Opinion
No. CV02-460154-S
August 11, 2006
RULING RE MOTION TO SET ASIDE — OPEN JUDGMENT (#142)
After a bench trial, the Court (Pittman, J.) on April 21, 2004, rendered judgment in favor of the defendants. Notice of the judgment was sent on April 22, 2004. Thereafter, the plaintiff, Sydney Wylie, filed a Motion for New Trial (#139). This motion was denied by the Court (Pittman, J.) on May 4, 2004. The plaintiff then filed Motion to Set Aside — Open Judgment (#135). This motion was also denied by Judge Pittman by order dated May 4, 2004.
In his present motion, the plaintiff again seeks to set aside or open the judgment. The present motion to open judgment was filed on July 13, 2006, well beyond the four-month time period permitted for such motions. Practice Book § 17-4, General Statutes § 52-212a. The plaintiff asserts that the four-month time period should not apply because the judgment was procured by fraud. In this regard, the principal claim made by the plaintiff is that Judge Pittman erred when she ruled that Bharti Shah was not a defendant in the case. This is essentially the same claim raised in plaintiff's earlier motion.
The plaintiff correctly states that he moved to cite in Bharti Shah as a defendant in the case. See #121. On July 3, 2003, this motion was granted by the Court (Gilardi, J.) with the notation "service is waived." There is no indication that service of process was made upon Bharti Shah and she did not file an appearance. In addition, the plaintiff did not file an amended complaint to setting forth specific allegations against Ms. Shah.
At the time of trial, Judge Pittman ruled that Bharti Shah was not a party to the case and proceeded to adjudicate the matter as between the parties of record. This determination was in accord with the well established rule that one who is not served with process does not have the status of a party to the proceeding. CT Page 14863 Delio v. Earth Garden Florist, Inc., 28 Conn.App. 73, 77 (1992). Moreover, a court has no jurisdiction over persons who have not been made parties to the action before it. Id.
It is true that in the case of a judgment procured by fraud, a court's authority to open a judgment extends beyond the four month period. Connecticut National Bank v. Cooper, 232 Conn. 405, 413-14 (1995). This rule, however, has no application to the present case. At most, the plaintiff's motion asserts that Judge Pittman erred when she ruled that Bharti Shah was not a party. For the reasons stated above, this court finds that claim unpersuasive. But even if that claim has merit, it does not demonstrate that the judgment was procured by fraud. The plaintiff has not shown any fraudulent conduct by anybody.
In addition, the plaintiff has not shown any reasonable reliance on the ruling granting permission to cite in Ms. Shah as a defendant. The relief granted by Judge Gilardi was not self-executing. Even assuming the dubious assertion that the notation "service waived" on Judge Gilardi's order meant that actual service of process was waived as opposed to the cost of service, the plaintiff never attempted to compel Ms. Shah's appearance. In the ten months between the granting of the motion to cite in Ms. Shah and the trial, the defendant never moved to have her defaulted for failure to appear.
Motion denied.
So Ordered.