Jeff Dziedzic v. LLC (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO OPEN JUDGMENT UPON DEFAULT (# 116)

The defendant, Pine Island Marina, LLC, filed an appearance in this case on November 9, 2011, and then filed a motion to open a judgment that had been rendered against it upon its default of appearance.   The plaintiff opposes such motion.

This action was commenced by an application for a prejudgment remedy filed on January 21, 2011.   Thereafter, on April 6, 2011, the court granted the application for a prejudgment remedy, which application served on the named defendant as of record appears.  (Pleading # 101.)   Service was made on the agent authorized to accept service on behalf of the named corporate defendant.   Based upon this return of service of process, the court granted a prejudgment remedy in the amount of $90,000.00.   Thereafter, the signed writ, summons and complaint were served upon the registered agent for service of process of the defendant, LLC and the action was commenced.   The defendant, LLC, was defaulted on May 17, 2011.   Matter came before the court on the hearings in damages list.   A hearing was held on July 6, 2011, and thereafter the court (Purtill, J.) entered a judgment in favor of the plaintiff against the defendant in the amount of $150,000.00 plus attorneys fees and costs with prejudgment and post-judgment interest.  (Pleading # 108.)   Notice of the judgment was thereafter served on the defendant on July 12, 2011.   An execution on the judgment was returned as partially satisfied on October 21, 2011.  (Pleading # 115.)   The next pleading in the file was a motion to open the judgment upon the default.   (Pleading # 116.)

The affidavit supporting defendant's motion to open the judgment contains the following assertions.   Kam H. Wong, a member of the defendant, states that the LLC was dissolved and that he was “informed that due to the dissolution of the LLC not to take action in the above-referenced matter, and upon that advice failed to file an appearance.”   The affidavit further asserts that it is working “diligently to procure a good faith defense to the allegations of the plaintiff in this case.   The affidavit asserts that the plaintiff breached his employment contract with the defendants in a number of different ways, and further the defendant asserted that it had a right to have any disputes resolved through the process of arbitration, and that the plaintiff failed to set forth sufficient grounds for the doubling of the amount of monetary damages allegedly owed to him.”

Practice Book § 17–43 establishes what is necessary for a defendant seeking to open a motion upon a default failure to appear.

In the present case, it is clear that the defendant chose to, upon advice, not to appear and defend this action at the time it was filed.   There is no dispute that when the defendant received notice that it ignored the pendency of this legal action.   There is no claim that it was unaware of its legal rights to assert a claim or demand for arbitration or that complaint sought relief based upon the employment contract as well as a theory of tort recovery.   The affidavit in this case indicates that there was no mistake in this conduct, but rather there was a conscious decision to ignore the legal process in its entirety.   The fact that the defendant chose to ignore this process, and now rues this decision, is not a basis to open up the judgment.   See Devore Associates, LLC v. Alan M. Sorkin, Conn.App., November 22, 2011.   The Defendant has not met its burden to show reasonable cause for its failure to appear and to defend the underlying action.

The motion to open judgment is denied.

Cosgrove, J.

Cosgrove, Emmet L., J.