Opinion
No. X08-CV03-4000294S
February 6, 2008
Memorandum of Decision on Motion to Open Default Judgment ( No. 134.00)
Procedural Background
This is an action by homeowners against the staffing company which supplied two framing carpenters to F. Nuzzolo Construction, Inc., ("Nuzzolo") the general contractor engaged to construct an addition to plaintiffs' home in New Canaan. The complaint sounds in breach of contract and negligence.
There was a separate action, Docket No. X08-CV02-0192359S, brought by these plaintiffs against Nuzzolo, its subcontactors and its insurer. That case was consolidated with this action against Tradesource, Inc. for purposes of trial, but was resolved in part before the May 1, 2007 trial date, and by entry of default judgments against certain subcontractors on May 1, 2007.
The plaintiffs allege that they are third-party beneficiaries of a contract between Nuzzolo and the defendant. (Exhibit A.)
This case was assigned for non-jury trial on the complex litigation docket before the undersigned on May 1, 2007. The defendant failed to appear by counsel or by any other representative on that date. The court entered a default against the defendant for failure to appear and heard evidence of plaintiff's damages, after which the court entered judgment in plaintiff's favor in the amount of $41,376.75 plus costs.
The defendant has now filed a timely motion pursuant to Conn. Gen. Stat. § 52-212 to reopen the default judgment. The court heard evidence on August 28, 2007 and the parties have filed post-hearing memoranda of law.
The motion to reopen was filed on July 6, 2007, slightly more than 2 months following the entry of judgment. The provision of § 52-212 which provides that "[a]ny judgment rendered . . . upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered . . ." is to be construed as a limitation on the time within which such a motion may be brought, and not as a jurisdictional barrier to the action of a court on the motion. Ruggerio v. Ruggerio, 35 Conn.Sup. 581 (1978). See also Conn. Gen. Stat. § 52-212a.
Findings of Fact and Conclusions of Law
Conn. Gen. Stat. § 52-212 provides:
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 as respect to costs as the court deems reasonable, upon complaint or written motion of any person or party 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.
See also, to same effect, Practice Book § 17-43.
The court has no discretion not to apply the tests of Conn. Gen. Stat. § 52-212 in deciding a motion to reopen judgment of default. Tsitardis v. Tsitardis, 100 Conn.App. 115, 118-19 (2007). To qualify for relief from default judgment: (1) there must be a showing that a good defense, the nature of which is set forth in the motion, existed at the time that judgment was rendered and (2) the party seeking to set aside the judgment must have been prevented from making the defense because of mistake, accident, or other reasonable cause. A. Secondino Son, Inc. v. LoRicco, 19 Conn.App. 8, 13 (1989).
The affidavit of Attorney Gerald T. Weiner incorporated as part of the motion to reopen satisfies the first prong of the statute: namely that a good defense in whole or in part existed at the time of the default. The affidavit states, in ¶ 5:
TradeSource, Inc. has a good defense to this action in that the services it performed on the construction project which is the basis of this lawsuit was performed under the direction and control of the general contractor (F. Nuzzolo Construction, Inc.) and said services were performed in a good and workmanlike manner. This defense will be asserted at trial if the default Judgment is opened.
Atty. Weiner's affidavit adequately states the defense known as the "borrowed servant rule," which is a recognized exception to the general principle of respondeat superior, and holds that the person to whom the services of another's employee are loaned is responsible for the employee's negligence so long as the temporary master actually exercises supervision and control over the servant. See Mather v. Griffin Hospital, 207 Conn. 125, 136 (1988); Linstead v. Chesapeake Ohio Railroad Co., 276 U.S. 28, 33 (1928); and Rice v. Fotovat, No. CV970345122, Superior Court, Judicial District of Fairfield at Bridgeport (Doherty, J. January 16, 2003), 2003 Ct.Sup 1568; 34 Conn. L. Rptr. 8; 2003 WL 283834 at *3. Furthermore, this defense could have been asserted at trial under the defendant's denial of paragraphs 10 and 11 of the First Count (allegations that Tradesource breached a duty to the plaintiffs and that Tradesource's breach of duty caused damage to the plaintiffs) and of paragraphs 9, 10, and 11 of the Second Count (allegations that Tradesource owed a duty of care to the plaintiffs, breached that duty by its own negligent conduct, and that Tradesource's negligence caused damage to the plaintiffs). Practice Book § 10-50.
The plaintiff's pleading and showing of the defense of the "borrowed servant rule" is sufficient to satisfy the first prong of the test for relief from default judgment. It is therefore not necessary to discuss defendant's other asserted defense that the plaintiff could not have been a third-party beneficiary of the contract between Nuzzolo and the defendant.
The second prong of the test of § 52-212 is that defendant must have shown that it was prevented from making its defense because of mistake, accident, or other reasonable cause. With respect to this prong the court finds the following facts proven by the evidence or by the court's review of the official court file, of which the court takes judicial notice:
1. This case was commenced in this court with a return date of November 20, 2001.
2. On December 3, 2001 the firm of Bolton Hillgen, P.C., 380 Fairfield Ave. Suite 200 Bridgeport, CT 06604 entered its appearance for the defendant Tradesource, Inc. using Juris No. 403283 and telephone number (203) 362-1955. The appearance was signed by Attorney John I. Bolton. Attorney Bolton's firm was the only counsel of record for the defendant in this case until the firm of Weinstein, Weiner, Ignal, Napolitano, Shapiro, P.C. entered its appearance in lieu of Attorney Bolton on or about July 3, 2007 in conjunction with the filing of the instant motion to reopen default judgment. At no time since December 3, 2001 has Bolton Hillgen P.C. modified its appearance to show any change of address or telephone number.
3. Attorney Bolton filed an Answer, Special Defense, Counterclaim and Setoff on behalf of defendant Tradesource on March 21, 2002.
4. On March 3, 2003 this case was ordered consolidated with No. CV02-0347951S, DiSalvo Ericson Group v. Angiolillo, and transferred to the Judicial District of Danbury.
5. On December 20, 2004 this case was consolidated with No. CV02-0192359S, Angiolillo v. Nuzzolo Construction, Inc. and transferred back to this court at Stamford.
6. On June 15, 2005 the plaintiff's motion for referral of this case to the complex litigation docket was granted, and the case was placed on the Stamford X-08 docket.
7. On August 16, 2005 the court (Adams. J.) conducted an initial status conference on the complex litigation docket and entered a Case Management Order #1 which included a court trial assignment date of May 1, 2007. Attorney John Bolton was present at that status conference and was aware of the trial assignment date.
8. Thereafter, Judge Adams on February 27, 2006 issued a Case Management Order No. 2 which altered a date for disclosure of expert witnesses, but did not alter the May 1, 2007 trial assignment date. Case Management Order No. 2 resulted from plaintiff's Motion to Modify and Extend Case Management Order No. 1, dated February 7, 2006, a copy of which was mailed to Atty. Bolton, per the certification, on February 7, 2006. The Request for Adjudication (JD-CL 77 New 3-04) for that motion indicated that opposing counsel (Atty. Bolton) had no objection to the motion and that he had been served with a copy of the request for adjudication at his address listed above in ¶ 1.
9. Thereafter, Judge Adams on April 24, 2006 issued a Case Management Order No. 3 which further altered dates for disclosure of expert witnesses and deposition dates, but did not alter the May 1, 2007 trial assignment date. Case Management Order No. 3 resulted from plaintiff's further Motion to Modify and Extend Case Management Order No. 1, dated April 12, 2007, a copy of which was mailed to Atty. Bolton, per the certification, on April 12, 2007. The Request for Adjudication (JD-CL 77 New 3-04) for that motion indicated that opposing counsel (Atty. Bolton) had no objection to the motion and that he had been served with a copy of the request for adjudication at his address listed above in ¶ 1.
10. Sometime in late 2006 or early 2007 Atty. Gerald Weiner of the Bridgeport firm of Weinstein, Weiner, Ignal, Napolitano, Shapiro, P.C. was contacted by John Bolton, Esq. who had been associated with the Weinstein, Weiner firm for a period of time some ten or twelve years prior. Attorney Bolton told Attorney Weiner that he was having some problems and was going to leave the practice of law and asked Attorney Weiner if he would take over some litigation files and appear in lieu of Attorney Bolton. Attorney Weiner agreed to look at the files. Shortly thereafter Attorney Bolton delivered or caused to be delivered to Attorney Weiner's office a box of litigation files. Tradesource, Inc. was Attorney Bolton's client in about seven to ten of the files. All but one of the Tradesource files were collection cases brought by Tradesource. This case was the only case where Tradesource was a defendant. Attorney Weiner reviewed all the files which were very much in disarray, and told Attorney Bolton that he would take over all the Tradesource, Inc. files, but had no interest in the other files. Thereafter Attorney Weiner arranged to meet with Attorney Patrick Treacy, the vice president and general counsel of Tradesource, Inc. All the files were reviewed at their meeting, including Attorney Bolton's file on this case. A retainer agreement was entered into between Attorney Weiner's firm and Tradesource for representation in all the Tradesource litigation files Attorney Weiner was taking over from Attorney Bolton, including this case. Attorney Weiner instructed his staff to enter appearances in all of the files. Appearances were entered in all of the Tradesource files except this case of Angiolillo v. Tradesource, Inc. Attorney Weiner was not at that point aware of the May 1, 2007 trial assignment date for this case.
11. Attorney Weiner admitted in court on August 28, 2007 that "Unfortunately, the Angiolillo file was inadvertently overlooked by me." "The excusable and neglect on this case is obviously an embarrassment. It's something that went wrong with my office. I take full responsibility for that. We should have entered an appearance." "I did perform as I was asked to perform in 99 percent of these files. This one file was in total disarray. It got lost in the shuffle." (Transcript, p. 8.)
12. Attorney Bolton attended the deposition of Tradesource representative Anthony Stabile on August 21, 2002. Sometime after that Tradesource, Inc. lost all contact with Attorney Bolton.
13. The court accepts plaintiff's counsel's uncontested representations in plaintiff's objection of July 26, 2007 to the instant motion that for several months prior to the May 1, 2007 trial date, plaintiff's counsel tried unsuccessfully to communicate with Atty. Bolton by mail, telephone and fax, but mail sent to his address was returned and his phone number and fax number were disconnected; and that plaintiff's counsel was advised by the Statewide Grievance Committee that Atty. Bolton was at that time still admitted to practice and still had an office address at 360 Fairfield Avenue, Bridgeport, CT 06604.
14. On April 12, 2007 the undersigned issued a Trial Management Order confirming that the trial was scheduled to start as a court trial on May 1, 2007 and ordering the parties to submit a written joint trial management report by April 26, 2007. A copy of the Trial Management Order was sent to all counsel of record, including Atty. Bolton at his address of record.
15. On April 27, 2007 the plaintiff's counsel submitted a unilateral Trial Management Report which designated Atty. Bolton as trial counsel for the defendant but advised the court by footnote that "Over the past several months, mail that the undersigned has sent to Attorney Bolton has been returned. Moreover, the telephone number for Attorney Bolton appears to be disconnected." The certification of the Trial Management Report indicates that a copy was mailed to Atty. Bolton at his address of record on April 27, 2007.
16. On May 1, 2007 the plaintiff Mr. Angiolillo appeared with counsel for the scheduled trial. No attorney or other representative appeared for the defendant. The court defaulted the defendant for failure to appear and, after hearing evidence of plaintiff's damages, entered judgment for the plaintiffs.
17. The court takes judicial notice that the Judicial Branch website at this time lists among the active attorneys in the State of Connecticut: John I. Bolton, Esq. Juris no. 403283, with an address at DDDG LLC 10 Middle Street, 12th Floor, Bridgeport, Connecticut 06604. There is no active listing for Bolton Hillgen PC.
It is well established under the second prong of the test set forth in § 52-212 that a defendant seeking to reopen a default must make a showing that the defense [used to satisfy the first prong] was not at that time raised by reason of mistake, accident or other reasonable cause. Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 131 (1984); Rino Gnesi Co. v. Abriglio, 83 Conn.App. 707, 712 (2004). In making that determination it is well established that "[n]egligence is no ground for vacating a judgment and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence." McCarthy v. Ward Leonard Electric Company, 104 Conn.App. 535, 546 (2007), quoting from Woodruff v. Riley, 78 Conn.App. 466, 471, cert. denied, 266 Conn. 922 (2003).
The court finds that the default judgment in this case was caused primarily by the negligence of Atty. John I. Bolton. He was counsel of record for the defendant on the date of trial. He had actual notice of the May 1, 2007 trial assignment date. He himself failed to appear and he failed to arrange for the presence of his client. Although he had spoken to Atty. Weiner who had agreed to take over the case and enter an appearance in lieu of Atty. Bolton's, Atty. Bolton remained responsible to represent his client until either the court permitted him to withdraw his appearance after notice to the opposing attorney(s) and to the client (Practice Book § 3-10) or upon his failure to file a written objection within ten days after receipt of written notice that a new appearance had been filed in place of his appearance (Practice Book § 3-9). Neither of those events occurred in this case. Atty. Bolton therefore remained fully responsible to appear at the May 1, 2007 trial and it was negligence for him not to appear. Segretario v. Steward-Warner Corp., 9 Conn.App. 355, 363 (1986) ("In the circumstances of this case, it is difficult to conclude that failure of counsel to appear at the pretrial conference after being notified of such assignment was due to anything other than counsel's fault. No mitigating factors beyond counsel's control were presented to the court . . ."). It was also negligent of Atty. Bolton, if his address and/or telephone number or firm affiliation had changed, not to advise plaintiff's counsel and/or the Director of Court Operations of the Judicial Branch and/or the clerk of this court of his new address and/or telephone number and/or firm affiliation. (Practice Book § 3-12).
Under § 3-12 notification to the director of court operations of the judicial branch would have resulted "automatically" in corrections to his appearance in this case.
The court also finds that the default for failure to appear was caused to a lesser extent by the negligence of Atty. Gerald Weiner. His staff's failure to follow his instructions to enter an appearance in this case is not a valid excuse. Segretario v. Steward-Warner Corp. supra (failure of counsel's secretary to diary appointment for pretrial conference not a valid excuse for failure of counsel to be present at pretrial conference). Furthermore, he failed to follow up after directing his staff to enter an appearance. At that point in December 2006 or January 2007 the case had been pending for more than five years, and had been assigned to the complex litigation docket. Knowing that Atty. Bolton's file was in disarray, he nonetheless failed, as far as the record or the evidence shows, to contact or attempt to make contact with plaintiff's counsel, or with the clerk of the court or the complex litigation court officer assigned to the case to determine if there were any scheduled court appearances or any approaching deadlines or any missed deadlines. So far as the evidence and his own affidavit shows he did nothing at all on the file for approximately six months after thinking he had appeared, until he found out in late June or early July that the defendant had been defaulted on May 1, 2007. Attorney Weiner admitted in his statement to the court that he had inadvertently overlooked the file which became "lost in the shuffle." He characterized his conduct as "excusable and neglect" from which in his legal memoranda he cites several judicial decisions referencing a concept of "excusable neglect" which he equates with "inadvertance."
In Trichilo v. Trichilo, 190 Conn. 774, 783 (1983), the Supreme Court referred to (but did not define or elaborate on) the term "excusable neglect" as a reasonable cause which may result in the opening of a judgment. In affirming the denial of a motion reopen in that case the court said:
Although a reasonable degree of liberality should be exercised in determining whether a default has resulted from excusable neglect, the transcript indicates no abuse of discretion by the trial court in that respect, nor does the defendant make such a claim in this appeal.
That term was revisited by the Supreme Court five years later in Jaconski v. AMF, Inc., 208 Conn. 230 (1988) (motion to set aside nonsuit for negligent failure to file a revised complaint by a scheduling deadline set by the court, affirmed). Referring to the use of the term "excusable neglect" in Trichilo, the Jaconski court said:
This statement does not support the plaintiff's contention that a court may set aside a nonsuit despite a finding of negligence. Rather, Trichilo reflects the legislative determination embodied in General Statutes 52-212 that not all deviations from ideal performance constitute negligence, and that a limited class of deviations may be excusable because they were the result of "mistake, accident, or other reasonable cause." General statutes 52-212. In those cases, the trial court may exercise its discretion and set aside a judgment of nonsuit.
Atty. Weiner also argues on behalf of the defendant that his (Atty. Weiner's) admitted inadvertence does not necessarily amount to negligence, citing Judge DiPentima's ruling in Prosperity Partners v. Tucker, Docket No. CV98-0078298, Superior Court (September 12, 1999), 1999 WL 717355. In that case Mr. Tucker had won the lottery and had signed an agreement to assign his twelve annual lottery payments to Prosperity Partners for the sum of $1 million. When Mr. Tucker refused to make the assignment, Prosperity Partners sued, and Mr. Tucker was defaulted for failure to appear. Judgment entered against him and he filed a timely motion to reopen. Judge DiPentima found that Tucker had a good defense in that the agreement to assign the lottery winnings was questionably valid. The whole issue was whether or not he had been prevented from raising that defense because of mistake, accident or other reasonable cause. Mr. Tucker claimed that he thought all issues had been resolved by proceeding with another assignment to the plaintiff. Citing Trichilio but not Jaconski the court granted the motion to reopen, stating:
. . . the court finds that the default resulted from excusable neglect on the part of the defendant. The testimony and demeanor of the defendant persuaded this court that he was genuinely confused and mistaken in his dealings with the plaintiff, which preceded and continued throughout this action.
Id. at *2.
Prosperity Partners is distinguishable because there was no finding in that case that Mr. Tucker's confusion and mistake was the result of his own negligence. Here, the court has found negligence of the part of Atty. Weiner, and Atty. Weiner himself has admitted to "inadvertence" which is recognized to be the equivalent of negligence. See Pitkin v. New York N.E.R. Co., 64 Conn. 482 (1894) ("It is an essential ingredient of actionable negligence that the injury be the result of inadvertence or inattention"). Negligence, under Jaconski, is incompatible with mistake, accident or reasonable cause.
Even if it were to be assumed that Atty. Weiner's conduct was somehow excusable neglect, the court's finding of Atty. Bolton's unquestioned negligence causing the default to enter would in any event preclude relief.
Order
The court concludes that the defendant has failed to make a showing that it was prevented by mistake, accident or other reasonable cause from presenting its defense on May 1, 2007. Accordingly, the Motion to Open Default Judgment dated July 3, 2007 is denied.
So Ordered,