Opinion
No. CV 054009160S
June 16, 2006
MEMORANDUM OF DECISION
The defendant Linda Beach's motion to open judgment is denied for the following reasons. The defendant seeks to open judgment after default for failure to plead entered, claiming that she failed to diligently defend the case because she did not receive notices of court proceedings and because she was distracted by the death of her husband more than two years prior to the entry of judgment and overwhelmed by the demands of raising her child alone.
The relevant procedural history of the case is as follows. This action was initiated by a writ, summons and complaint bearing a return date of March 22, 2005. On March 6, 2005, the plaintiff filed a motion for default-failure to appear. (# 103.10) which was granted on April 25, 2005 by the clerk. On August 5, 2005, counsel for Linda Beach filed a motion for permission to withdraw appearance (#104.00) which was denied on September 12, 2005. Counsel filed another motion for permission to withdraw appearance on September 13, 2005. (#104.50). The stated reason for both motions was Linda Beach's repeated failure to respond to written and verbal communications initiated by her attorneys and her repeated failure to keep scheduled appointments with her attorneys. A hearing on the motion for permission to withdraw was scheduled by the court for September 19, 2005. Notice of that hearing was duly served on Linda Beach. She appeared on September 19, 2005. Finding that counsel was prevented from representing Ms. Beach by her failure to communicate with her counsel, the court granted permission to withdraw appearance and advised Linda Beach to file an appearance, which she did on September 19, 2005. A motion for default for failure to plead was filed on October 13, 2005 (#107). That motion was granted, absent an objection or a responsive pleading on October 31, 2005. A motion for judgment was filed on January 20, 2006 (#110) which appeared on the hearing in damages calendar for January 26, 2006. All the necessary pleading having been filed, judgment entered on January 26, 2006, absent objection or a responsive pleading. This motion to open was filed on May 26, 2006.
In support of her motion, Ms. Beach filed an unnotarized document entitled "affidavit," consisting of conclusive statements of her beliefs without the facts upon which those conclusions are based. Even assuming it had been notarized, the court cannot make its own findings from the statement.
The law governing the opening of a judgment is clearly and long-established. The applicable law is codified in General Statutes § 52-212 and Practice Book § 17-43. The general rule is that any civil judgment or decree rendered by the trial court may be opened or set aside if a motion to open or set aside is filed within four months of the entry of judgment. Practice Book § 17-4; See also Johnson v. Atlantic Health Services, P.C., 83 Conn.App. 268, 276-77 (2004). Judgment entered on January 26, 2006 and the motion to open judgment was not filed until May 26, 2006.
(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. General statutes § 52-212.
"(a) 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. Such written motion shall be verified by the oath of the complainant or the complainants attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The judicial authority shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin that party against enforcing such judgment decree until the decision upon such written motion.
(b) If the judicial authority opens a nonsuit entered pursuant to Section 17-31, the judicial authority as part of its order may extend the time for filing pleadings or disclosure. (see General Statutes § 52-212)" Practice Book § 17-43.
Notwithstanding the absence of an affidavit and the arguably untimely filing of the motion to open, the court shall consider the merits of the motion. To prevail on a motion to open judgment, Ms. Beach must show either reasonable cause, or that a good defense in whole or in part existed at the time of the rendition of the judgment and that the defendant was prevented by mistake, accident or other reasonable cause from making the defense. The court must have good and compelling reason to grant a motion to open judgment. Hirtle v. Hirtle, 217 Conn. 394, 398 (1991); see also Heyman Associates No. 1. v. Insurance Company of Pennsylvania, 231 Conn. 756, 786 (1995) (stating trial court is vested with discretion to "determine whether there is good and compelling reason for its modification or vacation"). The defendant has not given good cause or a compelling reason to open judgment.
The reason given by the defendant in her un-notarized statement is that her former counsel received notice of court proceedings, but she did not. She did not provide the factual basis for her belief that her prior counsel received notices and pleadings. Regardless of whether prior counsel received notices and pleadings, the court file includes a pro se appearance date-stamped as having been filed, by Linda Beach as advised by the court, on September 19, 2005, the date that her prior counsel's motion for permission to withdraw was granted. Every pleading filed with the court thereafter bears a certification of service of that pleading to Linda Beach at the address printed on her appearance. In addition to having been sent all pleadings, it is presumed that Ms. Beach received court notices of court proceedings and schedules mailed to appearing parties by the court. Batory v. Bajor, 8 Conn. App, 22 (1990). The court records indicate that notice was given of the hearing in damages and the docketing of the motion for judgment.
The court finds that Linda Beach has failed to establish that a good defense in whole or in part existed at the time of the rendition of the judgment and that she was prevented by mistake, accident or other reasonable cause from making a defense and that no reasonable cause exists to open the judgment. The motion to open the judgment and stay execution is denied.