Opinion
WWMCV156009422S
07-10-2017
General Insurance Company of America v. Anton M. Wagenbrenner
UNPUBLISHED OPINION
Filed July 11, 2017
MEMORANDUM OF DECISION (MOTION TO OPEN #159, SHORT CALENDAR MARCH 13, 2017)
Harry E. Calmar, J.
This motion raises the issue of when a motion to open may be granted where a party fails to appear due to illness.
Here, the court finds that the testimony of the defendant, and his friend Robert Newman, as well as the medical records of the defendant presented at the hearing on the defendant's motion to open establish that: At or near the time of the filing of plaintiff's motion in September 2016, the defendant was found unconscious on the floor of his home due to hypoglycemic shock and was rushed to the hospital for treatment. He was hospitalized for at least two days. A short time following the defendant's discharge from the hospital for hypoglycemic shock, he was again transported by ambulance and admitted to the hospital for a serious heart condition. The defendant was hospitalized for nearly the entire month of October 2016. Following the defendant's discharge from the hospital, he was admitted to a rehabilitation facility for two more weeks, until November 13, 2016. Following the defendant's discharge from the rehabilitation facility, he required twenty-four-hour home care which he obtained for another month, due to the severity of his illness. During the defendant's extensive hospitalization and rehabilitation, he was heavily medicated and incoherent, had no computer, home phone or voicemail, (has poor eyesight) and was unable physically or mentally to effectively communicate with his former attorney or assist in his defense of the plaintiff's claims, much less to prosecute his own.
" The principles that govern motions to open or set aside a civil judgment are well established." JP Morgan Chase Bank, N.A. v. Eldon, 144 Conn.App. 260, 272, 73 A.3d 757, cert. denied, 310 Conn. 935, 79 A.3d 889 (2013); see also Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 786, 653 A.2d 122 (1995). " Courts have an inherent power to open, correct and modify judgments . . ." Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 106, 952 A.2d 1 (2008). " [T]he party prejudiced by the judgment of nonsuit has the burden of establishing a valid ground to open the judgment." Langewisch v. New England Residential Services, 113 Conn.App. 290, 297, 966 A.2d 318 (2009); see also General Statutes § 52-212(a). " Whether to grant a motion to open rests in the discretion of the trial court . . ." Baker v. Whitnum-Baker, 161 Conn.App. 227, 229, 127 A.3d 330 (2015), cert. denied, 321 Conn. 922, 138 A.3d, 282 (2016). " [T]he action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion . . ." (Internal quotation marks omitted.) Farren v. Farren, 162 Conn.App. 51, 60, 131 A.3d 253 (2015), cert. denied, 137 S.Ct. 296, 196 L.Ed.2d 215 (2016).
" General Statutes § 52-212(a) sets forth two requirements to open a judgment . . ." Oliphant v. Heath, 170 Conn.App. 360, 362-63, 154 A.3d 582, cert. denied, 325 Conn. 921 (2017). " To obtain relief under § 52-212, the moving party must make a two part showing that: (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of mistake, accident or other reasonable cause." (Internal quotation marks omitted.) Farren v. Farren, supra, 162 Conn.App. 60; see also Practice Book § 17-43. " The failure to satisfy either requirement is fatal to the motion to open." Id., 61; see also Berzins v. Berzins, 105 Conn.App. 648, 654, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008); Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 134, 474 A.2d 456 (1984).
Our Supreme Court has held that a history of illness alone is not a legitimate ground to grant a motion to open. See Jaquith v. Revson, supra, 159 Conn. at 432; see also Jacobson v. Robington, 139 Conn. 532, 537, 95 A.2d 66 (1953). For example, in Jaquith v. Revson, supra, 159 Conn. at 432, the court held that a history of illness does not constitute mistake, accident, or other reasonable cause for failing to comply, but does constitute negligence. In Jacobson v. Robington, supra, 139 Conn. 537, the court determined that the defendant's illness did not prevent her from entering an appearance; therefore, the court was not required to open judgment in part.
Likewise, our Appellate Court has upheld decisions by the trial court denying a motion to open pertaining to matters regarding failure to appear due to illness. See Searles v. Schulman, 58 Conn.App. 373, 378, 753 A.2d 420 (2000) (finding that trial court did not abuse its discretion when the motion to open was untimely and plaintiff's excuse regarding medical appointments was not substantiated); see also Brunswick School, Inc. v. Hutter, 53 Conn.App. 455, 460, 730 A.2d 1206 (1999) (finding that the trial court did not abuse its discretion when denying motion to open when it based its decision on the defendant's failure to produce current evidence of his illness).
Our Appellate Court has also held, however, that the trial court erred in denying a motion to open when an ill defendant, while not personally appearing, appeared through counsel and counsel was willing to transport defendant to court despite her illness. See Housing Authority v. Weitz, 163 Conn.App. 778, 782-83, 134 A.3d 749 (2016). Further, Connecticut courts have also held that " [w]hen a defendant is prevented from offering a defense either in whole or in part owing to circumstances beyond his control there is sufficient cause to open a judgment against him." Firematic Sprinkler Devices, Inc. v. Reynolds, 34 Conn.Supp. 558, 560, 376 A.2d 1117 (1976).
In summary, the trial court has discretion to grant a motion to open based on the standard set forth in General Statutes § 52-212(a) and Practice Book § 17-4. See also Baker v. Whitnum-Baker, supra, 161 Conn.App. 229. In cases regarding failure to appear due to illness, a history of illness alone does not constitute mistake, accident, or other reasonable cause to grant a motion to open and the court may deny a motion to open in cases regarding a failure to appear due to illness if it finds that medical appointments are not substantiated or that there is a lack of evidence, testimony, and/or a lack of discovery of medical records. However, the court may grant a motion to open if it finds that the defendant could not offer a defense due to circumstances beyond his control.
Based on the court's findings the motion to open is granted.