Stephen v. Hoerle

• Decision Date: 12 September 1995
• Docket Number: No. 13174,13174
• Citation: 39 Conn.App. 253,664 A.2d 817
• Court: Connecticut Court of Appeals
• Parties: Charlotte STEPHEN v. Rhonda L. HOERLE et al.

Page 817

664 A.2d 817

39 Conn.App. 253

Charlotte STEPHEN v. Rhonda L. HOERLE et al.

No. 13174.

Appellate Court of Connecticut.

Argued April 18, 1995.

Decided Sept. 12, 1995.

Hugh J. Lavery, Sandy Hook, for appellant (plaintiff).

John W. Mills, Norwalk, with whom, on the brief, were Alan Chandler, New Haven and Kathleen Paul, Fairfield, for appellees (defendants).

Lawrence W. Berliner, Hartford, filed a brief for the office of protection and advocacy for persons with disabilities as amicus curiae.

Before O'CONNELL, FOTI and HEIMAN, JJ.

EDWARD Y. O'CONNELL, Judge.

This is an action for damages arising from an automobile accident. The plaintiff alleged that the defendants negligently caused her to suffer serious injuries, including the exacerbation of preexisting agoraphobia.

The defendants noticed the plaintiff's deposition to be taken on July 19, 1993, at the office of the defendants' attorney in Bridgeport. The plaintiff filed a motion for a protective order, claiming that her agoraphobia prevented her from traveling to Bridgeport and constituted good cause, pursuant to Practice Book § 221, for relocating the deposition to her home town of Newtown. On August 16, 1993, the trial court denied the motion.

The plaintiff filed a second motion for a protective order, again seeking to have the location of the deposition then scheduled for August 20, 1993, changed. The defendants thereafter moved for a nonsuit because of the plaintiff's failure to appear at that deposition. On October 12, 1993, the trial court denied the plaintiff's second motion for a protective order, ruling that the plaintiff failed to demonstrate that she could not travel to Bridgeport and thus failed to establish good cause. On the same date, the court granted the defendants' motion for a judgment of nonsuit. On November 2, 1993, the plaintiff filed a motion to open the judgment of nonsuit and a motion to reargue her second motion for a protective order. The trial court denied both motions on December 13, 1993.

On appeal, the plaintiff claims that the trial court improperly (1) failed to hold an evidentiary hearing before ruling on her motions for protective orders, the defendants' motion for nonsuit or the plaintiff's motion to open the nonsuit, (2) decided the defendants' motion for nonsuit when that motion had not been scheduled to be heard and without the plaintiff's being afforded an opportunity to be heard on the motion, (3) failed to accommodate the plaintiff's mental disability in violation of her due process and equal protection rights under article first, § 20, of the Connecticut constitution, and (4) failed to accommodate the plaintiff's mental disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.

Appeals must be taken within twenty days of a judgment. Practice Book § 4009. In this case, the plaintiff waited twenty-one days after the judgment of nonsuit before filing her motion to open. Section 4009 provides that motions that "would render the judgment ... ineffective" toll the running of the twenty day appeal period if they are filed within that period. Here, however, the motions to open and to reargue did not stop the appeal period from running on the underlying judgment because they were not filed within the twenty day period. ¹

The plaintiff does not agree that her motion to open was untimely. At oral argument the plaintiff contended that, when properly computed, the time elapsed from October 12, 1993, to November 2, 1993, did not as a matter of law exceed twenty days. There are a variety of ways to compute time periods for a variety of purposes. "It is well settled that the day of the act from which a future time is to be ascertained is to be excluded from the computation.... The authorities are in conflict concerning the exclusion of the last terminal day, but the reasons for the divergent decisions are the varied circumstances of the cases and the differences in language of the statutes under consideration." (Citations omitted.) Lamberti v. Stamford, 131 Conn. 396, 397-98, 40 A.2d 190 (1944).

The filing period in this case is controlled by Practice Book § 4010, ² which establishes the rule for determining the expiration of time periods pertaining to the filing of papers in the Supreme and Appellate Courts. Section 4010 explicitly provides that for this purpose the first day shall not be counted and the last day shall be counted. In the present case, the clerk's office was open on November 1, 1993, the twentieth and last day for the timely filing of the plaintiff's motion to open. Computed according to § 4010, the plaintiff's motion to open was filed twenty- one days after the rendition of the judgment of nonsuit.

Where an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper. Tiber Holding Corp. v. Greenberg, 36 Conn.App. 670, 671, 652 A.2d 1063 (1995). "When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment." Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn.App. 634, 640, 626 A.2d 804 (1993). "This is...