193 Conn. 128 | Conn. | 1984
The defendant, Leonard Scalzi, Jr., d/b/a Horizon Development Co., has appealed from the denial by the trial court, Fracasse, J., of his motion to open default and judgment after default. We find no error.
The plaintiff, Eastern Elevator Company, Inc., and the defendant executed a contract on July 2, 1980, for the sale and installation of an elevator. The plaintiff agreed to sell, deliver and install the elevator for which the defendant agreed to pay. The plaintiff performed the contract and made demand for $27,428.12 for so doing. After the defendant paid $10,000 on this debt nothing further was paid although a demand was made for the balance due. This action was instituted to seek the principal balance of $17,428.12 plus interest and reasonable attorney’s fees.
On appeal, the defendant claims that (1) the defense presented in his motion was sufficient as a matter of law to support his motion, and (2) an affidavit filed under General Statutes § 52-212 is assumed to be well pleaded and the test the trial court should have applied is whether the affidavit on its face states a defense. We disagree.
The defendant’s first claim is that the defense presented was sufficient as a matter'of law to support his motion. This claim lacks merit. While admitting that the defense presented in his motion was “sketchy and brief,” he argues it is sufficient, claiming that § 52-212 requires only that the moving party state “in general terms the nature of the . . . defense” and that “[a] great deal is not required of the Defendant, only that a defense existed at the time of the rendition of the Judgment.” There is no “showing”; Manchester State Bank v. Reale, supra, 523; that the defense asserted existed at the time of the judgment as the first prong of the test requires. While the nature of the defense may be stated in “general terms,” this “showing” is critical. Significantly, at the hearing on the motion, the court inquired whether the plaintiff “had any correspondence with the defendant regarding either the liability or the payment?” The plaintiff’s counsel indi
The defendant next claims that General Statutes § 52-212 “requires” the court to “assume” the defense set out in the affidavit accompanying the motion to open to be “well pleaded” and that the test is whether the affidavit states a defense. He suggests, in advancing this argument, that a proper analogy may be made to a motion to strike, where the factual accuracy of the pleadings is assumed and the legal sufficiency of the allegations is tested. See Practice Book § 152. We must reject this “presumption” approach to a motion under § 52-212. It misconceives our case law construing § 52-212 and the suggested analogue to motions to strike is wide of the mark. We do not know of and have not been referred to any tenets of statutory construction that “require” any such “presumption.” The moving party on a motion to open must not only “allege,”
We further point out that under the second prong of the statute the defendant has not sustained his burden of showing that he was prevented by mistake, accident or other reasonable cause from making the claimed defense. General Statutes § 52-212; Manchester State Bank v. Reale, supra, 525. The affidavit accompanying the motion to open does not aid him here. Moreover, the transcript of the hearing of March 1, 1983, discloses nothing to satisfy the second prong. At that time, the court, by its inquiry, did establish that the defendant had notice both of the motion for default for failure to plead and of the motion for judgment on default.
The statute is remedial, but it is intended to confine the opening of default judgments to meritorious cases. See Testa v. Carrolls Hamburger System, Inc., supra, 297. This has not been demonstrated to be such a case. The defendant has satisfied neither prong of § 52-212. The trial court did not abuse its discretion in denying the defendant’s motion to open.
There is no error.
In this opinion the other judges concurred.
The defendant was represented in the trial court by the same attorney who represents him on this appeal.
The motion and accompanying affidavit were as follows:
“MOTION TO REOPEN DEFAULT AND JUDGMENT AFTER DEFAULT
The Defendant in the above captioned matter respectfully moves that the Default and Judgment After Default be reopened in accordance with the affidavit annexed hereto and that pursuant to Section 52-212, that the Plaintiff be enjoined from enforcing such judgment until a hearing on this matter.
THE DEFENDANT By Isl David M. Wallman”
“STATE OF CONNECTICUT
STAMFORD
COUNTY OF FAIRFIELD
Personally appeared, David M. Wallman, who being duly sworn, deposes and says:
1. I am the attorney for the Defendant in this action;
2. I did not file a pleading in this matter because I was unable to discuss the matter with my client and did not know whether a valid defense existed to the claim, all of which were related to the Plaintiff’s attorney.
3. After finally reaching my client, I have been informed that the elevator installed did not function properly, that it constantly missed stopping at floors and needed an inordinate amount of servicing.
Isl David M. Wallman
Subscribed and sworn . . . March 1, 1983.”
We have examined the transcript of the hearing of March 1, 1983, which has been filed in this court.
Our examination of the transcript of the hearing of March 1,1983, discloses nothing concerning the defense now advanced. The $10,000 which had been paid on the contract price by the defendant was paid prior to the commencement of this action.
Not only do the pleadings allege that the defendant “accepted” the elevator on or about September 1,1981, but the court file contains a signed acceptance by the defendant, dated September 22,1981, stating that “[w]e have examined [the] elevator recently installed . . . and find it satisfactory and in accordance with our contract.” That “acceptance” also indicates that it was accepted by the state of Connecticut’s department of public safety on September 1, 1981.
Although the plaintiff’s brief pointedly intimates that no question was ever raised concerning the performance of the elevator until the filing of the motion to open, that assertion has gone unanswered by the defendant.