Opinion
NNHCV166061858
09-10-2019
Priscilla Taylor v. Michael Moscowitz et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Ozalis, Sheila A., J.
MEMORANDUM OF DECISION RE MOTION TO OPEN
OZALIS, J.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This matter has a long procedural history, stretching over one decade with multiple cases. The plaintiffs, Priscilla B. Taylor (Taylor) and Estate of Paul Taylor (Estate), commenced the present action against the defendants, Michael Moscowitz and Law Offices of Michael Moscowitz, LLC, on March 29, 2016. The Estate’s action as to all defendants was withdrawn on April 3, 2018. See Docket Entry No. 143. Taylor, the remaining plaintiff, alleges recklessness by the defendants in their handling of an underlying personal injury action, Kearse v. Taylor, Superior Court, judicial district of New Haven, Docket No. CV-08-5025041-S (First Action), which was brought against Taylor and the Estate in Superior Court. In this action, the plaintiff Taylor has moved to open this court’s September 24, 2018, judgment of nonsuit. See Docket Entry No. 152.30.
The return of service indicates the papers were in the marshal’s possession March 27, 2016, and service was effected March 29, 2016. See Docket Entry No. 100.30.
Prior to addressing the present motion, this court will briefly set forth the history of the underlying personal injury action, First Action. The plaintiff in the First Action, Samuel Kearse, commenced that case after sustaining burn injuries from a gas stove at an apartment building owned by Taylor and the Estate, the defendants in that action. Kearse v. Taylor, 165 Conn.App. 780, 782, 140 A.3d 389 (2016). While the First Action was pending, Taylor’s attorney, Howard A. Lawrence, was placed on inactive status, and Attorney Michael Moscowitz was appointed trustee to inventory files and protect the interests of Lawrence’s clients. Id., 782-83. On October 22, 2012, the court in the First Action granted the plaintiff’s motion for judgment on default, and subsequently a judgment of $2,841,914.84 was rendered against Taylor and the Estate on November 28, 2012. Id., 783-85. Taylor and the Estate filed a motion to open judgment which was denied by the court. An appeal was then taken and the Appellate Court reversed the trial court’s denial of Taylor’s March 27, 2015, motion to open judgment, instructing the lower court to determine when Taylor and the Estate received notice of the judgment. Id., 791. On remand, the trial court found that Taylor and the Estate had actual notice of the judgment on December 4, 2013, and notice of the full amount of the judgment on February 10, 2014, and that Taylor and the Estate had failed to timely file a motion to open judgment. Kearse v. Taylor, Superior Court, judicial district of New Haven, Docket No. CV-08-5025041-S (November 21, 2016, Agati, J.).
The defendants in the prior action were Priscilla B. Taylor, the remaining plaintiff in the present case, and Paul Bradley Taylor, who has since passed away.
A United States Bankruptcy Court, District of Connecticut, summary of schedules- dated December 4, 2013- listed Samuel Kearse, the plaintiff in the prior case, as a creditor holding an unsecured nonpriority claim. Kearse v. Taylor, Superior Court, judicial district of New Haven, Docket No. CV-08-5025041-S (November 21, 2016, Agati, J.). "[Taylor] listed as a creditor, Samuel Kearse, the plaintiff, with address of plaintiff being c/o Zeldes, Needle & Cooper, who are plaintiff’s counsel in this matter. It lists the claim as ‘Tort Action’ and provides this case docket number ‘NNH CV08-5025041.’ It lists the amount of the claim as $2,200,000.00. The document was signed by the plaintiff on page 34." Id.
A Proof of Claim was filed in the bankruptcy action on February 10, 2014, listing the amount of Kearse’s claim as $2,841,914.84, the exact amount of the judgment. Id.
Shifting to the present case, prior to the court’s September 24, 2018 judgment of nonsuit, the defendants had filed four motions for nonsuit and four motions for order of compliance. Attorney Robert M. Singer, Taylor’s attorney on appeal in Kearse, also represented the plaintiffs at commencement of the present action. Proceeding chronologically, the defendants filed their first motion for nonsuit on December 22, 2016- about one month after the trial court’s ruling on remand in Kearse - based on the plaintiffs’ failure to respond to the defendants’ request to revise the amended complaint. See Docket Entry No. 111. Four months later, on April 20, 2017- one day after the plaintiffs filed their second amended complaint- the defendants filed a second motion for nonsuit for plaintiff’s failure to properly respond to the defendants’ request to revise. See Docket Entry No. 118. The plaintiffs filed a third amended complaint on May 1, 2017, which the defendants objected to the same day. On June 12, 2017, the defendants filed a motion for order of compliance, complaining the plaintiffs did not comply with discovery in accordance with a scheduling order agreed to by the parties. See Docket Entry No. 124. After a status conference was held with the parties, the court entered its own scheduling order, dictating firm, unambiguous deadlines for the close of pleadings, discovery, and trial.
The order provided in relevant part: "1) Certificate of closed pleadings shall be filed by 5/15/18 ...; 3) The parties shall exchange responses to discovery requests by 7/1/18; 4) Any dispositive motion shall be filed by 8/5/18, responded to by 9/19/18 and argued by 9/24/18 ...; 5) Trial is continued to 2/6/19. No further continuances will be granted." See Docket Entry No. 140.10.
As it appeared that the parties were about to forge ahead, the plaintiff’s diligence in litigating this action again waned. Shortly after the Estate withdrew its claims against the defendants in this action, on May 3, 2018, attorney Singer moved to withdraw his appearance for plaintiff Taylor. Such motion was granted. Five days later, the plaintiff, Taylor, entered a pro se appearance. On May 18, 2018, three days after the certificate of closed pleadings was to be filed, the defendants filed their third motion for nonsuit- again, for plaintiff Taylor’s failure to respond to a request to revise. See Docket Entry No. 151. The defendants filed another motion for order of compliance on May 23, 2018, for plaintiff’s failure to completely answer written discovery requests. See Docket Entry No. 152. In the first of two June 2018 orders concerning the plaintiff’s inactivity, the court ordered the plaintiff to file a revised complaint by July 27, 2018, warning: "Failure to file a revised complaint by that date may result in a nonsuit entering." See Docket Entry No. 151.10. In the second order, the court ordered the plaintiff to comply with all discovery requests by July 30, 2018, scheduled a hearing on outstanding discovery for 11 a.m. on August 6, 2018, and warned: "If full compliance is not made, a non-suit may enter against the plaintiff." See Docket Entry No. 152.10. After the plaintiff did not file the revised complaint pursuant to the order, the defendants filed their fourth motion for nonsuit on July 30, 2018. See Docket Entry No. 163. The defendants additionally had filed motions for order of compliance on July 6, 2018; see Docket Entry No. 161; and July 31, 2018; see Docket Entry No. 167; for failure to comply with the court’s discovery orders.
About one month after the status conference, the Estate filed its withdrawal of action.
The certificate of closed pleadings was to be filed by May 15, 2018, per the scheduling order entered by the court March 15, 2018. See Docket Entry No. 140.10.
On July 31, 2018, Attorney Josephine Smalls Miller entered an appearance for the plaintiff. Though after the July 27, 2018, deadline, Attorney Miller promptly filed an amended complaint. She did not, however, attend the August 6, 2018, hearing scheduled by the court on outstanding discovery issues. In a subsequent order, the court permitted the plaintiff to produce outstanding discovery by August 14, 2018, noting that new counsel had very recently filed an appearance for the plaintiff, but warned for a third time the defendants may seek a prompt hearing on a motion for nonsuit and/or judgment of dismissal if the plaintiff did not do so. "[I]f plaintiff does not comply with defendant’s outstanding 2017 and 2018 discovery requests by that date, defendant’s counsel may file a caseflow request requesting that a hearing on a motion for nonsuit and/or judgment of dismissal be promptly scheduled." See Docket Entry No. 166.10. On August 30, 2018, over two weeks after the new deadline, the defendants requested such a hearing, as a result of the plaintiff’s failure to comply with defendant’s discovery requests. Such hearing was scheduled for 12 p.m. on September 24, 2018. Neither the plaintiff nor attorney Miller attended, prompting this court to enter a judgment of nonsuit. Argument on the defendants’ August 3, 2018, summary judgment motion- which was scheduled for October 15, 2018 - was marked off.
Though the court’s scheduling order required dispositive motions to be filed by August 5, 2018, responded to by September 19, 2018, and argued by September 24, 2018, the court rescheduled argument on summary judgment for 9:30 a.m. on October 15, 2018, in a September 10, 2018, order to provide the plaintiff more time to respond. See Docket Entry No. 175.10.
On January 22, 2019, Attorney Joseph Elder filed an appearance for plaintiff Taylor. On January 23, 2019, the plaintiff moved to open the court’s September 24, 2018, judgment of nonsuit. Such motion had exhibits attached, including affidavits of Taylor and Attorney Miller and documents relating to the personal injury action. The defendants filed their opposition on February 4, 2019, and argument was heard on the matter on July 22, 2019.
II.
DISCUSSION
"Except in cases in which a judgment has been obtained by fraud, duress or mutual mistake or, under certain circumstances, where newly discovered evidence exists to challenge the judgment, the power of a court to open a judgment after a default has entered is controlled by statute ... Pursuant to General Statutes § 52-212(a), a trial court may set aside a default judgment within four months of the date it was rendered provided that the aggrieved party shows reasonable cause or that a good cause of action or defense existed at the time the judgment was entered. The aggrieved party must additionally demonstrate that he was prevented by mistake, accident or other reasonable cause from prosecuting or defending the original action." (Citation omitted; internal quotation marks omitted.) Priest v. Edmonds, 295 Conn. 132, 136-37, 989 A.2d 588 (2010). See General Statutes § 52-212(a); Practice Book § 17-43. See also Jaconski v. AMF, Inc., 208 Conn. 230, 237, 543 A.2d 728 (1988) ("It is ... clear that there is a two-pronged test for setting aside a judgment rendered after a nonsuit ... There must be a showing (1) that a good cause of action, the nature of which must be set forth, existed at the time judgment was rendered, and (2) that the plaintiff was prevented from prosecuting the action because of mistake, accident or other reasonable cause" [citation omitted] ).
"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 a 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." General Statutes § 52-212(a).
"In ruling on a motion to open a judgment of nonsuit, the trial court must exercise sound judicial discretion ..." Biro v. Hill, 231 Conn. 462, 467-68, 650 A.2d 541 (1994). "In the exercise of its discretion, the trial court may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause ... [but also] factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved ... but also, the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party." (Internal quotation marks omitted.) Chevy Chase Bank, F.S.B. v. Avidon, 161 Conn.App. 822, 833, 129 A.3d 757 (2015). "The court’s discretion ... is not unfettered ... [T]he court’s discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Internal quotation marks omitted.) Speer v. Dept. of Agriculture, 183 Conn.App. 298, 303, 192 A.3d 489 (2018). "Because of the important consideration of finality of judgments, however, a judgment should not be opened without a strong and compelling reason ... [such as] when there appears cause for which the court acting reasonably would feel bound in duty so to do." (Internal quotation marks omitted.) Lewis v. Bowden, 166 Conn.App. 400, 403, 141 A.3d 998 (2016).
In moving to open the judgment of non-suit, the plaintiff puts forth a selective timeline of the present matter and the underlying personal injury action, offering more on the defendants’ failures in the prior action than on reasonable cause for failure to prosecute this action. The plaintiff argues that the defendants’ conduct, or lack thereof, prohibited her from raising liability defenses in the prior action; that Attorney Singer’s withdrawal from the present case left the plaintiff- and later Attorney Miller- scrambling to catch up with outstanding discovery issues; and that the plaintiff and plaintiff’s counsel misinterpreted court orders, causing them to miss court-imposed deadlines and court appearances. At short calendar, the plaintiff’s new Attorney, Elder, acknowledged the plaintiff’s case has been mishandled by previous attorneys, but argued that the plaintiff was now equipped to move forward. In opposition, the defendants argue that the plaintiff failed to meet either of the two requirements for opening a judgment of non-suit; that additional factors weigh against opening the judgment; and that the plaintiff still had not addressed arguments raised by the defendants in their motion for summary judgment filed last year.
The court begins by analyzing the statutory requirements to open a judgment of nonsuit. General Statutes § 52-212 provides in relevant part: "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 to the docket ... 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."
This court finds that the plaintiff has met the first requirement as she timely filed her motion to open within four months of the judgment of nonsuit entered on September 24, 2018. With respect to the issue of reasonable cause for failure to prosecute the action, our Supreme Court has held that "the orderly administration of justice requires that relief be denied unless the moving party alleges and shows reasonable cause for relief under the statute ... Such relief ordinarily should not be granted if the failure to comply with an order of the court resulted from the moving party’s own negligence." (Citation omitted.) Jaquith v. Revson, 159 Conn. 427, 431-32, 270 A.2d 559 (1970). "[W]e have long held that negligence is no ground for vacating a judgment, and that the denial of a motion to open a nonsuit judgment should not be held an abuse of discretion where the failure to prosecute the claim was the result of negligence." Jaconski v. AMF, Inc., supra, 208 Conn. 238. See also Stratford v. LeBlanc, 175 Conn.App. 362, 368, 167 A.3d 1015 (2017) ("The burden of demonstrating reasonable cause for the nonappearance is on the defaulted party, and [t]he judgment should not ordinarily be opened if his failure to appear ... resulted from his own negligence" [internal quotation marks omitted] ); State v. Ritz Realty Corp., 63 Conn.App. 544, 549, 776 A.2d 1195 (2001) ("Negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment").
As the defendants have set forth in their opposition to motion to open and as set forth above in this decision, the plaintiff repeatedly and egregiously missed court-imposed deadlines and hearings. These facts go far beyond mistake, accident, or some other reasonable cause, as the plaintiff failed to comply with the court’s unambiguous orders (and to heed the court’s three warnings of non-suit) on several occasions. To the extent that the plaintiff raises a reasonable cause argument, or even addresses her prior failures to prosecute this action, she points to two court orders, arguing the orders created ambiguity as to what was due when and when the plaintiff was required to appear for a hearing. First is a June 11, 2018, order- filed after the plaintiff’s motion for a continuance in order to acquire new counsel- which states in full: "Court trial has been continued to February 2019 and that should give plaintiff sufficient time to get new counsel to represent her and respond to defendants’ pending motions." This is consistent with the court’s scheduling order, which had set a February 6, 2019, trial date. Second is the court’s September 10, 2018, order, scheduling argument on defendants’ motion for summary judgment for October 15, 2018, "to give plaintiff an opportunity to respond to supplemental motion for summary judgment." Attorney Miller states in her affidavit that she read the latter order to mean that the September 24, 2018, discovery hearing had been continued, though the plaintiff presents no evidence that she or counsel, at any time, sought to clear up their own confusion after the court’s entry of the judgment of nonsuit on September 24, 2018. See, e.g., Questell v. Farogh, supra, 175 Conn.App. 269 (affirming denial of motion to open where defaulting defendant failed to contact clerk’s office to confirm conference schedule). The two orders pointed to by the plaintiff cannot be reasonably interpreted to eliminate or modify explicit deadlines contained in other orders they do not address or reference. Furthermore, the plaintiff offers no reasonable cause for repeatedly failing to timely respond to motions or discovery requests, or for failing to attend the August 6, 2018, discovery hearing. This court repeatedly provided the plaintiff ample opportunity to pursue this action, and the plaintiff neglected to do so. Accordingly, this court finds that the plaintiff has failed to meet her burden in demonstrating reasonable cause for failure to prosecute.
At oral argument, it was mentioned that attorney Miller was suspended from practice. That suspension was levied November 26, 2018, over two months after the judgment of dismissal. See Office of Chief Disciplinary Counsel v. Miller, Superior Court, judicial district of Danbury, Docket No. CV-17-6022075-S (November 26, 2018, Shaban, J.) Attorney Miller, prior to then, was not prevented from advocating for the plaintiff because of the suspension.
"The [other] prerequisite to the granting of a motion to open a judgment is a showing that a good cause of action existed. 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 ... A bald assertion that one existed is inadequate." (Citation omitted; internal quotation marks omitted.) Moore v. Brancard, 89 Conn.App. 129, 132, 872 A.2d 909 (2005). See also Talit v. Northwest Airlines, Inc., 58 Conn.App. 102, 108, 752 A.2d 1131 (2000) ("There ... must be a showing that a good cause of action existed at the time the judgment of dismissal was rendered"). "[B]ecause the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion." Nelson v. Contractor Group, LLC, 127 Conn.App. 45, 49, 14 A.3d 1009 (2011).
Here, dismissal came almost two months after the defendants’ summary judgment motion was filed, which raised the following arguments: (1) that the plaintiff’s recklessness claims are time-barred by any applicable statute of limitations; (2) that the defendants are protected by statutory immunity- codified in General Statutes § 51-94a- because Moscowitz was a court-appointed trustee; (3) that the plaintiff’s claims are barred by assumption of the risk and/or contributory recklessness; and (4) that the plaintiff cannot meet her burden on causation.
The statute of limitations indeed bars the plaintiff’s recklessness claims. Actions premised on recklessness are governed by General Statutes § 52-584. Doe v. Boy Scouts of America Corp., 323 Conn. 303, 348, 147 A.3d 104 (2015). Section 52-584 provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by ... reckless or wanton misconduct ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such may be brought more than three years from the date of the act or omission complained of ..." "In the context of applying § 52-584 to decide whether a particular action was commenced in a timely fashion, we have stated that an injury occurs when a party suffers some form of actionable harm." (Internal quotation marks omitted.) Rivera v. Double A Transportation, Inc., 248 Conn. 21, 26, 727 A.2d 204 (1999). "Actionable harm occurs when the plaintiff discovers, or in the exercise of reasonable care, should have discovered the essential elements of a cause of action." (Internal quotation marks omitted.) Jackson v. Tohan, 113 Conn.App. 782, 787, 967 A.2d 634, cert. denied, 292 Conn. 908, 973 A.2d 104 (2009). See also Catz v. Rubenstein, 201 Conn. 39, 45, 513 A.2d 98 (1986) ("[T]he time when a plaintiff discovers or in the exercise of reasonable care should have discovered actionable harm is the time used in determining when the two-year period of limitation of § 52-584 begins to run" [internal quotation marks omitted] ).
In this case, the plaintiff alleges that the defendants’ complete inactivity in the prior case prevented her from raising liability defenses prior to judgment or promptly thereafter, resulting in an adverse judgment in the amount of $2,841,914.84 being rendered against her on November 28, 2012. Kearse v. Taylor, supra, 165 Conn.App. 783-85. The present action, however, was commenced on March 29, 2016, over two years after February 10, 2014- the latest possible date at which the plaintiff has been held to have notice of the Kearse judgment. See Kearse v. Taylor, supra, Superior Court, Docket No. CV-08-5025041-S. Second, the present action was commenced over three years from the judgment, the ultimate injury the plaintiff complains of. See Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 537, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001) ("Our Supreme Court has specifically determined that a lawsuit commenced more than three years from the date of the ... act or omission complained of is barred by the statute of limitations, § 52-584, regardless of whether the plaintiff had not or, in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period" [internal quotation marks omitted] ); Catz v. Rubenstein, supra, 201 Conn. 49-50 ("It is clear that the repose portion of § 52-584 which provides that no action may be brought more than three years from the date of the act or omission complained of bars the bringing of suit more than three years after the alleged [tortious] conduct of a defendant regardless of when a plaintiff discovers the proximate cause of his harm or any other essential element of a [tort] cause of action" [internal quotation marks omitted] ).
The defendants correctly argue that the plaintiff cannot relitigate the issue of when she was on notice of the November 28, 2012, judgment as that issue was previously decided. See Kearse v. Taylor, 165 Conn.App. 780, 791, 140 A.3d 389 (2016) ("In order to reach the merits of the defendants’ claims in their motion [to open], the fact finder must first determine at an evidentiary hearing whether the defendants received notice of the default judgment and, if so, on what date they received such notice. The court would then determine whether their motion was timely filed"); Kearse v. Taylor, Superior Court, judicial district of New Haven, Docket No. CV-08-5025041-S (November 21, 2016, Agati, J.) (Court determined on remand when defendant Taylor had notice of judgment).
As the statute of limitations had already run on the plaintiff Taylor’s recklessness claims- the only count asserted by the plaintiff Taylor in this action- it cannot be held that a good cause of action existed for the plaintiff at the time of this court’s September 24, 2018, judgment of nonsuit. As the plaintiff has failed to meet the requirements of opening the judgment of nonsuit, her motion to open is denied.
III.
CONCLUSION
Based on the foregoing, the plaintiff’s motion to open this court’s September 24, 2018 judgment of nonsuit is denied.