Opinion
(13091)
The plaintiff bank sought to recover the balance due on a promissory note executed by the defendant, and the defendant counterclaimed. The trial court granted the plaintiff's motion to strike two counts of the counterclaim. Thereafter, when the defendant failed to appear for trial, that court entered a default and rendered judgment for the plaintiff. After the trial court opened the judgment to correct a mathematical error in the calculation of counsel fees, the defendant moved to reopen the judgment. The trial court denied his motion and the defendant appealed. Held: 1. Because the defendant did not file the memorandum required by the rule of practice (155) where a party seeks to oppose a motion to strike and did not appear at the hearing on the motion to strike, that motion was, pursuant to 155, deemed granted by consent; moreover, because the defendant did not file timely notice of his reservation of an appeal, this court declined to address his claim that the trial court erred in granting the motion to strike. 2. The defendant's challenges to the default judgment, the award of counsel fees and the trial court's subsequent opening of the judgment were unavailing. 3. The defendant's claim to the contrary notwithstanding, the trial court did not abuse its discretion in denying his motion to reopen the judgment.
Argued September 30, 1987
Decision released November 24, 1987
Action to recover the balance due on a promissory note, and for other relief, brought to the Superior Court in the judicial district of Fairfield, wherein the defendant filed a counterclaim; the court, Maiocco, J., granted the plaintiff's motion to strike the defendant's counterclaim and thereafter the court, Jacobson, J., entered a default and rendered judgment for the plaintiff for the defendant's failure to appear at trial; subsequently, the court, Jacobson, J., rendered an amended judgment correcting the amount of the attorney's fees awarded, and denied the defendant's motion to open the judgment; the defendant then appealed to this court. No error.
Daniel V. Presnick, for the appellant (defendant).
Dion W. Moore with whom were Louis C. Zowine and, on the brief, Janet H. Stratton and Gary G. Williams, for the appellee (plaintiff).
Joseph I. Lieberman, attorney general, and Robert M. Langer, Neil G. Fishman and William M. Rubenstein, assistant attorneys general, filed a brief for the state of Connecticut as amicus curiae.
This appeal challenges the essentially procedural consequences that followed the entry of a default alter the defendant failed to appear at the time assigned for trial. While the appeal purports to raise several other substantive issues, the record discloses that they have not been properly preserved for appellate renew.
The underlying suit alleged failure to pay the amount due on a promissory note. The defendant, Joseph F. Horesco, admitted that monies were owed but left the plaintiff, People's Bank, to its proof as to the exact sum due. The defendant also filed a three count counterclaim alleging a single violation of the Connecticut Truth In Lending Act, and two violations of the Connecticut Unfair Trade Practices Act (CUTPA). The court, Maiocco, J., thereafter granted the plaintiff's motion to strike the second and third counts of the counterclaim dealing with the CUTPA claims.
General Statutes 36-393 et seq.
General Statutes 42-110a et seq.
In due course the matter was assigned for trial. The defendant failed to appear at trial. The court entered a default and rendered judgment for the plaintiff. The court thereafter opened the judgment solely to correct a mathematical error in the calculation of counsel fees. The defendant moved to reopen the judgment. The court denied the motion.
The defendant appeals, contending that the court erred in: (1) striking two counts of his counterclaim; (2) entering a default against the defendant; (3) awarding attorney's fees without a factual basis; (4) correcting the judgment without notice to the defendant; and (5) failing to reopen the judgment. We conclude that these claims are without merit and find no error.
With respect to the counterclaims, the record reflects that on September 9, 1985, the court, Maiocco, J., granted the plaintiff's motion to strike the second and third counts of the defendant's counterclaim. The defendant had not filed the required memorandum of law and did not appear at the time assigned for hearing. Therefore, the motion was deemed granted by consent pursuant to the operation of Practice Book 155. Although the defendant attempted to reintroduce this subject matter, see footnote 6 infra, no judgment was ever entered with respect to the stricken CUTPA counterclaims. Since there was no judgment as to them, we are without jurisdiction to consider this aspect of the appeal. Stroiney v. Crescent Lake Tar District, 197 Conn. 82, 86, 495 A.2d 1063 (1985).
Practice Book 155 provides in relevant part: "An adverse party who fails timely to file such a memorandum pursuant to this section shall be deemed by the court to have consented to the granting of the motion."
On January 30, 1986, the defendant withdrew the counterclaims alleging violations of the Connecticut Unfair Trade Practices Act, thereby precluding the entry of judgment on these issues.
We also decline to plunge into the procedural thicket caused by the defendant's subsequent filing of a second and then third revised counterclaim presenting the identical CUTPA issues, and the decision on a subsequent motion to strike in which the court took up the CUTPA issues and again granted the motion to strike. We are satisfied that the CUTPA issues were stricken by the trial court's first decision September 9, 1985. We recognize that ordinarily the filing of an amended pleading after a motion to strike has been granted, removes the original pleading from the case. See Good Humor Corporation v. Ricciuti, 160 Conn. 133, 135, 273 A.2d 886 (1970). We decline to review the subsequent ruling in this case, for the reason that the amended counterclaim contained substantially the same allegations as those in the original counterclaim and should have been the subject of a request to revise; see Practice Book 147; and not a further motion to strike. See Good Humor Corporation v. Ricciuti, supra, 135.
The defendant next claims error in the court's entering a default against him. Examination of the court transcript discloses that the defendant failed to appear at the time assigned for trial on March 12, 1986. This being the case, the entry of a default and the rendition of immediate judgment was in order. See Practice Book 364. Since the matter in dispute involved a liquidated sum due under a promissory note, the plaintiff had the option of proving damages by either a verified affidavit or the presentation of other evidence. See Practice Book 366. No notice to the defendant was required. See Practice Book 364.
This caused the issues to be found for the plaintiff on not only the complaint but also the first count of the defendant's counterclaim, which dealt with the Connecticut Truth in Lending Act claim.
Practice Book 364 provides in relevant part: "(a) If a defendant is defaulted for failure to appear for trial, evidence may be introduced and judgment rendered without notice to the defendant."
Practice Book 366 provides: "In all actions of contract when damages are to be assessed after entry of a default, the plaintiff must file an account, copy, statement, or bill of particulars verified by oath, or duly present evidence in court in support of his claim."
With respect to the award of attorney's fees and the subsequent correction of their amount, the promissory note in question authorized counsel fees in an amount up to 15 percent of the sum due. The court, having examined the underlying instrument, authorized the full 15 percent. Determination of the amount of counsel fees reposes in the sound discretion of the court. Link v. Shelton, 186 Conn. 623, 629, 443 A.2d 902 (1982).
The record further reflects that on March 19, 1986, the court opened the judgment for "the sole purpose of changing the attorney's fee" as the 15 percent amount authorized in the promissory note had been calculated incorrectly. It was within the trial court's discretion to make this modification once apprised of the mathematical error. Link v. Shelton, Supra. There is nothing in the record to support the defendant's claim that there was no notice to him of this proceeding.
Finally, the defendant claims error in connection with the court's failure to open the judgment. Review of the record discloses that on March 24, 1986, the defendant filed a motion to open the judgment. Attached to the motion was counsel's affidavit stating that, although he had received notice of the March 12 proceedings, he had not understood that his actual appearance was required. When the defendant again did not appear on April 7, 1986, the date set for the hearing on the motion, the trial court specially assigned the motion for the following day. Upon the defendant's failure, yet again, to appear, the trial court, Jacobson, J., denied the defendant's motion with prejudice.
The defendant's application to open the judgment upon default is committed to the sound discretion of the trial court. Automotive Twins, Inc. v. Klein, 138 Conn. 28, 34, 82 A.2d 146 (1951). The burden of demonstrating reasonable cause for the nonappearance is on the defaulted party, and "[t]he judgment should not ordinarily be opened if his failure to appear or procure a continuance resulted from his own negligence." Id., citing Schoonmaker v. Albertson Douglas Machine Co., 51 Conn. 387, 392 (1884). Upon a thorough examination of the record and the circumstances of this default we find no abuse of the trial court's discretion in this matter.