83 Conn. App. 268 | Conn. App. Ct. | 2004
Opinion
This appeal originated from an action sounding in negligence brought by Geoffrey Schiebel Johnson on behalf of the minor plaintiff, Geoffrey Scott Johnson, and individually by the parent plaintiffs, Joanne Johnson and Geoffrey Schiebel Johnson, against the defendants, Atlantic Health Services, P.C. (Atlantic), and Julian Hartt. The defendants appeal from the decision of the trial court, Radcliffe, J., granting the plaintiffs’ motion to open the judgment of dismissal and claim that the court improperly determined that the motion to open was timely under Practice Book § 17-4 (a).
The plaintiffs’ complaint further alleged that Atlantic, acting through Hartt, contacted the department of children and families (department), made a bad faith report of medical neglect against the parent plaintiffs and disclosed the minor plaintiffs confidential medical information. The plaintiffs further claimed that the department conducted a thorough and extremely personal investigation and concluded that Hartt’s complaint was a case of “false reporting” made in “retaliation” against the plaintiff father for making complaints against Atlantic. The plaintiffs’ complaint sought monetary and compensatory damages, attorney’s fees, punitive damages and interest and costs as a result of the defendants’ conduct.
On appeal, the defendants specifically claim that Judge Radcliffe improperly determined that notice of the judgment was not received until April 30, 2002. The defendants contend that the plaintiffs’ failure to file the revised complaint by March 1, 2001, both caused the judgment of dismissal and comprised sufficient notice of the judgment because Judge Blue’s order of judgment was self-executing. Therefore, the defendants argue, no official notice was required to have been sent to the parties, and the proper date for purposes of calculating the commencement of the four month period within which the plaintiffs were permitted to file a motion to open the judgment was March 1, 2001, rendering their August 29, 2002 motion untimely. We disagree.
The defendants argue that the plaintiffs’ noncompliance in failing to file an amended complaint by March 1, 2001, in effect, established sufficient notice of the fact that judgment had entered and cite Osborne v. Osborne, 2 Conn. App. 635, 638, 482 A.2d 77 (1984), in support of their claim. In Osborne, the trial court entered an order that a nonsuit would enter unless the plaintiff complied with the defendant’s discovery requests within one week. Id., 637. She did not do so and judgment of nonsuit entered. Id., 637-38. The plaintiff argued that because she never had received notice of
The strength of this precedent is challenged, however, by our holding in Federal Ins. Co. v. Gabriele, supra, 54 Conn. App. 462, in which we stated that “Practice Book § 17-4, formerly § 326, was amended in 1997 to provide that a motion to open or set aside a judgment must be filed ‘within four months succeeding the date on which notice was sent,’ changing former § 326, which provided that a motion to open or set aside must be ‘filed within four months of the entry of judgment.’’ . . . Practice Book § 17-4 clarifies the issue of when the four month period commences by providing that the four month period does not commence until the date on which notice of the judgment is sent.” (Emphasis in original.) Federal Ins. Co. v. Gabriele, supra, 462. We held that the court improperly relied on the date that judgment was rendered, rather than on the date that notice of the judgment was sent, in determining that the motion to open had been untimely filed. Id., 462-63.
The fact that Practice Book § 17-4 (a) was amended in 1997, thirteen years after Osborne was decided, persuades us that Osborne is no longer controlling on the
We conclude that it was not until Judge Booth, in his April 30, 2002 memorandum of decision, settled the
Our conclusion is supported by the text of Practice Book § 17-4 (a), which provides in relevant part that a judgment may not be opened or set aside “unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. . . .” (Emphasis added.) The import of the phrase “notice was sent” cannot be overlooked in this case. We interpret this phrase in accord with its plain meaning, as our Supreme Court has held that “ [t]he rules of statutory construction apply with equal force to Practice Book rules.” Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); see also State v. Strickland, 243 Conn. 339, 347, 703 A.2d 109 (1997) (“Practice Book provisions are interpreted in accordance with the same principles that guide interpretation of our General Statutes”). The plain meaning of this phrase is that notice of the judgment must be sent to the parties in order to determine the date that commences the four month period within which a party may file a motion to open. Therefore, the defendants’ argument that the plaintiffs’ noncompliance was adequate notice for purposes of applying § 17-4 (a) is belied by the text of the rule that states that notice must be sent before the four month time period will commence. We also note that § 17-4 makes no provision for contingent orders and does not affirmatively exempt such orders from the notice requirement.
Our holding is also consistent with the line of cases that has held that “the right to move to open and vacate
Although normally we do not look to the opinions rendered by the Superior Court as authority, we find two Superior Court opinions particularly persuasive in our resolution of this appeal. These opinions deal with disciplinary nonsuits and the accidental failure of suit statute, but they serve to illuminate the problem that is caused for trial judges when notice of judgment is not sent by the clerk after a party fails to comply with a contingent order. In Morales v. Medina, Superior Court, judicial district of Hartford, Docket No. 590718 (November 2, 1999), Judge Beach was presented with a very similar issue where the court had ordered that a contingent nonsuit would enter “unless [the] plaintiff [complied] with [the] defendant’s request for interrogatories and production within 30 days.” (Internal quotation marks omitted.) The court examined this issue in terms of the application of General Statutes § 52-592, the accidental failure of suit statute, but made reference to the
The Superior Court addressed this issue again in Golino v. Pereira, Superior Court, judicial district of Hartford, Docket No. CV 00 0802482 S (November 5, 2001) (30 Conn. L. Rptr. 650, 651), in which it stated that “trial courts have struggled to find a consistent and fair means of resolving disputes as to the timeliness of motions to open .... A recurring theme ... is the question of when the prior case terminated, when the context is an order granting a nonsuit unless compliance is made by a date in the future. . . . [Other Superior Court decisions have] decided that the only workable solution is to fix the operative date as the date of the sending of notice that the nonsuit . . . has actually entered. . . . [N]otions of fairness require the sending of a noncontingent notice stating that the nonsuit has entered, and the time allowed for pursuing the next step runs from the sending of that notice.” (Citations omitted.)
Last, we observe that “[i]t is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). Further, “[o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.” (Internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 16, 776 A.2d 1115 (2001).
We conclude that because the first notice sent indicating that judgment had entered on March 1, 2001, was
The order granting the motion to open is affirmed.
In this opinion the other judges concurred.
“[A]n order opening a judgment ordinarily is not a final judgment within [General Statutes] § 52-263. . . . [Our Supreme Court], however, has recognized an exception to this rule where the appeal challenges the power of the court to act to set aside the judgment.” (Internal quotation marks omitted.) Cusano v. Burgundy Chevrolet, Inc., 55 Conn. App. 655, 658, 740 A.2d 447 (1999), cert. denied, 252 Conn. 942, 747 A.2d 519 (2000).
We note that “131” references the entry number in the case detail for Judge Booth’s April 30, 2002 memorandum of decision, discussed later in the body of 1his opinion, which the plaintiffs claim constituted the first official notice of the judgment of dismissal.
Practice Book § 17-43, formerly Practice Book § 377, which sets forth the rule for opening judgments on default or nonsuit, was also amended in 1997. Prior to 1997, Practice Book § 377 provided: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed . . . .” See G. F. Construction, Inc. v. Cherry Hill Construction, Inc., 42 Conn. App. 119, 120 n.2, 679 A.2d 32 (1996). Practice Book § 17-43 now provides: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent . . . .”