III v. Jessica Britagna (2015)

MEMORANDUM OF DECISION RE MOTION TO OPEN AND SET–ASIDE VOID JUDGMENT

Pursuant to the provisions of Section 64–1 and Section 4–1 of the Connecticut Practice Book this memorandum is submitted with respect to the denial of a Motion to Open and vacate default Judgment on November 25, 2014 and the order sustaining the objection thereto.

Background

The plaintiff, Joseph Alfred Clark III, (plaintiff) brought this complaint filed May 30, 2012, against Jessica Britagna (defendant).

The defendant filed a pro se appearance on June 13, 2012 and thereafter appeared by counsel on August 8, 2014.

Plaintiff filed a Motion for Default for failure to plead over three months later on November 21, 2012.   That motion was granted by the court on December 3, 2012, when the defendant was defaulted for failure to plead.

Thereafter, on January 2, 2013 and March 13, 2013, plaintiff filed a Motion for Judgment, together with affidavit and exhibits.   Later, by order of the court, a Motion to place on the hearing in damages list was filed by the plaintiff on June 10, 2013.

At the call of the Hearing in Damages list the court (Purtill, J.), at the request of the plaintiff, took the matter “on the papers” and rendered Judgment in favor of the plaintiff against defendant in the amount of $80,000.00, on July 2, 2013, about seven months after the default entered.

After the passage of almost one year a Property Execution and Financial Institution Execution were sought by the plaintiff on May 30, 2014.   The request for a Property Execution was later withdrawn.

About four months later, on September 23, 2014, and again on September 30, 2014, plaintiff filed an Application for an Examination of Judgment debtor with respect to defendant.

The Order for the examination of the defendant was entered October 16, 2014, with the hearing scheduled for November 10, 2014.

One day after that Order and about one year and four months after the entry of Judgment by Judge Purtill, the subject Motion to Open and set Aside the Judgment was filed by defendant on October 17, 2014.   The plaintiff's objection to the motion was filed thereafter on March 26, 2014.

Claims of Parties

Defendant's claim with respect to the Motion to Open appears to be that the judgment entered by Judge Purtill is void because it was based on the defendant's guarantee of the payment of a note for $80,000, in a case in which the defendant claims alleges only a tort action.   Defendant also claims the process of obtaining the default was fundamentally unfair.

Plaintiff, in his objection to the Motion to Open, claims that the Complaint was in fact an action to collect on the note, a “straightforward” breach of contract claim.   Further, plaintiff claims that Practice Book Section 17–43(a) imposes a four-month time limit for moving to open a judgment and that defendant's motion exceeded the time limit.   Plaintiff also advances a rebuttal to defendant's “unfairness” claim.

Analysis and Conclusion

The first claim of the defendant that the complaint is in reality a tort claim asking for contract damages is not well founded.   The complaint, though somewhat unconventional in its format, leaves no doubt that the plaintiff's claim in the suit is for the repayment to him of the $80,000 he loaned to the defendant and her LLC, among other things.   In paragraph 3 (under both the heading of “facts” and “breach of contract”) the plaintiff alleges “ ․ the plaintiff ․ entered into an agreement executed as a promissory note between he and Jessica Britagna wherein the defendant agreed to repay $80,000, ․ loaned to her by plaintiff ․” Later, in paragraph 6, the plaintiff alleges that the defendant “ ․ refused to either return the cash principal of or about $80,000 to plaintiff ․” Thereafter, in paragraph 9 under the heading of Breach of Contract, plaintiff alleges that defendant “ ․ breach the agreement ․ by refusing to return the principal ․ used in the purchase ․” Whatever might be said in relation to the unusual allegation contained in paragraph 10 of the complaint under the Breach of Contract heading, it does not convert a clearly contract claim into a tort claim asking for contract damages.

The claim of unfairness is also without support in the file.   The defendant was served “in hand,” she appeared both pro se and by counsel, considerable time elapsed during the process leading up to the default and thereafter until the judgment.   She claims not to have been informed by the pleadings that the plaintiff was seeking repayment of the $80,000 loan.   Any simple reading of the complaint as set forth above would not support this claim.   Moreover, if she claimed any lack of clarity by the form or language of the complaint, she could have moved for a revision at the appropriate time.

The judgment entered by Judge Purtill, as a matter of law, is not void.   The process by which it was obtained was not unfair.   The defendant's motion to open is not timely made under the rules.

The motion to open is denied and the objection to the same is sustained.

Robert C. Leuba, JTR

Leuba, Robert C., J.T.R.