Thomas Thorndike v. LLC (2013)

MEMORANDUM OF DECISION RE MOTION TO OPEN DEFAULT AND TO OPEN SUBSEQUENT JUDGMENT (# 137)

The defendant, John Polmon, moves to open the default entered on November 11, 2008 and to open the subsequent judgment against him entered on March 17, 2009.   This court ordered an evidentiary hearing on the motion on November 12, 2013.   After having reviewed the record, and in light of the evidence presented evidentiary hearing, the court makes the following findings of fact.

Facts

The initial complaint of the plaintiff, Thomas Thorndike, was filed on December 5, 2007, asserting claims against both the defendant and his alleged alter ego, Polmon Custom Carpentry, LLC (the business) for money damages involving a breach of a home improvement contract.   The business' address at the time was 1500 Echo Lake Road, Watertown, while the defendant's residential address was, and remains, at 375 Middlebury Road, Watertown.   During the pendency of this action, more specifically in December of 2007, the defendant closed the business known as Polmon Custom Carpentry, LLC and closed all of the business' bank accounts and cancelled its lease and licenses.   No forwarding address was provided for the business' correspondence.¹

On October 2, 2008, the defendant's attorney for the business filed a Motion to Withdraw Appearance.   The motion and the attached notice list both the address for the business and the defendant's personal residence for purpose of notice.   The defendant testified that he had no recollection of receiving the mailed notice, but recollects that he was aware of his attorney's motion to withdraw through a conversation with the attorney.   On October 27, 2008, the court granted the attorney's motion to withdraw.   On November 3, 2008, the plaintiff filed a motion for default for failure to appear against the defendant and the business.   That motion was mailed only to the business address.   The defendant testified that he never received a copy and on November 18, 2008, the court granted the motion for default for failure to appear.   On March 17, 2009, after a hearing in damages, the court granted judgment in favor of the plaintiff.

Beginning January 25, 2010, and continuing through April 26, 2013, the plaintiff brought a series of applications for execution.   All of these applications were rejected for various reasons, including, inter alia, the plaintiff's failure to submit a return of notice of judgment.   A notice of judgment against the defendant was filed by the plaintiff on May 23, 2013, but this notice continued to erroneously list the defendant's address as 1500 Echo Lake Road. The plaintiff submitted an application for wage execution that was accepted by the court on June 11, 2013.   The defendant ultimately became aware of the default judgment only on June 25, 2013, when informed by his employer's human resources department that his wages were to be attached.

Discussion

Connecticut General Statutes § 52–212(a) provides “[a]ny judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed ․ upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.   See also Practice Book § 17–43.   In other words, [t]here must be a showing that (1) a good defense, the nature of which must be set forth, existed at the time judgment was rendered, and (2) the party seeking to set aside the judgment was prevented from making that defense because of mistake, accident or other reasonable cause.”  (Internal quotation marks omitted.)  McCarthy v. Ward Leonard, 104 Conn.App. 535, 542–43, 935 A.2d 189 (2007).  “[I]n granting or refusing an application to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of discretion.”  (Internal quotation marks omitted.)  Id., 541.

“[I]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open.  [The Appellate Court] ha[s] indicated that for the purpose of opening a default judgment ․ a delay in notifying the defendant of the judgment would ․ extend the time in which the defendant could move to set aside the judgment.”  (Internal quotation marks omitted.)   Tyler E. Lyman, Inc. v. Lodrini, 63 Conn.App. 739, 746, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001).  “[T]he mailing of a properly addressed letter creates a presumption of timely notice unless contrary evidence is presented.”  Daniels v. Statewide Grievance Committee, 72 Conn.App. 203, 211, 804 A.2d 1027 (2002).  “Negligence of a party or his counsel [however] is insufficient for purposes of § 52–212 to set aside a default judgment.”  State v. Ritz Realty Corp., 63 Conn.App. 544, 549, 776 A.2d 1195 (2001).

Practice Book (2008) § 17–20(a) provides:  “If no appearance has been entered for any party to any action on or before the second day following the return day, any other party to the action may make a motion that a nonsuit or default be entered for failure to appear.”  Practice Book (2008) § 17–20(b) provides in relevant part that “[i]t shall be the responsibility of counsel filing a motion for default for failure to appear to serve the defaulting party with a copy of the motion.   Service and proof thereof may be made in accordance with Sections 10–12, 10–13 and 10–14.”

Practice Book (2008) § 10–12(b) provides in relevant part:  “It shall be the responsibility of counsel or a pro se party at the time of filing a motion for default for failure to appear to serve the party sought to be defaulted with a copy of the motion.”  Practice Book (2008) § 10–13 provides in relevant part:  “Service upon the attorney or upon a pro se party ․ may be by delivering a copy or by mailing it to the last known address of the attorney or party.”   The Supreme Court, addressing what “last known address” meant as used within General Statutes § 52–59(b), gave the following definition:  “The requirement that the copy be mailed to the defendant at his last-known address does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it.   Unless the defendant has departed for parts unknown, it means his actual address, if he has disappeared it means his last address so far as it is reasonably possible to ascertain it.”  (Internal quotation marks omitted.)  Cadlerock Joint Venture II, L.P v. Milazzo, 287 Conn. 379, 393, 949 A.2d 450 (2008).

In the present case, the plaintiff continued to send the notices of the court proceedings to the defendant's last known business address at 375 Middlebury Road and failed to send a copy of the Motion For Default or notice of the entry of judgment to his residence, despite the fact that the plaintiff had knowledge of the defendant's personal residence which was clearly listed on the Motions to Withdraw filed by the defendant's attorney.   Further, the defendant explained that the business was closed in December 2007, and no forwarding address for mail was given.   As the defendant did not receive notice of the motion until June 25, 2013, his July 18, 2013 Motion to Open Default and Subsequent Judgment Upon Default was filed within the four months required by the statute.

The plaintiff's failure to properly serve the motion to default on the defendant and the defendant's lack of actual notice of those proceedings also satisfy the defendant's responsibility under § 52–212 for demonstrating that he had a good defense to the default that some reasonable cause prevented him from asserting.   See Wilson v. Troxler, 91 Conn.App. 864, 871–72, 883 A.2d 18 (failure to serve party with motion to default which resulted in party's lack of notice of motion's pendency was both a good defense and reasonable cause not to have defended against that motion), cert. denied, 276 Conn. 928, 889 A.2d 819 (2005).

Finally, this court does not find that the defendant's actions or lack thereof constitute negligence under the facts of this case.   To begin, the defendant, as previously noted, did not have actual notice of the motion for default or notice of default judgment for several years due to the plaintiff's continued failure to mail various documents to the correct address.   The defendant also clearly articulated his credible belief that the plaintiff was not continuing the suit due to the plaintiff's legal difficulties concerning other matters which eventually resulted in the plaintiff's incarceration.   Although it would have been preferable for the defendant to have filed an appearance pursuant to his attorney's instructions, there is no basis for finding the defendant's behavior was unreasonable under the circumstances presented as he had a reasonable belief that the case was not proceeding and a complete lack of notice to the contrary.

For the foregoing reasons, the motion to open default and judgment is granted.

The Court,

Markle, J.

FOOTNOTES

FN1. Although the Secretary of State's website continues to list the business' address as 1500 Echo Lake Road and its business status as active, the defendant testified credibly that he did not know that he had to file additional paperwork to change this information because the plaintiff had done the initial filings on the defendant's behalf and had failed to advise him that further notices were required..  FN1. Although the Secretary of State's website continues to list the business' address as 1500 Echo Lake Road and its business status as active, the defendant testified credibly that he did not know that he had to file additional paperwork to change this information because the plaintiff had done the initial filings on the defendant's behalf and had failed to advise him that further notices were required.

Markle, Denise D., J.