Darien Rowayton Bank v. Christopher Orifici (2011)

MEMORANDUM OF DECISION PURSUANT TO PRACTICE BOOK § 64–1

The plaintiff, Darien Rowayton Bank, commenced this action on October 1, 2010, against the defendant, Christopher Orifici, alleging that the defendant breached a written guaranty agreement.   On January 31, 2011, the court granted the plaintiff's motion for judgment upon default.   Pursuant to Practice Book § 64–1(a)(6),¹ the court now articulates its reasons for granting that motion.

On November 30, 2010, the plaintiff moved for a default against the defendant for failure to plead, which was granted by the court on December 29, 2010.   On December 1, 2010, the plaintiff also filed a demand for the disclosure of a defense pursuant to Practice Book § 13–19,² to which the defendant never responded.   On December 7, 2010, the plaintiff moved for a default for failure to disclose a defense, which was granted on December 20, 2010.   On January 19, 2011, the plaintiff moved for a judgment upon default and submitted an affidavit of debt and an affidavit of attorneys fees in support of the motion.

On January 28, 2011, the defendant thereafter filed an answer and special defenses, and moved to open the default for failure to plead.   On January 31, 2011, the court granted the plaintiff's motion for a judgment upon default in the amount of $1,830,145, plus attorneys fees of $1,800.

On February 9, 2011, the defendant moved to open the judgment upon default on the grounds that he was participating in good faith negotiations with the plaintiff throughout the proceedings.   In that motion, the defendant asserted that on January 6, 2011, he wrote to the plaintiff's attorney requesting the plaintiff to delay moving for judgment until the parties discussed settlement.   The defendant argued that rather than responding to the defendant's request, the plaintiff moved for judgment on January 19, 2011.   The defendant further represented that he continued to negotiate with the plaintiff in good faith thereafter.

Subsequently, on February 15, 2011, the court, Kavanewsky, J., acting only on the defendant's motion to open the default for failure to plead, ordered:  “The motion to open the default is granted provided that the defendant also file[s] a disclosure of defense, if any, within 10 days.”   The defendant failed to file a disclosure of a defense within ten days of receiving notice of that order.

On March 30, 2011, the court denied the defendant's motion to open the judgment upon default stating:  “As recently as this month, the Appellate Court continues to state that ‘[t]o open a judgment pursuant to Practice Book § 17–43(a) and General Statutes § 52–212(a), the movant must make a two part showing that ‘(1) a good defense existed at the time an adverse judgment was rendered;  and (2) the defense was not at that time raised by reason of mistake, accident or other reasonable cause.’  (Internal quotation marks omitted.)  State v. Ritz Realty Corp., 63 Conn.App. 544, 548, 776 A.2d 1195 (2001).   The party moving to open a default judgment “must not only allege, but also make a showing sufficient to satisfy the two-pronged test [governing the opening of default judgments].'  (Citations omitted;  internal quotation marks omitted.)  Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 133–34, 474 A.2d 456 (1984).   The negligence of a party or his counsel is insufficient for purposes of § 52–212 to set aside a default judgment.  Segretario v. Stewart–Warner Corp., 9 Conn.App. 355, 362–63, 519 A.2d 76 (1986).   Finally, because the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion.'  Nelson v. The Contracting Group, 127 Conn.App. 45, 49, [14 A.3d 1009] (2011).   The motion is denied because the defendant does not satisfy the second prong of Practice Book § 17–43(a).”

On April 13, 2011, the law firm of Cohen and Wolf, P.C. entered its appearance for the defendant in lieu of the defendant's previous counsel.   On April 18, 2011, the defendant moved to reargue the court's denial of his motion to open the judgment upon default.   On April 28, 2011, the court vacated the order denying the motion to open the judgment and recused itself from further participation in the action.

BY THE COURT

Bruce L. Levin

Judge of the Superior Court

FOOTNOTES

FN1. Practice Book § 64–1(a)(6) provides in relevant part:  “The court shall state its decision either orally or in writing ․ in making any other rulings that constitute a final judgment for purposes of appeal ․ including those that do not terminate the proceedings.   The court's decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor ․”.  FN1. Practice Book § 64–1(a)(6) provides in relevant part:  “The court shall state its decision either orally or in writing ․ in making any other rulings that constitute a final judgment for purposes of appeal ․ including those that do not terminate the proceedings.   The court's decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor ․”

FN2. Practice Book § 13–19 provides in relevant part:  “In any action to foreclose or discharge any mortgage or lien or to quiet title, or in any action upon any written contract, in which there is an appearance by an attorney for any defendant, the plaintiff may at any time file and serve ․ a written demand that such attorney present to the court ․ a writing signed by the attorney stating whether he or she has reason to believe and does believe that there exists a bona fide defense to the plaintiff's action and whether such defense will be made, together with a general statement of the nature or substance of such defense.   If the defendant fails to disclose a defense within five days of the filing of such demand, or within ten days of the filing of such demand in any action to foreclosure a mortgage, the plaintiff may file a written motion that a default be entered against the defendant by reason of the failure of the defendant to disclose a defense.   If no disclosure of defense has been filed, the judicial authority may order judgment upon default to be entered for the plaintiff at the time the motion is heard or thereafter, provided that in either event a separate motion for such judgment has been filed ․”.  FN2. Practice Book § 13–19 provides in relevant part:  “In any action to foreclose or discharge any mortgage or lien or to quiet title, or in any action upon any written contract, in which there is an appearance by an attorney for any defendant, the plaintiff may at any time file and serve ․ a written demand that such attorney present to the court ․ a writing signed by the attorney stating whether he or she has reason to believe and does believe that there exists a bona fide defense to the plaintiff's action and whether such defense will be made, together with a general statement of the nature or substance of such defense.   If the defendant fails to disclose a defense within five days of the filing of such demand, or within ten days of the filing of such demand in any action to foreclosure a mortgage, the plaintiff may file a written motion that a default be entered against the defendant by reason of the failure of the defendant to disclose a defense.   If no disclosure of defense has been filed, the judicial authority may order judgment upon default to be entered for the plaintiff at the time the motion is heard or thereafter, provided that in either event a separate motion for such judgment has been filed ․”

Levin, Bruce L., J.