Joshua Durant v. Michael Gaglio (2011)

MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT # 109

FACTS

The plaintiff, Joshua Durant, commenced this action by abode service on the defendant, Michael Gaglio, on March 31, 2010.   The state marshal's return of service indicates that the state marshal left a copy of the writ, summons, and complaint at the defendant's usual place of abode, 418 Woodward Ave., Apartment # 17, New Haven, CT. The Marshal also served a copy of the writ, summons and complaint on the commissioner of motor vehicles and mailed a copy of the same to the defendant at the address on file at the office of the commissioner of motor vehicles.   That file address was the same as the address at which the marshal left the writ, summons and complaint.   Then, on April 1, 2010, the marshal also left another copy of the writ, summons and complaint at another place of abode of the defendant, 53 St. Mary's Street, Hamden, CT. He also sent a copy of the writ, summons, and complaint via mail to that address because that address was on file with the commissioner of motor vehicles.

The plaintiff filed his complaint with this court on April 9, 2010.   The complaint alleges the following facts.   On April 17, 2008, the plaintiff was operating a motor vehicle on Sherman Parkway in New Haven, Connecticut, when he was struck from behind by a 2002 Chrysler automobile.   After the accident, the driver of the Chrysler exited the vehicle and fled on foot.   The defendant, Michael Gaglio, owns the Chrysler.   The plaintiff sued the defendant on negligence and recklessness theories.

On May 7, 2010, the plaintiff filed a motion for default against the defendant for failure to appear.   On May 17, 2010, the court granted that motion.   On December 9, 2010, the plaintiff then moved for a judgment in his favor.   On December 21, 2010, the court granted that motion as to the defendant's liability.

On January 13, 2011, the defendant moved to open judgment and filed a memorandum of law in support.   The defendant attached his own affidavit to that memorandum.   In the affidavit, the defendant swears that in the afternoon of April 17, 2010, he was driving his vehicle when he began to feel ill.   At that time, he parked the vehicle and called a friend to take him to the hospital.   From the hospital, he called another friend to retrieve his vehicle from the street.   That friend informed him that his vehicle was no longer there.   The defendant notified the police of the theft of his vehicle and was later informed by the police that his vehicle had been involved in an accident.   He further swears that, although he was living at the address listed in the state marshal's return of service throughout the year 2010, he never received a copy of the complaint or the plaintiff's motion for default for failure to appear.   He learned of the lawsuit when he received the plaintiff's December 9, 2010, motion for judgment.   On receiving that motion, he contacted plaintiff's counsel and this court's clerk's office in New Haven.   Both advised him that the court would rule on the motion on December 21, 2010.   When he called back on that date, he learned that the court had entered a judgment against him.

On February 17, 2011, the plaintiff filed an objection to the defendant's motion to open judgment and filed a memorandum of law in opposition.   The court heard the matter at short calendar on February 22, 2011.

ANALYSIS

“The power of a court to set aside a default judgment is controlled by General Statutes § 52–212(a), which provides in relevant part:  ‘Any judgment rendered or decree passed upon a default or nonsuit ․ may be set aside ․ 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.” ’  Connecticut Light & Power Co. v. St. John, 80 Conn.App. 767, 773–74, 837 A.2d 841 (2004).

“Practice Book § 17–43(a) is almost identical to the statutory language [of § 52–212].   To obtain relief from a judgment rendered after default a two pronged test must be satisfied.   The aggrieved person must show reasonable cause, or that a good defense existed at the time of the judgment, and that the movant was prevented by mistake, accident or other reasonable cause from making the defense.”  (Internal quotation marks omitted.)  Woodruff v. Riley, 78 Conn.App. 466, 470–71, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003).

As to the first element, a showing of the existence of a defense in whole or in part that existed at the time of the judgment, the defendant argues that his being in the hospital and having his car stolen is a defense to the plaintiff's cause of action against him.   He was not operating the vehicle, so he cannot be found liable for the negligent operation of the vehicle.   The plaintiff counters that the defendant has not met his burden of showing the existence of a defense.   The plaintiff argues that the defendant must do more than make an assertion as to the existence of the defense, and must support his argument with evidence.   The plaintiff argues that a sworn affidavit by the defendant that he was in the hospital at the time of the accident is insufficient without supporting time-stamped documentation from the hospital.

“On a motion to open the moving party must not only ‘allege,’ but must also make ‘showing’ sufficient to satisfy the requirements of § 52–212.”   (Internal quotation marks omitted.)  Pantlin & Chananie Dev. Corp. v. Hartford Cement and Bldg. Supply Co., 196 Conn. 233, 241, 492 A.2d 159 (1985).   In this case, the defendant did more than merely allege that there is a sufficient defense.   Unlike the defendant in Pantlin, he submitted more than “a bald assertion in its motion to open and the accompanying affidavit, that a valid and justifiable defense existed.”  Id. He submitted an affidavit in which he swears that he was in the hospital on the day of the accident.   That evidence is sufficient to show that the defendant had an apparently valid defense to the judgment for liability.

A valid defense is not enough to open the judgment, though.   The defendant must also show that he was prevented by mistake, accident or other reasonable cause from making the defense.   The defendant argues that he was unaware of the lawsuit against him and was therefore prevented from presenting his defense.   The plaintiff counters by arguing that he served the plaintiff in a manner approved by statute.   The plaintiff served the defendant by abode service at two known places of abode of the defendant and by serving process on the commissioner of motor vehicles under General Statutes § 52–63.

If a defendant lacks actual knowledge of a lawsuit pending against him at the time the judgment is entered, that ignorance would prevent him from asserting an otherwise valid defense against the lawsuit.   For example, in Gostanian v. Wolmer, Superior Court, judicial district of Tolland, Docket No. CV 02 077719 (December 22, 2004, Scholl, J.), the defendant was served by abode service.   The defendant moved to open a default judgment entered against her.   The Superior Court held an evidentiary hearing on the matter and found that “[t]he [m]arshal served the complaint in this matter on the [d]efendant by wedging it into the door frame of what he believed to be the [d]efendant's house.   The [d]efendant never found the complaint.   The [d]efendant resides in a house set some distance from the road and off a driveway which services two other houses.   There is no number on her house.   The [d]efendant also did not receive the pleadings and notices apparently sent to her address ․ The [d]efendant claims that she has had trouble receiving her mail.”   On the basis of that finding, the court ruled that “the [d]efendant was prevented from asserting her defense to this action because she was not aware of it.”

In that case, however, the defendant alleged that she never had notice of the pendency of the lawsuit before the entry of the default judgment against her.   The issue is different where the defendant did have actual notice of the lawsuit before the entry of a judgment:  “A court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court's authority ․ Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence ․ Negligence of a party or his counsel is insufficient for purposes of § 52–212 to set aside a default judgment.”  (Citations omitted;  internal quotation marks omitted.)  Woodruff v. Riley, supra, 78 Conn.App. 471.

In this case, unlike the defendant in Gostanian, the defendant admits that he had notice of the pendency of the lawsuit before the court entered the judgment against him.   In his affidavit attached to his motion to open judgment, he swears that he received notice of the plaintiff's December 9, 2010 motion for a default judgment.   The defendant's argument that he was prevented from asserting his ostensibly valid defense because he did not have notice of the lawsuit is without merit.   Regardless of whether he had actual notice of the original summons and complaint, he had notice of the motion for a default judgment.   Since he got that notice before the court entered its December 21, 2010, default judgment against him, he was not prevented, at the time of the judgment, from asserting his defense.

The defendant's affidavit makes clear that he had a valid defense against the plaintiff's claims of negligence against him because he was in the hospital at the time of the accident.   The defendant therefore meets the first prong of the two-prong test in § 52–212.   As to the second prong, however, the defendant admits in his affidavit that he had notice of the lawsuit before the court entered the default judgment against him.   He chose to wait for the court to enter a judgment against him before retaining counsel, and, a month later, moving to open the default judgment.   Therefore, the defendant does not meet the second prong of the § 52–212 test because he was not prevented from asserting his defense at the time of the court's entry of the default judgment against him.

Accordingly, the court denies the defendant's motion to open the default judgment against him.

BY THE COURT

Richard E. Burke, Judge

Burke, Richard E., J.