63 Conn. App. 544 | Conn. App. Ct. | 2001
Opinion
The defendants
The following facts and procedural history are relevant to this appeal. The plaintiff commenced this action
Pursuant to General Statutes § 52-212,
We first set forth our standard of review. “A motion to open and vacate a judgment filed during the four months after which judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985). We will indulge every reasonable presumption in favor of affirming the judgment. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466-67, 440 A.2d 159 (1981).
A motion to set aside a default judgment is governed by Practice Book § 17-43 and General Statutes § 52-212. “Section 52-212 requires a party moving for the opening of a judgment to make a two part showing that: (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of ‘mistake, accident or other reasonable cause.’ ” In re Baby Girl B., 224 Conn. 263, 284, 618 A.2d 1 (1992).
A court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court’s authority. Black
The defendants argue that their counsel’s negligence was “gross” or “wilful” and, therefore, constitutes “reckless conduct.”
The judgment is affirmed.
In this opinion the other judges concurred.
The defendants are Ritz Realty Corporation and Shlomo Oz. A third defendant, Quality Towing Corporation, did not join in the motion to open the judgment that was filed by Ritz Realty Corporation and Shlomo Oz, and, therefore, has not appealed from the court’s denial of that motion.
The defendants also claim that the court failed to consider and rale on their alleged defenses, which they allege may have implicated subject matter jurisdiction, and therefore abused its discretion in proceeding to deny their motion to open. In view of our affirmance of the court’s judgment, we need not address the claim further.
Although it is not necessary to do so, we briefly summarize the plaintiffs allegations as follows: The defendant Ritz Realty Corporation owns and operates a retail shopping center in Norwalk known as Riverview Plaza, which is managed and supervised by the defendant Shlomo Oz. In May, 1998, it hired the defendant Quality Towing Corporation, a New York company, which is not licensed or authorized to transact business in Connecticut, to enforce “parking rules” in the shopping center. The defendants implemented and executed certain practices against persons whom they believed had violated the rules. Specifically, the defendants immobilized any vehicle thought to be in violation of those rules with a wheel-locking tire boot. The defendants required members of the public, whose cars were “booted,” to pay a “release fee” of $125 to them before they would remove the device. In addition, the defendants required the owners or operators of booted vehicles to sign written statements admitting that they had parked their cars in an illegal manner on private property and that they were waiving all rights to any legal action against the defendant Quality Towing Corporation. The plaintiff alleged that those practices violated Connecticut statutes, including the Connecticut Unfair Trade Practices Act, and public policy.
The defendants did not file special defenses with their pleading. The same attorney, Abram Heisler, represented all three defendants in this action.
General Statutes § 42-110m (a) provides in relevant part: “Whenever the commissioner has reason to believe that any person has been engaged or is engaged in an alleged violation of any provision of this chapter said commissioner may proceed as provided in sections 42-1 lOd and 42-110e or may request the Attorney General to apply in the name of the state of Connecticut to the Superior Court for an order temporarily or permanently
General Statutes § 52-212 provides: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
“(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.
The defendants have indicated in their brief that they are proceeding with a legal malpractice claim against Heisler. That claim is not part of the record before us. The record discloses that counsel entered his appearance for all defendants, filed an answer, attended a pretrial conference, produced some business records as informal discovery and represented the defendants at the hearing in damages.
See footnote 2.