Opinion
No. KNL CV 05 4008726
April 24, 2010
MEMORANDUM OF DECISION RE MOTION TO OPEN
The plaintiff, G.B. Sons, LLC (G.B. Sons), commenced this action on December 30, 2005, against the defendant, Hamzha, LLC (Hamzha). The original complaint was set forth in four counts alleging breach of contract, misrepresentation, fraud and a violation of the Connecticut Unfair Trade Practices Act, § 42-110(a), et seq. The sole member of G.B. Sons was Gul Billah who, on behalf of G.B. Sons, as buyer, entered into an agreement to purchase the assets of a retail food and gasoline sales outlet from the defendant dated May 31, 2005. She also executed a note dated the same day in favor of the defendant in the amount of $45,609 as the balance due for the purchase. Accompanying the note were personal guarantees executed by Gul Billah and her two sons, Al-Moktafi Billah and Al Mohaimen Billah.
The procedural history of this case has many twists and turns. On April 17, 2006, the defendant filed an answer and special defenses to the plaintiff's complaint, as well as a counterclaim. An amended complaint was filed by the plaintiff on July 3, 2006. On August 22, 2006, the defendant filed a motion to cite in Gul C. Billah, Al-Moktafi Billah and Al Mohaimen Billah (third-party defendants), which was granted on September 7, 2006. Thereafter, Hamzha filed a third-party complaint against the third-party defendants on October 17, 2006. Suffice it to say, as presently constituted, the pleadings between these parties include the four counts of the complaint, a one-count counterclaim alleging breach of contract arising out of a claimed default on the promissory note, and a third-party complaint against the three individual third-party defendants seeking to enforce their personal guaranties.
The file includes nearly one hundred individually coded pleadings and other documents many of which reflect missteps and misnomers by the various interested players involved in the underlying transaction. Only the ones deemed essential to the resolution of the pending motion are mentioned herein.
The defendant initially labeled its claim against the plaintiff, docket entry number 105.00, a "cross-complaint." But in its motion to cite in additional parties, filed August 22, 2006, the defendant refers to its cause of action as a "counterclaim" while continuing to call it a "cross-complaint" in the form provided for the court's order appended to its motion. Subsequent pleadings in this matter refer to the defendant's action as both a "cross-complaint" and a "counterclaim." Practice Book § 10-10 provides in relevant part, "any defendant may file counterclaims against any plaintiff and cross claims against any codefendant . . ." Therefore, the defendant's "cross-complaint" against the plaintiff is actually a counterclaim, and will be referred to as a counterclaim herein.
Subsequent pleadings by multiple parties alternatively refer to these parties as third-party defendants, cross-claim defendants and counterclaim defendants throughout the pendency of this matter. Since these parties only made appearances in this case as a result of Hamzha's third-party complaint, docket entry number 114.00, they will be referred to herein as third-party defendants.
The third-party defendants each filed pro se appearances on December 7, 2006. G.B. Sons filed a second amended complaint against Hamzha on December 20, 2006. On January 29, 2007, G.B. Sons, on behalf of itself and the third-party defendants filed a motion to cite in the Law Office of Attorney S.S. Hussain, LLC, and S.S. Hussain, Esquire (together, the Hussain defendants), as party defendants, and a third amended complaint against Hamzha and the Hussain defendants. The motion to cite in the Hussain defendants was granted on February 23, 2007, and the Hussain defendants filed an appearance on April 9, 2007.
The motion to cite in additional defendants filed by G.B. Sons purports to have been filed on behalf of G.B. Sons as well as the third-party defendants, even though the third-party defendants were never joined as plaintiffs to G.B. Sons' complaint, did not file any claims against any parties and were self-represented.
On June 7, 2007, Attorney Lorenzo Cicchiello, counsel for G.B. Sons since the commencement of the action, filed a motion to withdraw his appearance. As required, notice of Attorney Cicchiello's withdrawal was sent to all counsel and self-represented parties in the case. Of note, notice to G.B. Sons was sent to its agent, Mohammed Billah (Mr. Billah). On July 23, 2007, Attorney Ryan Barry entered an appearance as counsel for G.B. Sons in lieu of Attorney Cicchiello. On November 7, 2007, G.B. Sons, through its counsel, Attorney Barry, filed a notice of address change for two of the three self-represented third-party defendants, Al-Moktafi Billah and Al Mohaimen Billah.
Mohammed Billah is the husband of Gul Billah and the father of Al-Moktafi Billah and Al Mohaimen Billah. At various times throughout this litigation, he has sought to act on behalf of G.B. Sons and Gul Billah by virtue of a general power of attorney. As explained later in this memorandum, Mr. Billah's role with G.B. Sons and his lack of standing in the case has created a considerable amount of confusion and difficulty.
This was done despite the fact that Attorney Barry's appearance was on behalf of G.B. Sons only.
On June 6, 2008, Attorney Barry filed a motion to withdraw his appearance. In listing the plaintiff's last known address in his motion, Attorney Barry referred to the plaintiff as "Mohammad Billah, d/b/a G.B. Sons, LLC," and noted that the matter was scheduled for trial on July 8, 2008. The motion to withdraw was granted by the court (Martin, J.), on June 23, 2008. On June 24, 2008, Mr. Billah filed an appearance as "the plaintiff," and made an unsuccessful attempt to file a motion to reargue Attorney Barry's withdrawal. However, Mr. Billah is not an attorney and despite his persistent efforts to represent his wife's interest by virtue of a general power of attorney, he has never been a party to this action, and therefore, has no standing. See Long v. Delarosa, Superior Court, judicial district of New Haven, Housing Session at Meriden, Docket No. SPM 94 124880 (February 1, 1995, Silbert, J.) ( 13 Conn. L. Rptr. 309, 310) ("[t]he inherent right of a person to appear pro se in legal proceedings cannot be assigned to another by executing the power of attorney. To hold otherwise would invite the unauthorized practice of law" [internal quotation marks omitted]). Further, a non-attorney officer of a corporation may not file an appearance on the corporation's behalf. Triton Associates v. Six New Corp., 14 Conn.App. 172, 175-76, 540 A.2d 95, cert. denied, 208 Conn. 806, 545 A.2d 1104 (1988). In addition, a general partner who is not an attorney cannot file a pro se appearance on behalf of the partnership. Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn.App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994). "The authorization to appear pro se is limited to representing one's own cause, and does not permit individuals to appear pro se in a representative capacity." Id. Moreover, "the rationale for the rule in corporate cases applies equally to all artificial entities." Id., 548-49, citing Rowland v. California Men's Colony, 506 U.S. 194, 202, 113 S.Ct. 716, 12 L.Ed.2d 656 (1993).
On the day of trial, July 8, 2008, despite notice from the court to G.B. Sons and the third-party defendants sent on January 26, 2008, and notice from Attorney Barry, no one appeared on behalf of G.B. Sons or the third-party defendants. Hamzha moved for sanctions against G.B. Sons, including nonsuit or dismissal of all of G.B. Sons's claims, for failure to appear for trial pursuant to Practice Book § 17-19. The Hussain defendants moved that the case be dismissed against them on the same grounds. The court, Abrams, J., granted the motion, ordered that judgment of nonsuit enter on all of G.B. Sons's claims, including those against Hamzha and against the Hussain defendants, and dismissed the case. Also, at the time of hearing, the court granted Hamzha's motion for a default judgment, pursuant to Practice Book § 17-33, against G.B. Sons on Hamzha's counterclaim, and against the third-party defendants on Hamzha's third-party complaint and conducted a hearing in damages. Thereafter, the court entered judgment against G.B. Sons and the third-party defendants in the total amount of $46,761.82, inclusive of costs, and ordered Hamzha to file a motion for attorneys fees within 30 days (pursuant to Practice Book § 11-21). Hamzha's counsel complied with that order on August 6, 2008.
Practice Book § 17-19 provides: "If a party fails to comply with an order of a judicial authority or a citation to appear or fails without proper excuse to appear in person or by counsel for trial, the party may be nonsuited or defaulted by the judicial authority."
Practice Book § 17-33(a) provides: "If a defendant is defaulted for failure to appear for trial, evidence may be introduced and judgment rendered without notice to the defendant."
In its motion, Hamzha refers to the third-party defendants as "cross-claim defendants." But see footnotes 2 and 3.
Although Hamzha filed another motion for judgment on August 6, 2008 as to the counterclaim along with its motion for counsel fees, there is no question that judgment entered on both the nonsuit (docket entry number 151) and the default (docket entry number 152) on July 8, 2008. In filing a second motion, counsel for defendant was likely responding to a somewhat confusing notice (as to docket entry number 152) issued by the clerk's office following the hearing dated July 9, 2008. That notice was corrected and clarified on March 20, 2010, to reflect that the court (Abrams, J.), entered judgment on the counterclaim in the amount of $46,761.82 ($45,609 plus costs of $1,152.82) on July 8, 2008.
On July 21, 2008, almost two weeks after judgment entered, Mr. Billah, ostensibly on behalf of G.B. Sons, filed a motion to reargue Attorney Barry's motion to withdraw his appearance. This is one of many attempted motions and pleadings filed with the court by Mr. Billah. Mr. Billah is not a party to this action, not a member of G.B. Sons, nor an attorney licensed to practice in Connecticut and not entitled to appear on behalf of any party to this action. Therefore, to the extent that the pleadings filed by Mr. Billah relate to the motion to open of G.B. Sons or the third-party defendants, they have not been considered by this court.
The July 21, 2008 motion to reargue was actually the second effort by Mr. Billah to file a motion to reargue. On June 24, 2008, he filed an improper family court form which was never acted upon by the court.
In fact, all pleadings filed by Mr. Billah were ultimately struck by order of the court, Martin, J., on December 28, 2009.
On October 27, 2008, Attorneys Gordon Bednarz and John Forrest filed a "motion to open judgment and set new trial date and set aside nonsuit" on behalf of G.B. Sons and the third-party defendants. However, it was not until November 3, 2008, that the Law Office of John T. Forrest, LLC, entered appearances on behalf of G.B. Sons and the third-party defendants. On November 17, 2008, Attorney Bednarz also entered appearances on behalf of G.B. Sons and the third-party defendants. Hamzha filed an objection on November 17, 2008, and the Hussain defendants filed their objection on November 20, 2008.
Neither Hanizha nor the Hussain defendants have raised the issue that Attorneys Bednarz and Forrest each filed their appearances in this action after submitting the motion to open on behalf of G.B. Sons and the third-party defendants and the court does not address it.
A hearing on the motion to open commenced on November 21, 2008, and was continued to November 25, 2008. Thereafter, it did not reconvene until August 4, 2009, and concluded on August 6, 2009. In the intervening months between November 2008 and August 2009, the matter was referred to court annexed mediation which ultimately failed to produce a resolution. The parties filed briefs on November 2, 2009, November 13, 2009, November 16, 2009 and November 27, 2009. On November 23, 2009 (docket entry number 188) and on December 3, 2009 (docket entry number 192), Mr. Billah filed briefs addressed to the nonsuit and default. On December 1 and 2, 2009, Hamzha and the Hussain defendants, respectively, filed motions to punish and restrain Mr. Billah for engaging in the unauthorized practice of law. The court, Martin, J., granted those motions on December 28, 2009.
I MOTION TO OPEN THE JUDGMENT, SET NEW TRIAL DATE AND SET ASIDE THE NONSUIT
The power of the court to set aside a judgment of nonsuit or default is governed by § 52-212. Biro v. Hill, 231 Conn. 462, 466, 650 A.2d 541 (1994) (nonsuit); Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 131, 474 A.2d 456 (1984) (default); see also Tsitaridis v. Tsitaridis, 100 Conn.App. 115, 119, 916 A.2d 877 (2007) (default); Moore v. Brancard, 89 Conn.App. 129, 132, 872 A.2d 909 (2005) (nonsuit). Practice Book § 17-43(a) is almost identical to the statutory language of § 52-212. McLaughlin v. Smoron, 62 Conn.App. 367, 372, 771 A.2d 201 (2001); see also Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., 196 Conn. 233, 235, 492 A.2d 159 (1985). Since judgment of both the nonsuit and default were entered on July 8, 2008, the motion to open those judgments filed on October 27, 2008, was timely. See General Statutes § 52-212(a).
General Statutes § 52-212 provides: "(a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense. (b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear. (c) The court shall order reasonable notice of the pendency of the complaint or written motion to be given to the adverse party, and may enjoin him against enforcing the judgment or decree until the decision upon the complaint or written motion.
Section 52-212 sets forth a two-pronged test. Eastern Elevator Co. v. Scalzi, supra, 193 Conn. 134; see also Jaconski v. AMF, Inc., 208 Conn. 230, 237, 543 A.2d 728 (1988). To obtain relief, a plaintiff must establish both (1) that a good cause of action, for nonsuit, or a good defense, for default, existed at the time an adverse judgment was rendered; and (2) that the plaintiff was prevented from prosecuting it, for nonsuit, or the defense was not at that time raised, for default, because of mistake, accident or other reasonable cause. Biro v. Hill, supra, 231 Conn. 467; In re Baby Girl B., 224 Conn. 263, 284, 618 A.2d 1 (1992). "[I]n granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion . . ." Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., supra, 196 Conn. 235; see also Biro v. Hill, supra, 467-68.
"The moving party on a motion to open must not only `allege,' but also make a `showing' sufficient to satisfy the two-pronged test of § 52-212 . . ." (Citations omitted.) Eastern Elevator Co. v. Scalzi, supra, 193 Conn. 133-34. A bald assertion in a motion to open or an accompanying affidavit is inadequate to establish that a good cause of action existed, and prevents a court from making a finding as to the validity of the cause of action. Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., supra, 196 Conn. 241; Moore v. Brancard, supra, 89 Conn.App. 132. If it is determined that one prong of the two-prong test of § 52-212 is not satisfied, the court need not decide whether the remaining part of the test has been satisfied. Eastern Elevator Co. v. Scalzi, supra, 193 Conn. 134; Berzins v. Berzins, 105 Conn.App. 648, 653-54, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008).
The movants argue that their failure to appear for trial on July 8, 2008, was caused by mistake, language and cultural barriers, illness and unfamiliarity with the judicial system. The major thrust of their argument is that they relied on Mr. Billah to handle all aspects of this case because he was the agent of G.B. Sons by virtue of having been given a power of attorney to act in its interest by his wife, Gul Billah, the sole member of G.B. Sons and a third-party defendant. The movants further argue that they believed that the power of attorney authorized Mr. Billah to handle not just the business affairs of G.B. Sons, but also its legal affairs as well as those of the third-party defendants, including appearing in court on their behalf. As a result, the third-party defendants each testified at the hearing on the motion to open that they turned over all court mailings they received to Mr. Billah. Therefore, the movants argue that because they were "mistaken" as to Mr. Billah's authority to act on their behalf, the parties failed to appear at trial.
The court notes that neither Al-Moktafi Billah nor Al Mohaimen Billah ever gave their father, Mr. Billah, a power of attorney to act for them.
The movants explain that the "situation became confusing" when the attorney for G.B. Sons, Attorney Barry, filed a motion to withdraw his appearance. They argue that there is no evidence that Mr. Billah actually fired Attorney Barry, as Attorney Barry claimed in his motion to withdraw, and that Mr. Billah believed Attorney Barry was still his attorney on July 8, 2008, based on court notices he received bearing Attorney Barry's name and Mr. Billah's requests of Attorney Barry that he not withdraw. Therefore, Mr. Billah, G.B. Sons, and the third-party defendants relied on Mr. Billah's "mistake" in failing to appear at trial. Furthermore, they also argue that the failure to appear at trial by G.B. Sons and the third-party defendants should be excused because Mr. Billah, as the person the parties entrusted to handle all matters pertaining to this case on their behalf, was unable to appear at trial due to a heart condition.
In opposition to the motion to open, Hamzha argues that the movants have failed to brief the issues relevant to the motion to open. The Supreme Court has repeatedly stated that issues that have been improperly presented to this court through inadequate briefing are not entitled to review. "Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court." (Citation omitted; internal quotation marks omitted.) Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
The legal authority cited in the movants' post-hearing memorandum is sparse at best. In addition, there is little analysis of the authority they do cite seeking to apply those authorities or any other legal principles to their arguments. In particular, the movants filed an eight-page post-hearing memorandum which contains only five citations to legal authority. Of those, two are used only for boilerplate principles, one for the proposition that the granting of a motion to open judgment is within the trial court's discretion and another to attempt to establish the scope of the exercise of that discretion. However, the scope of the trial court's discretion as addressed in Higgins v. Karp, 243 Conn. 495, 706 A.2d 1 (1998), a case they miscite as Hiffins v. Karp, was applied by them only to a motion to open default under what is now Practice Book § 17-42, not a motion to open default judgment which is the motion presently before the court and is governed by § 52-212 and Practice Book § 17-43. The movants make no effort to apply Higgins to the instant case. Moreover, the last three authorities cited by the movants apply to the court's treatment of self-represented parties which may apply to the third-party defendants, who, although now represented by counsel, were self-represented as of July 8, 2008. But these cases are wholly inapplicable to G.B. Sons, an LLC which was represented by counsel except between June 23, 2008 and July 8, 2008, and a short time thereafter, because it is an entity legally unable to proceed as a self-represented party. While this court does not go so far as to deem certain of the arguments raised by the movants to be abandoned, it cannot ignore the fact the issues they raise have not been adequately briefed.
Practice Book § 17-42 addresses motions to set aside default where no judgment has entered.
"Any person who is not an attorney is prohibited from practicing law, except that any person may practice law, or plead in any court of this state `in his own cause.'" General Statutes § 51-88(d)(2). As discussed earlier in this decision, the authorization to appear pro se is limited to representing one's own cause, and does not permit individuals to appear pro se in a representative capacity.
A
The Supreme Court has long held that a claim of mistake, accident or reasonable cause in support of a motion to open a judgment of nonsuit or default judgment must be unrelated to any negligence on the part of the moving party in failing to appear prior to the entry of judgment and that the denial of such a motion on that basis is not an abuse of discretion on the part of the trial court. Jaconski v. AMF, Inc., supra, 208 Conn. 238; Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., supra, 196 Conn. 240-41; see Jaquith v. Revson, 159 Conn. 427, 432, 270 A.2d 559 (1970); Moore v. Brancard, supra, 89 Conn.App. 133; State v. Ritz Realty Corp., 63 Conn.App. 544, 548-49, 776 A.2d 1195 (2001); Segretario v. Stewart-Warner Corp., 9 Conn.App. 355, 363, 519 A.2d 76 (1986). Acts resulting from a party's own negligence that constitute a failure to prosecute a claim or assert a defense include a failure to appear or procure a continuance. People's Bank v. Horesco, 205 Conn. 319, 323, 533 A.2d 850 (1987); Automotive Twins, Inc. v. Klein, 138 Conn. 28, 34, 82 A.2d 146 (1951). Similarly, "[a] court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court's authority. Black v. Universal C.I.T. Credit Corp., 150 Conn. 188, 194, 187 A.2d 243 (1962)." (Internal quotation marks omitted.) Woodruff v. Riley, 78 Conn.App. 466, 471, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003).
While the mistake, accident or other reasonable cause prong of § 52-212 and Practice Book § 17-43(a) is met when a party can demonstrate that it failed to prosecute its claims or assert a defense through mistake, accident or other reasonable cause, Connecticut appellate authority has most often interpreted the prong to be met only where the mistake, accident or other reasonable cause is in the form of an error by the court or another procedural defect, rather than any unilateral act by the party moving to open. See Connecticut Light Power Co. v. St. John, 80 Conn.App. 767, 775-76, 837 A.2d 841 (2004); Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, 49 Conn.App. 731, 737-38, 715 A.2d 819, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998); Cholewinski v. Conway, 14 Conn.App. 236, 242, 540 A.2d 391 (1988); Carter v. D'Urso, 5 Conn.App. 230, 234-35, 497 A.2d 1012, cert. denied, 197 Conn. 814, 499 A.2d 63 (1985). Cholewinski v. Conway, supra, 14 Conn.App. 242, is a classic example of what constitutes mistake, accident or surprise in this context.
In Cholewinski, on the day prior to the date assigned for trial by the trial court, the defendant's counsel contacted the trial court case flow office and was told that no trial had been scheduled for the following day and that he would receive notice of the new schedule within two weeks. Id., 237-38. On the following day, when the defendant did not appear at trial, the trial court ordered a default judgment against him. Id., 238. The defendant later received two separate notices of assignment with two different trial dates. Id. He appeared in response to both notices. Id. Only after the second appearance for trial, did the defendant receive notice that a default judgment has been entered against him. Id. He then filed a motion to open the default judgment which was denied. Id., 238-39. Thereafter, he filed an appeal. Id., 239. The Appellate Court found that the defendant was prevented from appearing in the case by mistake, accident or other reasonable cause, holding, "[u]nder the circumstances of this case, fraught with confusion and procedural deficiency, we find that the trial court's denial of the defendant's motion to reopen the default judgment was unreasonable and erroneous." Id., 242.
Like Cholewinski, the Appellate Court has upheld the granting of motions to open under § 52-212 and Practice Book § 17-43(a) in other cases where the court was responsible for a procedural defect or some other error. See Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, supra, 49 Conn.App. 737-38 (court held it was an abuse of discretion not to open the judgment when at the time the motion for default for failure to plead was granted, the defendant's motions for extension of time to plead, and his objections to the plaintiff's motion for judgment by default had not yet been acted on); Connecticut Light Power Co. v. St. John, supra, 80 Conn.App. 775-76 (case was remanded with direction to grant the defendants' motion to open the default judgment where the court clerk's entry of default was improper); see also Gardner v. Pilato, 44 Conn.App. 724, 724, 692 A.2d 843, cert. denied, 241 Conn. 922, 696 A.2d 1265 (1997) (trial court retained jurisdiction to open a judgment on its own motion where judgment was originally rendered because of an administrative mistake).
Similarly, the granting of a motion to open, or the right to file such a motion, has been upheld where a showing by the moving party that it was not given proper notice was found to be reasonable cause. Carter v. D'Urso, supra, 5 Conn.App. 234-35 (lack of notice of entry of default or hearing in damages was reasonable cause); Collins v. Scholz, 34 Conn.Sup. 501, 505-06, 373 A.2d 200 (1976) ("[t]he fact that the defendant had no notice of the pendency of the action is a good defense against the action as well as a reasonable cause to set aside the judgment").
B
In light of the foregoing cases, the following additional facts are relevant to the court's determination of this motion. At the time she testified on November 21, 2008, Gul Billah had been in this country for thirteen years. She does not speak and reads little English. She can sign her name. Although she was the sole member of G.B. Sons, she was not involved in the business and relied on her husband to handle it for her. It was put in her name because she paid for it with winnings from the lottery. She gave her husband a power of attorney in May 2005. Attorney Hussain prepared the papers for the business sale at issue and she signed them. She and Attorney Hussain speak the same language. Her husband hired Attorney Barry to represent G.B. Sons. She gives all the mail to her husband including all the court notices that she received as well as any letters from Attorney Barry. She did not ask her husband to interpret any papers for her. Although she testified on direct examination that she was not aware of the trial date in this case, on cross examination, she said she heard from her husband in June that there was a trial in July. She recalls signing an appearance in this case but she did not know what she was signing and her husband did not explain it to her. In 2006, she sold the business but does not know for how much. Her husband does.
Al Mohaimen Billah testified that he worked in the store with his brother and that they did everything to keep it operating on a daily basis. Within a month of G.B. Sons taking over the business, Al Mohaimen Billah signed a personal guaranty at Attorney Hussain's house. His father handled all the legal matters. He had no idea about what was taking place in the legal proceedings. He does not dispute signing a pro se appearance but does not recall doing it. He gave all the court notices and any legal correspondence to his father without reading them. He knew of the trial but believed his father was handling everything with Attorney Barry. He never spoke to Attorney Barry. He does not know why his father did not work for the business.
Al-Moktafi Billah testified that he and his brother worked in the store for his mother beginning in May 2005. He speaks Hindi, Urdu, Bengali and English. He and his younger brother signed the guaranty. He does not know why he had to sign, did not read it and did not know what it was. Attorney Hussain did not explain it. If he knew what it was he would not have signed it. He trusted his father. His father managed everything. He gave all the mail concerning the business to his father. He signed an appearance on December 6, 2006, but did not prepare it. He changed his address in June 2007 and did not notify the court but his mail was forwarded to him at his new address. He did not believe that Attorney Barry represented him. He may have gotten the trial notice but did not read it. Prior to July 8, 2008, he knew that the trial was coming up.
Mr. Billah testified that Attorney Hussain put together the deal between G.B. Sons and Hamzha. He and Attorney Hussain met at the Islamic Center in South Windsor and became close. Mr. Billah and his family took over the store before seeing or signing any documents because Attorney Hussain told them it was a good deal and that the managers of the store were leaving for their home country. Mr. Billah entered into the deal very quickly because he trusted Attorney Hussain. At various times, Mr. Billah claimed that he understood that Attorney Hussain represented the seller in the transaction and that at other times strongly suggested that Attorney Hussain tampered with the fee agreement letter that he, his wife and son, Al Mohaimen, signed on May 5, 2005, which defined the scope of Attorney Hussain's representation of G.B. Sons. He said the documents were actually signed in June but backdated to May 31, 2005. After taking over the store in May 2005, problems developed immediately. Subway shut down its computer to operate that part of the business. The electric company shut off the electrical service and the telephone line was disconnected for nonpayment. Without a telephone line, the store was unable to make credit card charges. The newspaper distributor stopped delivering the newspapers and the lottery corporation sent someone to disconnect the lottery machine. All of this happened before May 31, 2005, the date on the closing documents.
Mr. Billah testified at his deposition that he read and understood the fee arrangement letter to state that Attorney Hussain would represent the seller and that he, his wife and son, on behalf of G.B. Sons "opt not to hire an attorney to represent us in this matter." See Defendant's Exhibit A which was also an exhibit to Mr. Billah's deposition of May 13, 2008. During the hearing on the motion to open held on November 25, 2008, Mr. Billah stated that the statements attributed to him in the deposition transcript on this subject were all false and that "many of the things have been recorded in my absence." (Transcript, 11/25/08, p. 131.) He also wrote to Attorney Barry on June 9, 2008, after reviewing the deposition transcript and told him that he noticed "lots of misprinting, misinterpreting, misleading and camouflaging the truth" in the transcript and copied counsel for Attorney Hussain, Attorney Nuzzo, on the letter. See Plaintiff's Exhibit 4.
Mr. Billah further testified that he told Attorney Barry that his doctor told him that he could not go to court on either June 23, 2008 or July 8, 2008. Although he was unhappy with Attorney Barry for not taking the depositions of the principal of Hamzha and Hussain, he did not fire him. However, prior to the filing of the motion to withdraw, Mr. Billah filed a grievance against Attorney Barry. Despite the grievance, Mr. Billah tried to convince Attorney Barry not to withdraw. He wrote to Attorney Barry on June 11, 2008; Plaintiff's Exhibit 5; and told him that he would be objecting to his motion to withdraw, a statement which he repeated in two other letters to Attorney Barry dated June 16, 2008 and June 23, 2008. Plaintiff's Exhibits 6 and 7. There was no mention in any of those letters, nor in another letter dated June 23, 2008; Plaintiff's Exhibit 8; that Mr. Billah's health prevented him from participating in the case or that he would be unable to attend trial on July 8, 2008 for health reasons. Rather, in one of the June 23, 2008 letters he stated: "I have no money, means and the time to hire a new attorney and you will have to continue till the trial is completed. I will submit to the court all the correspondences that I sent to you during the months of May and June 2008 to justify my contention for you continuation in the matter." Plaintiff's Exhibit 7. Mr. Billah went to Attorney Barry's office on June 23, 2008, and was informed by another attorney in the office that Attorney Barry went to court for the hearing on the motion to withdraw. Mr. Billah claimed at that time that he did not receive notice of the hearing on the motion to withdraw to be held that day. Defendant's Exhibits G and J reflect that a copy of the motion to withdraw dated June 6, 2008, stated the date, time and place of the hearing on the motion to withdraw with a cover letter indicating that it was faxed and mailed by certified mail to Mr. Billah. Mr. Billah's letters of June 23, 2008 acknowledge receipt of the motion to withdraw but suggest that he was not aware of the hearing held that day. See Plaintiff's Exhibits 7 and 8. Mr. Billah testified that he had no way to get to court that morning in New London because he had walked to Attorney Barry's office in Manchester but does not drive because of his heart. He received a fax from Attorney Barry on June 23, 2008, informing him that the withdrawal had been granted. On June 24, 2008, he hired a car to take him to court in Norwich where he talked to the clerk. Mr. Billah filed a motion to reargue the motion to withdraw on July 21, 2008, which was originally granted and later vacated by the court (Martin, J.). See docket entry numbers 156 and 156.50. After Attorney Barry's withdrawal, Mr. Billah spoke to several attorneys in Manchester and East Hartford about taking the case but it was too close to trial and they did not want to do it on such short notice. He did not appear in court on July 8, 2008, because he was sick and no attorney would take his case. Mr. Billah further testified that his sons had nothing to do with the case and he did not ask them to come to court. Although his wife knew about the trial she did not speak English. Mr. Billah has a Bachelor of Arts in English and a business accounting degree. He can read and write and received all the mailings from the court.
Although Mr. Billah testified that his doctor gave him an instruction that he should not go to court on these dates when he went to see his doctor on May 30, 2008, Mr. Billah has submitted no evidence beyond his testimony that he had a doctor's appointment on that date.
Although the motion to withdraw stated that the hearing on the motion would be held in Norwich, Mr. Billah did not go to court that day either in Norwich or New London where the hearing on the motion before Judge Martin was likely held.
C
As noted previously, the Supreme Court has long held that negligence is no ground for vacating a judgment, and that the denial of a motion to open a nonsuit judgment, or a default judgment, will not be held an abuse of discretion where the failure to prosecute the claim, or assert a defense, was the result of negligence. Jaconski v. AMF, Inc., supra, 208 Conn. 238; Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., supra, 196 Conn. 240-41. Specifically, the Supreme Court has said, a "judgment should not ordinarily be opened if [a party's] failure to appear or procure a continuance resulted from [the party's] own negligence." Automotive Twins, Inc. v. Klein, supra, 138 Conn. 33. Further, the Appellate Court in Brehm v. Brehm, 65 Conn.App. 698, 706, 783 A.2d 1068 (2001), upheld a trial court's denial of a motion to open where the trial court found: (1) the defendant had sufficient time to inform the court that he had a conflict with a trial date and seek a continuance where he knew of the conflict a month before trial; (2) where the defendant waited until the day of trial to request a continuance; and (3) at the hearing on the motion to open, the defendant failed to provide any reason for his failure to seek a continuance before the day of the trial.
II
CT Page 9775
MOVANTS' ARGUMENTS
G.B. Sons and the third-party defendants first argue that Mr. Billah's belief that G.B. Sons was still represented by Attorney Barry was a "mistake" that justifies the granting of its motion to open. Connecticut courts have repeatedly held that it is within the discretion of the trial court to find that such "mistakes" constitute negligence, and thus, are not enough to support the opening of a judgment. See Jaconski v. AMF, Inc., supra, 208 Conn. 238; Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., supra, 196 Conn. 240-41.In making their argument, the movants rely on Mr. Billah's interpretation of events as evidenced by his testimony as to Attorney Barry's relationship with G.B. Sons following Judge Martin's order granting Attorney Barry's motion to withdraw on June 23, 2008, fifteen days before the trial. It is evident from the record that Mr. Billah could not have reasonably believed that Attorney Barry was still representing G.B. Sons following the grant of Attorney Barry's motion to withdraw on June 23, 2008. First, Mr. Billah's testimony revealed that there was no question that Mr. Billah had notice of the hearing on the motion to withdraw. Second, the record reflects that Mr. Billah received a letter from Attorney Barry dated June 23, 2008, the very day of the hearing and the ruling of the court, notifying Mr. Billah that Attorney Barry's motion to withdraw had been granted and advising him that he should hire a new attorney "as soon as practicable." Third, and more telling of Mr. Billah's actual understanding, Mr. Billah testified that, following the grant of Attorney Barry's motion to withdraw, he began looking for a new attorney, consulting five separate attorneys, each of which refused to take his case given the July 8, 2008 trial date.
See Defendant's Exhibit G, letter to Mr. Billah from Attorney Barry by fax and certified mail sent June 23, 2008.
On the basis of Mr. Billah's testimony, the court cannot find that Mr. Billah, as of July 8, 2008, reasonably believed that Attorney Barry continued to represent G.B. Sons. In addition, since Attorney Barry never appeared for any of the third-party defendants, Mr. Billah's alleged misunderstanding would not excuse the failure of Gul Billah or her sons, Al-Moktafi Billah and Al Mohaimen Billah, to appear at trial. Mr. Billah's testimony concerning Attorney Barry's representation of G.B. Sons leading up to July 8, 2008, is not credible for several reasons. First, if Mr. Billah actually believed that Attorney Barry was still representing G.B. Sons, he would not have sought out a new attorney. While the movants' memorandum argues that Mr. Billah did not fire Attorney Barry, this argument has little relevance to the motion to open. The fact is that Attorney Barry formally withdrew from his representation of G.B. Sons. Mr. Billah had notice of Attorney Barry's intention to do so before the motion to withdraw was heard on June 23, 2008, and was given clear notice that the motion to withdraw had been granted on that day. It is not plausible nor reasonable that Mr. Billah continued to believe as of July 8, 2008, that Attorney Barry continued to represent the interests of G.B. Sons. Even more significantly, Mr. Billah had absolutely no basis to believe that Attorney Barry would appear for G.B. Sons at trial on July 8, 2008, or that, under any circumstances, Mr. Billah, the key witness in support of the complaint and in defense of the counterclaim, was excused from attending.
The movants' memorandum also asserts that Mr. Billah believed Attorney Barry was still his attorney because he received short calendar notices as late as September 2008, that had Attorney Barry's name on them. Although Mr. Billah did not present any of the referenced notices, the court record reflects that the name of Attorney Barry's firm continued to be listed in the appearances until September 22, 2008, when Judge Martin vacated his August 27, 2008 order granting Mr. Billah's motion to reargue the motion to withdraw (docket entry number 156). Therefore, there is no reasonable basis for the court to conclude that the pendency of a motion to reargue by Mr. Billah (originally incorrectly filed in Norwich on June 24, 2008 on an improper form (docket entry number 150) (see Plaintiff's Exhibit 9) and then again on July 21, 2008 (docket entry number 156) after the trial date would lead him to conclude that Attorney Barry continued to represent him when Attorney Barry made it very clear to him prior to the trial date that he no longer represented G.B. Sons and, in fact, had returned the file on the matter to Mr. Billah with advice on what Mr. Billah needed to do to protect his interests prior to the trial date. (See Defendants' Exhibit G.)
Similarly, the court is not persuaded by Mr. Billah's testimony that he was prevented by his heart condition from either appearing on the day of trial with his wife and sons to request a continuance or from filing a motion for continuance (presumably in his wife's and sons' names) on the day of trial. Mr. Billah testified that during the period of time before the trial date he was not feeling well and felt stressed, had heart pain, visited his doctor on May 19, 2008, and that his doctor advised him to "try to avoid" giving his deposition or appearing in court. He further testified that one of the reasons he did not appear in court on July 8, 2008 was because he felt sick. This is the extent of Mr. Billah's testimony as to his illness, and therefore, is the only evidence the parties rely on in support of their argument that Mr. Billah's illness represents reasonable cause for failing to appear. Although counsel for G.B. Sons and the third-party defendants attempted to introduce a letter from a doctor dated October 1, 2008, that letter was not admitted into evidence. The letter was also appended to the motion to open but was not in affidavit form and was totally ambiguous about the time frame of Mr. Billah's incapacity to conduct legal business. Therefore, it cannot be relied on by the court for any purpose.
The court notes that Mr. Billah has filed or attempted to file numerous pleadings, briefs and other information in the course of this litigation despite being advised by the court on more than one occasion that he had no standing to do so and was engaging in the unauthorized practice of law.
In addition, as noted previously, despite Mr. Billah's claim to the contrary, there is no mention in the correspondence from him to Attorney Barry contained in the plaintiff's exhibits, specifically his letters of June 9, 2005, June 11, 2005, June 16, 2005, or either of the letters of June 23, 2005, of his heart condition or any concern that he would be unable to participate in the trial scheduled for July 8, 2008, for reasons connected with his health. Given his poor credibility on other issues, the court does not credit this testimony at all. Beyond the doctor's letter held to be inadmissible, there was no offer of any medical records to support his claim of illness.
See Plaintiff's Exhibits 4-9.
Even so, as argued by Hamzha and the Hussain defendants, despite the alleged advice of his doctor, the trial record reflects that Mr. Billah attended his deposition on May 13, 2008, as well as hearings on this motion to open on November 25, 2008, August 4, 2009, and August 6, 2009. The court also notes that despite his claim of illness during the time period (June 23, 2008 through July 8, 2008), he visited Attorney Barry's office, wrote to Attorney Barry, went to court in Norwich on June 24, 2008, and met with five lawyers in search of trial counsel. He also filed a second motion to reargue on July 21, 2008 and has made continuing attempts to file pleadings and other documents even after new counsel appeared on behalf of G.B. Sons.
In their post-hearing memorandum, the movants cite the illness of their father as a reason for Mr. Billah's failure to appear, yet there was no specifics in their testimony on this issue. The court is left to rely only on Mr. Billah's testimony which was riddled with contradictions on the issue of whether he was unable to either appear at trial or file a motion for continuance in the time period between June 23, 2008, and July 8, 2008. Movants' counsel spend only one sentence in their memorandum on this topic as follows: "Mr. Billah testified that he was ill on the day of the trial due to his heart condition so that he could not appear."
Regardless of Mr. Billah's claim of illness, the Supreme Court has held that illness is not a legitimate ground for granting a motion to open. Jaquith v. Revson, supra, 159 Conn. 432; see also Jacobson v. Robington, 139 Conn. 532, 537, 95 A.2d 66 (1953). In Jaquith v. Revson, supra, 432, the court held that a history of illness and seclusion is not a valid reason for failing to comply with a court order and does not constitute mistake, accident or other reasonable cause for failing to comply, but does constitute negligence. Similarly, in Jacobson v. Robington, supra, 537, the court held that it was not required to open a judgment in part because the defendant's illness did not prevent her from entering an appearance. Moreover, when asked by the court why, between June 24, 2008 and July 8, 2008, he did not file something with the court stating his inability to attend or requesting a continuance, Mr. Billah admitted that his failure to contact the court was his "mistake."
III DEFAULT ON THIRD-PARTY COMPLAINT
As Mr. Billah's testimony reflects his failure to appear or procure a continuance resulted from his own negligence. As recounted previously, the reasons he has offered are not credible. Regrettably, his failure to act responsibly has severe consequences for his wife and sons, who, for their own part, totally neglected this litigation. They did not respond or even open and review any court notices or legal correspondence because they trusted Mr. Billah to take care of things. They argue that they wholly relied on Mr. Billah to handle their participation in this case. Although this state of affairs is unfortunate, they were negligent which does not constitute reasonable cause for opening the default judgment against them personally on the third-party complaint. All three of the third-party defendants testified that they were aware prior to the trial that it was imminent and do not claim that they did not receive notice from the court. Nevertheless, they contend that their reliance on Mr. Billah and failure to involve themselves in the case to the point of not even opening mail which they knew involved the case constitutes reasonable cause to open the default judgment against them. Under all the circumstances, legal precedent does not support this contention. When defendants are properly served with notice, failure to read or comply with that notice cannot constitute "mistake, accident or reasonable cause" for failing to appear at trial.
In a long line of cases, Connecticut courts have held that a party's decision to ignore valid notice of court dates and decisions of the court constitutes negligence, and is not reasonable cause that will support granting a motion to open. See Black v. Universal C.I.T. Credit Corp., 150 Conn. 188, 194, 187 A.2d 243 (1962) ("[a] court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court's authority"); Woodruff v. Riley, supra, 78 Conn.App. 471-72 (citing Black and upholding the trial court's decision to deny the defendant's motion to open the judgment where the defendant acknowledged receipt of notice, but testified that she had given the notice unopened to her husband from whom she was separating); see Kaplan Jellinghaus v. Newfield Yacht Sales, Inc., 179 Conn. 290, 292, 426 A.2d 278 (1979) (Supreme Court found no error when trial court denied a motion to open a default judgment where defendants' failure to appear was the result of negligence in part because the defendants received and ignored legal documents providing notice of both the action and the motion for judgment); Fontaine v. Thomas, 51 Conn.App. 77, 82-83, 720 A.2d 264 (1998) (Appellate Court held that the trial court did not abuse its discretion in denying the defendant's motion to open a default judgment when the defendant had actual notice of the pending case by reason of in-hand service and failed to take any action other than to send a letter to the clerk of court. "While it may have been his mistaken perception of what steps he had to take that prevented him from defending, his error does not constitute a demonstration of mistake, accident or other reasonable cause that prevented him from defending the plaintiff's case"); Vetter v. Technical Management, Inc., 1 Conn.App. 282, 284, 471 A.2d 653 (1984) (Appellate Court found that the trial court was justified in denying a motion to open a default judgment where it was undisputed that the defendants had notice of the litigation and "[t]he failure of the defendants to appear was due either to indifference or inattention or both. The trial court's conclusion that the defendants' conduct amounted to negligence and that the defendants' failure to appear and defend was the result of that negligence is fully warranted"); see also Pelletier v. Goodnoff, 113 Conn.Sup. 563, 565-66, 727 A.2d 277 (1998), aff'd, 52 Conn.App. 360, 727 A.2d 229 (1999) (although a good defense existed at the time that the judgment was rendered, the trial court denied the nonresident defendants' motion to open because the purchasers had actual notice of the action); Motes v. Karzian Moving Storage, Inc., 31 Conn.Sup. 540, 542, 329 A.2d 624 (App. Sess. 1974) (court held it was not an abuse of discretion for trial court to refuse to open a default judgment where it found that the act of the corporate defendant's secretary and treasurer, and wife of its president, of receiving the writ, summons and complaint, disposing of it, and then forgetting about it, was a negligent act. In so holding, the court stated, "[a] party to a suit in court must give it the care and attention which a man of ordinary prudence usually bestows upon his important business. If he fails to do so he cannot obtain relief from a judgment resulting from his negligent failure to take the proceedings required for his protection" [internal quotation marks omitted]).
Although there may be some cases where courts have shown leniency where parties have been completely indifferent to a lawsuit against them, in this case, the third-party defendants actually filed appearances in response to Hamzha's third-party complaint and thereafter made a conscious choice to ignore the court proceedings and everything related to it. The safeguard set forth in § 52-212 does not extend to parties who with knowledge and notice of a lawsuit against them fail to respond in any way in disregard of the legal consequences.
Finally, the movants further argue that the court should open the default judgment against them because they were self-represented at the time the judgment was entered. Quoting Carr v. Fleet Bank, 73 Conn.App. 593, 595-96, 812 A.2d 14 (2002), the parties argue that "[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party." (Internal quotation marks omitted.) The movants also cite Wasilewski v. Machuga, 92 Conn.App. 341, 342, 885 A.2d 216 (2005), which contains similar language. Both of these cases contain the qualifying principle that any liberal interpretation of the rules of practice in favor of self-represented litigants cannot be at the expense of other parties. Id. ("[for justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties"); Carr v. Fleet Bank, supra, 596 (only applying the policy "when it does not interfere with the rights of other parties"). "Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Carr v. Fleet Bank, supra, 596; see Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 177, 968 A.2d 971 (2009); see also Wasilewski v. Machuga, supra, 342 (for justice to be done, Connecticut courts cannot "disregard completely our rules of practice"). Leniency granted to the third-party defendants based on the fact of their self-represented status alone carries the attendant risk of allowing self-represented defendants to ignore our rules of practice and related requirements of substantive law in total disregard of the rights of an adverse party. In this case, Hamzha had the right to conclude this case, a lawsuit which they did not initiate, within a reasonable amount of time. Hamzha followed all of the procedural requirements of our courts in obtaining its default judgment against the third-party defendants and should not now be penalized by the neglect of the moving parties.
CONCLUSION
For all the reasons previously stated, the court finds that G.B. Sons, its authorized agent Mr. Billah, and the third-party defendants, have not shown that their failure to appear at trial on July 8, 2008, resulted from mistake, accident or other reasonable cause. Accordingly, the court need not decide whether the movants had a good cause of action or defense. See Eastern Elevator Co. v. Scalzi, supra, 193 Conn. 134; Berzins v. Berzins, supra, 105 Conn.App. 653-54. G.B. Sons' and the third-party defendants' motion to open the judgment of nonsuit against G.B. Sons, the judgment of default on Hamzha's counterclaim against G.B. Sons and on Hamzha's third-party complaint against Gul C. Billah, Al-Moktafi Billah and Al Mohaimen Billah is hereby denied in its entirety.
In accordance with this decision, Hamzha's motion for counsel fees docket entry number 159 may now be claimed for hearing.