Opinion
No. X04-CV 01-0103512 S
March 26, 2004
MEMORANDUM OF DECISION RE MOTION TO REOPEN
In this contract dispute, on September 16, 2003, the court entered a default for failure to plead against the defendants Chance Ventures, Inc, Andrew and Michael Gosman, hereafter referred to as the Chance defendants. This action brought into focus the labyrinthine and convoluted procedural history of the case. It became immediately apparent that the parties had vastly differing views of the earlier entry of disciplinary judgments of nonsuit as well as the effect of plaintiff's subsequently filed motion to reopen, which was granted. On November 24, 2003, after briefing and argument, the court concluded that the motion to reopen referred to both judgments of nonsuit and that both judgments had been reopened.
The Chance defendants filed a motion to reargue, which the court heard. The court has reviewed the matter, reconsidered the pleadings, arguments and the law. While the Chance defendants formulate the central issue as the court's lack of jurisdiction to open both judgments of nonsuit when only one filing fee was paid, the court concludes that the issue is neither a clear dichotomy nor as simple as the defendants argue. Construing both Connecticut General Statutes § 52-212 and the fee requirement set forth in § 52-259c, the court finds that it had jurisdiction to reopen two judgments of non-suit upon the payment of only one entry fee. The court denies the motion to reargue for the reasons set forth in detail below.
1. DETAILED PROCEDURAL HISTORY
While a number of motions for nonsuit were filed in this case, on February 14, 2002, the defendants Chance filed motion #119 because the Plaintiff's amended complaint did not comply with Chance's request to revise. On February 15, the defendants Eastern Capital Funding, LLC and David Rosow, collectively termed the Eastern defendants, filed motion #120 for nonsuit for the plaintiff's failure to revise the complaint pursuant to Eastern's request to revise. The confusion begins with the fact that the court granted Eastern's motion on May 20, 2002 and Chance's earlier filed motion on May 28, 2002.
On July 1, 2002, the plaintiff filed a motion to reopen and on July 18, 2002, a verified supplement to the motion. In that motion the plaintiff does not specify which group of defendants the motion addresses, but speaks of "defendants" although in the verified supplement it is apparent that both groups of defendants are intended. The motion speaks of "the nonsuit for failure to plead which entered on or about May 20, 2002." After the motion was granted on July 23, 2002, the amended complaint was filed as to both groups of defendants on July 29, 2002.
Plaintiff's counsel at the time was Joseph Moniz whose personal legal problems were cited in the motion to reopen and required him to secure substitute counsel for the plaintiff in the late summer of 2003.
The Chance defendants claim that the plaintiff thereafter proceeded only against the Eastern defendants and that the case had concluded as to Chance. Notwithstanding this claim, although there was reference in defendant Eastern's subsequent pleadings and in footnotes that the Eastern defendants believed the case concluded as to Chance, on September 10, 2003, the plaintiff filed a motion for default against the Chance defendants for failure to plead to the amended complaint of July 29, 2002. It was not until the default was granted that the differing interpretations of the court's orders of July surfaced.
After hearing and argument, the court issued a brief order on November 24, 2003 setting forth its conclusions. It noted that the amended complaint addressing the original request to revise was pending before the court. Plaintiff's failure to file the amended complaint led to the disciplinary orders of nonsuit at issue. It also noted the state's policy in favor of adjudicating cases on their merits. The court vacated the default and permitted the usual times for both defendants to plead to the amended complaint. Thereafter the Chance defendants filed a motion to reargue, relying rather more heavily than in their previous arguments on the dictates of § 52-212 and § 52-259c and the requirement that two fees and two motions to reopen are required. It claims the court is now without subject matter jurisdiction to reopen the judgment of nonsuit against the Chance defendants.
2. DISCUSSION A. MOTIONS TO REAGUE
At the outset, Connecticut law is clear that motions to reargue are not granted merely to permit a litigant to renew arguments, which were previously made or could have been made to the court. "[A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Internal quotation marks omitted and citations omitted.) Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001). "A motion to reargue, like a motion to open a judgment, should not be readily granted nor without strong reasons, [but] ought to be [granted] When there appears cause for which the court acting reasonably would feel bound in duty so to do." Northwestern Mutual Life Insurance Co. v. Greathouse, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV-98-0164835 (June 27, 2000, D'Andrea, J.).
B. JURISDICTION
The first argument Chance raises is that the court was incorrect to conclude that the computerized docket sheets did not show the entry of two judgments of nonsuit. The Defendants do not apparently understand the court's position and conclusion. The court noted in its order of November 24, 2003 that the computerized docket sheets only reflected the entry of one judgment of nonsuit, although the motions' back order pages do reflect two such orders. In fact, upon review, the docket sheets do reflect the entry of both motions, the Eastern motion noted as granted and the Chance motion as "ordered," since the Chance motion included a request for fees which was denied. The point, however, is that without more information, one cannot tell from the docket sheets alone if both motions were granted. Without referring to the actual order pages, it was equally possible that the motion for fees was granted and the nonsuit denied. Nonetheless, the court concluded that both motions were in fact granted, whether or not the docket sheets make that clear.
The second argument is that the court's interpretation of Judge Hurley's ruling was incorrect. The court's order of November 24, 2003 sets forth the reasons for its conclusion that the motion to reopen, based both on its language and attachments, refers to both judgments of nonsuit. Those reasons need not be repeated further here. The legal effect of Judge Hurley's order was to reopen both judgments of nonsuit, not just one. This court's order of November 24, 2003 did not reopen either judgment of non-suit, but merely interpreted the previous order.
Next, the Chance defendants assert that the court had no statutory authority on July 18, 2002 to reopen both judgments of nonsuit upon the payment of only one fee, citing § 52-259c. While without question this argument could and should have been advanced at the first hearing on this matter, the argument is without merit. § 52-259c provides that: "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 the Superior Court a . . . fee of seventy dollars. Such fee may be waived by the court." The substantive statute providing the court with the authority to reopen judgments, § 52-212, requires that "[a]ny judgment rendered or decree passed upon a default or a nonsuit . . . may be set aside, within four months following the date on which it was rendered." It does not include the requirement for the payment of a fee.
Chance relies on the case of Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985), which held that when a motion to reopen and the required fee were filed outside the four-month period the court lacked jurisdiction to reopen the case. A review of Mecklenburg demonstrates, however, that it is the second late filing of the motion to reopen, after it had been returned by the court, that, led to the holding that the court had no subject matter jurisdiction. In the case before the court, the motion itself was timely filed and a fee as required by § 52-259c was paid.
In Bojila v. Shramko, 80 Conn. App. 508, 511-12, 836 A.2d 1207 (2003), the court noted:
[I]n granting or denying a motion to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it . . . Lesser irregularities do not make a final judgment void . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.
(Internal quotation marks and citations omitted.) In that case, an appeal from probate, the matter was assigned for hearing and report to an attorney trial referee. Upon receipt of the report, the court entered judgment for the defendants one day prior to the time required by the Practice Book. The appellate court affirmed.
In the instant case, the failure to file a second motion, when the first can reasonably be read as referring to both judgments of nonsuit and the failure to pay a second fee are "lesser irregularit[ies]." In addition, the state's strong policy in favor of the adjudication of cases on their merits is also served by such a determination. In Plasil v. Tableman, 223 Conn. 68, 69, 612 A.2d 763 (1992), the issue was whether the "trial court had subject matter jurisdiction to grant prejudgment remedies when the plaintiff Ellen Plasil had not paid an entry fee as required by General Statutes § 52-259." The court reviewed § 52-259, which states that a fee shall be paid to the clerk for entering a case in the superior court. The court concluded that the failure to pay a fee, where the clerk had accepted the case, was discretionary and did not deprive the court of subject matter jurisdiction. The court held:
A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Such jurisdiction relates to the court's competency to exercise power, and not to the regularity of the court's exercise of that power . . . The failure to collect an entry fee for the re-served complaint or to assign it a new docket number did not deprive the court of jurisdiction or presumptively prejudice the defendants. To strip the plaintiff of her prejudgment remedies would neither facilitate the business of the court nor advance justice, but would serve merely to exalt technicalities over substance.
Ibid., at page 80.
In this case, although § 52-259c and not § 52-259 is at issue, the court finds that it had subject matter jurisdiction to reopen both orders as it had authority to adjudicate the controversy before it. It also had jurisdiction because the plaintiff's motion to reopen was filed within four months of the entry of the judgments of nonsuit as required by § 52-212. In addition, § 52-259c explicitly gives the court permission to waive the fee. As the court has interpreted Judge Hurley's order to encompass both judgments of nonsuit, so the order can be interpreted to have impliedly waived the requirement of the second $70 fee set forth in § 52-259c, to the extent that two fees are required by the statute.
The Chance defendants claim that there is no statutory mandate that § 52-259c be liberally interpreted, as is the case with the corresponding practice book section which the court cited in its November 24, 2003 order. The Chance defendants cite P.A. 03-154, "an Act concerning Statutory Interpretation," effective October 1, 2003 in support of their position. The act states:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
Turning now to a consideration of the statute itself, the issue is whether the word "shall" in § 52-259c is mandatory or discretionary. The Plasil court has already concluded that the word "shall" as used in § 52-259 requiring the payment of entry fees is discretionary. Whether the word "shall" in a different subsection, § 52-259c, is mandatory or discretionary is best made by considering whether the "mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates to matter material or immaterial — to matter of convenience or of substance." Gallup v. Smith, 59 Conn. 354, 358, 22 A. 334 (1890). The essence of the thing to be accomplished is not the payment of the fee, which the court can waive, but the filing of the motion to reopen within the four-month period. Construing the fee requirement of § 52-259c as discretionary under these facts comports with the substantive requirements concerning motions to reopen set forth in § 52-212. The paying of the fee is simply ministerial and a matter of convenience. Such statutory construction also complies with P.A. 03-154 by construing both applicable statutes together.
The court concludes, for the reasons set forth above, that it had subject matter jurisdiction on July 23, 2002 to reopen both judgments of nonsuit upon the payment of only one fee. As was noted in Plasil, "to strip the plaintiff [of its cause of action] would neither facilitate the business of the court nor advance justice, but would serve merely to exalt technicalities over substance." For all the foregoing reasons, the motion to reargue is denied.
BY THE COURT
BARBARA M. QUINN, Judge