Opinion
No. MMX-CV 09-6000516 S
September 23, 2009
MEMORANDUM OF DECISION RE MOTION FOR ARTICULATION OR CLARIFICATION
I. BACKGROUND AND DISCUSSION
The defendant in this action seeks the court's "clarification/articulation" of the court's decision to deny a motion to strike to preserve its rights on appeal. The motion is denied as untimely pursuant to Practice Book § 66-5, absent a pending appeal.
Practice Book § 66-5 states in relevant part: "A motion seeking corrections in the transcript or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called . . . a motion for articulation . . . Except in cases where the trial court was a three judge court, an original and three copies of such motion shall be filed with the appellate clerk . . . The appellate clerk shall forward the motion for . . . articulation and the opposition, if any, to the trial judge who decided, or presided over, the subject matter of the motion for . . . articulation for a decision on the motion . . . Any motion for . . . articulation shall be filed within thirty-five days after the delivery of the last portion of the transcripts or, If none, after the filing of the appeal, or, no memorandum of decision was filed before the filing of the appeal, after the filing of the memorandum of decision . . ." (Emphasis added.)
In the present case, no trial court transcript was delivered. Ordering and filing of the transcript is normally done on or before the date of the appeal. Connecticut Rules of Appellate Procedure (2009 Ed.), § 63-8, p. 150. According to the Practice Book, if there is no transcript, any motion for articulation must be filed "after the filing of the appeal." Practice Book § 66-5. In addition, the section requires that the motion and copies be filed with the appellate clerk, which has not been done. Id.
"An appellant may seek to remedy any ambiguities or deficiencies in a trial court's decision by filing a motion for articulation as provided in Practice Book § 66-5." American Honda Finance Corp. v. Johnson, 80 Conn.App. 164, 168, 834 A.2d 59 (2003). "Practice Book § 66-5 makes clear that the motions for articulation under that section may be filed only after the filing of an appeal." Brycki v. Brycki, 91 Conn.App. 579, 594, 881 A.2d 1056 (2005). "Here, it was the defendant's burden, as the appellant, to file a motion for articulation that would clarify the court's basis for and reasoning behind its calculations. See Practice Book § 66-5 . . ." (Citations omitted; emphasis added.) Tracey v. Tracey, 97 Conn.App. 122, 129, 902 A.2d 729 (2006).
In Crews v. Crews, 107 Conn.App. 279, 320 n. 4, 945 A.2d 502 (2008), the dissent addressed the issue by way of a footnote. "After the judgment, but prior to the appeal, the defendant filed a motion for articulation requesting that the court explain the unforeseen nature of the change the court had found in the economic circumstances of the parties. As there was no appeal filed, the court declined to articulate its decision at that time but stated that it would grant a motion for articulation of and when an appeal was filed." (Emphasis added.)
Finally, in Marshall v. Marshall, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA 05 4007455 (July 24, 2008, Tierney J.), the Superior Court dealt with the issue, stating that "[t]here is no provision in the Practice Book for a motion for articulation to be filed in a case that has not been appealed. P.B. §§ 60-5, 63-1, 66-5 and 66-7. The court entered judgment on May 30, 2007, and neither party has filed an appeal." It cited further persuasive authority. "There is no authority for [m]otion for [a]rticulation at the trial level." Wolak v. Hair Club, Inc., Superior Court, judicial district of New Haven, [D]ocket [N]o. 359140 (October 24, 1995, Licari, J.); McLaughlin v. McLaughlin, Superior Court, judicial district of Hartford, [D]ocket [No. FA 960713773 (January 21, 1999, Gruendel, J.)." (Internal quotation marks omitted.) Id.
The authority cited thus far involves motions for articulation after actual judgments, post-trial. As to rulings on pre-trial motions, the Superior Courts have proceeded inconsistently. Some courts have denied a motion for articulation absent an appeal. In Charlesworth v. SBC/SNET Information Systems, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0076399 (March 22, 2004, Upson, J.) ( 36 Conn. L. Rptr. 710), the court denied the motion for articulation regarding the court's order denying the plaintiff's motion to determine the sufficiency of the defendant's answers to the plaintiff's first set of request for admissions. It reasoned that "Chapter sixty-six [of the Practice Book], which encompasses § 66-5, addresses motions and other procedures for matters pending appeal. After such, the plaintiff's reliance on Practice Book § 66-5 is misplaced because the present matter is not pending appeal." It also cited Wolak v. Hair Club, Inc., supra.
At least one Superior Court faced with a motion for articulation based on the court's failing to comply with the requirements of Practice Book § 10-43 in granting a defendant's motion to strike, found that "[t]he Practice Book does not provide for a [m]otion for [a]rticulation except in the context of appellate practice . . . However, the court will treat the plaintiff's motion as one to reargue under Practice Book § 11-12(a)." (Citation omitted; internal quotation marks omitted.) Rogg v. Rose, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195955 (December 20, 2007, Tobin, J.).
That section states in relevant part: "A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue setting forth the decision or order which is the subject of the motion, the name of the judge who rendered it, and the specific grounds for reargument upon which the party relies."
In DeNicola v. The Stop Shop Companies, Inc., Superior Court, judicial district of New Haven, Docket No. 305650 (May 2, 1991, Flanagan, J.), the court stated that "[a]lthough the Court is of the opinion that a [m]otion for [a]rticulation is not appropriate until an appeal has actually been taken, it files this memorandum to apprise the plaintiff why the [m]otion to [s]trike was granted," which, in effect, served as granting the plaintiff's motion for articulation.
Other courts have granted the motion outright despite no appeal being taken. See Berlin Batting Cages, Inc. v. Berlin Planning Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 96 0579882 (July 7, 1999, Booth J.) ( 25 Conn. L. Rptr. 96) (court grants "pre-appeal motion for articulation" filed by both parties).
In J.J. Dlugos Son Building and Remodeling Co. v. Gehrken, Superior Court, judicial district of New Britain, Docket No. CV 05 4003754 (May 22, 2006, Shaban, J.), the court stated that "[o]nce the court has ruled on an issue before it, a party may file . . . a motion for articulation under Practice Book § 66-5 if the matter is pending on appeal," but then apparently decided to address the defendants' "motion for amplification" — for which there is no authority in the Practice Book — as a motion for articulation relating to the denial of their motion for summary judgment without discussing whether the defendants, in fact, first took an appeal. (Emphasis added.)
Still other courts have granted the motion without even touching upon the requirement of appeal. See, e.g., Donahue v. Gionet, Superior Court, judicial district of New London, Docket No. 104561 (November 22, 1995, Teller, J.) ( 15 Conn. L. Rptr. 449).
The defendant argues in its motion that "there is a need for clarification so that Middlesex can preserve its appellate rights." "[I]t is well settled that [a]n articulation [pursuant to Practice Book § 66-5] is appropriate where the trial court's decision contains some ambiguity or deficiency reasonably susceptible of clarification . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal . . . The . . . failure to seek an articulation of the trial court's decision to clarify . . . issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review." (Internal quotation marks omitted.) Elia v. Elia, 99 Conn.App. 829, 836-37, 916 A.2d 845 (2007). "It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review . . . [A]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed." Gordon v. H.N.S. Management Co., 272 Conn. 81, 101, 861 A.2d 1160 (2004).
While at least one Superior Court granted the motion prior to appeal in order to assist the defendant in preserving the matter for appeal, see Taylor v. Williams Scotsman, Inc., Superior Court, judicial district of New London at Norwich, Docket No. CV 00 0119327 (April 24, 2001, Robaina, J.), that decision contradicts the requirements of the Practice Book, and appellate authority. The defendant may preserve its rights without dispensing with Practice Book procedure. According to the Practice Book, an appeal must first be taken, after which a motion for articulation may be filed. This is prescribed appellate procedure practice, and following it does not affect preservation of the defendant's rights.
II. CONCLUSION
The defendant's motion for articulation is denied.