Opinion
HHBCV146026540S
08-09-2016
Christopher Oquendo v. Club Assist Road Service U.S., Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT
Robert E. Young, Judge.
FACTUAL AND PROCEDURAL BACKGROUND
On August 27, 2014, the plaintiff, Christopher Oquendo, filed a six-count complaint against the defendant, Club Assist Road Services U.S., Inc., seeking lost wages and damages for an alleged breach of contract and violation of the Fair Labor Standards Act, 29 U.S.C. § 215 et seq. The defendant provides roadside assistance services and is a foreign corporation registered to conduct business in the state of Connecticut. The plaintiff alleges that on or around September 16, 2011, he entered into an agreement with the defendant to provide emergency road services in and around the city of New Britain, Connecticut. The complaint alleges that the defendant unlawfully terminated their employment relationship because he filed a complaint with the Connecticut Department of Labor.
Service of process was made upon the Connecticut Secretary of the State pursuant to General Statutes § 33-929 on August 13, 2014. The parties do not dispute that service of process was proper as the defendant is a foreign corporation and appointed the Secretary of the State as its registered agent.
On February 17, 2015, the court granted the plaintiff's motion for default for failure to appear (#102.01). On August 10, 2015, following a hearing in damages, the court entered judgment for the plaintiff, awarding general damages, punitive damages, attorneys fees and other costs (#115.00). JDNO notice of the hearing in damages and judgment was issued on August 12, 2015 by the court. The plaintiff filed a bill of costs on August 11, 2015, including a signed certification page that states: " I hereby certify that a copy of the foregoing has been mailed to the following non-appearing Defendant: Club Assist Road Service U.S., Inc. 3550 Wilshire Blvd., Suite 650 Los Angeles, CA 90010 Agent for Service: Secretary of the State 30 Trinity Street Hartford, CT 06106-0470" (#112.00).
" JDNO" is " a standard notation used to indicate that a judicial notice of a decision or order has been sent by the clerk's office to all parties of record. Such a notation raises a presumption that notice was sent and received in the absence of a finding to the contrary." (Internal quotation marks omitted.) McTiernan v. McTiernan, 164 Conn.App. 805, 808 n.2, 832, 138 A.3d 935 (2016).
On three occasions in January 2016, the plaintiff filed applications for financial institution [bank] execution. Each was rejected by the clerk because the plaintiff had failed to comply with Practice Book § 17-22 by sending a notice of the judgment to the non-appearing defendant with a copy filed with the clerk's office. On April 27, 2016, the plaintiff filed an application for a bank execution in the amount of $518, 222.50 (#120.00). Attached to the application was a copy of the court's JDNO notice and a certification page from plaintiff's counsel certifying that a copy of the application and JDNO was sent to the defendant's Wilshire Blvd. address and to the Secretary of the State. That application was successful and the execution was issued by the clerk.
On May 19, 2016, the defendant filed an emergency motion to stay the bank execution and to open default judgment pursuant to General Statutes § 52-212 and Practice Book § 17-43 (#121.00). The plaintiff filed an objection on May 23, 2016 (#125.00). The defendant filed a reply on June 6, 2016 (#126.00). The court granted the motion to stay and ordered the parties to file briefs regarding the motion to open default judgment (#124.01). The parties presented oral argument on June 10, 2016, and filed supplemental briefs in support of their respective positions.
The defendant argues that the motion to open the default judgment should be granted because the defendant did not know about this action until its bank informed it of the pending compliance with the execution on May 18, 2016. The defendant further asserts that the motion is timely filed within the four-month period because it did not receive actual notice of the default judgment until May 18, 2016. In its motion, the defendant states: " The complaint, along with all other pleadings and orders in this matter, were then apparently mailed to the listed business address for Club Assist noted in the records of the Connecticut Secretary of the State. However, Club Assist does not maintain any office or receive any mail at this listed address--'3350 Wilshire Blvd., Suite 650, Los Angeles, CA 90010'--nor has the company received any mail or conducted any business at this address since January 2013. Club Assist closed its 3350 Wilshire Blvd. office on January 7, 2013, but, due to a clerical oversight, it mistakenly omitted to update the business address on file with the Connecticut Secretary of the State." The defendant argues that it satisfies the two-prong test required under § 52-212 because a good defense existed and its failure to appear earlier is a " classic case of mistake, accident or other reasonable cause."
In his objection, the plaintiff contends that the motion is untimely because notice of the default judgment was rendered on August 10, 2015, and the motion's filing is well past the four-month time period. He further argues that the defendant had actual or constructive notice of the proceedings, and the motion should not be granted because the defendant was negligent in failing to update its address with its registered agent for service of process in Connecticut, the Secretary of the State.
LEGAL STANDARD
In order to " open a judgment pursuant to Practice Book § 17-43(a) and General Statutes § 52-212(a), the movant 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 . . . The party moving to open a default judgment must not only allege, but also make a showing sufficient to satisfy the two-pronged test [governing the opening of default judgments] . . . The negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment . . . Finally, because the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion." (Internal quotation marks omitted.) Weinstein & Wisser v. Cornelius, 151 Conn.App. 174, 180, 94 A.3d 700 (2014); see also Estela v. Bristol Hospital, Inc., 165 Conn.App. 100, 108, 138 A.3d 1042 (2016) (" [s]ince the conjunctive 'and' meaning 'in addition to' is employed between the parts of the two prong test, both tests must be met" [internal quotation marks omitted.]). In addition, the moving party on a motion to open " must not only allege, but also make a showing sufficient to satisfy the two-pronged test . . . A bald assertion that one existed is inadequate." (Citation omitted; internal quotation marks omitted.) Moore v. Brancard, 89 Conn.App. 129, 132, 872 A.2d 909 (2005).
ANALYSIS
In order to open a judgment pursuant to General Statutes § 52-212 and Practice Book § 17-43, the defendant must (i) file the motion within four months of when the judgment was passed, (ii) satisfy the two-part test showing a good defense existed at the time judgment was rendered and was not raised due to mistake, accident or other reasonable cause. Weinstein & Wisser v. Cornelius, supra, 151 Conn.App. 180. The court will first discuss the timeliness of the motion.
I. Timeliness
General Statues § 52-212(a) sets forth the requirements of a motion to open a judgment upon default or nonsuit if filed within four months on which the judgment was rendered or passed. Practice Book § 17-43(a) tracks the language of General Statutes § 52-212(a) and adds language that the four months runs succeeding the date notice was sent. The 1997 comment to the rule change clearly states that this notice is sent by the court. The rule and comment do not require the notice to be sent by the court to nonappearing defendants. The JDNO only goes to appearing parties. Therefore, no court notice is sent to nonappearing defendants nor is there any obligation on the court to do so.
General Statutes § 52-212(a) provides: " 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, 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." (Emphasis added.)
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." (Emphasis added.)
Practice Book (1997) § 377 (now § 17-43) deleted and replaced " it was rendered or passed" with " notice was sent." The commentary provided by the Rules Committee of the Superior Court stated that: " The change . . . serves to clarify that the four month period for setting aside a judgment upon a default or a nonsuit runs from the date notice was sent by the court of the entry of such judgment." (Emphasis added.) 57 Conn. L.J., No. 45, p. 24E (May 7, 1996).
Practice Book § 17-22, however, does obligate the prevailing party to send notice of the judgment after default for failure to enter an appearance to the party against whom it is directed, which, necessarily, is the nonappearing party. Service must be made in accordance with Practice Book § 10-14 with a copy filed with the clerk's office. Section 10-14 requires the certification to a nonappearing party be made in accordance with Practice Book § 10-12(a) and (b) and specify the address upon which it is made.
Practice Book § 17-22 provides: " A notice of every nonsuit for failure to enter an appearance or judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be sent by mail or electronic delivery within ten days of the entry of judgment by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shall be filed with the clerk's office. Proof of service shall be in accordance with Section 10-14."
Practice Book § 10-12(a) requires service to be made upon a nonappearing party. Section 10-12(b) is not applicable here. Section 10-12(c) states that any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties. Section 10-13 specifies that such service shall be made in the same manner as the original writ and complaint is served. As the notice of judgment is not a pleading (Practice Book § 10-6) nor does it assert new or additional claims, § § 10-12(c) and 10-13 are not applicable here.
Judgment was entered on August 10, 2015 (116.00). JDNO notice of judgment was properly sent by the court on August 12, 2015 pursuant to § 17-43(a). No notice was sent to the nonappearing party by the court, nor was it required. The four-month period of time to set aside or open the judgment either commenced on August 10, 2015, according to General Statutes § 52-212(a) or on August 12, 2015, according to Practice Book § 17-43(a). No motion to set aside or open the judgment was filed within either four-month period; however, the plaintiff was required to send a notice of the judgment to the nonappearing defendant within ten days of the entry of the judgment pursuant to Practice Book § 17-22 with a copy filed with the clerk's office. That date is August 20, 2015. It appears that sending notice to the nonappearing defendant's last known address would have sufficed. A review of the record shows that the plaintiff did not comply with § 17-22.
In McLaughlin v. Smoron, 62 Conn.App. 367, 771 A.2d 201 (2001), the court determined that the defendants' motion to open, although filed more than two years later, was timely because the plaintiff did not send proper notice of the default judgment required by Practice Book § 17-22. See also Tyler E. Lyman, Inc. v. Lodrini, 63 Conn.App. 739, 746, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001) (" Where the defendants have not received notice of the default judgment . . . the time within which they may move to set aside the judgment is extended by the delay in notification" [emphasis in original; internal quotation marks omitted]). With McLaughlin in mind, because the plaintiff did not send notice as required by Practice Book § 17-22, the defendant's four-month period is extended, and the motion is timely.
" [T]he plaintiff's counsel did not send proper notice as required by Practice Book § 17-22 Practice Book § 17-22 clearly requires 'counsel of the prevailing party' to send notice to 'the party against whom [judgment] is directed' in a timely fashion. Here, only the clerk of the court gave notice. Further, the plaintiff did not introduce into evidence the letter that he had sent to the defendants that allegedly set forth the information required by the rules of practice. The court could not, therefore, consider it. Thus, even though the defendants reclaimed the motion to open more than two years after the original motion had been filed, the defendants' motion to open was timely because the plaintiff's counsel did not give proper notice to the defendants pursuant to Practice Book § 17-22." McLaughlin v. Smoron, 62 Conn.App. 367, 371, 771 A.2d 201 (2001).
II. Mistake, Accident or Other Reasonable Cause
Although the defendant's motion is timely, it must also satisfy the two-part test set forth by General Statutes § 52-212 and Practice Book § 17-43. The defendant argues that its failure in updating its current address with the Secretary of the State falls within the " mistake, accident or other reasonable cause" requirement under § 52-212. The plaintiff contends that the defendant's actions were negligent. " [W]e have long held that negligence is no ground for vacating a judgment, and that the denial of a motion to open a nonsuit judgment should not be held an abuse of discretion where the failure to prosecute the claim was the result of negligence." Jaconski v. AMF, Inc., 208 Conn. 230, 238, 543 A.2d 728 (1988). It is also true that " not all deviations from ideal performance constitute negligence, and that a limited class of deviations may be excusable because they were the result of mistake, accident or other reasonable cause." (Internal quotation marks omitted.) Id., 239.
In the present matter, the court finds that the defendant's actions were beyond mistake. Although the defendant closed its Wilshire Blvd. address in January 2013, it has still maintained this incorrect address with the Connecticut Secretary of the State for over three and a half years. The defendant has moved twice since it was located at the Wilshire Blvd. address.
In an affidavit dated May 19, 2016, the defendant's general manager states " Club Assist has not maintained an office or received mail at the 3350 Wilshire Blvd. address since January 7, 2013. From January 2013 until March 28, 2016, Club Assist's California office had been located at 5750 Hannum Ave., Suite 100 Culver City, CA, and it is now located at 888 West 6th Street, Suite 300, Los Angeles, CA."
Further proof that the defendant's conduct constitutes negligence and not merely mistake or accident is the evidence of an attachment to the plaintiff's supporting affidavit: A U.S. Postal Service Certified Mail Receipt " green card" for certified mail sent on behalf of the plaintiff to the Wiltshire Blvd. address was signed by a then-employee of the defendant on July 23, 2013. It is unknown whether the green card was received at the Wilshire Blvd. address or at another forwarded address. The card has a space where the recipient can indicate that the certified mail was received at a location different from the address at which the correspondence was addressed and where the recipient can enter the actual delivery address. This space was left blank on the card by the defendant's employee. Thus, the defendant had the opportunity to inform the plaintiff of the correct address but failed to do so.
Additionally, the plaintiff has submitted an Illinois Secretary of the State online printout that the plaintiff obtained prior to the hearing. This printout lists another incorrect address for the defendant with that state's agent for service.
Thus, the defendant has a pattern of failure to keep necessary persons notified of its current location. Because the defendant's actions were not mere mistake or accident, and it has failed to provide other reasonable cause, the defendant has failed one of the two tests of the requirements set forth by § 52-212. Inadvertence or inattention has been recognized as actionable negligence. Angiolillo v. Tradesource, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. X08-CV-03-4000294-S, (February 6, 2008, Jennings, J.) (" [n]egligence, under Jaconski, is incompatible with mistake, accident or reasonable cause"); see also Triton Associates v. Six New Corporation, 14 Conn.App. 172, 177, 540 A.2d 95, cert. denied, 208 Conn. 806, 545 A.2d 1104 (1988) (" [D]efendant's failure to appear and defend was due either to indifference or inattention, or both. The mere negligence or inattention of a party is no ground for vacating a judgment").
III. Good Defense
Because the court finds that the defendant failed to demonstrate a mistake, accident or other reasonable cause, it is not necessary to undergo an analysis of the other test set forth in § 52-212 of a good defense. Berzins v. Berzins, 105 Conn.App. 648, 654, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008); see also Nelson v. Contractor Group, LLC, 127 Conn.App. 45, 49, 14 A.3d 1009 (2011) (" because the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion").
IV. Fraud
The defendant failed to raise the ground of fraud in its initial motion to open judgment. Only in its reply to the objection (126.00) did the defendant raise the defense of fraud on the part of the plaintiff.
The defendant conceded at argument that the plaintiff provided the notice of the action properly by serving process on the Connecticut Secretary of the State. The basis of the fraud claim is that the plaintiff knew the actual location of the defendant but chose not to send notice to that location either for service of process or notice of the bank execution. The defendant further alleges that the plaintiff " stayed pat" until the four-month period had expired and only then began seeking an execution.
The court at argument stated that it preferred not to address this new ground as it did not rely on the four-month time period set forth in General Statutes § 52-212(a). Rather, a motion for new trial should be made under General Statutes § 52-270. " Although . . . § 52-270 permits the court to grant a new trial upon proof of reasonable cause, the circumstances in which reasonable cause may be found are limited . . . The basic test of reasonable cause is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal . . . A new trial may be granted to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident . . ." (Citations omitted; internal quotation marks omitted.) Jacobs v. Fazzano, 59 Conn.App. 716, 723, 757 A.2d 1215 (2000).
General Statutes § 52-270 provides, " (a) The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.
Because there is no 120-day time limit applicable to a claim of fraud, because such a claim is more properly addressed in a motion for new trial pursuant to § 52-270, because the plaintiff has not been given an opportunity to address this claim, and because the proof required is not the same as a motion to open under § 52-212(a), the claim of fraud is not properly raised in the subject motion. Nevertheless, to allow the plaintiff to proceed with the bank execution would cause irreparable harm to the defendant should the defendant prevail on the claim of fraud pursuant to § 52-270.
Therefore, the court continues the stay on the execution for a period of three weeks until August 30, 2016 to allow the defendant to file a motion for new trial based upon a claim of fraud. If no such motion is filed, the stay is lifted on August 30, 2016 and the plaintiff may proceed with the execution. If the motion for new trial is filed, then the stay will remain in place until such motion is heard and decided by the court. The defendant is ordered to hold funds in the bank account sufficient to satisfy the execution until either of these events occurs.
ORDER
For the foregoing reasons, the defendant's motion to open judgment (121.00) is denied. The plaintiff's objection (125.00) is sustained. The stay remains in effect under the conditions set forth above.
(b) An affidavit signed by any party or his or her attorney shall be presumptive evidence of want of actual notice."