Opinion
CV146052189S
04-05-2017
Myrna Rodriguez v. Hartford Housing Authority Development, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT
Cesar A. Noble, J.
The defendant, New England Construction and Landscaping, has moved to open a default judgment in the amount of $125,000 plus costs of $660.80 entered against it in favor of the plaintiff, Myrna Rodriguez. The defendant argues that it did not receive the complaint, any motions, or notices leading to a July 7, 2016 hearing in damages, which resulted in the entry of the above judgment on August 24, 2016. For the reasons stated below, the court finds that the defendant has failed to establish that it was prevented by mistake, accident, or other reasonable cause from making a defense as required by General Statutes § 52-212(a), and denies the motion to open judgment.
Section 52-212(a) provides in relevant part: " Any judgment rendered or decree passed upon a default . . . in the Superior Court may be set aside, within four months following the date on which it was rendered or passed . . . 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."
The following procedural history and findings of facts are relevant to the court's decision. The plaintiff commenced this slip and fall action against the Hartford Housing Authority Development, Inc. (HHAD) by complaint dated June 12, 2014. She alleged that the HHAD was in possession and control of the property upon which she fell as a result of snow and ice, causing her to suffer injuries. Thereafter, on April 30, 2015, the plaintiff successfully moved to cite in the defendant to assert the claim that it was liable to her because it was responsible for the removal of snow and ice from the property on which she fell.
The plaintiff's action against HHAD was withdrawn on September 16, 2016.
Although limited liability companies, such as the defendant, are required by statute, pursuant to General Statutes § 34-104(a), to have and maintain a statutory agent for service of process, the defendant, which incorporated in 2007, never did so. The plaintiff effected proper service on the defendant pursuant to General Statutes § 34-105(b), which permits service of process on a limited liability company that has not maintained a statutory agent, by service on the Secretary of State, in addition to mailing by registered or certified mail, a copy of the process to the company's principal office. The defendant's business address on record with the Secretary of the State was 3580 Main Street, Building 11, Hartford (3580 Main).
" Process" is defined by General Statutes § 52-45a as a signed writ of summons or attachment accompanied by the complaint.
Section 34-105(b) provides: " If it appears from the records of the Secretary of the State that such a limited liability company has failed to appoint or maintain a statutory agent for service, or if it appears by affidavit endorsed on the return of the officer or other proper person directed to serve any process, notice or demand upon such a limited liability company's statutory agent for service appearing on the records of the Secretary of the State that such agent cannot, with reasonable diligence, be found at the address shown on such records as the agent's address, service of such process, notice or demand on such limited liability company may, when timely made, be made by such officer or other proper person by: (1) Leaving a true and attested copy thereof together with the required fee at the office of the Secretary of the State or depositing the same in the United States mails, by registered or certified mail, postage prepaid, addressed to said office, and (2) depositing in the United States mails, by registered or certified mail, postage prepaid, a true and attested copy thereof, together with a statement by such officer that service is being made pursuant to this section, addressed to such limited liability company at its principal office."
The defendant's owner and sole member, Mark Swiatowiec, averred in an affidavit filed in support of the motion to open the judgment that while it had been the defendant's intention to operate at 3580 Main, it never did so and instead operated out of 818B Windsor Avenue, Hartford (818B Windsor). His affidavit does not address why a statutory agent was never appointed and recorded for the defendant or why the appropriate business address of the defendant was never provided to and listed with the Secretary of the State. The mailing address of the defendant was identified in the records of the Secretary of the State as P.O. Box 2457, Hartford (P.O. Box 2457) and Swiatowiec's residence was listed as 128 Evergreen, Hartford (128 Evergreen). Swiatowiec affirms under oath that these addresses were and continue to be accurate. The return of service provided by Marshal Lucia O'Toole references not only service of process on the Secretary of the State, and a receipt thereof by the Secretary, but also its mailing sent by certified mail to the defendant's mailing address, P.O. Box 2457. A copy of the envelope containing the process is attached to the supplemental return of service and is stamped as unclaimed. An envelope, date stamped in July 2016, addressed to Swiatowiec at his admitted residence address, 28 Evergreen, with the plaintiff's attorney's name and address appearing as the return address, was returned with the stamp " return to sender, attempted--not known, unable to forward." Swiatowiec asserts in his affidavit that " I have received no documents related to the [the plaintiff's action], nor was I aware that an action was pending against my business." He also swears he never received the amended complaint or copies of any motions or notices of proceedings against him.
It is unclear from the plaintiff's motion what documents were contained in the envelope.
Following the entry of a default for failure to appear, a hearing in damages was held on July 7, 2016, before the court, Santos, J. The court takes judicial notice of Swiatowiec's presence at that hearing and his comments that he was notified of the hearing the day before by counsel for HHAD. The court, Santos, J., informed Swiatowiec that the defendant needed to retain counsel. Judgment was entered by the court against the defendant on August 24, 2016.
Thereafter, on September 21, 2016, the defendant moved to open the judgment. The motion was amended on October 21, 2016. In the defendant's view, the judgment should be opened because it never received notice of the action, any of the motions filed therein, or notices of any hearings, and it has a defense in whole or in part to the plaintiff's claim. The plaintiff objected on the grounds that the defendant has failed to establish that he was prevented by mistake, accident, or other reasonable cause from appearing to make a defense as required by § 52-212. Argument was held on November 18, 2016, at which time the court requested briefing on whether the failure of the defendant to appear was as a consequence of mistake, accident, or other reasonable cause. The last memorandum was received on December 12, 2016.
The opening of a judgment is controlled by § 52-212. The statute requires a movant to demonstrate that: (1) a good defense existed at the time of judgment and (2) the defendant was prevented by " mistake, accident, or other reasonable cause" from asserting that defense. Weinstein & Wisser v. Cornelius, 151 Conn.App. 174, 180, 94 A.3d 700 (2014). " 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.) Id. The burden of establishing entitlement to the benefit of the statute rests with the movant, here the defendant. See e.g. Multilingual Consultant Associates, LLC v. Ngoh, 163 Conn.App. 725, 734, 137 A.3d 97 (2016); Devore Associates, LLC v. Sorkin, 132 Conn.App. 244, 251, 31 A.3d 420 (2011).
See footnote 1. Practice Book § 17-43 is also applicable but because it is virtually identical to § 52-212 it is not here separately discussed.
The defendant's counsel conceded at oral argument that service on the defendant through the Secretary of the State was proper. The defendant's claim is simply that it did not receive the complaint, any other filings, or notices, and it had a valid defense and was prevented by " mistake, accident, or other reasonable cause" from making that defense. The defendant, however, has offered no explanation as to why an agent for service was never appointed as required by statute or why its proper business address was never listed with the Secretary of the State. Indeed, it appears from Swiatowiec's affidavit that the defendant never operated out of the address it chose to list in 2007 with the Secretary of the State as its business address, some nine years before the default judgment was entered.
The court finds that these omissions and errors, attributable solely to the defendant, are irreconcilable with a finding that " mistake, accident, or other reasonable cause" occasioned the defendant's failure to appear and defend this action. A statutory agent, such as that required of limited liability companies by § 34-104(a) serves the important purpose of acting as a medium for the transmittal of documents and papers. These documents include those related to a civil suit enumerated in § 34-105(a), which provides in relevant part: " Any process, notice or demand in connection with any action or proceeding required or permitted by law to be served upon a limited liability company which is subject to the provisions of section 34-104, may be served upon the limited liability company's statutory agent . . ." The defendant, having neglected its obligation to appoint an agent to receive such documents or to provide an accurate business address at which it would have otherwise have received the relevant papers, cannot thereafter rely on its failure to have received notice of the action to avoid the judgment.
Effective July 1, 2017, the current Connecticut Uniform Limited Liability Act, § 31-100 et seq., in which § § 34-104 and 34-105 are found, has been repealed and replaced by Public Act No. 16-97. The new act refers to " statutory agents" as " registered agents" and clarifies that their only duties are to forward to the company any process, notice or demand served on them. P.A. 16-97, § 15(a) and (f). The provisions of this act are irrelevant to this decision.
Moreover, the defendant does not address the plaintiff's evidence that mailings to the defendant's mailing address and its sole member's residence were returned as unclaimed and undeliverable. Finally, Swiatowiec was actually present at the July 7, 2017 hearing in damages and was warned by the court that the defendant needed to retain counsel. The defendant did not secure the filing of an appearance until two and a half months later on September 21, 2016 and it has offered no explanation for this delay. " The moving party on a motion to open must not only allege, but also make a showing sufficient to satisfy the two-pronged test of § 52-212 . . ." (Internal quotation marks omitted.) Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 133-34, 474 A.2d 456 (1984). The defendant has done neither.
For the foregoing reasons, the defendant's motion to open the judgment entered against it is denied.