37 Conn. App. 7 | Conn. App. Ct. | 1995
The defendant appeals from a judgment rendered in favor of the plaintiff in the amount of $261,122.96. The defendant claims that the trial court improperly (1) conducted a hearing in damages after he filed an answer that required the clerk “automatically” to set aside an earlier default for failure to plead, (2) granted the plaintiff’s motion to strike the defendant’s notice of intention to contradict the plaintiff’s allegations at the hearing in damages, and (3) denied the defendant’s motion to file a late notice of defenses as to the hearing in damages. We disagree with all of the
The plaintiff’s complaint alleged that the defendant received certain valuable coins, a firearm and other articles that were stolen in a burglary of the plaintiff’s home. The court granted the plaintiff’s motion for default for failure to plead on January 17, 1992, and the clerk sent notice of the default to all parties on January 22, 1992.
On February 6, 1992, the defendant filed a motion to set aside the default pursuant to Practice Book § 376.
The trial court denied the defendant’s motion to strike, stating in its memorandum of decision that “[ajccordingly, the defendant was defaulted not because he failed to plead but because he failed to comply with
The defendant then filed a motion for permission to file a late “notice of defenses as to hearing in damages.” That motion was denied by the trial court, and a hearing in damages was held on July 7,1993. The trial court awarded the plaintiff compensatory damages of $78,245, which were trebled pursuant to General Statutes § 52-564.
I
The defendant first contends that he is entitled to use Practice Book §§ 376 and 363A because both sections address the setting aside of defaults and there is no express prohibition in the rules against using the sections seriatim. He reads the rules to allow a second opportunity to set aside a default. We disagree with the defendant’s interpretation of the rules.
“The 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); Brown v. Smarrelli, 29 Conn. App. 660, 663, 617 A.2d 905 (1992) , cert. denied, 225 Conn. 901, 621 A.2d 284 (1993) . Two principles of statutory construction militate against the interpretation urged upon us by the defendant. The first principle is: “[W]hen two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes . . . [and] where there is a reasonable field of operation for each statute which does not impinge on the domain of the other, it is the court’s duty to give them concurrent effect.” (Internal quotation marks omitted.) Windham First Taxing District v. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988); see also McCarthy v. Commissioner of Correction, 217 Conn. 568, 578, 587 A.2d 116 (1991).
Practice Book § 363A took effect on October 1,1990, long after the adoption of Practice Book § 376.
Practice Book §§ 376 and 363A can be made compatible by limiting each to its proper sphere of operation. Section 376 applies to all defaults and permits the court to set aside such defaults prior to judgment. A party who is defaulted for a reason other than failure to plead must use this section. A defendant who wants to file a pleading that precedes the answer may also resort to this section. In contrast, § 363A applies only to defaults for failure to plead and only when the defendant elects to waive the right to file preceding pleadings by filing an answer prior to judgment.
Upon being defaulted for failure to plead, the defendant must make a choice of which section to invoke. To decide otherwise would run counter to a second well settled rule of statutory construction. Neither statutes nor court rules should be interpreted in a way that leads to bizarre results. “When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results.” (Internal quotation marks omitted.) Gabrielle v. Hospital of St. Raphael, 33 Conn. App. 378, 386, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994). “[I]n construing a statute, common sense must be used and courts will assume that [the legislature intended to accomplish] a reasonable and rationale result . . . .” (Citations omitted; internal quotation marks omitted.) Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 737, 563 A.2d 1347 (1989).
A rational result may be obtained by interpreting the rules to require that the defendant elect his remedy. A defaulted defendant could take the guaranteed set aside of § 363A by filing an answer or invoke the court’s discretion pursuant to § 376. This would effect the judicial economy inherent in streamlining the short calendar pursuant to § 363A without impinging on the exercise of the court’s authority to deny a motion to set aside such a default or to attach conditions thereto pursuant to § 376.
We conclude that once the defendant invoked the court’s discretion pursuant to § 376, he was bound by the court’s order thereon and was not entitled to the benefit of § 363A with respect to the same default.
The defendant next claims that the court’s order striking his “notice as to hearing in damages” was improper for two reasons. First, he asserts that a motion to strike is not the proper vehicle to address such a notice and, second, he contends that the ten day period pursuant to Practice Book § 368
A
The defendant correctly asserts that a motion to strike tests the legal sufficiency of a pleading. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). He argues that because the attack on the notice addressed its timeliness rather than its legal sufficiency, the motion to strike was improper. In support of this argument, the defendant cites Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 528, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989), for the proposition that the proper way to raise a claim that a cause of action is time barred is by way of a special defense, not a motion to strike.
We do not need to address the issue of whether a motion to strike or a special defense is the proper way to raise a timeliness claim pursuant to § 368 because Practice Book § 373
Even though the plaintiff’s motion here is labeled “motion to strike” and invokes Practice Book § 151,
There is nothing in the plaintiff’s motion to strike that addresses the legal sufficiency of the defendant’s notice of defenses. The sole claim made by the plaintiff is that the notice was untimely. This “motion” is, therefore, more properly viewed as an objection to the filing of the notice rather than a pleading that attacks the contents of the notice. Although the trial court ruled that the “motion is appropriate to address the legal sufficiency of what is in effect an answer,” we may affirm the trial court’s ruling on an alternative ground supported by the record. See Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992); Latimer v. Administrator, 216 Conn. 237, 252, 579 A.2d 497 (1990); In re Jennifer G., 29 Conn. App. 689, 693, 617 A.2d 921 (1992).
It is necessary to treat the plaintiff’s motion as an objection in order to achieve a rationale result in read
B
The defendant further asserts that there was no notice of a default that triggered the ten day provisions of § 368. He also claims in the alternative that § 368 provides that a notice of defenses can be filed, in the case of a denial of a motion to strike, within ten days from the expiration of the time limited for pleading over. The defendant’s notice here was filed within ten days of the trial court’s denial of his motion to strike the case from the hearing in damages list.
We address the defendant’s alternative claim first because it is easily refuted. The part of § 368 that he cites refers only to a situation where a party has a right to plead over.
The trial court’s order of February 25,1992, granting the defendant’s motion to set aside the default for failure to plead on certain conditions constituted what is commonly referred to as a nisi order. Ballentine’s Law Dictionary defines nisi as: “Unless, if not: except.” Such orders are conditional and empower the affected party either to avoid an adverse order of the court or to cause an existing adverse order to be set aside or vacated by complying with the specified conditions.
The notice that triggered the ten day provisions of § 368 was, therefore, the January 22, 1992 notice of default for failure to plead. Because that default was never set aside, the trial court’s statements that the defendant was defaulted for failure to comply with the conditions set on February 25,1992, and that the order of February 25 was the notice of default, were of no consequence. Although the trial court referred to Practice Book § 351,
The plaintiff’s assertion that the February 25,1992 order of the trial court could not be notice because the ten days would have run prior to the expiration of the time period within which the defendant could have complied with the court’s conditions is also without merit.
Normally a default conclusively determines liability. Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987). Pursuant to § 367, a defaulted defendant who files a timely notice of defenses can contradict the allegations of the complaint and prove matters of defense in addition to contesting the amount of damages. This approximates what the defendant would have been able to do if he had filed an answer and special defenses. In order to obtain this extraordinary relief, the defendant must act within ten days of the notice of a default “[i]n all actions where there may be a hearing in damages . . . .” (Emphasis added.) Practice Book § 368. A party who allows the ten day period from the notice of a default to expire without filing a notice of defenses does so at his peril. The defendant elected to appeal to the court’s discretion pursuant to § 376 without filing a timely notice of defenses as a precaution in the event the court denied his motion to set aside the default. He then chose to ignore the opportunity presented by the court to effect a set aside of the default. The trial court properly precluded the May 18,1992 notice of defenses because the ten day period for doing so had expired over three and one-half months earlier.
Ill
The defendant’s final claim is that the trial court improperly denied his motion to file a late notice of defenses as to a hearing in damages. The defendant’s motion to file a late notice of defenses was addressed to the sound discretion of the trial court. We reverse discretionary rulings of the trial court only where such discretion has been abused and has caused prejudice or injustice. See State v. Denby, 35 Conn. App. 609, 620, 646 A.2d 909 (1994); State v. Harrison, 34 Conn.
In view of all of the circumstances here, including the fact that the notice of defenses was filed more than three and one-half months late, we conclude that the trial court did not abuse its discretion in denying the motion to file a late notice of defenses.
The judgment is affirmed.
In this opinion the other judges concurred.
Practice Book § 376 provides in pertinent part: “A motion to set aside a default where no judgment has been rendered may be granted by the court for good cause shown upon such terms as it may impose. ...”
Practice Book § 363A provided at the time of the action: “Where a defendant is in default for failure to plead pursuant to Sec. 114, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar.
“If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the court, the clerk shall set aside the default.”
Practice Book § 351 provides in pertinent part: “If a party fails to comply with an order of court . . . he may be nonsuited or defaulted by the court.”
Practice Book § 367 provides: “In any hearing in damages upon default suffered or after a denial of a motion to strike, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff’s complaint, except such as relate to the amount of damages, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall he be permitted to prove any matter of defense, unless he has given written notice to the plaintiff of his intention to deny such right or to prove such matter of defense.”
Practice Book § 368 provides in pertinent part: “In all actions in which there may be a hearing in damages, notice of defenses [as allowed by § 367] must be filed within ten days after notice from the clerk to the defendant that a default has been entered, and in case of the denial of a motion to strike, within ten days from the expiration of the time limited for pleading over.”
General Statutes § 52-564 provides: “treble damages for theft. Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”
Practice Book § 376 was adopted in 1978.
We note that Practice Book § 363A was amended effective as of October 1,1992, to provide: “If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the court.”
See footnote 2.
Practice Book § 112 sets out the pertinent order of pleading as: “(1) The plaintiffs complaint. (2) The defendant’s motion to dismiss the complaint. (3) The defendant’s request to revise the complaint. (4) The defendant’s motion to strike the complaint. (5) The defendant’s answer (including any special defenses) to the complaint. . . .” Practice Book § 113 provides that except where the court rules otherwise, the filing of a pleading “will waive the right to file any pleading . . . which precedes it in the order of pleading provided in [§ 112].”
Our discussion is focused on Practice Book § 363A as it existed at the time of the pleadings in this case. The amended § 363A requires resort to the court’s discretion if a claim for a hearing in damages or a motion for judgment is filed before the answer is filed.
See footnote 5.
Practice Book § 373 provides: “The plaintiff shall file no pleading to such notice, but may meet the facts set up therein by any proper evidence.”
Practice Book § 151 is entitled “Motion to Strike.”
General Statutes § 8-132 provides for judicial review of such compensation in a condemnation case and is entitled “Appeal by owner.”
See footnote 5.
An example of the former is an order by this court that an appellant’s appeal will be dismissed if the appellant’s brief is not filed by a certain date. If the appellant fails to file the brief on or before the designated date, the dismissal enters as of that date without further order of the court.
See footnote 3.
The defendant’s claim that he was entitled to notice of his own failure to comply with the nisi order defies logic and common sense. In addition, such a requirement would place an unnecessary and onerous burden on the clerk’s office because the clerk would have to set up a system to monitor such orders and to notify noncomplying parties of that which they already know.