Opinion
No. WWM CV 08 5003665
August 4, 2010
MEMORANDUM OF DECISION RE [#120] MOTION TO OPEN JUDGMENT OF NONSUIT
On October 17, 2008, the plaintiff, Dehm Drywall, LLC, filed a complaint against the defendants, John J. Geary and Julie A. Geary, seeking the foreclosure of a mechanic's lien. Therein, the plaintiff alleges the following facts. The defendants own a parcel of land at 13 Longmeadow Road in Pomfret, Connecticut, and on June 6, 2006 the defendants and New England Home Partners, LLC (NEHP) entered into a contract by the terms of which NEHP would construct a residential dwelling on the defendants' parcel of land. During the course of construction NEHP subcontracted the plaintiff's services to aid in the construction of the dwelling which were billed in the amount of $16,500.00. The plaintiff's services on said project were commenced in July 2007 and completed in August 2007. Thereafter, on October 29, 2007, the plaintiff filed a certificate of a mechanic's lien with the town of Pomfret, which was also served upon the defendants, claiming a lien on the defendants' property for said sum of $16,500.00. The sum due to the plaintiff for its labor and materials remains unpaid. Accordingly, the plaintiff seeks to foreclose its mechanic's lien.
On December 12, 2008, the defendants filed an answer, special defenses, counterclaims and setoffs in response to the plaintiff's complaint. Thereafter, the case proceeded into the discovery phase. On October 19, 2009, the plaintiff filed a motion for nonsuit against the defendants as to their counterclaims as a result of the defendants' failure to respond to the plaintiff's discovery requests sent on March 3, 2009. The motion for nonsuit was granted by the court (Riley, J.) on November 16, 2009. Thereafter, on December 22, 2009, the defendants filed a motion to open the judgment of nonsuit with an accompanying memorandum of law alleging that through mistake, oversight or inadvertently the defendants failed to respond to the plaintiff's supplemental discovery requests in a timely manner, but have recently complied in good faith and, therefore, the judgment of nonsuit should be opened. On January 20, 2010, the plaintiff filed a memorandum of law in opposition, to which the defendants filed a reply on January 22, 2010. The matter was heard on the short calendar.
The power of the court to set aside a judgment of nonsuit is governed by General Statutes § 52-212 and Practice Book § 17-43, which substantially follows the language of the statute. See Biro v. Hill, 231 Conn. 462, 466-67, 650, A.2d 541 (1994). "General Statutes § 52-212(a) 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 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.'" (Internal quotation marks omitted.) Priest v. Edmonds, 295 Conn. 132, 135 n. 7, 989 A.2d 588 (2010). Simply, "[t]he [party] must establish that a good cause of action, the nature of which must be set forth, existed when the judgment of nonsuit was rendered, and that the [party] was prevented from prosecuting it because of mistake, accident or other reasonable cause." Biro v. Hill, 231 Conn. 462, 467, 650 A.2d 541 (1994). See also Moore v. Brancard, 89 Conn.App. 129, 132, 872 A.2d 909 (2005).
"Practice Book § 17-43(a) provides in relevant part: `Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the 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 such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same . . .'" (Internal quotation marks omitted.) Priest v. Edmonds, 295 Conn. 132, 137 n. 9, 989 A.2d 588 (2010).
In their memoranda of law in support of the motion to open the judgment of nonsuit as to their counterclaims, the defendants argue that their admitted failure to respond to the plaintiff's supplemental discovery requests was due to the defendants' mistake and oversight for which the plaintiff has not been prejudiced and the trial not subject to delay. The defendants contend that while they timely responded to the initial set of discovery requests, they inadvertently failed to respond to the supplemental requests. The defendants further argue that they recently have complied with the supplemental discovery request in good faith. Lastly, the defendants contend that, at the time of said nonsuit and currently, they have a good and valid cause of action against the plaintiff and that they wish to be heard on the merits on this case. The plaintiff counters that it served interrogatories and requests for production upon the defendants concerning expert witnesses and reports, however, the defendants' attempted late response fails to actually answer these requests and only provides vague and unresponsive statements. The plaintiff specifically notes, as an example, the defendants' response to the plaintiff's interrogatory requesting them to "state the name and address of each expert you expect to call at trial." The defendants' response simply states: "[d]isclosure of [e]xperts will be made by the [a]ttorney in accordance with CPB § 13-4. Experts have not been retained with respect to the [p]laintiff's claim. The [d]efendant [sic] reserved [sic] their right to utilize expert [sic] with respect to their setoff/counterclaim or to address issues raised by the [p]laintiff or in rebuttal at the time of the trial." Simply, the plaintiff argues that this response fails to adequately answer the interrogatory. In reply, the defendants contend that the plaintiff's assertions regarding the sufficiency of their answers to the interrogatories concerning expert testimony are not probative or relevant to the present motion to open judgment of nonsuit.
According to General Statutes § 52-212, any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside pursuant to a motion within four months following the date on which it was rendered or passed. In the present case, the court finds the defendants properly filed their motion to open the judgment of nonsuit on December 22, 2009, approximately one month following the court's judgment of nonsuit on November 16, 2009. Therefore, in order to succeed on their motion to open the judgment the defendants need only show 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, and that the defendants were prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense. The court finds that the defendants have minimally met these two requirements by establishing that reasonable causes of action exist in their counterclaims and their subsequent failure to respond to the plaintiff's discovery requests, which resulted in the nonsuit, was due to mistake. Furthermore, "Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure . . . For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 242, 994 A.2d 106 (2010). This reasoning applies equally to nonsuits.
Based on the foregoing, the court hereby grants the defendants' motion to open judgment on nonsuit (#116).
CT Page 21289