Opinion
No. CV 92 0241050
August 28, 2006
MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT NO. 121
FACTS
On May 19, 1992, the plaintiff, Bank of Boston Connecticut, filed an application for prejudgment remedy against the defendant, Gary R. Kershner d/b/a The Kershner Company. On October 27, 1992, the plaintiff filed an amended complaint alleging that the defendant executed a promissory note with the plaintiff bank on September 21, 1989 in the amount of $31,000. The complaint further alleges that the defendant owed the plaintiff $20,850 plus interests, costs and attorneys fees.
On March 9, 1993, the court entered a default judgment against the defendant for failing to appear. Approximately thirteen years later, on May 5, 2006, the defendant filed a motion to open judgment. The defendant did not file a memorandum in support of the motion. On May 24, 2006, the plaintiff filed a memorandum in opposition to the motion. This matter was heard at short calendar on May 30, 2006.
DISCUSSION
"The power of the court to set aside a judgment of [default or] nonsuit is governed by General Statutes § 52-212. To obtain relief, a plaintiff must establish both that a good cause of action, the nature of which must be set forth, existed when the judgment of nonsuit was rendered, and that the plaintiff was prevented from prosecuting it because of mistake, accident or other reasonable cause." (Internal quotation marks omitted.) Moore v. Brancard, 89 Conn.App. 129, 132, 872 A.2d 909 (2005), see also Practice Book § 17-43(a). "A motion to open and vacate a judgment . . . is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion." (Internal quotation marks omitted.) Rino Gnesi Co., Inc. v. Sbriglio, 83 Conn.App. 707, 711, 850 A.2d 1118 (2004).
General Statutes § 52-212(a) states: "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 . . . 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."
Section 17-43(a) includes in relevant part essentially the same language as § 52-212(a).
In support of his motion, the defendant first alleges that the plaintiff did not properly serve the writ of summons and complaint and, therefore, the court did not have personal jurisdiction over the defendant when the judgment was entered. At short calendar, the defendant testified that service was made at his place of business, not at his usual place of abode. The defendant thus asserts that the judgment was void ab initio and should be opened. The plaintiff counters that, in 2001 and afterwards, the defendant received actual notice of the judgment through service in hand and by mail at his home and business address and at his attorney's address. The plaintiff argues, therefore, that the defendant's May 5, 2006, motion is untimely and must be denied.
The plaintiff also alleged that his signature was forged on the personal guarantee, the liens on his properties were released years ago, there is no proof of assignment of the judgment to plaintiff Great Plains Capital Corporation (formerly known as Bank of Boston) and the personal guarantee was not witnessed. The court does not need to consider these allegations given the resolution of the case.
A defendant has four months from the date on which the default judgment was rendered or passed to file a motion to open. Pavone v. West, 82 Conn.App. 623, 627-28, 846 A.2d 884 (2004), see also § 52-212(a). Practice Book § 17-4(a) states that the four months is measured from the date notice of the judgment is sent to the defendant. American Honda Finance Corp. v. Johnson, 80 Conn.App. 164, 167, 834 A.2d 59 (2003). In the present case, judgment was rendered on March 9, 1993 and sent on or about March 11, 1993. The defendant, however, did not file his motion to open judgment until May 5, 2006, long after the four-month period had expired. However, "[t]he issue raised by the defendant [implicates] the court's personal jurisdiction over him. That being the case, the defendant [has] the right to raise that issue irrespective of the four month time limit codified in [§ 52-212] . . ." Id.
Nevertheless, the Supreme Court has indicated that a defendant's inequitable delay in filing a motion to open judgment is ground for denying the motion despite a defendant's claim of lack of personal jurisdiction. In Wilkinson v. Boats Unlimited, Inc., 236 Conn. 78, 670 A.2d 1296 (1996), the court addressed whether the defendant's untimely motion to open could be granted based on a claim that the court did not have personal jurisdiction over the defendant when it entered judgment against him. The plaintiff countered that despite the defendant's claim of lack of personal jurisdiction, the court should deny the motion because the defendant "delayed inequitably in filing its motion . . ." Id., 84. The court did not review this argument because the parties failed to present this precise issue during trial, rendering the trial court unable to make a finding on the issue. Id. The Appellate Court's language, however, leaves open the possibility that a trial court may deny a motion to open judgment where the defendant inequitably delayed the filing of the motion after receiving actual notice of the judgment.
The Superior Court has read the language in Wilkinson v. Boats Unlimited, Inc., supra, 236 Conn. 84, as leaving open the possibility of denying an inequitably delayed motion to open judgment where lack of personal jurisdiction is implicated. In Credit One v. Starbala, Superior Court, judicial district of New Haven, Docket No. CV 03 0483057 (May 18, 2005, Pittman, J.) ( 39 Conn. L. Rptr. 354), the court found that after receiving actual notice of the judgment, the defendants "promptly contacted the plaintiff through plaintiff's counsel and attempted on multiple occasions over a number of months to resolve the underlying dispute." Id. Therefore, the court found that the defendants' delay in filing the motion to open judgment was not inequitable and granted the motion to reopen. Id., 356.
In the present case, during direct examination at short calendar, the defendant testified that in 2001 he became aware of the judgment when he received a letter from a California company demanding payment on the judgment. The record also shows that on November 6, 2001 the defendant was served in-hand a petition for examination of judgment debtor and notice of hearing and a subpoena duces tecum. The petition clearly states that the defendant is a judgment debtor and that the date of judgment was March 9, 1993.
The defendant did write a letter to the California company inquiring about the notice of judgment. Unlike the defendants in Credit One, however, the defendant in the present case did not testify to making any attempt to follow up when he did not receive a response from the company or to otherwise address the underlying dispute when he was called upon to do so in 2001. Instead, the defendant waited five years after receiving actual notice of the judgment to file his motion to open. Given the circumstances of the case, the court sees no equitable reason to open the judgment, notwithstanding the defendant's allegation of lack of personal jurisdiction.