JOHN RYAN v. PAUL A. CASSELLA
AC 38910
Appellate Court of Connecticut
March 27, 2018
Sheldon, Elgo and Shaban, Js.
Argued December 11, 2017
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Syllabus
The plaintiff brought an action seeking to collect a debt allegedly owed by the defendant, C, in connection with an agreement for certain advertising services. The plaintiff‘s amended writ of summons and complaint identified the defendant as C doing business as C Co., and included C‘s business address in Woodbridge and his residential address in Orange. C‘s name was misspelled by one letter in both the summons and the complaint and was misspelled throughout the proceedings. The marshal‘s return of service indicated that service of process was made at the Orange address. The plaintiff thereafter filed a motion for default for failure to appear, which the trial court granted against C doing business as C Co. A copy of the order granting the motion was sent to C. After a hearing in damages at which C did not appear, the trial court rendered judgment in favor of the plaintiff, who mailed notice of the judgment to C at both of his addresses. Following C‘s failure to appear at a scheduled hearing on the plaintiff‘s application for an examination of judgment debtor, the court clerk sent a letter on the court‘s behalf to C at the Orange address requesting his appearance at a rescheduled hearing on the application and warning him that his failure to appear would result in the issuance of a capias for his arrest. The next day, the court received a letter from C‘s attorney stating, inter alia, that C was the sole resident at the Orange address, that the party named in the clerk‘s letter did not reside there and that C should not be served with any capias related to the case. The plaintiff then filed a motion to correct the default judgment requesting that the court recognize that the named defendant and C are the same person for purposes of the case because the misspelling of C‘s name constituted a circumstantial defect that was correctable pursuant to the applicable statute (
- C could not prevail on his claim that the trial court improperly granted the plaintiff‘s motion to correct because it failed to specify a legal basis for its decision, as that court‘s decision was in accordance with well established law: the motion to correct the subject misnomer fell squarely within the purview of
§ 52-123 , as C had actual notice of the proceedings as evinced by his attorney‘s acknowledgement in his letter to the trial court and at oral argument before this court that C resided at the Orange address and had received numerous pleadings and other communications related to the collection action, C knew that he was the proper defendant in the action and never disputed that he lived at the Orange address, he was aware that there was only one defendant in the action and the record did not contain any averment by him that he did not enter into the agreement detailed in the plaintiff‘s complaint, and C did not raise a claim of prejudice before the trial court or in his appellate brief; moreover, contrary to C‘s contention, the trial court had the authority to grant the plaintiff‘s motion to correct more than four months after the default judgment had been rendered, as the court was not precluded by the relevant statute (§ 52-212a ) from correcting a technical defect in a party‘s name pursuant to§ 52-123 . - The trial court did not abuse its discretion in refusing to open and vacate its order granting the plaintiff‘s motion to correct; although C asserted that the judgment should have been opened to cite in his business, I Co., as a party defendant, the default judgment was rendered against C in his personal capacity, as the trial court emphasized in its articulation.
Procedural History
Action to collect a debt, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant was defaulted for failure to appear; thereafter, following a hearing in damages, the court, Hon. Edward F. Stodolink, judge trial referee, rendered judgment for the plaintiff; subsequently, the court granted the plaintiff‘s motion to correct; thereafter, the court denied the defendant‘s motion to open the judgment, and the defendant appealed to this court; subsequently, the court, Hon. Edward F. Stodolink, judge trial referee, issued an articulation of its decision. Affirmed.
Joshua A. Winnick, for the appellant (defendant).
Opinion
The relevant facts are not in dispute. In early 2014, the plaintiff commenced a collection action with a return date of February 25, 2014. His writ of summons and complaint both identified the defendant as “Paul Cascella dba CIA Integrated Marketing Systems”2 whose principal place of business was located at 27 Lucy Street in Woodbridge (Woodbridge address). State Marshal William Stuart, in his return of service to the court, attested that “[a]bode service was made upon Paul Cascella at 101 Derby Avenue, Orange, Connecticut” (Orange address) on February 4, 2014.
In his nine sentence complaint, the plaintiff alleged that the parties entered into an agreement in October, 2012, regarding certain advertising services that the plaintiff would perform on the defendant‘s behalf for the sum of $10,000. The complaint further alleged that, after the plaintiff fully performed his obligations under the contract, the defendant made an initial payment of $2000 but thereafter refused to pay the remaining $8000 due to the plaintiff. The defendant did not file an appearance or otherwise respond to that pleading.
On May 28, 2014, the plaintiff moved for permission to file an amended writ of summons and complaint pursuant to Practice Book § 10-60, which the court granted. As the plaintiff indicated in his motion to the court, the primary purpose of that amendment was to include the Orange address, which he claimed was the defendant‘s residential address. The amended writ of summons and complaint both included the Woodbridge and the Orange addresses.3 In the certification to the amended writ of summons and complaint, the plaintiff‘s counsel stated that “a copy of the foregoing was mailed, USPS postage prepaid, to . . . Paul Cascella dba CIA Integrated Marketing Systems” at both his Woodbridge and his Orange addresses. The return of service provided by the state marshal indicates that service of process of the amended writ of summons and complaint was made at the defendant‘s Orange address on May 22, 2014. The defendant again did not respond in any manner to the amended pleading.
On June 16, 2014, the plaintiff filed a motion for default due to the defendant‘s failure to appear. By order dated June 24, 2014, the trial court clerk granted that motion against “Paul Cascella dba CIA Integrated Marketing Systems.” The order further indicated that if the defendant
When the defendant did not file an appearance or otherwise respond to the order, the plaintiff, on July 25, 2014, filed a certificate of closed pleadings and a claim for a hearing in damages on the previously entered default. A hearing in damages was held on September 11, 2014, at which two checks were admitted into evidence. The first, dated January 17, 2013, was drawn on the account of “Integrated Marketing Sys Inc. 27 Lucy St. Woodbridge, CT 06525-2213.” That check, in the amount of $1000, was made payable to “John Ryan Advertising.” The authorized signature on that check is indecipherable. The second check, dated January 20, 2013, was drawn on the account of “On The Road Again LLC 27 Lucy St. Woodbridge, CT 06525.” That check, also in the amount of $1000, was made payable to “John Ryan Advertising.” Although the authorized signature on that check also is indecipherable, it closely resembles the first check that was admitted into evidence as exhibit 1. At the conclusion of the hearing, the court rendered judgment in favor of the plaintiff in the amount of $8429.42. The court also ordered postjudgment interest at the rate of 6 percent.
In accordance with Practice Book § 17-22, the plaintiff mailed notice of that judgment to “Defendant Paul Cascella dba CIA Integrated Marketing Systems” at both his Woodbridge and his Orange addresses. On October 22, 2014, the plaintiff obtained a financial institution execution pursuant to
On June 2, 2015, the plaintiff filed an application for an examination of judgment debtor, which the court granted. A hearing thereon was scheduled for July 20, 2015. The marshal‘s return of service filed with the court indicates that a copy of the plaintiff‘s application and notice of the July 20, 2015 hearing were served on “Paul Cascella dba CIA Integrated Marketing” at his Orange address on July 7, 2015. When the defendant did not appear at that hearing, an assistant clerk of the Superior Court, acting on behalf of the court, Bellis, J., sent a letter addressed to “Paul Cascella” at the Orange address. That correspondence stated in relevant part: “You were ordered to appear before the court for an Examination of Judgment Debtor on July 20, 2015. You failed to appear on that date. You are now requested to appear on August 3, 2015 . . . to comply with the request . . . . If you fail to appear on that day, a capias will be issued for your arrest.” (Emphasis in original.)
The very next day, the court received a written response from Attorney Joshua A. Winnick. In his letter, Winnick stated: “Please be advised that I represent Paul A. Cassella, the sole male resident [at the Orange address] and President of Integrated Marketing Systems, Inc. Mr. Cassella is not now, nor has he ever been, known as Paul Cascella, nor has he ever done business as CIA Integrated Marketing Systems (redacted copy of Mr. Cassella‘s Connecticut driver‘s license and printout from the Secretary of State for Integrated Marketing Systems, Inc. enclosed).4 Marshal William Stuart attempted to make service on Paul Cascella by leaving a complaint and Petition/Application for Examination of Judgment Debtor at [the Orange address]. Similarly, [the
In response, the plaintiff filed a motion to correct that was predicated on Winnick‘s representations in the July 21, 2015 letter. Specifically, the plaintiff asked the court to “recognize that ‘Paul Cascella’ and ‘Paul A. Cassella’ be known to this court for purposes of this proceeding as one [and] the same person. Additionally, [the plaintiff] moves this court to recognize that ‘CIA Integrated Marketing Systems’ and ‘Integrated Marketing Systems, Inc.’ be known to this court for purposes of this proceeding as one [and] the same entity.” That motion further stated that it was predicated on the misstatement of the defendant‘s name and that “[p]ursuant to
On October 19, 2015, Winnick filed an appearance on behalf of the defendant. On that date, he also filed a motion to reargue the motion to correct. In that one page motion, the defendant stated that he sought reargument “on the grounds that Paul A. Cassella dba Integrated Marketing Services, Inc. does not properly describe a party, as required by [General Statutes] § 52-45a and Practice Book § 8-1. A party can be an individual, or a party can be a corporation. A party cannot be an individual doing business as a corporation. An individual doing business as a corporation is not a valid legal entity.”5
The court held a hearing on the defendant‘s motion to reargue, wherein Winnick reiterated the foregoing argument. In so doing, he repeatedly noted that “[t]here‘s always been one defendant” in the case. As Winnick stated: “[T]he point is there‘s only one defendant. That defendant was and still according to the docket sheet, remains a gentleman by the last name of Cascella; C-A-S-C-E-L-L-A. That is not the individual in court with me today.” The plaintiff‘s counsel at that time advised the court that the plaintiff had “pursued this action against [the defendant] in his personal capacity. . . . [W]e‘ve had a . . . judgment in place for over a year against [the defendant] in his personal capacity.” The plaintiff‘s counsel further reminded the court that the motion to correct was due to a “single letter and a misspelling to a party that knows [he is] the proper party . . . .
On December 9, 2015, the defendant filed a motion to open and vacate the October 6, 2015 judgment granting the plaintiff‘s motion to correct. In that motion, the defendant alleged that the court improperly permitted the correction of the defendant‘s name to include “dba Integrated Marketing Systems, Inc.” because that entity is a corporation registered with the state of Connecticut and not a fictitious entity. The defendant alleged that, in granting the plaintiff‘s motion to correct, the court “created the defendant Paul A. Cassella dba Integrated Marketing Systems, Inc., or an individual doing business as a corporation, and a corporation being the trade name of an individual.” Appended to that motion was a document from the office of the Secretary of the State indicating that “Integrated Marketing Systems, Inc.” was incorporated on December 15, 1993. That document further listed “Paul A. Cassella” as both the president and sole director of that corporation. The plaintiff filed an objection to the defendant‘s motion, on which the court heard argument on February 4, 2016.
At that hearing, the defendant argued that the inclu-sion of “dba Integrated Marketing Systems, Inc.” rendered the defendant an “invalid legal entity.” In response, the plaintiff reminded the court that it had obtained a default judgment against the defendant in his personal capacity and thereafter brought a motion to correct the misspelling of his last name pursuant to
Following the commencement of this appeal, the defendant filed a motion for articulation with the trial court. In its written response, the court stated: “The complaint in this matter was served on Paul A. Cassella by abode service at [the Orange address] on February 4, 2014. The original writ, summons and complaint misspelled the defendant‘s last name as Cascella, an obvious scrivener‘s error of one letter. There is no affidavit in the file claiming that Paul A. Cassella was not living at [the Orange address] on February 4, 2014. The issues raised by the defendant concerning ‘doing business as’ are not relevant to the validity of the original judgment
The defendant thereafter filed a motion for review with this court, which sought an articulation of the factual and legal basis of the court‘s decision. This court granted that motion and ordered the court to articulate “the name(s) of the defendant(s) in the underlying matter following the trial court‘s order . . . granting the plaintiff‘s motion to correct” and “the legal basis for its decision granting the plaintiff‘s motion to correct.” The trial court issued a written response on November 23, 2016, in which it clarified that “[t]here is only one defendant, the individual whose name is spelled Paul A. Cassella. He was properly served by abode service with a summons and complaint with a scrivener‘s error spelling the defendant‘s name as Paul A. Cascella . . . . Abode service was made at [the Orange address]. At no time did the defendant claim that his abode was other than at said address. The dba [designation] does not add a second defendant. The court corrected the record to indicate the proper spelling of the sole defendant‘s name.” (Emphasis in original.)
I
The defendant‘s principal contention is that the court improperly granted the plaintiff‘s motion to correct. He claims that the court failed to specify a legal basis for so doing in either its ruling on the motion to correct or its subsequent articulation. The defendant further argues that such correction was improper, as it was beyond the four month proscription of
A
We first address the defendant‘s claim that the court failed to articulate the legal basis of its decision to grant the motion to correct. We note in this regard that, following the court‘s November 23, 2016 articulation, the defendant did not request a further articulation or file a motion for review with this court. The aim of such requests is to enable meaningful appellate review when the basis of a court‘s decision is unclear. See Grimm v. Grimm, 276 Conn. 377, 389, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006). In the present case, the basis of the court‘s decision is abundantly clear.
When the plaintiff moved to correct the identity of the defendant in this case, he did so pursuant to
As we previously have recognized, “this court, as well as our Supreme Court, has held in numerous circumstances that the mislabeling or misnaming of a defendant constituted a circumstantial error that is curable under
Consideration of whether “an amendment simply corrects a misnomer, rather than substitutes a new party” is guided by three factors. Pack v. Burns, 212 Conn. 381, 385, 562 A.2d 24 (1989). Those factors “are that the proper party defendant (1) [had] actual notice of the institution of the action; (2) knew that it was the proper defendant in the action, and (3) was not in any way misled to its prejudice.” (Internal quotation marks omitted.) Id.
It is undisputed that the defendant had actual notice of the proceedings in the present case. As Winnick acknowledged in his July 21, 2015 letter to the court, the defendant received copies of numerous pleadings, which is further evidenced by the multiple returns of service filed with the court by state marshals.7 Those pleadings were sent to the Orange address. In his July 21, 2015 letter to the court, Winnick
The trial court also properly could conclude that the defendant knew that he was the proper defendant in this collection action. As the court emphasized in both its June 29, 2016 and November 23, 2016 articulations, at no time has the defendant disputed that he resided at the Orange address. The record also does not contain any averment, such as a sworn affidavit, that the defendant did not enter into the agreement detailed in the plaintiff‘s complaint. Moreover, the defendant was aware that there was only one defendant in the action.8 As Winnick conceded at the December 3, 2015 hearing on the motion to reargue, “[t]here‘s always been one defendant . . . . [T]he point is there‘s only one defendant.” In light of the foregoing, the court reasonably could conclude that, despite the misspelling of his last name by one letter on the numerous pleadings sent to his home address, the defendant knew that he was the proper defendant in this action. To paraphrase Andover Ltd. Partnership I v. Board of Tax Review, supra, 232 Conn. 400, it is evident that the defendant, rather than an individual with the uncannily similar name of Paul Cascella, was the intended defendant and that the defendant had actual notice of the institution of this action.
In addition, the defendant at no time advanced a claim of prejudice before the trial court. He likewise raised no such claim in his appellate brief to this court. Although at oral argument before this court he claimed that such prejudice was “implicit” in his position, it is well established that “claims on appeal must be adequately briefed, and cannot be raised for the first time at oral argument before the reviewing court.” Grimm v. Grimm, supra, 276 Conn. 393; see also Fairfield Merrittview Ltd. Partnership v. Norwalk, 172 Conn. App. 160, 171 n.19, 159 A.3d 684, cert. denied, 326 Conn. 901, 162 A.3d 724 (2017).
To the extent that the defendant professes any confusion as to the proper identity of the defendant in this case, we repeat that the court, in its November 23, 2016 articulation, confirmed that “[t]here is only one defendant, the individual whose name is spelled Paul A. Cassella. He was properly served by abode service with a summons and complaint with a scrivener‘s error spelling the defendant‘s name as Paul A. Cascella . . . . The dba [designation] does not add a second defendant. The court corrected the record to indicate the proper spelling of the sole defendant‘s name.” (Emphasis in original.)
The foregoing plainly indicates that the court was presented with a motion to correct a misnomer pursuant to
B
The defendant also claims that the court lacked authority to grant the plaintiff‘s motion to correct, as that motion was filed more than four months after the default
In Dyck O‘Neal, Inc. v. Wynne, 56 Conn. App. 161, 742 A.2d 393 (1999), this court was presented with, and rejected, the very claim advanced by the defendant in this appeal. The defendant in that case appealed from the judgment of the trial court granting a motion to correct a party‘s name. Id., 163. On appeal, the defendant claimed that the trial court lacked authority to grant that motion because it “was filed beyond the four month period allowed by . . .
II
As a final matter, the defendant claims that the court improperly denied his motion to open and vacate its October 6, 2015 judgment granting the plaintiff‘s motion to correct. That claim is reviewed under the abuse of discretion standard, which requires this court to “give every reasonable presumption in favor of [the] decision‘s correctness and . . . disturb the decision only where the trial court acted unreasonably or in a clear abuse of discretion.” GMAC Mortgage, LLC v. Ford, 178 Conn. App. 287, 295, 175 A.3d 287 (2017). Although the defendant maintains that the court should have opened the judgment to cite in Integrated Marketing Services, Inc., as a party defendant, the fact remains that the default judgment in this case was rendered against the defendant in his personal capacity, as the court emphasized in its November 23, 2016 articulation. On the particular facts and circumstances of this case, we conclude that the court did not abuse its discretion in refusing to open and vacate its decision on the plaintiff‘s motion to correct.
The judgment is affirmed.
In this opinion the other judges concurred.