John Giano v. Vanna Salvatore et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO OPEN JUDGMENT

On October 28, 2011, this court entered judgment by default in favor of the plaintiff against the defendant Vanna Salvatore.   Salvatore was represented by counsel, who now files a Motion to Open the Judgment and Set Aside the Default.   The plaintiff objects.

On February 9 and April 1, 2011, this court conducted an evidentiary hearing into the events that led to the entry of the default judgment against Salvatore.   The issue is whether those events constitute “mistake, accident, or other reasonable cause” to permit the court to open the judgment.   See Conn. Gen.Stat. § 52–212 and Conn. P.B. § 17–43.

PROCEDURAL HISTORY

This action was commenced by the plaintiff on June 22, 2010, against the defendant Vanna Salvatore, with a return date of July 27, 2010.   The action against Salvatore and two other defendants, Paul Raczynski and T.D. Bank N.A., alleged that Salvatore and Raczynski had entered into a series of business dealings with the plaintiff and had committed torts resulting in damages to the plaintiff and unjust enrichment to the defendant Salvatore.   Counsel appeared for the defendant Salvatore on August 2, 2010.

On September 1, 2010, the plaintiff filed a Motion for Default for Failure to Plead against Salvatore.   When no pleading was filed, the court granted the motion and defaulted Salvatore on September 10, 2010.   Thereafter on October 1, 2010, the plaintiff filed a Motion for Judgment on the default, and appended an affidavit of debt indicating that the plaintiff had sustained damages of $295,000, plus costs of $667.60.   The first time this motion was printed on the calendar on October 12, 2010, it was not marked ready by the plaintiff, so no action was taken.   The motion for judgment next appeared on the calendar on October 25, 2010.   Counsel for Salvatore filed no response of any kind to the Motion for Default for Failure to Plead nor to the Motion for Judgment, not even a Motion for Continuance or Motion for Extension of Time to Respond.   In the face of properly filed motions of the plaintiff with proper supporting documents, and in the absence of any objection or other response from the defendant Salvatore, the court granted the motion on October 28, 2010, and entered judgment against Salvatore for $295,667.60.

On November 8, 2010, Salvatore's attorney Timothy Brignole filed two separate motions entitled Motion to Set Aside the Default and Judgment.   Brignole also filed an Answer.   On November 18, 2010, the plaintiff filed a memorandum in opposition to the defendant's two motions, pointing out, among other things, that neither the defendant nor her counsel had verified the motions and that there was no cause recited which might account for the reasons why the defendant had allowed the default and the judgment to enter unopposed.

On November 29, 2010, the court denied the motions on the grounds that 1) there was no verification or affidavit accompanying the motion(s);  2) there was no representation as to what “accident, mistake, or other reasonable cause” created the circumstances of the entry of judgment in the first place;  and 3) the motions(s) had been filed as motions to set aside a default, which requires no fee, while a motion to open a judgment requires a filing fee which the defendant's attorney had failed to pay.¹

Meanwhile on November 24, 2010, the defendant submitted a new motion, this time entitled more properly Verified Motion to Open Judgment upon Default.   In that motion Brignole recited that he had not filed opposing papers to the earlier motion for default and motion for judgment because his client and her husband had understood from conversations with the plaintiff that the matter was in the process of settlement and had instructed Brignole to take no further action in the court case.   On December 3, 2010, the plaintiff filed an Objection to the Motion, in which he disputed that any settlement discussions had occurred between the two sets of clients that could have misled the defendant into thinking that a settlement was in the works.   On December 12, 2010, the court ordered that this matter be set down for an evidentiary hearing on the issue of what accident, mistake, or other reasonable cause created the situation that resulted in the entry of the default judgment.

FACTS

The main witness for the defendant was Gary Salvatore, husband of the defendant Vanna Salvatore.   He and the plaintiff had been equal owners of a small corporation.   That company broke apart in July 2009 and a settlement as to certain disputed issues between Gary Salvatore and the plaintiff had subsequently occurred.   The instant lawsuit is, in part, an outgrowth of disputes over the settlement of the prior business dealings between Gary Salvatore and the plaintiff John Giano.

Gary Salvatore testified that he and Giano saw each other regularly at a construction job on which they were both working during the autumn of 2010.   Gary Salvatore indicated that he and Giano had spoken about this case several times and Giano had indicated that he was going to instruct his counsel to withdraw the case against Vanna Salvatore as he (Giano) never intended to involve her in the business dispute.   Gary Salvatore told this to his wife and to Attorney Brignole, and directed Brignole, with Vanna Salvatore's knowledge and approval, to take no actions in the instant lawsuit as it was on the verge of settlement.   This instruction was based on Gary and Vanna Salvatore's desire to keep the costs of litigation as low as possible.

Attorney Brignole testified that he kept his clients—he considered both Mr. and Ms. Salvatore to be his clients—informed of the upcoming important court deadlines, such as the pendency of the plaintiff's Motion for Default and the Motion for Judgment.   Brignole testified that he did not think that the court would grant the Motion for Judgment, even though there was no opposition filed, because he thought that the matter was more properly one for the Hearing in Damages List, and not one that was susceptible of the entry of judgment on the papers.   He also testified that he thought, and so informed Gary Salvatore, that there would be no problem in having a judgment set aside if one did enter.

On the other side of this issue, John Giano testified that he never told Gary Salvatore that he was preparing to withdraw the lawsuit, not go forward with it, or place it on hold.

ANALYSIS

One thing is clear.   Attorney Brignole's presumption that there would be no problem in having this judgment set aside was incorrect.   First, the plaintiff vigorously objects to the defendant's motion;  and second, this court, despite any distaste in allowing one side to prevail against the other on a set of procedural technicalities, must follow the law in determining the controversy before it.

The law requires that the defendant prove two things:  that “a good ․ defense in whole or in part existed at the time of the rendition of the judgment,” and that the “defendant was prevented by mistake, accident or other reasonable cause from ․ making the defense.”  Conn. Gen.Stat. § 52–212(a).   The negligence of a party or that party's 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).

The court is satisfied that the defendant Vanna Salvatore has a good defense to this action.   In addition to a written release that this plaintiff executed in settlement of the earlier dispute with her husband, Vanna Salvatore has averred that she had no business dealings with the plaintiff which would give rise to the causes of action or the damages claimed by the plaintiff.   Without deciding whether this defense would ultimately prove meritorious, the assertion of this defense is enough to satisfy the first prong of the analysis.

The second prong of the analysis is much less clear.   The court does not credit the testimony of Attorney Brignole that he kept his clients informed of the crucial court events.   Gary Salvatore testified credibly that his first notice that judgment had entered in this case was the delivery to him and Vanna Salvatore of a copy of the judgment lien in the mail.   It is more likely so that had Attorney Brignole kept Gary and Vanna Salvatore abreast of important deadlines and events in the case, the Salvatores would have known immediately when judgment entered, and the copy of a judgment lien would have come as no surprise.

On the other hand, the court finds that there were in fact discussions between the plaintiff and Gary Salvatore which, whatever their actual content, led Gary Salvatore to direct Attorney Brignole to keep the fees down while Gary Salvatore and John Giano attempted to resolve the case.   The court also finds that Gary Salvatore was fully authorized by Vanna Salvatore to convey instructions to Attorney Brignole and to participate in directing the litigation on her behalf.

The disputed issue comes down to this question:  was it reasonable for Attorney Brignole, acting on his client's instructions to keep the fees down, to allow both a default and a default judgment to enter against Vanna Salvatore?   The answer is that it was not.   The court finds that Attorney Brignole knew of the crucial calendar markings and decided to allow the default and the judgment to enter on the mistaken belief that it would be no problem to have the judgment set aside if the case did not resolve as his client predicted.

Not unlike the conduct of the attorney in Nelson v. The Contracting Group, LLC, 127 Conn.App. 45 (2011), the conduct of Attorney Brignole, despite the ambiguous direction of Vanna Salvatore's husband to reduce action on the file to keep costs down, was unreasonable under the circumstances.   Moreover, there was no mistake or accident on Brignole's part in allowing the default judgment to enter.   He was quite aware that these events were taking place.²

The court is well aware that a failure to open this judgment is harsh.   The defendant Vanna Salvatore, who attended but did not testify in the hearings on the motion to open the judgment, was at one point overcome by emotion at the prospect of these proceedings not going her way;  and the court had to suspend the taking of evidence on February 9 and continue the hearing so that she could be comforted.

At the same time, the court is bound to follow the law and to determine the facts as best it can on the evidence before it.   The entry of this default judgment did not occur because the defendant was prevented by mistake, accident or other reasonable cause from presenting her defense.   The defendant did not prove the second prong of the standard for opening and setting aside this judgment.

CONCLUSION AND ORDER

Accordingly the motion to open is denied.

Patty Jenkins Pittman, Judge

FOOTNOTES

FN1. In its short decision, the court noted its disapproval of any attempt to intentionally mistitle a motion to circumvent the payment of a court fee..  FN1. In its short decision, the court noted its disapproval of any attempt to intentionally mistitle a motion to circumvent the payment of a court fee.

FN2. Brignole testified that he was not personally aware of the events and the dates, because he was very busy working on a big, important case at the time, but that his office staff received the notices of court events and short calendar markings and took the necessary action on them.   This is a distinction without a difference..  FN2. Brignole testified that he was not personally aware of the events and the dates, because he was very busy working on a big, important case at the time, but that his office staff received the notices of court events and short calendar markings and took the necessary action on them.   This is a distinction without a difference.

Pittman, Patty Jenkins, J.