Georgina Spilke et al. v. Joseph M. Wicklow et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO OPEN DEFAULT

The remaining defendants in this case, Kenneth Spilke and Jennifer Ballard, have moved to open the defaults against them that have led to the scheduling of a hearing in damages.   In a sense, this a second bite at the proverbial apple for these defendants in that their motion to strike the case from the hearing in damages list was previously denied by the undersigned on October 5, 2010.   The earlier motion, however, was predicated primarily on the claim that the plaintiff's filing of a series of substituted complaints after the court had stricken the first two counts of the original complaint, which had pertained only to the former defendants Joseph Wicklow III and Walsh, LaSala, Wicklow and Velardi, LLC, extinguished the prior pleading in its entirety and, by implication, vacated the defaults that had earlier entered as against these defendants.   The undersigned ruled, however, that “the plaintiff, in the previously mentioned substitute complaint, makes it abundantly clear that the substitution relates only to the former defendants Joseph Wicklow III and Walsh, LaSala, Wicklow and Velardi, LLC and that it does not seek to be a substitute for the original counts against the defendants Kenneth Spilke and Jennifer Ballard.   In light of the foregoing, the default against Kenneth Spilke and Jennifer Ballard still stands, and the case is appropriately docketed on the hearing in damages list.   The filing of an answer and special defenses after the case had been assigned for a hearing in damages does not cure the default.”

The gravamen of the defendants' argument in support of the instant motion is that they were prevented by a combination their misunderstanding of the status of the case and prior defense counsel's health problems from responding to the plaintiff's complaint.   The plaintiff, who is and has been self-represented throughout this case, argues in response that her case has been pending for well over three years and that the defendants' proposed reasons are not a sufficient basis for a finding of “good cause” to set aside the default.

The law regarding motions to open has been clearly stated on many occasions, and in terms that give courts a great deal of discretion.  Practice Book § 17-42, which governs the opening of a default where judgment has not been rendered, provides in relevant part:  “A motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown upon such terms as it may impose.”   See Rowe v. Goulet, 89 Conn.App. 836, 841, 875 A.2d 564 (2009).   In deciding whether good cause has been shown, the court, in its discretion, “may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause;  ․ [as well as] factors such as the seriousness of the default, its duration, the reasons for it and the degree of contumacy involved;  ․ but also the totality of the circumstances, including whether the delay has caused prejudice to the non-defaulting party.”  (Citations omitted;  internal quotation marks omitted.)  Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998).   As “[the] determination of whether to set aside [a] default is within the discretion of the trial court ․ [it] will not be disturbed unless that discretion has been abused or where injustice will result.”  (Internal quotation marks omitted.)  Id.

Attorney Henry Silverman had entered an appearance on behalf of Kenneth Spilke and Jennifer Ballard on March 22, 2007, and the motions for default for failure to appear that had been filed by the plaintiff were accordingly denied by the clerk.   The record then shows that Kenneth Spilke was defaulted for failure to plead on March 26, 2007.   Originally, the motion for default for failure to plead as to Ballard was denied because the clerk for some reason did not see Silverman's separate appearance as to her, but on January 30, 2008, the Clerk's Office noted and corrected that error, defaulting Ballard for failure to plead and noting that the default should have been entered on March 26, 2007.

Most of the pleadings which followed concerned the plaintiff's efforts to articulate a cause of action against Joseph Wicklow III and Walsh, LaSala, Wicklow and Velardi, LLC, and those defendants' ultimately successful efforts to have the counts against them stricken.   When, after the final motion to strike was granted and the plaintiff failed to replead against Wicklow and his firm, judgment was eventually entered in their favor on May 14, 2010.

Throughout these proceedings, the only pleading filed by Silverman had been a May 11, 2010 motion for a continuance of the hearing in damages that had been claimed by the plaintiff.   As grounds for the continuance, he cited a herniated disk that might require surgery and his inability to stand or sit for extended periods.   The undersigned granted the requested continuance, and on July 30, 2010, Attorney Glenn Formica filed his appearance in lieu of that of Silverman.   Formica also promptly filed a purported answer and special defense and both the motion to strike from the hearing in damages list, which the court has just discussed, and the instant motion to open the default.

Although the defendants acknowledge that “the defaults had been outstanding for more than three years without action,” they claim that there has been no prejudice to the plaintiff, who, as the result of the tug of war with Wicklow et al over the first two counts of the complaint, had not even claimed a hearing in damages until April of 2010.   The plaintiff argues that a three-year wait is indeed prejudicial, and although conceding that she may have contributed to the delay by continuing to try to articulate a viable cause of action against the Wicklow defendants, to allow the remaining defendants to sit idly for three years and only now seek to plead to the two counts of the complaint against them that are essentially unchanged from what they were in the original complaint, and, perhaps, to seek discovery and further delay her day in court, would be unconscionable.

As “good cause” for opening the default, the defendants cite Silverman's affidavit in which he states that the defendants were confused about the nature of the lawsuit but “instructed [him] that they would appreciate it if [he] would keep the expense of this lawsuit to a minimal amount in order to mitigate the amount of legal fees as it was their hope that the Plaintiff, Georgina Spilke, would abandon what they considered to be a malicious lawsuit ․” He also states that “in late 2009 and early 2010[he] became very involved with personal health issues relating to [his] blind right eye and the glaucoma in [his] left eye, as well as a severe lumbosacral disc issue ․ During that period of time [he] was being seen frequently for [his] eye issues, underwent two (2) MRI Scans of the lumbosacral spine and consulted with two Orthopedic Surgeons, Dr. Grauer and Dr. Dickie, who were exploring the possibility of lumbosacral surgery.”   He concludes that “As a result of the aforementioned health issues, [he] was unavailable to handle issues relating to the claim for the hearing in damages.”

Although Silverman's discussion of his health issues helps to explain his inaction from late 2009 onward, it does not answer, or even address, the question of how or why defaults which entered in March of 2007 were permitted to stand unchallenged for more than three years The only explanation given, essentially that his clients had instructed him to try to handle their case “on the cheap,” apparently in the belief that the allegations against them would go away on their own, is hardly “good cause” for allowing three years ․ or even the first two of those years, before Silverman's health problems created additional problems ․ to pass without taking any action with respect to the defaults.

The court does not underestimate either the serious disruption of one's life or the consequent financial burden that being served with a lawsuit creates, but the defendant who instructs his counsel to adopt a laissez faire attitude toward the claims against him does so at his peril.   In this case, that peril has come in form of a three-year-old default and the absence of good cause to set it aside.

For the above reasons, the Motion to Open Default is Denied, and the clerk is directed to schedule the case promptly for a hearing in damages to the court.

Jonathan E. Silbert, Judge

Silbert, Jonathan E., J.