165 Conn. App. 780
Conn. App. Ct.2016Background
- Plaintiff sued owners (Taylor and estate/administrator) for severe burn injuries suffered in their apartment (action filed 2008). Plaintiff obtained a $2 million prejudgment remedy and defendants were defaulted for failing to disclose assets/plead.
- Defense counsel Howard A. Lawrence appeared in 2009 but was placed on inactive status by court order on July 27, 2012; a trustee (Michael Moskowitz) was appointed to inventory Lawrence’s files. Moskowitz never filed an appearance in the case.
- Plaintiff moved for judgment on the April 16, 2012 default and for a hearing in damages; judge entered judgment after a damages hearing on November 28, 2012 awarding $2,841,914.84. Court-generated notice of the judgment was mailed to counsel of record (Lawrence) and to Moskowitz as trustee on December 3, 2012; no notice was mailed directly to the individual defendants.
- Defendants’ present counsel filed an appearance and moved to open the default judgment on March 27, 2015, claiming they had not received notice of the judgment and asserting a defense (evidence suggesting plaintiff’s burns were self-inflicted).
- Trial court denied the motion as untimely under Practice Book §17-43 because notice had been sent to Moskowitz on December 3, 2012. Appellate court reversed and remanded, holding the trial court’s finding that proper notice was given was clearly erroneous and that an evidentiary hearing is required to determine when/if defendants received notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the four-month deadline to move to open a default judgment began to run when notice was mailed to the trustee for suspended counsel | Notice to Moskowitz/trustee (as reflected in court file) constituted notice to defendants; motion to open filed in 2015 was untimely | Lawrence was on inactive status and thus not representing defendants; Moskowitz never appeared or represented defendants; defendants received no notice, so the four-month period never began | Reversed: court’s finding that notice to Moskowitz sufficed was clearly erroneous; remanded for factfinder to determine if/when defendants actually received notice |
| Whether the trial court should have held an evidentiary hearing on the timeliness/notice issue before denying motion to open | Trial court could rely on filings and court file indicia of notice | Defendants sought oral argument and to present testimony to show lack of notice; no hearing held | Appellate court ordered remand for evidentiary hearing to determine notice and timeliness |
| Whether, if timely, the motion to open should be decided on its merits (defense of accidental vs. self-inflicted injury) | Plaintiff relied on medical records and bankruptcy filings to argue defendants had actual notice earlier | Defendants asserted a meritorious defense (evidence indicating suicide attempt) and other reasons why bankruptcy documents did not provide requisite notice | Court did not reach merits; remand required first to resolve notice/timeliness fact issue |
| Whether notice to counsel of record is sufficient when counsel has been suspended and trustee appointed but never appeared | Notice to counsel (or trustee) in file can start limitation period | If counsel is suspended and there is no substitute counsel or appearance by trustee, such notice is insufficient to start the four-month clock | Appellate court treated notice to trustee as insufficient where trustee had not appeared and suspended counsel could not practice; factfinder must determine actual notice to defendants |
Key Cases Cited
- Johnson v. Atlantic Health Services, P.C., 83 Conn. App. 268 (describing that the four-month period runs from date notice is sent and that lack of notice extends time) (legal standard on timeliness of motion to open)
- Batory v. Bajor, 22 Conn. App. 4 (notice is a question of fact; appellate review for clear error) (standard of review and fact question on notice)
- Bria v. Ventana Corp., 58 Conn. App. 461 (appellate courts will not find facts) (limits on appellate factfinding)
- Noethe v. Noethe, 18 Conn. App. 589 (procedure if motion to open is timely — court then may reach merits) (procedure on reopening default judgments)
- Noroton Properties, LLC v. Lawendy, 154 Conn. App. 367 (definition of clearly erroneous and scope of review) (standard for factual findings)