Taylor Oil, Inc. v. Windsway Construction (2013)

MEMORANDUM OF DECISION

This motion (# 117) filed on April 25, 2013 requests that the court open a judgment entered on February 28, 2011.   The court heard testimony and oral argument on the motion on May 20, 2013.   For the reasons given, the motion must be denied.

This is a collection action in which the plaintiff subcontractor seeks to recover for work performed at the request of the defendant general contractor.   The defendant appeared through attorney Lawrence Moore who filed an answer to the plaintiff's complaint.   The plaintiff filed a certificate of closed pleadings and a claim for the court trial list, and the case was assigned for a pretrial on October 20, 2010.   The plaintiff and its attorney showed up for the pretrial but neither the defendant nor its attorney appeared.   On that day the court, Roche, J., granted a default against the defendant for failure to attend the pretrial.

The plaintiff's attorney withdrew the claim for the trial list and filed a claim for the hearing in damages list.   The court scheduled the case for a hearing in damages on February 28, 2011 at 2:00 P.M. During the morning of February 28, 2011 the defendant's attorney filed a motion to continue the hearing in damages on the ground that he had food poisoning and would be unable to attend.   The plaintiff and its attorney appeared at the hearing in damages and reported to the court that the defendant's attorney was not ill and had been in another court that morning.   The court denied the defendant's motion to continue the hearing and proceeded to hear the matter.   Later that day, the court entered judgment against the defendant in the amount of $16,481.50 plus $2,472.22 in attorneys fees plus $3,186.42 in prejudgment interest.   Notice of this judgment was sent to both attorneys on March 2, 2011.   Attorney Moore has been sanctioned by the Connecticut Statewide Grievance Committee as part of an agreed resolution of a complaint filed by the plaintiff's attorney against Attorney Moore arising from his actions in this case.

Mark Morrison is the managing member of the defendant LLC. Attorney Moore never informed him about the default or the hearing in damages.   In accordance with Mr. Morrison's affidavit submitted in support of this motion to open:  “Sometime in July 2012, while we were discussing another matter pending in New York and also filed by the Plaintiff, Moore made a vague comment regarding a judgment in Connecticut in this lawsuit.   I repeatedly asked Moore what he meant, and whether there was a judgment, whether he could challenge the judgment and for clarification regarding the supposed judgment.   Moore never provided me with any information regarding the judgment.”   Mr. Morrison's testimony in court regarding this conversation with Moore did not illuminate the matter further.

On July 5, 2011 the plaintiff filed a notice of the entry of a foreign judgment in the Dutchess County Clerk's office in New York and sent a notice of the filing directly to the plaintiff at two different addresses, both of which are shown on various invoices which the plaintiff had sent to the defendant during and after the work performed by the plaintiff.   Mr. Morrison denied receiving the notice.   He testified that he did not receive actual notice of the judgment until November 2012.

Assuming that Mr. Morrison learned about the judgment sometime in July 2012, it was slightly more than four months after the judgment.   If he learned about the judgment in November 2012, it was more than eight months after the judgment.   The motion to open the judgment was not filed until April 25, 2013, more than twelve months after the judgment, more than nine months after July 2012 and more than five months after November 2012.

The defendant argues that the court has the authority to open the judgment despite the fact that the motion to open was filed long after the expiration of four months from the date of judgment or the date notice of the judgment was sent.¹  The defendant cites the court to its own decision in Weja, Inc. v. Spinelli, Superior Court, judicial district of Litchfield, Docket No. 04–0093168 (October 31, 2005) [40 Conn. L. Rptr. 157].   In that case, the court stated:

The cases are clear that a judgment may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, mutual mistake or clerical error.   See, e.g., Cusano v. Burgundy Chevrolet, Inc., 55 Conn.App. 655 (1999).   The defendant concedes that there was no fraud, mutual mistake or clerical error present here.   His argument is addressed to the equitable powers of the court.

It is true that ‘it is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.   Further, our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.’  (Citations and internal quotation marks omitted.)  Johnson v. Atlantic Health Services, P.C., 83 Conn.App. 268, 278 (2004).   The defendant argues that this general theme is reflected in two recent cases which have affirmed the reopening of judgments after the expiration of four months based upon equitable grounds.

The first case which recognizes a limited exception based upon equitable considerations is Connecticut Savings Bank v. Obenauf 59 Conn.App. 351 (2000).   In that case, a judgment in excess of $41,000 was entered on a promissory note against a defendant who was not a party to that promissory note.   Although the defendant failed to appeal and filed her motion to open nearly seven years after the judgment, the Appellate Court found that the award was inconsistent with the complaint and reversed the trial court.   It ordered that the motion to open be granted based upon judicial error which was contrary to the law at the time of its rendition.  ‘To allow the plaintiff to benefit from a judgment against the defendant in excess of $41,000 that was contrary to law at the time of its rendition shocks the judicial conscience;  and violates the principles of equity that govern our application of the law.   The court's denial of the defendant's motion to open and set aside the money judgment perpetuated this injustice.’  Id. at 357.

The second case to address the ‘equity’ exception to the four month rule is Nelson v. Charlesworth, 82 Conn.App. 710 (2004).   That was a motor vehicle personal injury case in which the defendant's insurer failed to appear for the defendant in a timely fashion and a default judgment for $4,200 was entered.   The plaintiff's attorney then began negotiations with the insurer without revealing that a judgment had already entered.   The negotiations continued beyond four months and then failed.   When the insurer sought to open the judgment the plaintiff objected on the grounds that it was outside of the four month window of opportunity.   The trial court granted the motion to open and was affirmed on appeal.   The Appellate Court first discusses that although there was no fraud in the obtaining of the judgment there was fraud by the plaintiff's attorney in engaging in sham negotiations during the four month period in order to deceive the insurer.   But the court also states:

That type of conduct has no place in our bar.  Rule 4.1 of the Rules of Professional Conduct provides in relevant part:  ‘In the course of representing a client a lawyer shall not knowingly ․ (1)[m]ake a false statement of material fact or law to a third person ․’ Although the issue before us is not whether the plaintiff's attorney violated rule 4.1, we note that through his actions, he appears to have disregarded the rule.   His actions contribute to the deterioration of civility and collegiality and invite the scorn of the public on the bar.   It was within the court's discretion to hold that equitable considerations required that the judgment be opened.  Nelson v. Charlesworth, 82 Conn.App. 710, 715 (2004).

In the present case, the inaction of Attorney DeLeo on the plaintiff's behalf because of drug dependency violates Rule 1.1 regarding competence, Rule 1.3 regarding diligence, and Rule 1.4 regarding communication.   It is the kind of behavior which has cost clients in our state millions of dollars in notorious cases which have invited the scorn of the public on the bar.   It is the reason why the Judges of the Superior Court created Practice Book §§ 2–42 and 2–58 and the reason for the new Lawyers Assistance Program.   In this case, to allow the plaintiff to benefit from a judgment against the defendant in excess of $110,000 based upon the inaction of a drug dependent attorney shocks the judicial conscience and violates the principles of equity that govern our application of the law.

The defendant argues that the present case cannot be distinguished from Weja and that the court should follow its own precedent.   I disagree.   An important factor in the Weja case was that the motion to open the judgment was filed less than one month after the defendant learned about the judgment against him.   Here, Mr. Morrison had information in July 2012 which should have led him to realize that a judgment had been entered against the defendant.   But, even if the defendant did not have knowledge of the judgment until November 2012, the motion to open judgment was not filed until five months later.   This distinguishes Weja in a way that the court is unable to reconcile.   The general rule imposed by statute and court rule is that motions to open a judgment must be filed within four months.   The limited exception to that rule recognized by the courts is for equitable considerations.   But, equity must be done to both parties.   It seems to me that it would be not be equitable to the plaintiff to grant a motion to open which is filed more than four months after the defendant becomes aware of the judgment.   The defendant should not be permitted to sit on his rights for longer than the period imposed by the legislature and the court for motions to open for reasons other than equitable considerations.   For this reason, it will not be necessary for the court to consider whether the defendant would have been entitled to have the judgment opened if the motion had been filed within four months after the defendant became aware of it.

For the reasons stated, the motion to open is denied.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. Practice Book Sec. 17–4(a) provides that a civil judgment of the Superior Court may not be opened unless a motion to open is filed within four months succeeding the date on which notice was sent.  C.G.S. Sec. 52–212 provides that any judgment may be set aside within four months following the date on which it was rendered..  FN1. Practice Book Sec. 17–4(a) provides that a civil judgment of the Superior Court may not be opened unless a motion to open is filed within four months succeeding the date on which notice was sent.  C.G.S. Sec. 52–212 provides that any judgment may be set aside within four months following the date on which it was rendered.

Pickard, John W., J.