Opinion
HHDCV156056701S
01-17-2019
Julio GUTIERREZ v. Daniel MOSOR
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
In this personal injury matter based on claimed negligence, the defendant’s motion to set aside default, dated January 2, 2019 (# 116) (motion set aside) appeared on the short calendar for January 14, 2019. The plaintiff filed an objection (# 120). The matter is scheduled to appear on the hearing in damages calendar on January 23, 2019. After consideration, the court issues this memorandum of decision. For the reasons stated below, the defendant’s motion to set aside is denied.
I
Background
In his complaint, the plaintiff alleges that, on June 13, 2014, the defendant was the owner and/or the party in control of property located in Glastonbury, Connecticut; was constructing a house on the property, and hired various contractors, including the plaintiff, to perform work there. The plaintiff alleges that, due to the negligence and carelessness of the defendant, he fell 15 to 20 feet to the ground from an unstable metal staging platform which was attached to two ladders, causing the plaintiff to suffer personal injuries.
The return date in this case was January 27, 2015, almost four years ago. The defendant filed an appearance and an answer (# 101) as a self-represented party on January 28, 2015. The plaintiff engaged in written discovery. See ## 102, 103. The matter was claimed for a jury trial by the plaintiff on January 31, 2017 (# 105). and jury selection was scheduled for August 22, 2018.
By re-notice of deposition dated January 29, 2018 (notice), the plaintiff scheduled the defendant’s deposition for March 14, 2018. See plaintiff’s Exhibit A to motion for default (# 109) Thus, the defendant was afforded over one month’s notice of the scheduled deposition. The notice clearly stated that the deposition was scheduled to occur at plaintiff’s counsel’s office on Buckingham Street in Hartford, not at the Courthouse.
According to a transcript dated March 14, 2018 (plaintiff’s Exhibit B to motion for default), the defendant waited until March 12, 2018 to call plaintiff’s counsel’s office to confirm the appointment, but he thought it was a court appearance. Plaintiff’s counsel’s office called the defendant back and confirmed that a deposition was scheduled at plaintiff’s counsel’s office, but the defendant did not respond to the message. Plaintiff’s counsel’s office called the defendant again on the date of the deposition, March 14, 2018, and left a message for him, but he did not respond. The defendant failed to appear for the duly noticed deposition.
The plaintiff filed his motion for default (# 109) on March 26, 2018. The motion for default appeared on the short calendar on April 9, 2018. The defendant filed no papers in opposition thereto. After consideration, on April 10, 2018, the court issued an order (# 109.86), which stated, "The defendant filed no objection in response to the motion for default. Since the defendant failed to attend his scheduled deposition, a default may enter against the defendant."
The defendant subsequently retained counsel who filed an appearance in lieu of the defendant’s appearance on September 27, 2018. On that date, defense counsel also filed a motion to continue the hearing in damages which had been scheduled for October 10, 2018. See # 112. Two months later, on November 29, 2018, defense counsel again moved for a continuance of a hearing in damages, which had been scheduled for December 5, 2018. See # 114.
As noted above, the defendant’s motion to set aside was not filed until January 2, 2019. See # 116. Additional references to the background are discussed below.
II
Discussion
Citing only the deposition transcript referenced above, the defendant argues that he was confused by the notice of deposition. He asserts that the court chose a severe sanction in entering a default. He contends that since he has now appeared through counsel, he is prepared to defend the case on its merits and that there is good cause to set aside the default.
In his objection, the plaintiff argues that almost nine months have passed since the entry of the default in April 2018. He cites the delay between the filing of defense counsel’s appearance on September 27, 2018 and the filing of the motion to set aside on January 2, 2019, over three months later. He argues also that when the case previously appeared on the hearings in damages calendar, it was marked off as a courtesy to defense counsel and that courtesy should not now be used against the plaintiff to benefit the defendant.
Concerning the determination as to whether to open a default, Rule of Practice § 17-42 states: "[a] motion to set aside a default may be granted by the judicial authority for good cause shown upon such terms as it may impose." The court, in its discretion, may consider the presence of mistake, accident, inadvertence, misfortune or other reasonable cause. See Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998). It may consider "factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved ... [as well as] the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party." (Internal quotation marks and citation omitted.) Id.
Also, the Supreme Court has reiterated the "expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court ... The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice ... Rules are a means to justice, and not an end in themselves ..." (Citation omitted; internal quotation marks omitted.) D’Ascanio v. Toyota Industries Corp., 309 Conn. 663, 671, 72 A.3d 1019 (2013).
"Although we are solicitous of self-represented parties, we do not abrogate the rules of procedure for self-represented parties as those rules operate not only to create judicial regularity and foreseeability for litigants, but they embody notions of fairness, which it would be unjust to forsake in the name of deference to the self-represented. In a similar vein, this court has previously stated: Although our courts are consistently ... solicitous of the rights of pro se litigants, the rules of practice cannot be ignored to the detriment of other parties." (Internal quotation marks omitted.) Mayo v. Adm’r, Unemployment Comp. Act, 136 Conn.App. 298, 302 n.4, 44 A.3d 883 (2012).
Concerning the seriousness of the default, the Appellate Court has stated, "A default admits the material facts that constitute a cause of action ... and entry of default, when appropriately made, conclusively determines the liability of a defendant ... Upon default, the plaintiff ordinarily becomes entitled to recover nominal damages ... The right to further substantial damages remains to be established by the plaintiff at a hearing in damages ... After a default, a defendant may still contest liability. Practice Book §§ 17-34, 17-35 and 17-37 delineate a defendant’s right to contest liability in a hearing in damages after default ... Unless the defendant provides the plaintiff written notice of any defenses, the defendant is foreclosed from contesting liability ... If written notice is furnished to the plaintiff, the defendant may offer evidence contradicting any allegation of the complaint and may challenge the right of the plaintiff to maintain the action or prove any matter of defense ..." (Internal quotation marks omitted.) Torla v. Torla, 152 Conn.App. 241, 247, 101 A.3d 275 (2014).
The plaintiff properly sought to take the defendant’s deposition. The court concludes that the plaintiff has been prejudiced by the defendant’s delay in attending to this matter. No excuse has been presented for the defendant’s delay in presenting the argument that he was confused by the notice of deposition. Defense counsel appeared on September 27, 2018, but did not file the motion to open the default until over three months later, on January 2, 2019. The argument is based only on the transcript cited above, which was filed by the plaintiff when he filed his motion for default (# 109) in March 2018, and which was available for review when defense counsel appeared. No affidavit from the defendant was presented to support the motion to open.
In addition, the defendant’s failure to respond to the plaintiff’s motion for default may not be excused. The court may not ignore the rules of practice to the detriment of other parties. See Mayo v. Adm’r, Unemployment Comp. Act, supra, 136 Conn.App. 302 n.4.
If the default were opened now, almost one year will have passed since the plaintiff’s January 29, 2018 notice of deposition. The plaintiff has been prejudiced also by the defendant’s delay in that he consented to a motion to continue the previously scheduled hearing in damages, only to face the motion to open which was filed shortly before the continuation date of that hearing.
In view of the totality of the circumstances, and in the exercise of its discretion, the court finds that good cause has not been shown to open the default. Accordingly, the defendant’s motion to set aside the default is denied.