Opinion
No. CV 04-400 27 50 S
March 29, 2005
MEMORANDUM OF DECISION
On October 7, 2004, the plaintiffs, Sharon and Greg Weiss filed a five-count complaint against the defendants, Tim Dokter and On-Site Limited, LLC, with a return date of October 12, 2004. This action arises out of injuries and losses allegedly stemming from the defendants' breach of a home improvement construction contract. On October 29, 2004, Dokter filed an appearance as pro se party for himself and On-Site Limited, LLC. On November 17, 2004, the court granted the plaintiffs' motion for failure to appear as to On-Site Limited, LLC, and denied the motion as to Dokter. On November 24, 2004, both defendants retained counsel and filed an appearance.
On November 26, 2004, the plaintiffs filed a motion for default for failure to plead, which was granted by the court on December 17, 2004. On January 19, 2005, the defendants filed a motion to open the default for failure to appear. On January 31, 2005, the plaintiff filed a certificate of closed pleadings and the case was scheduled as a hearing in damages for the court. On February 2, 2005, the defendants filed a motion to open the default for failure to plead, as well as an answer to the complaint, special defenses and counterclaims. The plaintiffs filed a memorandum in opposition to defendants' motion to open on February 4, 2005.
On March 28, 2005, the matter was scheduled for a hearing of damages before this court. The defendants renewed their motion to open the default for failure to plead. They argue that pursuant to Practice Book § 17-32(b), the court under its discretion can open a default for failure to plead within four months of the granting of the motion. The plaintiffs counter that the hearing in damages should proceed because the pleadings were closed and the case had been claimed for the hearing in damages list.
"Section 17-32(b) provides in relevant part that `[i]f a party who has been defaulted under this section [for failure to plead] files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default. If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the judicial authority . . .' Accordingly, a defendant seeking to file an answer after the plaintiff has filed a claim for a hearing in damages will succeed only by first filing a motion with the judicial authority to open the default." Merritt v. Fagan, 78 Conn.App. 590, 595, 828 A.2d 685, cert. denied, 266 Conn. 916, 833 A.2d 467 (2003).
In this case the defendants filed a motion to open the default. The defendants' motion can only be granted by judicial authority because the case has been claimed for the hearing in damages list. The defendants filed an answer three days after the case was claimed for the hearing in damages list and a little over two months since the defendants retained counsel. The court is within its authority to open the default, therefore the motion is granted.
GILARDI, J.