Zbigniew S. Rozbicki, Executor v. Eugene Gisselbrecht et al. (2012)

MEMORANDUM OF DECISION

On February 21, 2012, the court heard the plaintiff's motion to open a judgment of dismissal (# 127).   The defendants, Edward M. Gisselbrecht, Jr., Richard Albrecht, Sally Albrecht, Christina Falzarano, Christopher Rozsas, Robert Urian, and Claudia Urian filed a four-page objection (# 128) and the plaintiff filed a two-page reply memorandum (# 129).   Both parties were free to offer evidence but chose to engage in oral argument only.

Reference may be made to the court's Memorandum of Decision of January 19, 2012 for the underlying facts supporting the court's decision to dismiss this case pursuant to a local dormancy program.   The plaintiff's five-page motion with the heading “Verified Motion to Open and to Set Aside Order of Dismissal Pursuant to § 52–212a C.G.S. and § 17–4 C.P.B.” was filed on February 6, 2012.   The plaintiff claims that his failure to close the pleadings and to have a pretrial or trial scheduled was that he and his office made a “clerical error” by confusing this case (“the first appeal”) with another case (“the second appeal”) with an identical title but different name.¹  He claims that the second appeal was assigned for trial and that he, and/or his paralegal, confused it with the first appeal.   Therefore, when he represented in his motion to exempt that this case was assigned for trial, he was making an excusable mistake.

Unfortunately for the plaintiff, he has made another mistaken allegation in his motion to open.   He alleges in his motion to open that the pleadings were closed on September 22, 2009 and that it was simply an oversight that a certificate of closed pleadings had not been filed.   However, the pleadings were not closed with all defendants;  therefore, a certificate of closed pleadings could not have been filed at the time the plaintiff filed for an exemption, or at the time the case was dismissed.   Specifically, one of the defendants, Eugene Gisselbrecht, filed a self-representing appearance on June 22, 2009 ² and is not represented by the attorneys representing most of the other defendants.   Mr. Gisselbrecht has never filed a responsive pleading.   Therefore, the plaintiff's representation to the court that the pleadings were closed on September 22, 2009 is not accurate.   For this reason, a certificate of closed pleadings could not have been filed.   The court does not find that this inaccurate allegation was made deliberately.   As with the allegation in the motion to exempt that the case was scheduled for trial, the plaintiff is confused as to the specifics of the two appeals which he filed.   This court must determine whether this confusion rises to the level of neglect which cannot be excused.

“A motion to open and vacate a judgment ․ is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.” [fn4] (Internal quotation marks omitted.)  Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92 (2006).  “A motion to open a judgment is governed by General Statutes § 52–212a and Practice Book § 17–4.”  Richards v. Richards, 78 Conn.App. 734, 739, cert. denied, 266 Conn. 922 (2003).  “The principles that govern motions to open and set aside a civil judgment are well established.   Within four months of the date of the original judgment, Practice book [§ 17–4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation.”  (Internal quotation marks omitted.)  Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 808–09 (1997).

“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 judgment, and that the movant was prevented by mistake, accident or other reasonable cause from making the defense.”   (Quotation marks omitted.)  Woodruff v. Riley, 78 Conn.App. 466, 470–71 (2003).  “Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a 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.”  Id.

There is no doubt that the dismissal was caused by negligence.   The plaintiff admits as much when he states in his motion to open that confusion between the two appeals led him to make incorrect assumptions.   The plaintiff argued that, although mistakes happen sometime, he has been in practice for many years and has never had a case dismissed.   The court has no reason to disbelieve this representation but concludes that the plaintiff's lack of attention to the first appeal is because he believed that the issue of the plaintiff's removal as executor was included in the second appeal and is now secondary to the many accounting and financial issues raised by that second appeal.   The second appeal has been actively litigated with a slew of pleadings;  it has had three pre-trials or status conferences, was originally scheduled for trial on October 19, 2011, and has been continued to March 28, 2012.   By contrast, the first appeal has had very limited pleading, has never had a pretrial, and has never been scheduled for trial.   Although the plaintiff may at one time have been confused by the identical names on both appeals, the confusion was caused because he was placing his time and efforts in the second appeal and gave short shrift to the first appeal.

Another factor the court must consider in deciding this motion to open is prejudice to the defendants.   The plaintiff attempts to argue that the defendants will not be prejudiced if the motion to open is granted and this case consolidated for trial with the second appeal which is scheduled for trial on March 28, 2012.   Although the plaintiff claims that “it was the plaintiff's expectation that both appeals would be companionized and tried at the same time,” the plaintiff never moved to consolidate the first appeal with the second appeal.   It may have been his expectation that the cases would be consolidated for trial, but that expectation was not justified because he failed to raise this issue at any time, including at the three pre-trials of the second appeal or when the second appeal was scheduled for trial.   Contrary to the plaintiff's claim, the court believes that the defendants will experience prejudice if the court opens this dismissal.   The plaintiff will have to close the pleadings against Eugene Gisselbrecht.   He will also need to seek defaults for failure to appear against the non-appearing defendants.   The court will have to allow a reasonable period of time for discovery.   This will, inevitably, require another continuance of the trial date for the second appeal.   This would work prejudice to the defendants who, after a delay of over two and one-half years, deserve to have a trial of the issues at stake in the second appeal so that the Estate of Kathleen M. Gisselbrecht can, at long last, be closed.

In attempting to resolve this issue, the court finds especially helpful the words of Judge Silbert in Charlton v. Yale University, Superior Court, judicial district of New Haven, at New Haven, Docket No. 93–0341596 (August 4, 1998) [22 Conn. L. Rptr. 559], in denying a motion to open a dormancy dismissal:  “It is always disturbing to have to enter an order which essentially punishes a litigant when it is the neglect of counsel that has brought about this result.   Unless the court is in effect willing to declare the dormancy program is utterly without meaning, however, it has no choice but to affirm its original order and deny the motion to open the judgment of dismissal.”   In this case the plaintiff, an attorney, decided to represent himself and only has himself to blame for the dismissal.   Finally, this court is not willing to declare the dormancy program to be utterly without meaning.   The court feels it must affirm the dismissal by denying the motion to open and restore.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The second file is Rozbicki v. Gisselbrecht, Docket No. 10–5007246, returnable on October 26, 2010.   It is also an appeal from orders issued by the Probate Court for the District of Torrington in the Estate of Kathleen M. Gisselbrecht.   There is an overlap in the allegations made in both appeals.   The first appeal is limited to an appeal from the Probate Court's order removing the plaintiff as executor and appointing Eugene Gisselbrecht as his successor.   The second appeal references several financial and accounting orders made by the probate court, as well as that:  “The appellant was removed for cause as Executor of the Estate of Kathleen M. Gisselbrecht.”   The plaintiff alleges he is aggrieved by the orders and decrees of the probate court and that he appeals from them.   Thus, both appeals include claims that the plaintiff was wrongfully removed as executor..  FN1. The second file is Rozbicki v. Gisselbrecht, Docket No. 10–5007246, returnable on October 26, 2010.   It is also an appeal from orders issued by the Probate Court for the District of Torrington in the Estate of Kathleen M. Gisselbrecht.   There is an overlap in the allegations made in both appeals.   The first appeal is limited to an appeal from the Probate Court's order removing the plaintiff as executor and appointing Eugene Gisselbrecht as his successor.   The second appeal references several financial and accounting orders made by the probate court, as well as that:  “The appellant was removed for cause as Executor of the Estate of Kathleen M. Gisselbrecht.”   The plaintiff alleges he is aggrieved by the orders and decrees of the probate court and that he appeals from them.   Thus, both appeals include claims that the plaintiff was wrongfully removed as executor.

FN2. The defendants, Edward M. Gisselbrecht, Jr., Richard Albrecht, Sally Albrecht, Christina Falzarano, Christopher Rozsas, Robert Urian, and Claudia Urian are represented by the law firm of Ackerly Brown LLP by virtue of an appearance filed on July 2, 2009.   Eugene Gisselbrecht's self-representing appearance was filed on July 23, 2009.   The named defendants, Phillip Falsarano, Probate Court for the District of Torrington and J. Michael Sconyers, have never filed appearances and have never been defaulted..  FN2. The defendants, Edward M. Gisselbrecht, Jr., Richard Albrecht, Sally Albrecht, Christina Falzarano, Christopher Rozsas, Robert Urian, and Claudia Urian are represented by the law firm of Ackerly Brown LLP by virtue of an appearance filed on July 2, 2009.   Eugene Gisselbrecht's self-representing appearance was filed on July 23, 2009.   The named defendants, Phillip Falsarano, Probate Court for the District of Torrington and J. Michael Sconyers, have never filed appearances and have never been defaulted.

Pickard, John W., J.