joan

Frank, whom they concluded had appealed from a final

judgment, the current claim regarding the timeliness of

the present appeal would not have arisen.3

Although a final judgment has now entered as to all

parties, the plaintiff is now asserting that, because the

present appeal is untimely as to Joan Frank, the joint

appeal must be treated as a whole and dismissed, just

as the previous appeal was dismissed by our Supreme

Court. That is, in our view, simply an unreasonable

result, and it is primarily for that reason that we conclude that there is good cause to permit the present

appeal to proceed.

The defendants’ motion to file a late appeal is granted

nunc pro tunc, and the plaintiff’s motion to dismiss the

appeal as untimely is denied.

In this opinion the other judges concurred.

1 On October 2, 2018, the plaintiff filed a motion for attorney’s fees and

a motion for postjudgment interest with the trial court. Following argument

on the motions, the parties stipulated, and the trial court confirmed, that

an award of attorney’s fees in the amount of $66,410 would enter. The court

further granted the plaintiff an award of postjudgment interest at the rate

of 5 percent per annum. The trial court’s actions on these motions did not

affect the finality of the judgment at issue here.

2 Practice Book § 63-1 (a) provides in relevant part: ‘‘Unless a different

time period is provided by statute, an appeal must be filed within twenty

days of the date notice of the judgment or decision is given . . . .’’

3 Practice Book § 61-3 provides in relevant part: ‘‘A judgment disposing

of only a part of a complaint . . . is a final judgment if that judgment

disposes of all causes of action in that complaint . . . brought by or against

a particular party or parties. . . .

‘‘The appeal from such judgment may be deferred . . . until the final

judgment that disposes of the case for all purposes and as to all parties is

rendered . . . .’’ (Emphasis added.) This provision, in providing that appeals

may be taken separately, appears to support the principle that the finality

of judgments generally is to be assessed with regard to each individual

party. Our Supreme Court did not discuss Practice Book § 61-3 or explain

why it was inapplicable relative to the procedural facts before it.