U.S. Equities Corp. v. Marise Turnier (2013)

MEMORANDUM OF DECISION

On October 3, 2011, the court granted the plaintiff's motion for summary judgment, dated August 12, 2011 (# 105.00) and entered judgment against the defendant in the amount of $15,673.11, plus interest of $4,607.46 and attorneys fees of $2,350.97.   The court also awarded postjudgment interest at the rate of 6% per annum and entered an nominal order for weekly payments in the amount of $35.00 commencing November 1, 2011. (# 105.86.) Thereafter, on October 12, 2011, counsel for the plaintiff filed a certificate of service of notice and judgment to all parties. (# 107.00.) Attached to the certificate was a copy of the order granting summary judgment in the amount stated.

Presently before the court, is the plaintiff's “motion to correct error” dated July 12, 2013. (# 112.00.) In that motion the plaintiff claims that its complaint alleged causes of action based on two credit card accounts, the first with a principal balance of $15,673.11 and the second with a principal balance of $5,548.15.   The plaintiff claims that its motion for summary judgment was supported by documentary evidence supporting judgments in its favor on both credit card debts.   The motion requested the court to increase the amount of the judgment to reflect both debts plus interest and attorneys fees.   The court heard argument on the plaintiff's motion on short calendar on September 3, 2013.

In the memorandum of law filed in support of its motion to correct (# 112.00), the plaintiff relies on the holding of the Appellate Court in Milazzo v. Schwartz, 88 Conn.App. 592, 596–98 (2005).   In that case the plaintiff filed a motion to correct an error in a deficiency judgment more than five years after the orginal judgment was entered.   The Appellate Court, relying on Connecticut National Bank v. Gager, 263 Conn. 321 (2003), affirmed the trial court's action in granting the motion to correct.   The court explained “There is a distinction between corrections of judgments that change the substance of the court's disposition and corrections that merely remedy clerical errors ․ The distinction is that merely clerical errors may be corrected at any time after the end of the term ․ A clerical error does not challenge the court's ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court ․ In other words, it is a clerical error if the judgment as recorded fails to agree with the judgment in fact rendered ․ Thus, a motion to correct properly is granted when the moving party demonstrates that the recorded judgment is inconsistent with the actual judgment.”  88 Conn.App. at 596.

At the short calendar held on October 3, 2011, the court considered the plaintiff's motion for summary judgment.   That motion stated:  “The plaintiff claims that there is no genuine issue as to any material fact in the complaint, moves for summary judgment, pursuant to C.P.B. § 17–44 et al., and submits herewith the following affidavits and other documentary proof.”   Filed with the motion was a ten-page memorandum of law in support of the motion together with over seventy-one pages of exhibits.   Exhibit B was a seven-page affidavit of debt with exhibits attached stating that the defendant owed the plaintiff the principal amount of $15,673.11, interest in the amount of $4,607.46 and attorneys fees in the amount of $2,350.97.

At the short calendar hearing, plaintiff's counsel did not point out to the court that the exhibits attached to the memorandum filed in support of the motion for summary judgment included a second affidavit of debt, Exhibit H, which stated that an additional debt was owed by the defendant to the plaintiff in the principal amount of $5,548.15, together with interest in the amount of $1,445.56 and attorneys fees in the amount of $832.22.

The court finds that the plaintiff's motion does not, in fact, seek to correct a clerical error.   The actual judgment entered by the court, as reflected by the transcript of the proceedings held on October 3, 2011, is identical to the recorded judgment.   The court (and plaintiff's counsel) may have been mistaken when summary judgment was entered as to only one of the two debts which the plaintiff sued to collect.   However, that mistake did not amount to a correctable clerical error.

General Statutes § 52–212a provides, in relevant part:  “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it has been rendered or passed.”   Practice Book § 17–4 contains a nearly identical provision.   The court finds that in the absence of a clerical error, it cannot grant the plaintiff's motion for further court order.   Accordingly, that motion is denied.

David R. Tobin, J.

Tobin, David R., J.T.R.