Ruiz v. Victory Props., LLC

180 Conn.App. 818

184 A.3d 1254

Adriana RUIZ, et al.

v.VICTORY PROPERTIES, LLC

AC 39381

Appellate Court of Connecticut.

Argued December 6, 2017

Officially released April 10, 2018

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 appellees (defendant John Kovalcik et al.).

Prescott, Elgo and Beach, Js.

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) General 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 judgments; and (3) the automatic stay provision of Practice Book § 61–11 (a),² which, in applicable civil cases, prohibits 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 (Victory), 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 backyard of the apartment building where she lived. Specifically, 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 window 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 negligent because it had failed to remove loose concrete and other debris from the apartment building's backyard 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 Victory 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 Kovalcik, who was the managing member of Victory, and Intepros, a company for which Kovalcik was the president 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, General 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 personally 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 defendants 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 judgment 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 Kovalcik 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 discussion 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 indicates 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 consider 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 subsequently 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. at 347, 107 A.3d 381. 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 pursuant 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 Victory, that the plaintiffs had chosen not to appeal from...