29 Conn. App. 48 | Conn. App. Ct. | 1992
Lead Opinion
The defendants appeal from the judgment of the trial court rendered in favor of the plaintiff for $359,484.84. The defendants claim that the trial court abused its discretion (1) by entering a default against them for their failure to comply with a court order to disclose assets, and (2) by denying their motion to set aside the default. We affirm the judgment of the trial court.
The essential facts pertinent to this appeal are not substantially in dispute. During 1988 and 1989, the plaintiff made three separate $100,000 loans to the defendant Investors Capital Corporation (Investors). The payment of each loan was personally guaranteed, jointly and severally, by the other two defendants, Richard Breault and John Cellino. Each transaction was a “commercial transaction” as defined in General Statutes § 52-278a (a).
Investors was dissolved in late 1989, an act constituting a default under the terms of the underlying notes. On July 23, 1990, the plaintiff simultaneously filed a complaint for collection of the balance due on the notes and an application for a prejudgment remedy, together with all of the necessary supporting documents. The prejudgment remedy was granted by the trial court, ex parte, on August 1,1990. The defendants, who had received notice of both the collection action and the prejudgment remedy as well as notice of their statu
On March 25, 1991, the defendants filed an answer to the plaintiffs complaint and a counterclaim. In their answer, the defendants denied having made a knowing and intelligent waiver of their rights to notice and to a hearing on the plaintiffs prejudgment remedy application. They raised as a special defense that they did not knowingly and intelligently make the commercial waiver contained in the notes, and, in their counterclaim, sought damages for a violation of their constitutional rights by the issuance of the prejudgment remedy.
On October 3,1991, the defendants finally took action with respect to the prejudgment remedy and the orders compelling disclosure of assets. On that date, the defendants filed, for the first time, a motion to dissolve the prejudgment remedy and a “motion to reargue the order disclosing assets.” Nothing was mentioned in the motion to reargue concerning the orders of default and nonsuit. On October 10, 1991, the defendants filed a motion for articulation in which they sought a clarification regarding the effective date of the September 23, 1991 order of default and nonsuit. All of the defendants’ motions were heard by the trial court on October 21,1991. The trial court made it clear that the default and nonsuit were effective as of September 23, 1991, subject to being vacated if the defendants complied by September 26, 1991, and denied the motion to dissolve and the motion to reargue.
In this appeal, the defendants argue that the default entered against them for failing to disclose assets violated their constitutional due process rights because it was based on an ex parte finding of probable cause in a commercial waiver transaction in which the defendants had no meaningful opportunity to be heard. They argue that the trial court abused its discretion in entering the default and by denying their motion to set aside the default.
Practice Book § 230A and General Statutes § 52-278n permit the trial court to compel a defendant “to disclose property in which he has an interest or debts owing to him sufficient to satisfy a prejudgment remedy.” Practice Book § 231 provides the means by which the trial court may enforce its disclosure orders. Specifically, it provides: “If any party has . . . failed to comply with a discovery order made pursuant to Sec. 230A . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following: (a) The entry of a nonsuit or default against the party failing to comply . . . .”
The entry of sanctions pursuant to Practice Book § 231 rests within the sound discretion of the trial court. Rullo v. General Motors Corporation, 208 Conn. 74, 78, 543 A.2d 279 (1988); Zaleski v. Zaleski, 21 Conn. App. 185, 189, 572 A.2d 76 (1990). “In reviewing a
The defendants argue, however, that the trial court had no authority to compel disclosure because the trial court never made a finding of probable cause, a necessary prerequisite to an order compelling disclosure under General Statutes § 52-278n and Practice Book § 230A,
The defendants also claim that the trial court abused its discretion by denying their motion to set aside the default. “A motion to set aside a default where no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose. As part of its order the court may extend the time for filing pleadings or disclosure in favor of a party who has not been negligent. ...” Practice Book § 376.
The determination of whether to set aside a default is within the discretion of the trial court. Weldon Business Group v. Schweitzer, 22 Conn. App. 552, 555, 577
The trial court reasonably concluded that the default should not have been set aside. The trial court ordered the defendants to disclose assets on two occasions, and both times the defendants failed to comply with the orders. The defendants failed to appear at the hearing on both orders. They also failed to present any valid reason for their failure to comply with the court’s orders. The basis of the defendants’ motion to open went to the merits of the prejudgment remedy itself, which the trial court had granted more than a year prior to the entry of the default, and which had not been challenged by the defendants until after the default had been entered. Such a challenge should have been raised at a much earlier stage in the proceedings, and had nothing to do with the defendants’ failure to comply with disclosure orders.
The judgment is affirmed.
In this opinion Daly, J., concurred.
General Statutes § 52-278a provides in pertinent part: “(a) ‘Commercial transaction’ means a transaction which is not a consumer transaction.
“(b) ‘Consumer transaction’ means a transaction in which a natural person obligates himself to pay for goods sold or leased, services rendered or moneys loaned for personal, family or household purposes.”
When seeking a prejudgment remedy pursuant to General Statutes § 52-278Í, as amended by Public Acts 1991, No. 91-315, § 2, the commercial waiver section, the plaintiff “shall include in the process served on the defendant a notice satisfying the requirements of subsection (b) of section 52-278e . . . .” General Statutes § 52-278e (b), as amended by Public Acts 1991, No. 91-315, § 1 (b), provides: “If a prejudgment remedy is granted pursuant to this section, the plaintiff shall include in the process served on the defendant the following notice prepared by the plaintiff: YOU HAVE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, WHICH YOU MAY WISH TO EXERCISE CONCERNING THIS PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE: (1) THE RIGHT TO A HEARING TO OBJECT TO THE PREJUDGMENT REMEDY FOR LACK OF PROBABLE CAUSE TO SUSTAIN THE CLAIM; (2) THE RIGHT TO A HEARING TO REQUEST THAT THE PRE JUDGMENT REMEDY BE MODIFIED, VACATED OR DISMISSED OR THAT A BOND BE SUBSTITUTED; AND (3) THE RIGHT TO A HEARING AS TO ANY PORTION OF THE PROPERTY ATTACHED WHICH YOU CLAIM IS EXEMPT FROM EXECUTION.”
General Statutes § 52-278n (a) provides: “The court may, on motion of a party, order an appearing defendant to disclose property in which he has an interest or debts owing to him sufficient to satisfy a prejudgment remedy. The existence, location and extent of the defendant’s interest in such property or debts shall be subject to disclosure. The form and terms of disclosure shall be determined by the court.”
Although the defendants entitled this motion as a motion to reopen, it is more properly characterized as a motion to set aside the default and nonsuit. Practice Book § 376 provides the method for setting aside defaults where judgment has not been rendered. The proper motion is a motion to set aside the default. For purposes of this appeal, therefore, we will treat the defendants’ motion to open the default as a motion to set aside pursuant to Practice Book § 376.
The defendants’ notice of their intent to appeal, as well as their preliminary statement of issues and their appellate brief, raise and present only the issue of the alleged invalidity of the default, not the nonsuit. We therefore consider any challenge to the entry of the nonsuit abandoned.
General Statutes § 52-2781 provides in pertinent part: “(a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal.
“(b) No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken. ...”
General Statutes § 52-278n (c) provides: “The court may order disclosure at any time prior to final judgment after it has determined that the party filing the motion for disclosure has, pursuant to section 52-278d, 52-278e or 52-278Í, probable cause sufficient for the issuance of a prejudgment remedy.” Practice Book § 230A (c) provides virtually identical language.
Concurrence Opinion
concurring. Although I agree with the result the majority reaches, I file a concurrence to point out my belief that there is no procedure that allows a motion to reargue.
Although cognizant of the language of Thompson, citing Springfield-Dewitt Gardens, Inc. v. Wood, 143 Conn. 708, 709 n.1, 125 A.2d 488 (1956); in which this court recognized our inherent authority to determine whether such a motion should be considered, and, if so, whether to act on the motion, I note that the footnote in Springfield-Dewitt, on which the Thompson, court relied, does not even rise to the level of obiter dictum as a collateral opinion. The footnote was inserted in a section immediately preceding the majority opinion to explain a ruling in a prior proceeding and was penned by the Chief Justice, who dissented from the majority opinion on the substantive appeal. Moreover, the procedure in Springfield-Dewitt and in DeLucia v. Home Owner’s Loan Corporation, 130 Conn. 467, 470, 35 A.2d 868 (1944), on which the Springfield-Dewitt court relied, involved a “motion to rehear,” rather than a “motion to reargue.”
Our continued recognition, albeit implied, of a procedure that does not exist by virtue of any rule or statute and, thus, has no checks or limitations, and that
Accordingly, I concur in the result.
“The bench and bar are entitled to expect uniform application of the rules of practice. The practice of law and the performance of a trial judge’s duties both are sufficiently difficult without the additional burden of uncertainty as to which rules will be strictly enforced and which rules will be liberally interpreted . . . .” Birmingham v. Kielczewski, 17 Conn. App. 219, 225, 551 A.2d 1260 (1988) (O’Connell, J., dissenting).