Opinion
No. CV 03 0483057
May 18, 2005
MEMORANDUM OF DECISION ON MOTION TO OPEN JUDGMENT
The defendants Steven Starbala and Beverly Starbala move to open the judgment obtained against them by the plaintiff Credit One, and move to dismiss the case, on the grounds that there was a failure to obtain personal jurisdiction over them at the commencement of the lawsuit. The plaintiff opposes the motion on the grounds that the defendants subsequently learned about the existence of the lawsuit and filed their challenge to the court's jurisdiction too long after that event to permit the relief they seek. The court is unpersuaded by the plaintiff's objection and grants the motion of the defendants.
FACTS
This action was commenced on October 1, 2003, when State Marshal Robert Aceto left the writ, summons, and complaint at 95 Wauwinet Trail, Guilford, Connecticut. The defendants, however, had moved from 95 Wauwinet Trail, Guilford, Connecticut on May 31, 2002. They have lived ever since at 515 Lake Drive, Guilford, Connecticut. Thus, at the time of service of process, the defendants' "usual place of abode" was not 95 Wauwinet Trail, Guilford, Connecticut. See Conn. Gen. Stat. § 52-57(a). Because the defendants knew nothing about the lawsuit at that time and failed to file an appearance in response to the complaint, the plaintiff filed a motion for default for failure to appear, which was granted. The court (Arnold, J.) entered a money judgment in favor of the plaintiff on January 27, 2004.
Shortly thereafter, the defendants acquired knowledge of the judgment when they received notice of it in the mail. The defendants then made contact with the office of plaintiff's counsel and had several telephone conversations in an attempt to resolve the matter. On July 5, 2004, the defendants received from State Marshal Michael Cassidy in-hand service of a set of post-judgment interrogatories, seeking information to enforce the judgment. They did not answer the interrogatories.
In September 2004, the defendants retained counsel to represent them in an unrelated foreclosure proceeding. The defendants' counsel contacted the office of the plaintiff's counsel to attempt to resolve the debt. When that effort failed, the plaintiff caused an examination of judgment debtor proceeding to be scheduled. The defendant Steven Starbala was subpoenaed to appear for the March 14, 2005, examination. At that point, the defendants formally retained counsel for this proceeding and filed the instant motion to open the judgment and vacate the judgment, #105, and a motion to dismiss for lack of jurisdiction, # 107.
DISCUSSION
Connecticut General Statutes §§ 52-212 and 52-212a as well as Connecticut Practice Book § 17-4 govern the authority of the court to open default judgments. Section 17-4 provides in relevant part that "unless otherwise provided by law . . . any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aide is filed within four months succeeding the date on which notice was sent." The plaintiff objects to the motion to open because more than four months have passed since the defendants received actual notice of the judgment against them. Plaintiff's Objection to Motion to Open, p. 2. Indeed, the motion to open the judgment comes nearly fourteen months after the defendants obtained actual knowledge that judgment had been rendered against them. Moreover the plaintiff points out that the defendants have failed to allege that a good defense on the merits existed at the time judgment was rendered, citing Kaplan Jellinghaus, P.C. v. Newfield Yacht Sales, Inc., 179 Conn. 290 (1979) (holding the trial court's denial of a motion to open a default judgment was not an abuse of discretion because the defendant failed to offer a defense).
The defendants assert that in a situation such as this in which the court failed to acquire jurisdiction over them in the first place, the judgment is void ab initio. They assert that this is so regardless of their later discovery of the existence of the lawsuit and regardless of the time limits set up for opening a judgment.
The issues raised here implicate the court's personal jurisdiction over the defendants. That being so, it is clear that the defendants have the right to raise the issue irrespective of the four-month time limit codified in Conn. Gen. Stat. § 52-212 and Connecticut Practice Book § 17-4. American Honda Finance Corp. v. Johnson, 80 Conn.App. 164, 167 (2003). The Superior Court may exercise jurisdiction over a person only if that person "has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." Bove v. Bove, 77 Conn.App. 355, 362, 823 A.2d 383 (2003). Unless the service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction. Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003). The court possesses the inherent authority at any time to open and modify a judgment rendered without jurisdiction. Bove v. Bove, supra, 367. The citation of the plaintiff to the American Honda and the Kaplan cases, supra, for support is misplaced. In American Honda the Appellate Court let stand a trial court's denial of a defendant's motion to open a judgment that was filed two years postjudgment. The plaintiff urges the court to adopt the "analysis" used by the Appellate Court in that case. Plaintiff's Objection, p. 2. While the Appellate Court reviewed the statutes and cases that govern the opening of a judgment, the Appellate Court specifically stated that it was "unable to reach the merits of the defendant's claim." Id. 169. For that reason, this court can draw no conclusion about the propriety of the trial court's decision in that case As for the Kaplan case, supra, there was no question but that the defendant did receive the legal process commencing that lawsuit. The issue of personal jurisdiction was absent in Kaplan.
As for the plaintiff's argument that the defendants are nonetheless bound by the judgment because their motion was filed too late, that issue — the interplay of Conn. Gen. Stat. § 52-212 and 212a with the concept of lack of personal jurisdiction — was considered in Wilkinson v. Boats Unlimited, Inc., 236 Conn. 78, 83 (1996). In that case the jurisdictional defect was that one of the parties was a foreign corporation who lacked a lawful corporate presence in Connecticut.
The court held that
although [General Statutes] §§ 52-212 and 52-212a normally limit the authority to open judgments to a four-month period, these statutes do not preclude the opening of a default judgment that is rendered without jurisdiction over a defendant. The prefatory words of § 52-212a establish that the four-month limitation only operates "[u]nless otherwise provided by law As a matter of law, in the absence of jurisdiction over the parties, a judgment "is void ab initio and is subject to both direct and collateral attack." Broaca v. Broaca, 181 Conn. 463, 467 (1980).
Wilkinson, supra, at 83-84.
Even in Wilkinson, there was a slight window left open should it appear that the party attacking the court's jurisdiction "delayed inequitably in filing its motion to set aside the default judgment." Id., 84. In the instant case, the court does not find that the defendants delayed inequitably in doing so. Rather they promptly contacted the plaintiff though plaintiff's counsel and attempted on multiple occasions over a number of months to resolve the underlying dispute.
Because the defendants raise the issue of insufficient service of process, thereby implicating the court's jurisdiction over them, the court may open the default judgment irrespective of relevant statutory time limitations. They have sustained their burden of proving that they were never served with legal process. Under these facts, the court is persuaded that this judgment must be opened and vacated, and that the complaint against the defendants must be dismissed. Motions #105 and # 107 are hereby granted.
Patty Jenkins Pittman, Judge