Opinion
CV165037175S
09-13-2017
Albert E. Anderson v. Mario's Auto Repair, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO RESTORE (#171)
Robin L. Wilson, J.
The central issue of the plaintiff's motion, is whether the court can reinstate an action against the defendants after the plaintiff had filed a withdrawal of action as to the defendants.
The plaintiff, Albert Anderson, the self-represented party in this case, commenced this action against the defendants, Mario's Auto Repair, LLC, Mario Buontempo and Melanie Deegan. The plaintiff filed an amended complaint, dated May 1, 2017, on May 18, 2017, to which the defendant did not object. The May 1, 2017 amended complaint is therefore the operative complaint for purposes of this motion. The amended complaint is in three counts, breach of contract, illegal repossession and fraud. The action arises out of what plaintiff describes as an illegal repossession of his motor vehicle. The defendant presently has not filed an answer, however, on February 21, 2017, in response to the plaintiff's demand for disclosure of defense, in accordance with Practice Book § 13-19, the defendants filed a disclosure of defense. In their disclosure, the defendants claim that the plaintiff entered into a contract for the purchase of a 2006 Infiniti M45 from the defendants on October 9, 2014, and pursuant to the agreement the plaintiff agreed to make monthly installment payments to the defendants in the amount of $400. The defendants claimed that the plaintiff failed to make one of the monthly installment payments required by the contract.
This matter was assigned to this court's individual calendar. In accordance with the procedures for individual calendaring of civil cases, the court held an initial status conference on the record, on February 28, 2017. Subsequent thereto, in light of the parties' willingness to settle the case, and in light of the claims and damages alleged by the plaintiff, and the defenses claimed by the defendants, the court held two additional pretrial hearings on the record on April 11, 2017, and June 9, 2017. Thereafter, the court was informed that the parties had reached a settlement agreement, and indeed, on July 11, 2017, the plaintiff executed and filed a withdrawal against all defendants in this case. The plaintiff signed a release dated June 30, 2017, on July 7, 2017, in exchange for payment by the defendant of $8,000 in monthly installments as follows: Before July 25, 2017 $2,000; September 1, 2017 $1,000; October 1, 2017 $1,000; November 1, 2017 $1,000; December 1, 2017 $1,000; January 1, 2017 $1,000 and February 1, 2017 $1,000.
On August 11, 2017, the plaintiff filed a motion to restore the case to the docket on grounds that the defendant failed to make payment in accordance with the release. The court scheduled the matter for a hearing as to the status of the settlement on September 5, 2017. Both the plaintiff and defendant, Mario Buontempo, and the defendants' counsel appeared. The plaintiff who appeared, informed the court that he was seeking to have this matter restored to the docket because the defendant failed to make payment in accordance with the agreement. The defendants' counsel stated at the hearing that the defendant, Mario Buontempo, was contemplating filing bankruptcy and has no financial means to pay the settlement. The court was troubled by this revelation, because the court, in good faith, and with use of judicial time and resources, as the matter had been scheduled three times, assisted the parties in negotiating a resolution of this case. Pursuant to the court's recommendation that the parties attempt to negotiate a settlement of the case, the plaintiff filed an offer of compromise in the amount of $13,572.27. The court spent a great deal of time with the parties, on the record, negotiating a settlement of the case. Both the plaintiff and the court, based upon the defendants' willingness to enter into settlement negotiations, were under the impression that the defendant, Buontempo who would be paying the settlement amount, was in a financial position to enter into a settlement of the case. During the course of the settlement discussions, the court recommended that the parties settle the matter for $8,500. Not one time during the negotiations of the settlement, which again were conducted on the record, did the defendant, Buontempo indicate to the court that he was unable to financially enter into a settlement agreement of this case, or that he was financially unable to pay the court's recommended settlement amount. Neither did the defendant inform the court, or plaintiff, that he was contemplating filing bankruptcy.
The plaintiff indicated on the record that he only became aware of the defendant's financial status at the present hearing, and that neither the defendant nor his attorney indicated to the plaintiff that the defendant did not have the financial means to pay the settlement or that the defendant was contemplating filing bankruptcy. The defendant's attorney represented that he only became aware that the defendant was contemplating filing bankruptcy two weeks prior to the hearing on the present motion.
The defendant objects to the motion to restore the case to the jury docket and requests the court to enforce the settlement and enter judgment against the defendant allowing him thirty days to pay the judgment. The defendant's counsel claimed that the defendant had every intention to pay the settlement. The court however, is not persuaded that the defendant had every intention to pay the settlement. The court concludes, based upon the timing and circumstances leading up to the present hearing, the defendant's failure to advise the court, his counsel, and the plaintiff, at the time settlement negotiations began, that he was financially unable to pay a settlement, and that he was contemplating bankruptcy, that the defendant, at the time of entering this agreement knew of his financial circumstances, and his financial inability to pay the settlement, and notwithstanding this knowledge entered into a settlement agreement with the plaintiff. The plaintiff in good faith negotiated the terms and amount of the agreement with the expectation that he would be paid as agreed, and relying on same, gave up his right to have the factual issues in this case go before a trier of fact. Indeed, a scheduling order was approved by this court in this matter on March 1, 2017, and a court trial is scheduled for January 8, 2018.
DISCUSSION
" The General Statutes and Practice Book give little guidance as to the effect of a withdrawal of action. C.G.S. § 52-80 states in part: '(t)he plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof.'
" There are appellate cases dealing with the ramifications of filing a withdrawal in a civil case. 'Withdrawals are analogous to final judgments. The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52-80 is absolute and unconditional. Under [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.' (Citations omitted.) Sicaras v. City of Hartford, 44 Conn.App. 771, 775-76, 692 A.2d 1290 (1997); cert. denied, 241 Conn. 916, 696 A.2d 340 (1997).
" In Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 884 A.2d 981 (2005), our Supreme Court discussed the Appellate Court's analysis in Sicaras and held: 'the motion to restore a case to the docket is the vehicle to " open" a withdrawal, while the motion to open is the vehicle to open judgments . . . A motion to restore a case to the docket must have a jurisdictional time limitation in the same way as a motion to open.' Sicaras v. Hartford, supra, at 776-77, 692 A.2d 1290. The Appellate Court thus concluded that '§ 52-212a applies to the restoration of a case to the docket as well as to the opening of judgments.' Id., at 778, 692 A.2d 1290. We agree with both the logic and the conclusion of the Appellate Court in Sicaras that § 52-212a is applicable not only to the opening of a case that has proceeded to judgment but also to the restoration of a withdrawn case. Id. at 196, 884 A.2d 981." Vasco v. Smego, Superior Court, judicial district of Fairfield, Docket No. CV0304064905 (June 12, 2007, Matasavage, J.) [43 Conn. L. Rptr. 582, ].
" Courts have an inherent power to open, correct and modify judgments . . . A civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment." (Citation omitted; internal quotation marks omitted.) Martin v. Martin, 99 Conn.App. 145, 155, 913 A.2d 451 (2007). " A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. Section 52-212a provides in relevant part: 'Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed . . . Practice Book § 17-4 states essentially the same rule." (Citations omitted; internal quotation marks omitted.) Fitzsimons v. Fitzsimons, 116 Conn.App. 449, 454-55, 975 A.2d 729 (2009).
The court notes that the plaintiff filed an application for a waiver of filing fees associated with the filing of a motion to restore which was granted by the court (Abrams, J.) on August 11, 2017. See Practice Book § 17-4(b) (" Upon the filing of a motion to open or set aside a civil judgment . . . the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the judicial authority.").
" The provisions of § 52-212a do not operate to strip the court of its jurisdiction over its judgments, but merely operate to limit the time period in which a court may exercise its substantive authority to adjudicate the merits of a case." (Citation omitted.) Bridgeport v. Triple 9 of Broad Street, Inc., 87 Conn.App. 735, 744, 867 A.2d 851 (2005). The purpose of this limitation stems " from the common-law rule concerning jurisdiction over the parties. In the interest of the public as well as that of the parties there [must] be fixed a time after the expiration of which the controversy is to be regarded as settled and the parties freed of obligations to act further by virtue of having been summoned into or having appeared in the case . . . Without such a rule, no judgment could be relied on. Such uncertainty and instability in legal relations which have apparently been finally adjudicated does not commend itself as orderly judicial procedure." (Citations omitted; internal quotation marks omitted.) R.S. Silver Enterprises, Inc. v. Pascarella, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST-CV-06-5002499-S, (September 24, 2015, Lee, J.).
General Statutes § 52-212a and Practice Book § 17-4 vest discretion in the trial court to determine whether a good and compelling reason exists to modify or vacate a judgment. As the motion to open is an equitable remedy vested in the discretion of the trial court, circumstances that constitute a good and compelling reason vary depending on the grounds for the motion. For example, our courts have found a good and compelling reason to grant a motion to open when newly discovered evidence proffered by the moving party would have been likely to affect the underlying verdict; see Tri-Coastal Lanthanides, Inc. v. Chang, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-95-0144760-S, (May 4, 2000, Hickey, J.) or when a jury award directly contravened a statutory mandate limiting the award of damages. See Dimmock v. Allstate Insurance Co., 84 Conn.App. 236, 853 A.2d 543, cert. denied, 271 Conn. 923, 859 A.2d 577 (2004).
This court now considers the motion to restore the case to the docket. In doing so, the court must treat this motion as it would a motion to open judgment. With reference to any time limitation, the court considers the limitations as it would in a motion to open a judgment. In the present case, the plaintiff's withdrawal was filed on July 11, 2017, and his motion to restore the case to the docket was filed one month thereafter on August 11, 2017, well within the four-month time limitation required pursuant to § 52-212a.
" The question of whether a case should be restored to the docket is one of judicial discretion. Sicaras v. City of Hartford, 44 Conn.App. 771, 779, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). The court will exercise its discretion and restore a case to the docket when, for example, a party has engaged in sharp practice and failure to restore the case will result in clear injustice to the moving party. In A.I. Credit Corp. v. M.A. Gronski, Inc., Superior Court, judicial district of New Haven, Docket Number CV010452088 (March 11, 2003, Silbert, J.) (34 Conn. L. Rptr. 317, ), the plaintiff filed a motion for summary judgment that was granted, resulting in a judgment of more than $20,000 in favor of the plaintiff. The plaintiff then executed a garnishment against the defendant's bank account. The defendant moved to open. That motion was granted because the defendant's counsel had not been made aware of the fact that the motion for summary judgment was going forward. A.I. Credit Corp. v. M.A. Gronski, Inc., Superior Court, judicial district of New Haven, Docket No. CV010452088 (October 3, 2002, Silbert, J.) (33 Conn. L. Rptr. 216, ). Four days after the motion to open was granted, the plaintiff withdrew the action. A.J. Credit Corp. v. M.A. Gronski, Inc., supra, at 34 Conn. L. Rptr, . Even though the motion to open was granted, the plaintiff declined to return the disputed funds, arguing that " possession is nine-tenths of the law." Id. The court had little difficulty in determining that under the foregoing circumstances, allowing the withdrawal to stand clearly worked an injustice on the defendant. Id., at 319, . See Byrd v. Leszcynski, Superior Court, Docket No. CV 960564251 (August 25, 2000, Berger, J.) (28 Conn. L. Rptr. 88, ) (plaintiff was precluded from calling expert witnesses due to late disclosure. He withdrew his case prior to trial and then attempted to file a second, virtually identical cause of action. The court exercised its discretion to restore the case to the docket).
Here, there is certainly good cause to restore this case to the docket. As this court previously noted, the plaintiff, in good faith negotiated a settlement of this case and relied on the defendant's representations that he would pay the settlement amount. The plaintiff agreed to accept an amount lower than his claimed damages, and agreed to give up his right to have issues of fact in this case tried by the court. The defendant on the other hand did not act in good faith as he knew the status of his financial circumstances while negotiating the settlement, and notwithstanding entered the settlement agreement. The defendant here " has engaged in sharp practice" by not informing the court, the plaintiff nor his counsel, at the time settlement negotiations began, that he was financially unable to pay a settlement. Accordingly, failure to restore this case to the docket would result in an injustice to the plaintiff. The court, therefore will exercise its discretion and restore the case to the docket.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to restore is granted. The plaintiff's request for sanctions and court costs is denied. It is so ordered.