Opinion
FSTCV136020380
12-06-2016
Caroline Ward v. Rodney Weber
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO EXTEND TIME WITHIN WHICH TO FILE APPEAL (#201)
Hon. Charles T. Lee, J.
The jury rendered its verdict against the plaintiff on all counts of her complaint on May 6, 2016. The court denied the plaintiff's motion to set aside the verdict, for JNOV and for additur on November 21, 2016, and judgment entered on the same day, November 21, 2016. On December 5, 2016, the plaintiff filed the present motion to extend the time within which to appeal, pursuant to Practice Book Section 66-1(a).
Practice Book Section 66-1(e) provides:
A motion for extension of time shall be filed at least ten days before the expiration of the time limit sought to be extended or, if the cause of such extension arises during the ten day period, as soon as reasonably possible after such cause has arisen. No motion under this rule shall be granted unless it is filed before the time limit sought to be extended by such motion has expired.
Running twenty days from November 21, 2016, the appeal period expires on December 12, 2016 (the 11th being a Sunday). As a result, the motion to extend should have been filed on December 1st, as conceded by plaintiff in Paragraph 6 of her motion.
Plaintiff claims the motion was filed late because " of the Thanksgiving Holiday and need to review the issues before deciding whether to appeal or not." Similarly, she claims that good cause exists for the extension of time to file an appeal because " the plaintiff is evaluating her appellate rights given the issues raised at trial, briefed in the post-trial motions and in the memorandum of decision." As a result, it cannot be claimed that the cause of the extension arose in the ten-day period following December 1st.
Given the foregoing, the motion for extension was untimely filed. However, that conclusion is not the end of the inquiry if Section 66-1(e) is considered to be directory and not mandatory, in which case the court should exercise its discretion as to granting the extension despite non-compliance with Section 66-1(e).
The Appellate Court recently has released an opinion reiterating the standards for making this determination in Meadowbrook Ctr., Inc. v. Buchman, 169 Conn.App. 527, 2016 WL 6947477 (2016). In that case, the court reversed the trial court's refusal to consider an application for attorneys fees pursuant to General Statutes Section 42-150bb, which was filed five days later than the thirty-day period provided in Practice Book Section 11-21. The court found that the entitlement to a consumer's attorneys fees is mandatory under § 42-150bb, but that the time limit under P.B. § 11-21 is directory, and that the trial court erred in not using its discretion to allow the late filing.
The court reasoned (169 Conn.App. 527, Id. at *4),
In analyzing Practice Book § 11-21, we must determine whether the use of the term " shall" creates a mandatory or directory duty, as the use of the word " shall" does not automatically create a mandatory duty. Our Supreme Court has noted: " [A]lthough we have often stated [that] [d]efinite words, such as must or shall, ordinarily express legislative mandates of a nondirectory nature . . . we also have noted that the use of the word shall, though significant, does not invariably establish a mandatory duty." (Citation omitted internal quotation marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 744, 865 A.2d 428 (2005). Rather, the test to apply in determining whether the use of the word " shall" connotes a mandatory duty, or is merely directory, is " whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or convenience . . . If it is a matter of substance, the statutory provision is mandatory . . . If however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply." (Citations omitted; internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, supra, 219 Conn. at 480-81.
The Appellate Court further discussed the issue in footnote 7 as follows:
This court, in Morera v. Thurber, 162 Conn.App. 261, 267-68, 131 A.3d 1155 (2016), looked beyond the plain meaning of the word " shall" to determine whether its use in Practice Book § 25-26(g) was mandatory or directory. The analysis hinged on the use of both " shall" and " may" in the same section, which required a hearing under certain circumstances, and the court stated: " [W]hen a [drafter] opts to use the words 'shall' and 'may' in the same statute, they 'must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings." Id., 268. Unlike the rule under scrutiny in Morera, neither of the two enactments in question here contains such a duality.
Applying these principles to P.B. Section 66-1, the court notes that subsection (d) requires the filing of the motion ten days before the expiration period, but allows a later filing if the cause of the extension arises thereafter, but in no event permits filing after the time limit sought to be extended. Thus, the section contains a prescribed time for filing the motion, a limited extension and a prohibition, or " negative words" if the motion is filed after the appeal period. Subsection (a) of Section 66-1 provides that motions " shall" be filed with the clerk and the trial judge " may, " for good cause shown, extend the time to file the appeal.
Accordingly, the language of P.B. Section 66-1 leads the court to conclude that the deadline in subsection (d) is mandatory. The words " shall" and " may" are both used and are not interchangeable. The rule relates to the filing of the appeal, which is the subject of the provision itself. Further, the court finds that plaintiff has not demonstrated good cause, because Thanksgiving fell on November 24th, more than a week before the filing date for the extension motion and sixteen days before the appeal date.
While the mandatory/directory issue is one that has engaged the courts for many years and in many situations, see, e.g., Colt v. Eves, 12 Conn. 243 (1837), this ruling in this situation is consistent with the holdings of our Supreme Court in Lostritto v. Community Action Agency, 269 Conn. 10, 848 A.2d 418 (2004) (120-day period for filing apportionment complaint mandatory) and Williams v. Commission on Human Rights and Opportunities, 257 Conn. 258, 285-89, 777 A.2d 645 (2001) (180-day period for filing complaint with agency mandatory).
Even if the court were to determine that Section 66-1(e) is directory, and that the court is permitted to exercise its discretion to disregard the deadline, it would not do so to grant the extension because of the plaintiff's failure to adduce good cause for the extension.