Ryan v. Cassella , 180 Conn. App. 461 ( 2018 )

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JOHN RYAN v. PAUL A. CASSELLA
(AC 38910)
Sheldon, Elgo and Shaban, Js.
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 identi-
fied 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 mar-
shal’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 (§ 52-
123), which permits in certain circumstances the correction of a misno-
mer when it does not result in prejudice to the parties. The trial court
summarily granted the plaintiff’s motion to correct and, thereafter,
denied C’s motion to open and vacate the court’s order granting the
motion to correct, and C appealed to this court. Subsequently, the trial
court issued an articulation clarifying its decision on the plaintiff’s
motion to correct. Held:
1. 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 communica-
tions 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 author-
ity 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.
2. 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.
Argued December 11, 2017—officially released March 27, 2018
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 judg-
ment, and the defendant appealed to this court; subse-
quently, the court, Hon. Edward F. Stodolink, judge
trial referee, issued an articulation of its decision.
Affirmed.
Joshua A. Winnick, for the appellant (defendant).
Opinion
ELGO, J. This is a case about a misspelled last name.
The defendant, Paul A. Cassella, appeals from the denial
of his motion to open the judgment of the trial court,
following the granting of a motion to correct the default
judgment rendered in favor of the plaintiff, John Ryan,1
in the amount of $8429.42. On appeal, the defendant
claims that the court (1) improperly granted the motion
to correct filed by the plaintiff and (2) abused its discre-
tion in denying his motion to open. We disagree and,
accordingly, affirm the judgment of the trial court.
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, Connecti-
cut’’ (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 appear-
ance 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 pro-
vided 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 filed an appearance before judgment
was rendered, ‘‘the default for failure to appear shall
automatically be set aside by operation of law.’’ A copy
of that order was sent to 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 evi-
dence. 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 resem-
bles 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 inter-
est at the rate of 6 percent.
In accordance with Practice Book § 17-22, the plain-
tiff 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 General Statutes § 52-367b
against ‘‘Paul Cascella dba CIA Integrated Marketing
Systems’’ as the judgment debtor.
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 Sys-
tems, 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 plaintiff’s attorneys] have [sent] certified copies of
pleadings to Paul Cascella at that address, and the court
has attempted to give notice to Paul Cascella at that
address that a capias will be issued against him if he
does not appear in Bridgeport Superior Court on August
3, 2015 (copy of July 20, 2015 letter enclosed). Obvi-
ously, since Paul Cascella does not reside at [the Orange
address], all of the documents served on him and mailed
to him at that address are not valid and have no legal
consequence. Finally, if a capias is issued for Paul Cas-
cella as a result of his failure to appear in court on
August 3, 2015, it should not be served on Paul A. Cas-
sella. Please contact me if you have any questions about
this letter.’’ (Emphasis in original; footnote added.)
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 Market-
ing 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]ursu-
ant to General Statutes § 52-123, this circumstantial
defect shall have no bearing on the judgment in this
case.’’ The plaintiff served a copy of that motion to
correct on the defendant on September 8, 2015, at both
the Orange address and at 17 Anns Farm Road in Ham-
den, as documented in the marshal’s return of service
filed with the court. The defendant did not respond in
any manner to that pleading. By order dated October
6, 2015, the court summarily granted the plaintiff’s
motion to correct.
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 rear-
gument ‘‘on the grounds that Paul A. Cassella dba Inte-
grated 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 individ-
ual, 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 defen-
dant. 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 capac-
ity. . . . [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 . . . . [T]he party had actual notice. . . . [I]f
Mr. Cassella wanted to contend that he was not the
proper party here . . . then he should’ve appeared and
. . . stated as such.’’ The plaintiff’s counsel also indi-
cated to the court that he had no objection to the
removal of all references to the defendant’s business
entity, stating: ‘‘[I]f the court wanted to do away with
this Integrated Marketing Systems, Inc., that would be
perfectly fine. . . . [T]he reality is [that the plaintiff
has] a judgment against [the defendant] in his personal
capacity . . . .’’ Following that hearing, the court
issued an order denying the defendant’s motion to
reargue.
On December 9, 2015, the defendant filed a motion
to open and vacate the October 6, 2015 judgment grant-
ing 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 docu-
ment further listed ‘‘Paul A. Cassella’’ as both the presi-
dent 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.’’ ren-
dered 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
§ 52-123. As the plaintiff’s counsel stated, ‘‘we inadver-
tently put a C where there should have been an S in
[the defendant’s] name.’’ The plaintiff thus asked the
court ‘‘to continue to recognize that [the plaintiff has]
a judgment against [the defendant] in his personal
capacity.’’ At the conclusion of the hearing, the court
orally denied the defendant’s motion to open and vacate
the judgment and issued an order to that effect later
that day. When the defendant requested a statement of
that decision, the court issued a further order on March
2, 2016, which stated: ‘‘Memorandum of Decision. Attor-
ney Joshua Alan Winnick by his appearance dated Octo-
ber 19, 2015, appeared for ‘Paul Cascella dba Integrated
Marketing Systems.’ There is no appearance for ‘Inte-
grated Marketing Systems, Inc.’ By motion dated July
22, 2015, the defendant’s name was corrected to Paul
A. Cassella rather than Paul Cascella. Motion to open
and vacate judgment dated December 9, 2015, against
Paul A. Cassella individually is denied.’’
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 mis-
spelled the defendant’s last name as Cascella, an obvi-
ous 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
dated September 11, 2014, against [the defendant]. Fur-
ther articulation is not necessary.’’
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 mat-
ter 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 defen-
dant’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 General Statutes
§ 52-212a.
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 § 52-
123, claiming that the correction of ‘‘this circumstantial
defect shall have no bearing on the judgment in this
case.’’ As the plaintiff stated at the hearing on the defen-
dant’s motion to reargue, his motion to correct was
properly granted because he had misspelled the defen-
dant’s name by ‘‘a single letter’’ and the defendant had
actual notice of the proceedings against him. The plain-
tiff further submitted that such correction was consis-
tent with the ample body of case law on § 52-123.6 In
summarily granting the plaintiff’s motion to correct and
denying the defendant’s motion to reargue, the trial
court plainly agreed with that contention, as do we.
Section 52-123 provides: ‘‘No writ, pleading, judgment
or any kind of proceeding in court or course of justice
shall be abated, suspended, set aside or reversed for
any kind of circumstantial errors, mistakes or defects,
if the person and the cause may be rightly understood
and intended by the court.’’ As our Supreme Court has
observed, § 52-123 is ‘‘a remedial statute and therefore
it must be liberally construed in favor of those whom the
legislature intended to benefit. . . . The statute applies
broadly to any writ issued in a civil action . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Ando-
ver Ltd. Partnership I v. Board of Tax Review, 232
Conn. 392, 396, 655 A.2d 759 (1995). Moreover, that
statutory imperative ‘‘is mandatory rather than direc-
tory . . . .’’ Id., 401.
As we previously have recognized, ‘‘this court, as well
as our Supreme Court, has held in numerous circum-
stances that the mislabeling or misnaming of a defen-
dant constituted a circumstantial error that is curable
under § 52-123 when it did not result in prejudice to
either party.’’ (Emphasis in original.) America’s Whole-
sale Lender v. Pagano, 87 Conn. App. 474, 478, 866 A.2d
698 (2005). Our Supreme Court likewise has described
‘‘a defendant designated by an incorrect name’’ as a
‘‘classic example’’ of a ‘‘misnomer’’ that qualifies as ‘‘a
circumstantial defect anticipated by . . . § 52-123
. . . .’’ Lussier v. Dept. of Transportation, 228 Conn.
343, 350, 636 A.2d 808 (1994). As the court explained
in another case involving a misnamed defendant: ‘‘The
identity of the defendant was originally and at all times
the same in the mind of the plaintiff and the entity is
one and the same whether it be a contractual entity (a
partnership), an artificial entity (a corporation), or a
personal entity (an individual); its name is the same
and its liability is the same and enforceable by the same
remedies. . . . The change made by the amendment
did not affect the identity of the party sought to be
described, but merely made correct the description of
the real party sued; it did not substitute or bring in a
new party.’’ World Fire & Marine Ins. Co. v. Alliance
Sandblasting Co., 105 Conn. 640, 643, 136 A. 681 (1927).
The court further stated that ‘‘[t]he effect given to such
a misdescription usually depends upon the question
whether it is interpreted as merely a misnomer or defect
in description, or whether it is deemed a substitution or
entire change of party; in the former case an amendment
will be allowed, in the latter it will not be allowed.’’
(Internal quotation marks omitted.) Id., 643–44.
Consideration of whether ‘‘an amendment simply cor-
rects 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 also appended a
copy of the defendant’s driver’s license, which con-
firmed that he resided at the Orange address. At oral
argument before this court, Winnick acknowledged that
the defendant resided at that address and received those
communications.
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 defen-
dant 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 defen-
dant.’’ 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 ade-
quately 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 confu-
sion 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 pursu-
ant to § 52-123 and granted that motion in accordance
with well established law. Because the plaintiff’s motion
to correct ‘‘falls squarely within the purview of § 52-
123’’; Lussier v. Dept. of Transportation, supra, 228
Conn. 352–53; we conclude that the court properly
granted that motion.
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 judgment was rendered, in contravention of
§ 52-212a. He is mistaken.
Section 52-212a provides in relevant part: ‘‘Unless
otherwise provided by law and except in such cases
in which the court has continuing jurisdiction, a civil
judgment or decree rendered in the Superior Court may
not be opened or set aside unless a motion to open or
set aside is filed within four months following the date
on which it was rendered or passed. . . .’’ As our
Supreme Court has explained, ‘‘the substantive provi-
sions of § 52-212a are fully enforceable as a limitation
on the authority of the trial court to grant relief from
a judgment after the passage of four months. Thus con-
strued, § 52-212a operates as a constraint, not on the
trial court’s jurisdictional authority, but on its substan-
tive authority to adjudicate the merits of the case before
it.’’ Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809
(1999).
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 defen-
dant claimed that the trial court lacked authority to
grant that motion because it ‘‘was filed beyond the four
month period allowed by . . . § 52–212a.’’ Id. This
court disagreed. After reviewing § 52-123 and related
case law regarding circumstantial defects involving mis-
nomers, the court concluded that ‘‘the trial court had
the authority to correct the judgment to reflect the
proper name of the substitute plaintiff.’’ Id., 164. The
court further opined that the defendant’s argument to
the contrary ‘‘would provide her with a windfall as a
result of a misnomer.’’ Id., 167. Such is the case here.
We therefore conclude that § 52-212a did not preclude
the court from granting the plaintiff’s motion to correct
a technical defect in a party’s name pursuant to § 52-123.
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] deci-
sion’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 empha-
sized in its November 23, 2016 articulation. On the par-
ticular 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.
1
Although the plaintiff is identified as ‘‘John Ryan dba JSR Advertising’’
in the operative complaint, our Supreme Court has explained that ‘‘the use
of a fictitious or assumed business name does not create a separate legal
entity . . . [and] [t]he designation [doing business as] . . . is merely
descriptive of the person or corporation who does business under some
other name . . . . [I]t signifies that the individual is the owner and operator
of the business whose trade name follows his, and makes him personally
liable for the torts and contracts of the business . . . .’’ (Internal quotation
marks omitted.) Monti v. Wenkert, 287 Conn. 101, 135, 947 A.2d 261 (2008);
see also Edmands v. CUNO, Inc., 277 Conn. 425, 454 n.17, 892 A.2d 938 (2006)
(‘‘The plaintiffs have neither asserted nor provided us with any authority
that the designation of Edmands as an individual ‘doing business as’ Eastern
precludes Edmands’ personal liability. Our research suggests a contrary
rule.’’); Black’s Law Dictionary (9th Ed. 2009) p. 455 (explaining that dba
abbreviation ‘‘precedes a person’s or business’s assumed name . . . [and]
signals that the business may be licensed or incorporated under a differ-
ent name’’).
We further note that although the plaintiff filed an appearance in this
appeal, he did not submit an appellate brief. Accordingly, pursuant to this
court’s April 10, 2017 order, the present appeal will be considered on the
basis of the defendant’s brief and appendices and the record of this case.
2
We reiterate that, under Connecticut law, inclusion of the acronym ‘‘dba’’
in a party’s name does not create a separate legal entity. See footnote 1 of
this opinion. Accordingly, the inclusion of ‘‘dba CIA Integrated Marketing
Systems’’ in the plaintiff’s complaint merely was descriptive of the named
defendant, Paul Cascella, and signified that he was personally liable for the
torts and contracts of that business. See Monti v. Wenkert, 287 Conn. 101,
135, 947 A.2d 261 (2008).
3
The breach of contract allegations in the amended complaint are identical
to those set forth in the original complaint.
4
The name on the Connecticut driver’s license furnished to the court is
‘‘Paul A. Cassella.’’ The address specified on that license is the Orange
address.
5
We note that although the defendant in his motion to reargue claimed
that ‘‘Paul A. Cassella dba Integrated Marketing Services, Inc., does not
properly describe a party,’’ the plaintiff did not utilize such nomenclature
in his motion to correct. The court likewise never referred to the defendant
as ‘‘Paul A. Cassella dba Integrated Marketing Services, Inc.,’’ at any time.
6
The defendant does not cite or otherwise acknowledge § 52-123 in his
appellate brief.
7
The record indicates that, prior to filing an appearance in this case, the
defendant received copies of the original summons and complaint, the May
21, 2014 amended summons and complaint, multiple motions for default
for failure to appear, the June 24, 2014 notice of default, the July 25, 2014
certificate of closed pleadings, the September 11, 2014 notice of judgment,
the October 15, 2014 bill of costs, the June 2, 2015 application for an examina-
tion of the judgment debtor, the court’s July 20, 2015 letter regarding the
defendant’s failure to appear, and the plaintiff’s July 22, 2015 motion to
correct. As was the case in Dyck O’Neal, Inc. v. Wynne, 56 Conn. App. 161,
166–67, 742 A.2d 393 (1999), the defendant ‘‘was aware of every step of the
proceedings’’ in this case.
8
The inclusion of a ‘‘dba’’ designation in the operative complaint did not
add a second party to the action. See footnotes 1 and 2 of this opinion.