HOUSING AUTHORITY OF THE TOWN OF GREENWICH v. JULIANA WEITZ
(AC 36966)
Lavine, Beach and Sheldon, Js.
Submitted on briefs December 15, 2015—officially released March 15, 2016
Appeal from Superior Court, judicial district of Stamford-Norwalk, Housing Session, Rodriguez, J.
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Richard H. G. Cunningham filed a brief for the appellant (defendant).
Louis P. Pittocco filed a brief for the appellee (plaintiff).
Opinion
PER CURIAM.
On March 1, 2011, the parties entered into a written lease agreement, in which the defendant agreed to lease from the plaintiff an apartment located at 27 Havemеyer Place in Greenwich. The plaintiff served this summary process action upon the defendant, a section eight tenant, on February 21, 2014, seeking immediate possession of the subject premises on the ground that the defendant was allegedly in noncompliance with the lease because she had failed inspections of her unit on multiple occasions and had been storing her furniture in the common arеas. On March 19, 2014, the defendant filed an appearance with the court. The defendant also filed an extensive answer to the plaintiff‘s complaint on that date. The matter was scheduled for trial оn April 3, 2014. After
On June 17, 2014, the parties, through their counsel, appeared before the court. The defendant herself was not present. Counsel for the defendant asked for another continuance on the basis of the defendant‘s alleged poor health. He indicated that he had attempted to obtain medical documentation supporting his claims regarding the defendant‘s health condition, but had beеn unable to do so in time for the hearing. Despite the defendant‘s poor health, counsel indicated that he would have someone transport her to court if the motion for continuance was denied. The parties agreed, with the court‘s approval, to pass the matter briefly and meet with a housing mediator to attempt to resolve their dispute. Shortly thereafter, the parties reportеd back to the court that although the meeting with the mediator had been productive, they had not been able to reach a final agreement. Counsel for the defendant renewed his request for a сontinuance on the basis of the defendant‘s health, in addition to personal obligations of his own. Counsel for the plaintiff objected “only because I didn‘t want to continue it until a July date. I would like to get it ovеr with one way or another.”
The court sustained the plaintiff‘s objection and denied the defendant‘s motion for continuance and the following colloquy ensued:
“The Court: I‘m not satisfied—not that your represеntations are not sincere, counsel, but I haven‘t received any indication of the . . . defendant‘s inability to be here, and a default will enter. . . .
“[The Defendant‘s Counsel]: [R]ather than default enter, I will commencе trial if we have to, rather than have it continue.
“The Court: We can‘t commence trial without your client, counsel. She‘s not here.
“[The Defendant‘s Counsel]: I can. I can—
“The Court: You can move to open a default if you have valid grounds . . . but the default will enter today.
“[The Defendant‘s Counsel]: If I may, I indicated to . . . Your Honor, if necessary for Your Honor to evaluate, the reason for it, I can have my client brought here
though she is ill, and I would ask for permission to do so, rather than have a default enter. “The Court: Anything else?
“[The Defendant‘s Counsel]: No, Your Honor.
“The Court: All right. The default will stand.”
Based upon the default of the defendant for failure to appear at trial,2 judgment of immediate possession was rendered in favor of the рlaintiff.
On June 24, 2014, the defendant filed a motion to open the default judgment, explaining that her poor health—which included severe pain and vomiting—had prevented her from appearing in court on June 17, 2014.3 Thе plaintiff objected to the defendant‘s motion. The court denied the motion to open and this appeal followed.
Distilled to its essence, the defendant‘s claim is that the trial court erred in defаulting her for failing to appear at trial when she had, in fact, appeared through her counsel, who indicated not only that he would have her brought to court despite her illness if the court denied his motiоn for continuance, but that he was prepared to proceed with trial in her absence. We agree.
It is well established that “[e]ntry of a [nonsuit or] default for failure to appear for trial is a matter left to the sound discretion of the trial court. . . . Practice Book § 17-19 provides in relevant part: If a party . . . fails without proper excuse to appear in person or by counsel for trial, thе party may be nonsuited or defaulted by the judicial authority.” (Internal quotation marks omitted.) Alexander v. Tyson, 122 Conn. App. 493, 496, 999 A.2d 830, cert. denied, 298 Conn. 928, 5 A.3d 488 (2010).
Here, the court‘s sole basis for entering a default against the defendant was her failure to appear for trial. However, counsel for the defendant was present in court, was willing to have the defendant transported to court despite her illness, and, alternatively, was prepаred to proceed with trial.4 Because our rules of practice do not require parties to be present for trial in civil cases, but permit them, rather, to appear through counsel, it was error for the trial court to default the defendant solely on the basis of her absence when her attorney was present and prepared to proceed.5
The judgment is reversed and the case is remanded with direction to vacate the default entered against the defendant and for further proceedings according to law.