Opinion
No. CV04 0286632-S
January 7, 2005
MEMORANDUM OF DECISION RE: MOTION TO OPEN JUDGMENT #103
On January 26, 2004, the plaintiff filed a complaint alleging negligence against the defendants in connection with injuries sustained by him as a result of a fall. On February 4, 2004, the defendants filed a motion to dismiss on the ground of insufficiency of process because the plaintiff failed to return the writ, summons and complaint to the court within six days of the return date as required by General Statutes § 52-46a. The defendants further argued that the late return rendered the action voidable and subject to dismissal. The plaintiff did not file an opposition to the defendants' motion to dismiss. On April 7, 2004, the defendants claimed their motion to dismiss ready for oral argument at short calendar and certified that notice of their claim had been mailed or delivered to the plaintiff's counsel. The plaintiff did not appear at short calendar for oral argument. On April 26, 2004, the court granted the defendants' motion to dismiss and entered a judgment of dismissal. On August 26, 2004, the plaintiff moved to "open the judgment." Before the court is the plaintiff's motion to open judgment of dismissal.
"A motion to open a judgment is governed by General Statutes § 52-212a and Practice Book § 17-4, which requires that it must be filed within four months following the date on which judgment was rendered." Richards v. Richards, 78 Conn.App. 734, 739, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003).
Section 52-212a provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a 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 following the date on which it was rendered or passed."
Practice Book § 17-4 provides in relevant part: "(a) 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. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court."
Section 52-212a sets forth no specific list of relevant criteria for opening a judgment. The Appellate Court however, has ruled that "[i]n the absence of a specification of grounds under 52-212a . . . the relevant grounds are those specified in General Statutes 52-212 . . . In Re Baby Girl B., 224 Conn. 263, 285, n. 16, 618 A.2d 1 (1992) (the trial court relied on § 52-212 as furnishing the relevant grounds for granting the motion to open judgment pursuant to § 52-212a). Under § 52-212, a party moving for the opening of a judgment must demonstrate 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. Steve Viglione Sheet Metal Co. v. Sakonchick, supra, 190 Conn. 712. Practice Book § 17-43(a) is "almost identical to the statutory language [of § 52-212]. To obtain relief from a judgment rendered after default a two-pronged test must be satisfied. The aggrieved person must show reasonable cause, or that a good defense existed at the time of the judgment, and that the movant was prevented by mistake, accident or other reasonable cause from making the defense." (Internal quotation marks omitted.) Woodruff v. Riley, 78 Conn.App. 466, 470-71, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003).
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."
In his motion, the plaintiff sets forth three reasons that the court should open the judgment of dismissal. First, the plaintiff claims that "no notice was faxed or called into the plaintiff by opposing counsel that the [motion to dismiss] was being marked ready" for oral argument at short calendar. Second, the plaintiff states that "by not receiving notice of ready marking, [the] plaintiff assumed that the matter was not going forward as it had on previous, short calendars and considered the Motion to Dismiss to have been marked `off.' "Finally, the plaintiff requests "the opportunity to argue defendant's motion to dismiss as he believes he has a reasonable and factual objection." On this basis, the plaintiff moves the court to open the judgment in order that he be afforded the opportunity to defend against the defendants' motion to dismiss.
The defendants contend that the plaintiff has not met his statutory burden for opening the judgment because he failed to demonstrate that a good defense existed at the time judgment was rendered against him.
In determining whether to grant the plaintiff's motion, the court must ascertain whether there exists a good and compelling reason to open the judgment of dismissal and decide whether the plaintiff had a good defense to the judgment of dismissal at the time it was rendered. Section 52-212. The basis of the defendants' motion to dismiss is that: 1) the writ, summons and complaint of the plaintiff were not returned to the court within six days of the return date in compliance with § 52-46a; and 2) the late return rendered the action voidable and subject to dismissal upon timely motion.
Section § 52-46a, entitled "Return of process," provides in relevant part, "[p]rocess in civil actions . . . shall be returned . . . if returnable to the Superior Court . . . to the clerk of such court at least six days before the return day." Bearing in mind that "[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) Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 307, 763 A.2d 1055 (2001); "[a] late return of process renders the action voidable and, if the defendants choose not to waive the jurisdictional defect of a late return, the trial court must dismiss the action." (Emphasis added.) Arpaia v. Corrone, 18 Conn.App. 539, 541, 559 A.2d 719 (1989). This is because "[i]t is the actual return of the writ to the court which really puts the action before the court and empowers the court to proceed, even prior to the return day . . . Thus, although a defendant in a civil action may consent to jurisdiction of the court, the court may not proceed with the action until the return of process is made to the court." (Citation omitted; internal quotation marks omitted.) Id., 541. Failure of the plaintiff to meet the statutory requirement for the return of process renders the case subject to dismissal. Id. The plaintiff, however, may cure a defective return of process by amending process pursuant to § 52-72.
Section 52-72 provides in relevant part: "(a) Any court, shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a [motion to dismiss] . . .
(c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under any lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form."
In Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998), the Supreme Court allowed a curative amendment pursuant to § 52-72 to resurrect an action that was returned late. There, as in the present case, the plaintiff failed to return process to the court at least six days prior to the return date as required by § 52-46a. Rather, the plaintiff returned process on the return date. After the defendant filed a motion to dismiss for insufficiency of process, the plaintiff filed an amendment to revise the return date pursuant to § 52-72 to satisfy the six-day requirement of § 52-46a. The trial court, concluding that a late return of process was not the type of defect that could be amended pursuant to § 52-72, dismissed the plaintiff's action. The Appellate Court subsequently affirmed the trial court's judgment of dismissal. The Supreme Court, after granting certiorari, reversed the Appellate Court, noting that § 52-72, as a remedial statute, "must be liberally construed in favor of those whom the legislature intended to benefit" and reasoning that the intent of § 52-72 was "to reject the draconian result of dismissal of the plaintiff's cause of action because of a defect involving the return date." Id., 623-25. Thus, the court found that the trial court should have permitted amendment of the return date in accordance with § 52-72 and denied the defendant's motion to dismiss. See also Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 622-26, 642 A.2d 1186 (1994) (holding curative amendment permissible even after return date has passed where plaintiff returned process on a Thursday instead of a Tuesday in violation of § 52-48,); Haigh v. Haigh, 50 Conn.App. 456, 466, 717 A.2d 837 (1998) (finding trial court improperly granted defendant's motion to dismiss where plaintiff had moved to correct an incorrect return date pursuant to § 52-72).
Although the plaintiff asserts that he "believes he has a reasonable and factual objection" to the defendants' motion to dismiss, he fails to articulate the nature or content of such objection. In addition, the plaintiff neither filed a memorandum of law in opposition to the defendants' motion to dismiss which would shed light on the plaintiff's objection, nor a request to amend pursuant to § 52-72.
Even if the plaintiff's contention that he was prevented from making a defense to the defendants' motion to dismiss because he did not receive notice that the motion was marked ready satisfied the second prong of the test for opening a judgment under § 52-212; see Rino Gnesi Co., Inc. v. Sbriglio, supra, 83 Conn.App. 713; the plaintiff has failed to demonstrate that he had a good defense to the motion under the first prong of the test. As a result, the plaintiff has not demonstrated a good and compelling reason for opening the judgment rendered against him. See Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 808-09.
CONCLUSION
For the foregoing reasons, the court denies the plaintiff's motion to open the judgment.
BY THE COURT
Tanzer, Judge