Brian Dawson v. Jessica Britagna (2015)

MEMORANDUM OF DECISION ON MOTION TO OPEN JUDGMENT

Pursuant to the requirement of Sections 64–1 and 6–1 of the Practice Book, this memorandum is filed with respect to the Defendant's Motion to Open Judgment dated July 29, 2014 and supplemented on July 31, 2014, and amended on August 6, 2014, and further supplemented on August 15, 2014.

BACKGROUND

This matter was initiated by writ, summons and complaint, dated May 19, 2010, by Brian Dawson (plaintiff) against the defendant, Jessica Britagna (defendant) alleging facts relating to an agreement to advance investment capital in connection with the defendant's opening a Sprint Store.

Plaintiff alleged that defendant refused to return his capital investment in violation of that agreement, among other things.

The court record reveals multiple pleadings related to this matter.

Defendant appeared pro se giving the clerk of court her address on June 18, 2010.

On August 22, 2011, over a year later, the plaintiff filed a Certificate of Closed Pleadings and Claim for the Trial List, claiming the matter to the Hearing in Damages List.

On October 26, 2011, the plaintiff filed a motion for Default for Failure to Appear and to Plead, which motion was denied by the clerk as “an improper” motion and also noting the defendant's appearance.

Thereafter, on November 7, 2011, the plaintiff filed a Motion for Default and Judgment (non-PB 17–23) which was denied by the clerk as “improper.”

Later on December 7, 2011, the plaintiff filed a Motion for Default for Failure to Plead, which motion was granted.  (Item 106.)   The defendant was notified of the entry of the default by the clerk.

On January 3, 2012, the plaintiff filed a Motion for Judgment.   That Motion was denied by Judge Purtill because of the lack of necessary documentation.

Thereafter, on February 7, 2012, at the Hearing in Damages List, the case was continued for an evidentiary hearing on February 28, 2012.   Notice of that hearing was provided to the defendant at 754 Long Hill Road, Groton, Connecticut 06340, which was the address she provided to the clerk's office when filing her appearance.

On February 28, 2012, Judge Purtill, after hearing evidence and receiving exhibits, entered the judgment which is the subject of the Motion to Open. Notice of that judgment was provided to the defendant and acknowledged by her.

Claims of Parties

The plaintiff, in the Objection to Motion to Open Judgment, filed September 12, 2014, has urged the motion be denied for essentially two reasons:  first, the motion to open was not timely, the defendant having “waited nearly twenty months after she received notice of the judgment”;  and second, neither facts or authority have been provided by defendant to support the opening of the judgment.

Defendant, on the other hand, makes multiple claims relating to the procedures followed in the case to support her motion.   At least one of the initial claims has now been withdrawn by amendment to the motion.

The defendant claims the four-month period for opening judgments does not apply here because, she alleges, the judgment is “void” or rendered in error.

The four pleading irregularities relied upon are (1) the plaintiff's certificate of closed pleadings and claim for the hearing in damages list was premature;  (2) The Motion for Judgment on Default was premature, having been made 14 days after default;  (3) Plaintiff's motion to dismiss (sic) was denied and not reclaimed;  and, (4) the defendant was “unaware” of the hearing held by Judge Purtill at which evidence was taken and judgment rendered.

By supplemental memoranda the defendant makes the further claim that the judgment was “made upon a claim not raised or made in the plaintiff's complaint.”

Analysis

First, with respect to the plaintiff's claim, there is in fact a four-month time limit on the filing of a motion to open judgment provided both by statute and Practice Book Section 17–4.   Here the defendant did indeed file almost a year after that time had expired.   That fact, not disputed in this case, is cause for the denial of the defendant's Motion to Open Judgment and is the basis for the court's denial of the same.

Second, the defendant's claims, outlined above, are offered as reasons not to apply the four-month rule.   They will be addressed in order.

(1) The certificate of closed pleadings and claim for the hearing in damages list was, as claimed, filed prematurely even before a default had been entered against the defendant.   However, there is no authority cited by the defendant that such a procedural error in a case like this, (where the default did in fact occur well before the judgment), would be grounds to set aside or open a judgment.

(2) The Motion for Judgment referred to by defendant was in fact premature (depending upon a proper counting of days) by one day.   But, because that motion was denied, that fact did not enter into the procedure by which the judgment was eventually entered on February 28, 2012.   There are two methods by which a case can get onto the hearing in damages list under the provisions of the Practice Book. One is by a Motion for Judgment which was not successful in this case, and the second is by the certificate of closed pleadings and claim for the hearing in damages list which was done here, although prematurely.   The fact that the Motion for Judgment was not effective to get the case to the hearing in damages list does not avail the defendant in this situation.

(3) There was no Motion to Dismiss in this case acted on by Judge Purtill on January 6, 2012, but he did deny a Motion for Judgment (which the court assumes was intended by defendant).   This claim, however, does not avail the defendant, since neither the Motion itself or the court's ruling were involved in the subsequent Judgment.

(4) The defendant's claim that she was unaware of the evidentiary hearing held by Judge Purtill is not supported by the evidence in the court clerk's file.   That file shows that on February 16, 2012, the clerk sent to the defendant, at the address she provided in her appearance, a notice which read:  “THE ABOVE CAPTIONED MATTER IS SCHEDULED FOR AN EVIDENTIARY HEARING IN DAMAGES ON 02/28/12 AT 10:00 A.M. AT NEW LONDON SUPERIOR COURT, 70 HUNTINGTON STREET.   PLEASE REPORT TO THE CASEFLOW OFFICE AT 9:45 ON THE MORNING OF YOUR HEARING FOR YOUR ROOM ASSIGNMENT.  (DEVINE, J., P.J.) LINDA C. GRELOTTI/NEW LONDON CASEFLOW 860–447–3472.”   This claim does not avail the defendant.

The claim made by supplemental memoranda, that the judgment was based upon a claim not made in the complaint, is not supported by a fair reading of the whole complaint.   The complaint, dated May 19, 2010, may be in an unusual format for our procedures but its intent is clear to the court.   This is especially true in a situation where the defendant, having been defaulted, cannot be heard to dispute the truth of the allegations, except as to damages.   In paragraph 5, the plaintiff makes clear that he advanced the defendant investment capital of $60,000 to start a business with an agreement to repay the same by defendant.   Paragraph 6 clearly alleges that the defendant refused to return the same.   Paragraph 7 alleges that the defendant acknowledged her obligation but refused to satisfy her part of the agreement.   Paragraph 9, under the heading of “Breach of Contract” alleges that “the defendant refused to return the principal.”   The court does not accept the claim of the defendant based upon a reading of Paragraph 10 that this complaint did not inform her that she was being sued for the return of the $60,000.

If there was some confusion by the language of the complaint, or in one of its paragraphs, then the defendant, under our Practice Book rules could have sought to have the plaintiff revise the same.   But any such confusion does not justify setting aside a judgment otherwise properly entered by Judge Purtill.

In support of her claim, the defendant cites the case of Cas Construction Co. v. Dainty Rubbish Ser., 60 Conn.App. 294 (2000), which does in fact reverse the trial court's denial of a Motion to Open a judgment.   However, that case is considerably different from the case at bar.   First, in Cas the defendant had moved to open the default and that motion had not been acted upon when judgment was entered on the default.   Secondly, the court was unaware of the pendency of the motion to open the default when judgment was entered.   And, third, the defendant had made an oral motion at the hearing in damages for a continuance because the hearing was only one day after notice of the denial of a motion to reconsider the judgment.   In this case, none of those facts occurred.   There was no pending motion to open the default.   No motion to reconsider.   No request for a continuance.   Because of these differences that case does not support this defendant's Motion to Open in the circumstances which pertain here.

The Motion to Open the Judgment is therefore denied and the objection to the same is sustained.

Robert C. Leuba, J.T.R.

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