216 Conn.App. 869
Conn. App. Ct.2022Background
- Eric Westry sued Litchfield Visitation Center on August 27, 2018, alleging race discrimination; a CHRO "Release of Jurisdiction" dated May 18, 2018 was appended to the complaint.
- A default for failure to plead was entered after Westry moved for default; the defendant filed an answer and a motion to set aside the default on November 16, 2018.
- The trial court granted the defendant’s motion to set aside the default on December 3, 2018 (court found a valid timing mistake and no prejudice to plaintiff).
- Defendant later moved to dismiss (April 2019) arguing the suit was not commenced within 90 days of the CHRO release as required by General Statutes § 46a-101(e).
- The trial court granted the motion to dismiss (Aug. 19, 2019), rejecting plaintiff’s initial arguments and finding no basis for tolling or waiver; the court denied reconsideration after plaintiff raised new theories (fee waiver tolling; marshal/service issues).
- On appeal, the court (Appellate Court) affirmed: it upheld the set-aside of default and declined to review timeliness/service theories raised for the first time on reconsideration or appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by setting aside default | Westry argued there was no good cause to open default | Defendant said it made a timing mistake and had promptly filed an answer | No abuse of discretion: court reasonably found a valid mistake, brief 17‑day delay, first request to open default, no prejudice to plaintiff |
| Whether complaint was untimely under § 46a-101(e) and dismissal was improper | Westry argued action was timely because summons/complaint delivered to marshal before 90 days or tolling due to alleged evasive conduct by defendant | Defendant argued plaintiff failed to raise those service/tolling theories below and dismissal was proper | Appellate court declined to consider these theories as they were not preserved below; affirmed dismissal because new claims were first raised on reconsideration/appeal and trial court did not rule on them |
Key Cases Cited
- Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258 (2001) (statutory 90‑day period treated as statute of limitations, subject to waiver and equitable tolling)
- Sokolovsky v. Mulholland, 213 Conn. App. 128 (2022) (holds § 46a-101(e) time limit is mandatory but not jurisdictional; defense is properly raised by answer/special defense)
- White v. Mazda Motor of America, Inc., 313 Conn. 610 (2014) (appellate courts ordinarily will not review claims raised for first time on appeal)
- Burnham v. Karl & Gelb, P.C., 252 Conn. 153 (2000) (appellate review limited to matters distinctly raised at trial; issues not decided by trial court generally not considered)
- Johnson v. Raffy’s Cafe I, LLC, 173 Conn. App. 193 (2017) (standard of review for setting aside defaults; factors trial court may consider)
- Snowdon v. Grillo, 114 Conn. App. 131 (2009) (discusses interplay of Practice Book rules governing setting aside defaults)
- Mosby v. Board of Education, 187 Conn. App. 771 (2018) (affirming dismissal where plaintiff presented no waiver, consent, or tolling argument under § 46a-101(e))