Opinion
No. CV07-5000975S
December 29, 2008
MEMORANDUM OF DECISION
ISSUES:
The defendants, in their joint motion to set aside default and restore case to civil docket (#107) have presented two issues for the court's consideration:
1. Whether or not this court has jurisdiction to open the default judgment entered against them by the court on November 8, 2007 pursuant to the authority of § 52-212 of the General Statutes and/or Practice Book § 17-43.
2. If in fact the motion (#107) was timely filed, as addressed in #1 above, the matter may be reopened and restored to the docket.
The plaintiffs have filed an objection to the defendants' motion to set aside default judgment (#108).
FACTS
This case arises out of claimed personal injuries sustained by passengers during a trip on an allegedly unsafe bus. Ten plaintiffs, members of a children's ballet troupe and their chaperones, filed a summons and complaint against the defendants, The Peggy Willis Ballet Company of the Conservatory of Classic Ballet, Inc. (the company), Paul Aarnio and Peggy Willis-Aarnio on December 29, 2006. The complaint contains fifty-five counts claiming, among other causes of action: Negligence, false imprisonment, fraud, negligent misrepresentation, and reckless and wanton transportation of passengers.
For the record, the ten plaintiffs include: Janice Loesch; Taylor Loesch, through next friend Janice Loesch; Carolyn Mailloux; Brooke Mailloux, through next friend Carolyn Mailloux; Denise Tremblay; Carolyn Tremblay, through next friend Denise Tremblay; Kathy Lindell; Jessica Lindell, through next friend Kathy Lindell; Ann Falco; and Karina Falco, through next friend Ann Falco. All the plaintiffs are residents of either Thompson, Connecticut or North Grovesnordale, Connecticut.
The propriety of service of process is not disputed by any defendant.
The plaintiffs allege certain facts in the complaint, which are briefly summarized as follows. Aarnio and Willis-Aarnio, residents of Florida, are the president and vice president, respectively, and directors of the company. The company is a non-profit corporation with its principal place of business in Florida. The company conducted business in Connecticut by soliciting local children's dance troupes to perform at a show in Queens, New York.
The plaintiffs are Connecticut residents who are affiliated with the Turning Pointe Dance Academy (the academy), located in North Grovesnordale, Connecticut. The academy agreed to send a group of child ballet dancers and chaperones to Queens to perform for the company and the company agreed to provide bus transportation and meals to the dancers and chaperones, including the plaintiffs.
The trip took place on December 11, 2005. While riding on the company-owned bus, the plaintiffs noticed foul-smelling fumes pervading the cabin and the presence of black soot on their persons and belongings. These conditions were due to a problem with the exhaust system of the bus. As a result of this exhaust problem, the plaintiffs suffered physical and emotional injuries. The prayer for relief requested money damages, double or treble damages, punitive damages and costs.
None of the defendants appeared in the action. On April 17, 2007, the court granted the plaintiffs' motion for default for failure to appear against all the defendants. A hearing in damages was held on November 8, 2007, immediately after which judgment was rendered on behalf of the plaintiffs in the amount of $106,215.87.
On October 14, 2008, the defendants, through counsel, filed a motion to open judgment. The motion included a memorandum of law. On October 22, 2008, the plaintiffs filed an objection to the motion and accompanying memorandum of law. The matter was heard on the short calendar on November 17, 2008, during which the court held an evidentiary hearing.
DISCUSSION
"Any judgment rendered . . . upon a default . . . 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 . . ." Practice Book § 17-43; see also General Statutes § 52-212. "In order to set aside a judgment passed upon default, there must be a showing that (1) a good defense existed at the time judgment was rendered; and (2) the party seeking to set aside the judgment was prevented from appearing because of mistake, accident, or other reasonable cause." (Internal quotation marks omitted.) Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 167, 475 A.2d 310 (1984). "[I]n granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion . . ." Pantlin Chananie Development Corp. v. Hartford Cement Building Supply Co., 196 Conn. 233, 235, 492 A.2d 159 (1985).
"[T]he trial court lacks [authority] to open the judgment when a motion to open is not timely." Handy v. Minwax Co., 46 Conn.App. 54, 57, 698 A.2d 339, cert. denied, 243 Conn. 921, 701 A.2d 342 (1997). "Where [, however,] the defendants have not received notice of the default judgment . . . the time within which they may move to [open] the judgment is extended by the delay in notification." (Internal quotation marks omitted.) Pavone v. West, 82 Conn.App. 623, 628, 846 A.2d 884 (2004).
The plaintiffs assert that the court lacks jurisdiction to hear the motion to open because the motion was not filed within four months of receipt of notice of the default judgment. See General Statutes § 52-212; Practice Book § 17-43. The defendants counter with the argument that the motion is timely because the plaintiffs have failed to send notice of default judgment to the defendants in a manner that complies with Practice Book § 17-22.
Practice Book § 17-22 provides: "A notice of every nonsuit for failure to enter an appearance or judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed within ten days of the entry of judgment by counsel of the prevailing party to the party against whom it is directed and a copy of such notice shall be sent to the clerk's office. Proof of service shall be in accordance with [§]10-14."
As a preliminary matter, the issue of the timeliness of the motion implicates the court's statutory authority to open a judgment rather than its subject matter jurisdiction. See Opoku v. Grant, 63 Conn.App. 686, 689 n. 2, 778 A.2d 981 (2001), citing Kim v. Magnotta, 249 Conn. 94, 733 A.2d 809 (1999). Thus, the plaintiffs' objection to the motion must be considered accordingly.
Practice Book § 17-43 provides that the four-month period within which one can file a motion to open commences when "notice [is] sent." In order to determine whether the motion is timely, the court must determine when the notice is deemed "sent." Neither § 17-43 nor § 52-212 explicitly states how or by whom this notice is to be sent.
Section 17-22 requires a plaintiff who obtains a default judgment to notify the defendant that the default judgment has been entered. The sending of notice must meet certain requirements. See § 17-22.
While sending notice pursuant to § 17-22 will commence the four-month period, it is not the only means to do so. See DiSimone v. Vitello, 6 Conn.App. 390, 393, 505 A.2d 745 (1986). In DiSimone, the court stated as follows: "At the most, where a defendant does not otherwise have notice of a default judgment, such a delay [in giving notice] would merely extend the time in which the defendant could move to set aside the judgment." (Emphasis added.) Id. This statement is inconsistent with the notion that only notice that complies with § 17-22 may commence the four-month period because it implies that an independent source of notice may do so.
Also, no notice that is given after ten days could ever technically comply with § 17-22, because, under that provision, the notice must be mailed within ten days of the day the default judgment is entered. The court is confident that the drafters of §§ 17-22 and 17-43 did not intend to permanently toll the four-month period just because a notice is sent more than ten days after judgment is entered.
The Appellate Court has previously allowed the four-month period to commence, even absent a finding of compliance with § 17-22. See Tyler E. Lyman, Inc. v. Lodrini, 63 Conn.App. 739, 747-48, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001). In Tyler E. Lyman, Inc., the plaintiff mailed a notice of default judgment that was never received by the defendant because it was mailed to his old address. Id., 745-46. The court determined that, due to the failure of the plaintiff to successfully deliver notice, the four-month period "did not commence until [the defendant] received actual notice of the existence of the judgment, which took place in July 1998." Id., 746. In July of that year, the plaintiff commenced garnishment of the defendant's bank account in order to enforce the default judgment — at which point the defendant became aware of the judgment. Id., 748. The court did not refer to § 17-22 in its analysis of whether the defendant's motion to open was timely.
The court did not refer to any of the other requirements of § 17-22, including the requirements that: (1) the notice be filed with the clerk's office, (2) the mailing be done within ten days after the entry of judgment, and (3) the service of the notice be proved according to Practice Book § 10-14.
The defendants rely on McLaughlin v. Smoron, 62 Conn.App. 367, 771 A.2d 201 (2001), in support of their argument. The court held in McLaughlin that the reclamation of a motion to open more than two years after the entry of default judgment was timely "because the plaintiff's counsel did not give proper notice to the defendants pursuant to [§ 17-22]." McLaughlin v. Smoron, supra, 371. The court found the clerk's mailing of the notice to be insufficient. See id.
The defendants' reliance on McLaughlin is unwarranted. See W. Horton K. Knox, 1 Connecticut Practice Series: Superior Court Civil Rules (2009) § 17-22, p. 830 ("[D]efendants who have received actual notice of judgment after default should not rely upon this case to save an untimely motion to open"). It appears that, in McLaughlin, the court found that the defendant had no notice, even from the clerk's mailing of the judgment. See W. Horton K. Knox, supra, § 17-22, p. 830. In the present case, as discussed below, the defendants have an independent source of notice. Therefore, Tyler E. Lyman, Inc. applies to this case rather than McLaughlin.
It is submitted that in order to determine whether the defendants' motion to open is timely, the court must first determine the date on which the defendants first had actual notice of the default judgment. Then, if the motion was not filed within four months of that date, the court must deny the motion on substantive grounds.
"Whether a party has been given notice is a question of fact . . ." Federal Ins. Co. v. Gabriele, 54 Conn.App. 459, 461, 735 A.2d 368 (1999). The court finds that the defendants had actual notice of the judgment, at the very latest, on May 26, 2008. The plaintiffs note in their objection that the defendants have admitted, in their motion papers, to receiving actual notice of the judgment on or about May 26, 2008 from a court in Florida. (Plaintiff's Memorandum, pp. 6-7.) The defendants' motion papers also include an affidavit from Aarnio where he admits receiving notice of judgment from the Florida court on or about May 26, 2008. (Defendants' Memorandum, Exhibit A, ¶ 25.) Furthermore, at the hearing on the motion to open that took place November 17, 2008, Aarnio admitted that he signed a return receipt that accompanied the Florida court's mailing.
Page 16 of the defendants' memorandum provides in relevant part: "The next court notice defendants received was from the Bay County Circuit court in Panama City, Florida on or about May 26, 2008 with a copy of this court's judgment after hearing in damages (see paragraph 25 of Exhibit A)."
Therefore, the four-month period began to run on May 26, 2008. The motion to open was filed on October 14, 2008, which is more than four months from that date. The motion to open the judgment, therefore, is untimely, and the court has no authority to consider it. Because the court's decision is dispositive of all issues, the court need not address the question of whether the defendants meet the other requirements of a motion to open.
CONCLUSION
For the foregoing reasons, the court lacks statutory authority to grant the relief sought by the defendants in their motion to open. Therefore, the defendants' motion to open is denied.
THE COURT