Opinion
No. CV03-0071419.
November 21, 2006.
MEMORANDIJM OF DECISION RE OBJECTION TO MOTION TO OPEN NONSUIT #119
This case arises out of the alleged breach of contract between the plaintiff, Steven Lang, and the defendant, Edythe Roxburgh, in which the defendant contracted the plaintiff to build her a house. The plaintiff filed a one-count complaint on October 22, 2003 seeking payment for his work. On February 17, 2004, the plaintiff filed a revised complaint alleging breach of contract (count one); unjust enrichment (count two); quantum meruit (count three); conversion (count four); intentional infliction of emotional distress (count five); and negligent infliction of emotional distress (count six). On February 2, 2005, the defendant filed an answer with special defenses. On August 4, 2005, the defendant filed a motion for nonsuit on the grounds that the plaintiff failed to respond to the defendant's interrogatories and requests for production. This court granted the defendant's motion on August 22, 2005.
The plaintiff actually labels two causes of action in his revised complaint as count five, conversion and negligent infliction of emotional distress. This court has labeled conversion as count four and negligent infliction of emotional distress as count six to fix the plaintiff's error.
On December 21, 2005, the plaintiff filed a motion to open nonsuit and an affidavit of the plaintiff in support of his motion. In his affidavit, the plaintiff testifies that he was severely ill and was unable to communicate with his attorney during this time. The court, Martin J., granted the defendant's motion to open nonsuit on January 23, 2006, noting that no opposition to the motion was filed. The defendant had indeed filed a memorandum of law in opposition to the plaintiff's motion to open nonsuit on January 18, 2006. The plaintiff filed a response on January 27, 2006. The defendant filed a motion to reargue the plaintiff's motion to open nonsuit on February 14, 2006. On February 21, 2006, the plaintiff filed a memorandum of law in opposition to the defendant's motion to reargue. The defendant's motion was granted by the court, Martin J., on February 21, 2006.
DISCUSSION
In his memorandum of law in opposition to the plaintiff's motion to open nonsuit, the defendant argues that the court lacks jurisdiction to grant the plaintiff's motion pursuant to General Statutes § 52-212, which requires a party to file a motion to open within four months of judgment. Specifically, the defendant contends that because the plaintiff did not pay the filing fee within four months after judgment was rendered, pursuant to General Statutes § 52-259c, the court lacks jurisdiction. In response, the plaintiff argues that he filed the motion to open nonsuit on December 20, 2005, five days prior to the expiration of the time period in which a party can open a judgment, pursuant to § 52-212. Additionally, the plaintiff contends that he sent a check to the clerk's office on December 23, 2005, covering the required filing fee to open a judgment, pursuant to § 52-259c. Therefore, he argues that his motion to open nonsuit was filed in a timely matter.
Section 52-212(a) provides in relevant part: "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 . . ." Practice Book § 17-4 provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent." Section 52-259c(a) provides in relevant part: "There shall be paid to the clerk of the Superior Court upon the filing of any motion, to open, set aside, modify or extend any civil judgment rendered in Superior Court a fee of . . . seventy dollars . . ."
In the present case, the defendant's motion for nonsuit was wanted by this court on August 22, 2005. On August 25, 2005, the parties were notified of this court's decision. Pursuant to § 52-212 and Practice Book § 17-4, the plaintiff had until December 23, 2005 to timely file his motion to reopen nonsuit. On December 21, 2005, the plaintiff filed his motion to open nonsuit, however, the plaintiff's motion did not accompany the required filing fee, pursuant to § 52-259c.
In Van Mecklenburg v. Pan American Airways, Inc., 196 Conn. 517, 519, 494 A.2d 549 (1985), our Supreme Court concluded: "It is clear from the language of [§ 52-259c] that payment of such fee is mandatory upon the filing of a motion to open. It therefore follows that an otherwise properly filed motion to open will not be accepted by the court unless accompanied by the filing fee." Although the plaintiff's check was dated December 23, 2005, the clerk's office did not receive the check until December 27, 2005. Therefore, the plaintiff's motion to open nonsuit was not properly filed with the court until December 27, 2005. Because the plaintiff had until December 23, 2005 to file a motion to open nonsuit and did not properly file its motion until December 27, 2005, this court finds that the plaintiff has not properly complied with § 52-212.
Accordingly, the defendant's objection is sustained.