Opinion
No. CV 02 0821442 S
July 2, 2004
MEMORANDUM OF DECISION ON MOTION TO VACATE DEFAULT JUDGMENT (#110)
This matter comes before the court concerning the defendants Sylviones Geffrard's and The Yellow Cab Company's (Yellow Cab) motion to vacate default judgment, dated May 12, 2004 and filed on May 17, 2004 (hereinafter, the "motion"). The defendants did not request an evidentiary hearing concerning the motion, which states that oral argument is not requested and that testimony is not required. The plaintiff filed an objection to the motion, dated June 4, 2004 (#111) (objection). Thereafter, the matter appeared on the short calendar for June 22, 2004. After considering the parties' arguments, the motion is denied, for the reasons set forth below.
I BACKGROUND
In this action, the plaintiff, Merita Muca, set forth a two-count complaint, dated November 25, 2002. In the first count, the plaintiff alleges that, on February 23, 2002, she was operating a motor vehicle in Hartford, Connecticut, and slowed down to make a right turn into her driveway, when a vehicle owned by Yellow Cab and operated by Geffrard drove into the right front side of her vehicle, causing personal injuries and damages. She claims that the collision was caused by Geffrard's negligence. She also claims to have incurred medical expenses. In her second count, the plaintiff incorporates by reference all of the allegations stated in the first count and contends that Geffrard was acting as an agent, servant or employee of Yellow Cab.
Pursuant to the Connecticut Code of Evidence §§ 2-1 and 2-2, the court takes judicial notice of matters contained in the court's files.
The court's file reflects a marshal's return, dated November 29, 2002, which states that he made abode service on Geffrard, in West Hartford, Connecticut, on November 29, 2002. In addition, the return also states that the marshal made service on Yellow Cab by serving its office manager, in Bloomfield, Connecticut, also on November 29, 2002.
On January 24, 2003, defaults were entered against the defendants for failure to appear (#102.10). The motion for default contains a certification indicating that copies of the motion had been mailed to the defendants at addresses in West Hartford and Bloomfield, respectively. On March 17, 2003, the plaintiff's claim for the hearing in damages trial list was filed (#104.25). The space on the claim form for "name of each party served and address at which service was made" states that the defendants were served with a copy thereof.
Thereafter, the case appeared before this court at the hearings in damages trial list. By order dated May 15, 2003, of which notice was sent on May 16, 2003, the court entered judgment for the plaintiff in the amount of $27,340.00.
By appearances dated October 14, 2003, about five months after judgment entered, the defendants appeared through counsel. As noted above, the motion was not filed until May 17, 2004, just over one year after the entry of judgment.
In the motion, which is signed by the defendants' attorney, but which is not verified or accompanied by an affidavit, the defendants allege that a non-party, Claims Control, Inc. (CCI), is a claims adjusting firm licensed to do business in Connecticut. See motion, p. 2. The defendants assert that, at unstated times, CCI attempted to contact the plaintiff, and was unsuccessful, and then closed its file on May 1, 2003. See motion, p. 2.
The defendants contend that CCI received notice of the judgment on June 2, 2003, but was never made aware of the litigation and never received a copy of the summons and complaint. See motion, p. 2. In addition, the defendants state that Yellow Cab "was unaware of the suit until early June when the insured driver brought a copy of the default and judgment. Prior to that date, the office manager had received no other papers related to the accident." See motion, p. 2.
Further, the defendants "assert that good cause existed at the time judgment was rendered and that defendants were prevented from defending this action because [of] mistake, accident and other reasonable cause." See motion, p. 2.
In response, the plaintiff's objection cites several grounds on which she claims that the motion should be denied. The plaintiff contends that the motion is not verified and that it does not state the nature of the defendants' proposed defense. See objection, p. 2. The plaintiff notes that the motion was not filed within four months of the entry of the defaults on January 24, 2003. The plaintiff also argues that service was properly made. See objection, pp. 2-3. Finally, the plaintiff asserts that the motion admits that, by the middle of June 2003, the defendants received notice that judgment had been rendered, and that they did not file a motion to vacate until May 2004, eleven months later. They also note that the defendants waited more than six months after filing their appearances, in October 2003, before filing the motion. See objection, p. 3.
II STANDARD OF REVIEW
"A motion to open and vacate a judgment is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion." Gillis v. Gillis, 214 Conn. 336, 340, 572 A.2d 323 (1990).
General Statute § 52-212(a) and Practice Book § 17-43(a) provide for the setting aside of a judgment which the court has rendered upon a default or nonsuit. See 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) "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.) Id., 78 Conn. App. 470-71. "Negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment." State v. Ritz Realty Corp., 63 Conn. App. 544, 549, 776 A.2d 1195 (2001).
General Statute § 52-212(a) provides: "[a]ny 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."
Section 17-43(a) provides, in relevant part, "[a]ny 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 complainant's 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."
III DISCUSSION
For the following reasons, the court denies the motion. "[A] court may decline to grant a motion to set aside a judgment . . . that fails to conform to the requirements of § 52-212 or Practice Book § 17-43." Baris v. Southbend, Inc., 68 Conn. App. 546, 554, 791 A.2d 713 (2002). "Practice Book § 17-43(a) . . . provides that the `written motion shall be verified by the oath of the complainant or the complainant's attorney . . .'" (Internal quotation marks omitted.) Opoku v. Grant, CT Page 10601 63 Conn. App. 686, 691, 778 A.2d 981 (2001). General Statutes § 52-212(b) likewise states that the "written motion shall be verified by the oath of the complainant or his attorney . . ." "The term `verification' is defined as `[c]onfirmation of correctness, truth, or authenticity . . .' Black's Law Dictionary (6th Ed. 1990)." Opoku v. Grant, supra, 63 Conn. App. 693. The court may also find that compliance with this requirement has been waived by the opposing party. Id., 691. As noted, the plaintiff's objection specifically relies on this ground as one of her arguments.
Section 52-212(b) provides: "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."
Under the circumstances, the court finds that compliance with the verification requirement has not been waived by the plaintiff. The motion before the court is unverified and, therefore, it does not comply with applicable Practice Book and statutory requirements for verification.
In addition, Practice Book § 17-43(a) also requires the movant to "state in general terms the nature of the . . . defense . . ." General Statute § 52-212(b) contains a similar requirement. The defendants have not done so in their motion. Accordingly, pursuant to Practice Book § 17-43(a) and General Statutes § 52-212(b), the motion is denied, without prejudice. In view of these deficiencies in the motion, the court need not consider whether the defendants can satisfy the two-part test, including that mistake, accident or other reasonable cause existed at the time of the judgment which prevented them from raising a defense.
For example, Yellow Cab asserts that, contrary to the marshal's return, its office manager had received no other papers related to the accident prior to the "insured driver," presumably meaning Geffrard, bringing in a copy of the default and judgment. Such an issue of fact implicates the court's personal jurisdiction over Yellow Cab. See American Honda Finance Corp. v. Johnson, 80 Conn. App. 164, 167, 834 A.2d 59 (2003). Such an issue may be raised outside of the four-month time limit set forth in General Statute § 52-212 and in Practice Book § 17-43(a). See American Honda Finance Corp. v. Johnson, supra, 80 Conn. App. 167. See, in contrast, Bufferd v. Yost, 51 Conn. App. 1, 2-3, 719 A.2d 487 (1998), where the court found the motion to open untimely since it was filed more than four months after judgment was rendered, but where personal jurisdiction was not at issue. Likewise, neither Fontaine v. Thomas, 51 Conn. App. 77, 720 A.2d 264 (1998), nor Handy v. Minwax Co., Inc., supra, 46 Conn. App. 54, also cited by the plaintiff, involved the question of whether the court had personal jurisdiction.
Where the court's exercise of discretion depends on disputed factual issues, due process requires an evidentiary hearing. See Davis v. Fracasso, 59 Conn. App. 291, 299-300, 756 A.2d 325 (2000). "Fundamental tenets of due process . . . require that all persons directly concerned in the result of an adjudication be given reasonable notice and opportunity to present their claims or defenses." In re Carlos Q., 62 Conn. App. 681, 688, 772 A.2d 668 (2001). "The existence of actual or constructive notice is a question of fact properly within the province of the trial court." (Internal quotation marks omitted.) Handy v. Minwax Co., Inc., 46 Conn. App. 54, 57, 698 A.2d 339, cert. denied, 243 Conn. 921, 701 A.2d 342 (1997). In making such a finding it is "for the finder of fact to hear [the witnesses'] testimony and observe their demeanor. Credibility of testimony is a matter for the trial court." Habura v. Kochanowicz, 40 Conn. App. 590, 594, 672 A.2d 512 (1996).
CONCLUSION CT Page 10602
For the foregoing reasons, the motion to vacate default judgment is denied, without prejudice. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT