Opinion
No. CV02 0281779-S
August 19, 2004
This matter is before the court on the defendants' motions to open the judgment upon default pursuant to General Statutes § 52-212 and Practice Book § 17-43, and the defendants' motions to dismiss on the ground that the court lacks subject matter jurisdiction.
I FACTS
On August 12, 2002, the plaintiff, JoLynn Wilson, filed a one count complaint against the defendants, Ester Troxler (Troxler) and the State of Connecticut (state). The summons names Troxler and "the State of Connecticut, Fleet Operations" as the defendants. The summons also names attorney general Richard Blumenthal (Blumenthal) as the agent for service of the state. The plaintiff alleges that on or about August 1, 2000, Troxler was operating a motor vehicle owned by the state while in the course of her employment when she negligently and carelessly caused an accident with the plaintiff's vehicle, resulting in injuries and losses to the plaintiff. The marshal's return of service indicates that on July 18, 2002, the writ, summons and complaint were left at Troxler's usual place of abode and on July 24, 2002, Gregory D'Auria (D'Auria), the state's associate attorney general, was served in hand on behalf of the defendant State of Connecticut, fleet operations.
On October 17, 2002, the clerk of the court granted the plaintiff's motion for default for failure to appear as to both defendants. On February 20, 2003, the plaintiff filed a motion for judgment after default. On March 10, 2003, the plaintiff filed a certificate of closed pleadings and a request for a hearing in damages. A hearing in damages was held on June 6, 2003, and the court, Graham, J., entered a judgment as to both defendants in the amount of $294,423.50. On August 7, 2003, attorney Ronald Williams filed an appearance on behalf of both defendants. On September 18, 2003, the plaintiff filed a notice of judgment and certified that she sent a copy of the notice of judgment to attorney Williams, Troxler and attorney general Blumenthal on September 16, 2003.
On September 19, 2003, Troxler filed a motion to dismiss pursuant to Practice Book § 10-31 on the ground that the court lacks subject matter jurisdiction because the action is barred by General Statutes § 4-165. In support of that motion, Troxler submitted a copy of her own sworn affidavit and a copy of the military affidavit of Nicholas Troiano, attorney for the plaintiff. Also on September 19, 2003, Troxler filed a motion to open the judgment pursuant to General Statutes § 52-212 and Practice Book § 17-43(a) on the grounds that at the time of the judgment, a good defense existed to the plaintiff's action and that Troxler was prevented by mistake, accident or other reasonable cause from appearing in this action. In support of that motion, Troxler submitted the following: (1) an unauthenticated copy of a letter from attorney Troiano to Debbie Crosby (Crosby), employee of Specialty Risk Services, Inc.; (2) Troxler's own sworn affidavit; (3) a copy of the military affidavit of attorney Troiano; and (4) a sworn affidavit of attorney Williams.
The defendants refer to their motions as motions to set aside judgment upon default. For clarity and convenience, the court will refer to these motions as motions to open.
On September 29, 2003, the state filed a motion to dismiss pursuant to Practice Book § 10-31 on the ground that the court lacks subject matter jurisdiction because the action is barred by the doctrine of sovereign immunity. In support of that motion, the state submitted a copy of the sworn affidavit of Troxler. On October 9, 2003, the state filed a motion to open the judgment pursuant to § 52-212 and § 17-43(a) on the grounds that at the time of the judgment, a good defense existed to the plaintiff's action and that the state was prevented by mistake, accident or other reasonable cause from appearing in this action. In support of that motion, the state submitted the following: (1) the sworn affidavit of Crosby; (2) an unauthenticated copy of a letter from attorney Troiano to Crosby; (3) a copy of the sworn affidavit of D'Auria; (4) a copy of the sworn affidavit of Mary Quirk (Quirk), administrative assistant for the office of the state comptroller; and (5) a sworn affidavit of attorney Williams.
On November 21, 2003, the plaintiff filed objections to the defendants' motions, along with supporting documentation. On May 7, 2004, the defendants filed reply briefs. The court heard oral argument on May 10, 2004.
II DISCUSSION
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Flanagan v. Blumenthal, 265 Conn. 350, 365, 828 A.2d 572 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
A motion to open judgment upon default is governed by General Statutes § 52-212 and Practice Book § 17-43. See Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., 196 Conn. 233, 234-35, 492 A.2d 159 (1985). "[T]o obtain relief from a judgment rendered after a default, two things must concur. There must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented from making that defense because of mistake, accident or other reasonable cause. General Statutes § 52-212; Practice Book § [17-43]." (Internal quotation marks omitted.) Id., 235. A "written motion [to open judgment upon default] 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." General Statutes § 52-212(b); see also Practice Book § 17-43(a). The decision whether to grant or deny a timely motion to reopen is in the trial court's discretion. See Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., supra, 235.
General Statutes § 52-212 provides in relevant part: "(a) 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. (b) 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."
Practice Book § 17-43 provides in relevant part: "(a) 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. 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. The judicial authority shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin that party against enforcing such judgment or decree until the decision upon such written motion."
A The Defendant Troxler's Motion to Dismiss and Motion to Open
Troxler argues in support of the motion to dismiss that, at the time of the alleged accident, she was a state employee acting in the course of her employment. She argues that the plaintiff alleges that, at the time of the accident, Troxler was operating a state vehicle in the course of her employment. Accordingly, she argues that she is afforded immunity from suit pursuant to General Statutes § 4-165, which provides in relevant part: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter." Troxler argues, therefore, that the court lacks subject matter jurisdiction. See McKinley v. Musshorn, 185 Conn. 616, 624, 441 A.2d 600 (1981) (affirming the judgment of the Superior Court dismissing the action against the individual state employee pursuant to § 4-165). She argues that a motion to dismiss can be raised at any time and, pursuant to Practice Book § 10-33, any claim of lack of subject matter jurisdiction cannot be waived.
In support of the motion to open, Troxler first argues that the motion was timely filed. See General Statutes § 52-212(a); Practice Book § 17-43(a). Next, she argues that a good defense was available to her at the time of the judgment. See General Statutes § 52-212(a); Practice Book § 17-43(a). Specifically, she argues that she was immune from suit pursuant to § 4-165. Finally, she argues that she was prevented by mistake, accident or other reasonable cause from appearing and asserting her defense. See General Statutes § 52-212(a); Practice Book § 17-43(a). In her affidavit, she attests that she did not respond to the lawsuit because she thought that the state would be handling her defense in this action and that she did not want to speak on behalf of the state. She further attests that she knew other state employees who were sued following motor vehicle accidents while on the job and that the state handled those cases on behalf of the employees.
The plaintiff argues in opposition that the court must decide the motion to open before the motion to dismiss. In opposition to the motion to open, the plaintiff argues that it was untimely filed. Alternatively, the plaintiff argues that Troxler has not met the requirements of § 52-212(a) and § 17-43(a) because she was negligent by failing to inquire as to whether the state would be handling her defense in the action against her. Instead, the plaintiff contends that Troxler relied on second hand information. The plaintiff argues that Troxler was not prevented by mistake, accident or other reasonable cause from appearing and asserting her defense.
In this case, the court is faced with the issue of whether to address first the motion to open or the motion to dismiss. The defense argued by Troxler in her motion to dismiss challenges the court's subject matter jurisdiction. "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997). Furthermore, "a judgment rendered without jurisdiction is invalid." Trichilo v. Trichilo, 190 Conn. 774, 777-78, 462 A.2d 1048 (1983). Accordingly, because Troxler's defense of statutory immunity concerns the ability of the court to hear this case, the court must look to see if the defense is a good one. As a practical matter, however, the court must decide the motion to open because a judgment has been entered and the case has not been "reinstated on the docket" pursuant to § 52-212(a) and § 17-43(a).
In Trichilo v. Trichilo, supra, 190 Conn. 776, the trial court rendered a judgment of default against the defendant for failure to appear and awarded damages to the plaintiff. The trial court later denied a motion to open the judgment. Trichilo v. Trichilo, supra, 777. On appeal, the defendant argued that the court did not have personal jurisdiction because the plaintiff failed to make certain allegations in the complaint and that the judgment should have been opened on that basis. Id., 777-78. The Supreme Court held that the trial court did not abuse its discretion by denying the motion to open. Id., 783. The court held that the defendant was served properly and that lack of an allegation in the complaint was not "fatal to the jurisdiction of the court." Id.
Before the court can open the judgment, the court must determine whether Troxler has met the requirements of § 52-212 and § 17-43(a). The court finds that the motion to open was timely filed because it was filed within four months of date of the judgment and the date of the notice of judgment. See General Statutes § 52-212(a); Practice Book § 17-43(a). As to Troxler's argument that she was prevented from appearing by mistake, accident or other reasonable cause, the court need not determine if Troxler has presented sufficient evidence to find that she was not negligent by failing to appear in this case because her defense of statutory immunity, which represents the second prong of the test, implicates the court's subject matter jurisdiction. See McKinley v. Musshorn, supra, 185 Conn. 624. The court finds that Troxler not only had a good defense in this action, but a meritorious and conclusive defense, which goes directly to the court's subject matter jurisdiction. The plaintiff has alleged that, at the time of the accident, Troxler was an employee of the state and was operating a state vehicle in the course of her employment. The plaintiff has not alleged that Troxler was acting wantonly, recklessly or maliciously. Pursuant to § 4-165, Troxler has immunity from suit and, on the face of the pleadings, the plaintiff does not have a cause of action against Troxler. Accordingly, the motion to open the judgment as to Troxler is granted and the motion to dismiss as to Troxler is wanted for lack of subject matter jurisdiction.
B The Defendant State's Motion to Dismiss and Motion to Open
The state argues in support of the motion to dismiss that the action against it is barred by the doctrine of sovereign immunity. The state argues that the plaintiff did not plead in the complaint that the state vehicle was "insured by the state against personal injuries or property damage," or that the action was brought pursuant to General Statutes § 52-556, which provides: "Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury." "With the enactment of § 52-556 . . . the state expressly waived sovereign immunity in motor vehicle negligence actions . . . and specifically consented to suits based on `negligence.' The legislature's use of the term `negligence' in § 52-556 manifests the obvious intention of the legislature to consent to suit against the state based on the breach of a common-law duty of care in the operation of state owned and insured vehicles by state employees and officials." (Citation omitted.) Babes v. Bennett, 247 Conn. 256, 263, 721 A.2d 511 (1998). The state argues that the plaintiff has brought a common law employer-employee vicarious liability claim pursuant to General Statutes § 52-183, to which the state has not consented. The state further argues that the action against Troxler is barred by sovereign immunity and must be dismissed because the plaintiff did not allege that the conduct of Troxler was wanton, reckless or malicious, nor did she allege that the plaintiff was granted permission by the claims commissioner to bring this action pursuant to General Statutes § 4-160(c).
In the complaint, the plaintiff alleged that Troxler was acting in the course of her employment and operating the state's vehicle with the state's permission and general authority to do so, "pursuant to [General Statutes §] 52-183."
General Statutes § 52-183 provides in relevant part: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment."
General Statutes § 4-160(c) provides: "In each action authorized by the Claims Commissioner pursuant to subsection (a) or (b) of this section or by the General Assembly pursuant to section 4-159 or 4-159a, the claimant shall allege such authorization and the date on which it was granted, except that evidence of such authorization shall not be admissible in such action as evidence of the state's liability. The state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances."
In support of the motion to open, the state first argues that the motion was timely filed. See General Statutes § 52-212(a); Practice Book § 17-43(a). Next, the state argues that good defenses were available to it at the time of the judgment. See General Statutes § 52-212(a); Practice Book § 17-43(a). Specifically, the state argues that the doctrine of sovereign immunity bars the plaintiff's action against it because the plaintiff has failed to plead an essential element of § 52-556, namely that the state vehicle was "insured by the state against personal injuries or property damage." The state argues that the plaintiff brought an action pursuant to § 52-183 and that the state has not consented to suit. The state next argues as a defense that an issue of fact exists as to whether Troxler's conduct in this case constituted negligence. The state further argues that a defense exists regarding the issue of whether the state vehicle was insured by the state within the meaning of § 52-556. In support of this final argument, attorney Williams, in his affidavit attached to the state's motion to open as exhibit E, has attested that, at the time of the alleged loss, the state did not have insurance coverage for the first $500,000 of this claim.
Finally, the state argues that it was prevented by mistake, accident or other reasonable cause from appearing and asserting its defense. See General Statutes § 52-212(a); Practice Book § 17-43(a). The state argues that D'Auria, in his affidavit filed on October 20, 2003, has attested that he is the agent for service for legal actions against the state and that the writ in this case was logged in as received and forwarded to the office of the state comptroller. D'Auria also has attested that he has no recollection of receiving any of the subsequently filed pleadings in this case. Quirk, in her affidavit filed on October 20, 2003, has attested that part of her job duties at the office of the state comptroller included, in the case of the negligent operation of state vehicle, receiving writs from the office of the attorney general and forwarding them to the state's insurance broker. Quirk has attested that she has no record of ever receiving the writ or other pleadings from the present case. The state argues that the writ from the office of the attorney general to the office of the comptroller "fell through the cracks" and the state's failure to appear and assert its defenses was the product of mistake or accident. The state further argues that the plaintiff did not send the subsequently filed pleadings, such as the motion for default and the claim for a hearing in damages, to the defendant state, fleet operations, but rather to attorney general Blumenthal.
The plaintiff argues in opposition that the court must decide the motion to open before the motion to dismiss. In opposition to the motion to open, the plaintiff argues that it was untimely filed. Alternatively, the plaintiff argues that the state has not met the requirements of § 52-212(a) and § 17-43(a). First, the plaintiff argues that the state acted negligently by failing to appear after it received service of the complaint and subsequent pleadings upon its designated agent for service. The plaintiff argues that the state's system for receiving writs is negligently designed and negligently operated. Second, the plaintiff argues that the state does not have a good defense in this action and that this action is not barred by the doctrine of sovereign immunity. The plaintiff argues that she has brought an action pursuant to § 52-556 and the absence in the complaint of any explicit reference to that section number does not bar recovery. The plaintiff argues that the allegations in the complaint are sufficient to apprise the defendant of the statutory grounds to abrogate sovereign immunity.
As stated previously, the court is faced with the issue of whether to address first the motion to open or the motion to dismiss. Because the state's motion to dismiss challenges the court's subject matter jurisdiction, the court must dispose of the issue before proceeding further with the case. See Community Collaborative of Bridgeport, Inc. v. Ganim, supra, 241 Conn. 552. As a practical matter, however, the court first must decide whether to open the judgment and reinstate the case on the docket. Furthermore, the state's argument set forth in the motion to dismiss that the action is barred by sovereign immunity on the ground that the plaintiff failed to allege certain facts does not implicate the court's subject matter jurisdiction. See Egri v. Foisie, 83 Conn.App. 243, 249, 848 A.2d 1266 (2004) (stating that "the defect in the plaintiff's complaint here is not jurisdictional in nature. Rather, it simply failed to state a legally sufficient claim"); Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991) (stating that "the fact that the plaintiff's complaint failed to allege facts that would have removed it from the operation of the fellow employee immunity rule merely reflects that the complaint failed to state a legally sufficient cause of action . . . Because this challenge was to the legal sufficiency of the complaint . . . [the] motion to dismiss was improper).
Before the court can open the judgment, the court must determine whether the state has met the requirements of § 52-212 and § 17-43(a). The court finds that the motion to open was timely filed because it was filed within four months of date of the notice of judgment. See General Statutes § 52-212(a); Practice Book § 17-43(a). As to the issue of whether the state had a good defense at the time of the judgment, the state argues that the plaintiff's action is barred by the doctrine of sovereign immunity because the plaintiff failed to allege that the state vehicle was insured by the state pursuant to § 52-556. "[T]he interpretation of pleadings is always a question [of law] for the court . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citations omitted; internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 82, 700 A.2d 655 (1997). "As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, [the court] will not conclude that the complaint is insufficient to allow recovery." (Internal quotation marks omitted.) Harris v. Shea, 79 Conn.App. 840, 843, 832 A.2d 97 (2003).
The court notes that General Statutes § 52-212(a) and Practice Book § 17-43(a) have slightly different language regarding the date on which the four month deadline for the filing of a motion to open begins to run. Section 52-212(a) provides in relevant part: "within four months following the date on which [judgment] was rendered or passed . . ." Section 17-43(a) provides in relevant part: "within four months succeeding the date on which notice [of the judgment] was sent . . ." For purposes of this memorandum, this distinction is irrelevant because the state's motion to open is denied.
"The purpose of the notice requirement is not to set a trap for the unwary or to place an impediment in the way of an injured party who has an otherwise meritorious claim. Rather, the purpose of notice is to allow the municipality to make a proper investigation into the circumstances surrounding the claim in order to protect its financial interests." CT Page 14286 Salemme v. Seymour, 262 Conn. 787, 793, 817 A.2d 636 (2003) (discussing the notice requirements of General Statutes § 13a-149); see also Pratt v. Old Saybrook, 225 Conn. 177, 182, 621 A.2d 1322 (1993) (holding that notice was sufficient despite an incorrect citation to a statute that was the basis for the plaintiff's claim).
In the present case, the plaintiff alleges in the complaint that Troxler "was acting in the course of her employment and operating the defendant, [s]tate of Connecticut's vehicle with permission . . ." The court finds that a requirement that the plaintiff plead that the vehicle was "insured by the state" would not serve the purpose of notice. The lack of such an allegation does not violate the intent expressed in § 52-556, which is "to consent to suit against the state based on the breach of a common-law duty of care in the operation of state-owned and insured vehicles by state employees and officials." Parente v. State, Superior Court, judicial district of New Haven, Docket No. CV 03 0475740 (March 18, 2004, Arnold, J.).
It is undisputed that the vehicle in this case was owned by the state. Additionally, attorney Williams, in his affidavit attached to the state's motion to open as exhibit E, attested that, at the time of the plaintiff's alleged loss, the state "did not have insurance coverage for the first $500,000.00 of this claim." It can be inferred from this statement, however, that the vehicle was, in fact, insured by the state. Based on the allegations set fort in the complaint, there is no surprise or prejudice to the state that the plaintiff alleged a cause of action pursuant to § 52-556. Furthermore, the failure of the plaintiff to identify the statute by number in the complaint will not bar recovery "as long as the defendants are sufficiently apprized of the applicable statute during the course of the proceedings." (Emphasis in original.) Spears v. Garcia, 66 Conn.App. 669, 675-76, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003). The court finds that, based on the allegations in the complaint, the state was sufficiently apprized of the applicable statute, § 52-556. Accordingly, the lack of the phrase "insured by the state against personal injuries or property damage" in the complaint is not fatal to the plaintiff's action. See Parente v. State, supra, Superior Court, Docket No. CV 03 0475740.
As to the state's "defense" argument that the action against Troxler is barred by sovereign immunity and must be dismissed because the plaintiff did not allege that she was granted permission by the claims commissioner to bring this action, the court finds that the plaintiff was not required to present her claim to the claims commissioner because there was an express waiver of immunity pursuant to § 52-556; see Capers v. Lee, 239 Conn. 265, 273, 684 A.2d 696; and the plaintiff's pleadings were sufficient to invoke the state's waiver of immunity. See Parente v. State, supra, Superior Court, Docket No. CV 03 0475740.
The state has also argued that good defenses existed at the time of the judgment on the grounds that: (1) an issue remains as to whether the state vehicle was insured by the state within the meaning of § 52-556; and (2) an issue of fact exists as to whether Troxler was negligent. The court finds, however, that the state's arguments are without merit. The court has already stated that, through attorney Williams' affidavit, the court can reasonably infer that the state vehicle was insured by the state at the time of the alleged accident. The fact that the state did not have insurance coverage for the first $500,000 of this claim is irrelevant and would not have served as a good defense at the time of the judgment. Furthermore, the argument that Troxler may not have been negligent at the time of the alleged accident in this case would not have served as a good defense at the time of the judgment pursuant to § 52-212.
State has also raised the issue that the plaintiff failed to send the pleadings to the appropriate defendant by sending them to attorney general Blumenthal. As stated previously, the summons named Blumenthal as the agent for service of the state. Without an appearance filed by the state, the plaintiff sent all subsequent pleadings to Blumenthal, which was in conformity with General Statutes § 52-64. Section 52-64 provides: "Service of civil process in any civil action or proceeding maintainable against or in any appeal authorized from the actions of, or service of any foreign attachment or garnishment authorized against, the state or against any institution, board, commission, department or administrative tribunal thereof or against any officer, servant, agent or employee of the state or of any such institution, board, commission, department or administrative tribunal, as such, may be made by leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General or at his office in Hartford." See also Practice Book § 10-12.
Practice Book § 10-12 provides in relevant part: "(b) It shall be the responsibility of counsel or pro se party at the time of filing a motion for default for failure to appear to serve the party sought to be defaulted with a copy of the motion. Upon good cause shown, the judicial authority may dispense with this requirement when judgment is rendered. (c) 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."
Even if the court were to assume that the state had a good defense to this action, the state has failed to show that it "was prevented from making that defense because of mistake, accident or other reasonable cause." Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., supra, 196 Conn. 235; see also General Statutes § 52-212(a); Practice Book § 17-43(a). "There is no principle of law which requires that [the defendant] be given a further opportunity after judgment [to raise defenses] when [its] failure to assert [its] defenses sooner was inexcusable . . ." Trichilo v. Trichilo, supra, 190 Conn. 782. A review of the record reveals the following facts: The marshal's return of service discloses that associate attorney general D'Auria was served in hand with the writ, summons and complaint on July 24, 2002. D'Auria attested that he is "the designated agent for service with respect to legal actions brought against the [s]tate of Connecticut." He attested that a database is maintained to record the entry of writs served upon the state and that the writ from the present case was logged in the database as having been received by the office of the associate attorney general on July 24, 2002. D'Auria attested that the writ was then forwarded to Nancy Wyman at the office of the state comptroller. Quirk, an administrative assistant at the office of the state comptroller, attested that she has no record of ever receiving the writ or other pleadings. The motion for default for failure to appear, the motion for judgment after default and the notice of judgment were all certified by the plaintiff as having been sent to attorney general Blumenthal.
"A court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court's authority. Black v. Universal C.I.T. Credit Corp., 150 Conn. 188, 194, 187 A.2d 243 (1962). `Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence.' Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., [ supra, 196 Conn. 240-41]. 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, 548-49, 776 A.2d 1195 (2001). Furthermore, "[w]here a court has both territorial and subject matter jurisdiction and adequate notice has been given, a judgment is valid and ordinarily should be given effect in order to sustain the credibility of the directive in the summons that a defendant appear if he wishes to contest the action." Trichilo v. Trichilo, supra, 190 Conn. 783.
The court finds that, based on the marshal's return of service and D'Auria's affidavit, the state had actual notice of this action. Furthermore, the subsequent pleadings were certified by the plaintiff as being sent to attorney general Blumenthal, who was listed on the summons as the agent for service for the state, and the state has not submitted any evidence that Blumenthal did not receive the subsequent pleadings. The court finds that the state did not exercise reasonable diligence in attempting to appear before the court when summoned and it has failed to demonstrate a mistake, accident or other reasonable cause preventing it from defending this action. Accordingly, the state's motion to open is denied and the state's motion to dismiss is therefore denied.
III CONCLUSION
For the foregoing reasons, Troxler's motion to open and motion to dismiss are granted. The state's motion to open and motion to dismiss are denied.
BY THE COURT
Tanzer, Judge