Kearse v. Taylor , 165 Conn. App. 780 ( 2016 )

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SAMUEL KEARSE v. PRISCILLA B. TAYLOR ET AL.
(AC 38031)
Lavine, Alvord and Sheldon, Js.
Argued April 13—officially released May 31, 2016
(Appeal from Superior Court, judicial district of New
Haven, Hon. John C. Flanagan, judge trial referee.)
Robert M. Singer, for the appellants (defendants).
Jeremy C. Virgil, with whom, on the brief, was
Michael S. Samsel, for the appellee (plaintiff).
Opinion
PER CURIAM. The defendants, Priscilla B. Taylor
and John Nicolas Tieman, temporary administrator of
the estate of Paul Bradley Taylor, Jr.,1 appeal from the
trial court’s denial of their motion to open a default
judgment rendered after a hearing in damages. On
appeal, the defendants claim that the court improperly
denied their motion as untimely because the court failed
to send them notice that a default judgment had been
rendered against them. We reverse the judgment of the
trial court and remand the case for further proceedings.
The record reveals the following relevant factual and
procedural history. On January 17, 2007, the plaintiff
suffered severe burn injuries while a tenant at the New
Haven apartment building owned by the defendants.
On December 1, 2008, he commenced the present action
against the defendants, alleging that he was relighting
a gas stove for purposes of generating heat for his
dwelling when his clothing caught fire. He alleged that
the defendants were liable for the injuries he sustained
because they knew the apartment building was not ade-
quately heated and they failed to maintain and repair
the premises. On December 19, 2008, Attorney Patricia
A. Cofrancesco filed an appearance on behalf of the
defendants. On July 29, 2009, Attorney Howard A. Law-
rence filed an appearance on behalf of the defendants
in lieu of Attorney Cofrancesco’s appearance.
While the action was pending, the plaintiff filed an
application for a prejudgment remedy against Priscilla
Taylor, which was granted by the court, A. Robinson,
J., on January 24, 2012, in the amount of $2 million.2
On March 20, 2012, the plaintiff filed a motion to default
the defendants for failure to disclose assets to satisfy
the prejudgment remedy and for failure to plead. Judge
Robinson granted the plaintiff’s motion, absent objec-
tion, on April 16, 2012. On July 27, 2012, apparently
unbeknownst to the parties or the plaintiff’s counsel,
Lawrence was placed on inactive status3 for an indefi-
nite period by the court, Silbert, J., in Disciplinary
Counsel v. Lawrence, Superior Court, Judicial District
of New Haven, Docket No. CV-12-6028710-S (2012). In
that order, the court appointed ‘‘Attorney Michael
Moskowitz . . . as Trustee to inventory Mr. Law-
rence’s files and protect the interests of Mr. Lawrence
and of his clients.’’
On September 20, 2012, which was approximately
two months after Lawrence had been placed on inactive
status, the plaintiff filed a motion for the court to render
a judgment on the default entered on April 16, 2012,
and a request for a hearing in damages. The plaintiff
certified that he sent a copy of that motion and request
to Lawrence. No notice was sent to the individual defen-
dants. Judge Robinson granted the motion for judgment
on the default on October 22, 2012. A court-generated
notice of the ruling was sent to all counsel of record.
At that time, the court file showed Lawrence as the
defendants’ attorney of record even though he had been
placed on inactive status. Accordingly, notice was sent
to Lawrence.
A hearing in damages was scheduled for November
28, 2012. On November 27, 2012, the plaintiff filed exhib-
its for the hearing, including the plaintiff’s affidavit,
photographs of the plaintiff at the hospital and during
recovery, a medical bill summary, and 369 pages of
medical records. At the outset of the hearing in dam-
ages, the court, Hon. John C. Flanagan, judge trial
referee, expressly acknowledged the absence of Law-
rence and the defendants. In response, the court clerk
informed the court that Lawrence’s juris number was
inactive. The court then stated: ‘‘Well, I happen to know
from a collateral issue that his right to practice was
suspended by Judge Silbert. He did not disbar him, but
he simply suspended his right to practice law until some
medical issues have been resolved. . . . Oh, and inci-
dentally, also I learned that another individual had been
appointed trustee.’’ The court asked the clerk whether
Lawrence had ever withdrawn his appearance for the
defendants, and the clerk responded ‘‘no.’’ The court
noted that there was no evidence in the file that Law-
rence had referred this matter to any other attorney to
represent the defendants. The court then stated that it
had concerns: ‘‘The lawyer [Lawrence] did appear in
the case and the lawyer has never filed a motion to
withdraw his appearance, so he is still the counsel of
record and it disturbs me a little bit that the defendants
are not presently here to defend the matter in any way.’’
Nevertheless, because the defendants had been
defaulted, so that liability was not an issue, the court
decided to proceed with the hearing in damages.4 ‘‘On
the other hand, I do have the information which consists
primarily of representations by the attorney represent-
ing the plaintiff, so it would seem to me, that fact cou-
pled with the historical series of events with respect
to the liability portion of the case would leave me to
believe that it’s an order of the court at this time to
make a finding with respect to the amount of money
that would represent a fair, just and reasonable compen-
sation for the injuries and losses the plaintiff has sus-
tained.’’ The court thereafter referred to the medical
bills and the ‘‘emotional impact’’ of the injuries on the
plaintiff, and rendered a judgment in favor of the plain-
tiff in the amount of $2,841,914.84.5 On the ‘‘order’’
reflecting the November 28, 2012 judgment after a hear-
ing in damages, it was noted that counsel for the plaintiff
had been present at the time the judgment was ren-
dered, that a court-generated notice of the judgment
had been issued on December 3, 2012, to all counsel
of record, and that a ‘‘copy of [the] judgment [was]
mailed to Mike Moscowitz (sic), trustee, on 12/3/12.’’6
On March 27, 2015, the defendants’ current counsel
filed an appearance on behalf of the defendants in lieu
of Lawrence’s July, 2009 appearance. On that same date,
the defendants filed a motion to open the November 28,
2012 default judgment. In that motion, the defendants
claimed that they never received notice that the judg-
ment had been rendered and that they had a good and
valid defense to the action. With respect to their
defense, the defendants claimed that ‘‘the ambulance
report and hospital records submitted to the court indi-
cate that the plaintiff set himself on fire thereby
attempting suicide, causing his own injuries.’’7 In sup-
port of their motion, the defendants filed a memoran-
dum of law and attached copies of various pages from
the medical reports. The plaintiff filed an objection to
the defendants’ motion, arguing that the motion was
untimely because it had not been filed within four
months of the date that they received notice of the
default judgment. In support of his objection, the plain-
tiff filed his attorney’s affidavit, copies of pleadings and
court orders in the file, and copies of documents filed
in the bankruptcy court in connection with a chapter
13 bankruptcy petition filed by Priscilla Taylor in 2013.
Thereafter, both parties filed supplemental replies to
support their respective positions.
On April 28, 2015, the defendants filed a request for
oral argument and the opportunity to present testimony
with respect to their motion to open the judgment. That
request was denied, no hearing was held, and Judge
Flanagan issued his ruling on May 21, 2015, denying
the defendants’ motion to open the judgment without
explanation. The defendants filed an appeal from the
court’s judgment on June 5, 2015, which they amended
on June 8, 2015, to correct the name of the defendant
from Patricia Taylor to Priscilla Taylor. On June 9, 2015,
the defendants filed an additional appeal form that, this
time, showed the payment of an entry fee and the court
clerk’s signature and date.
On June 29, 2015, the court issued a memorandum
of decision that provided the reasons for its denial of
the defendants’ motion to open the judgment. The court
noted that the notice of the default judgment had been
sent to Moskowitz, the trustee for Lawrence, and that
the defendants’ motion was not filed within the four
month period required by Practice Book § 17-43.8 The
defendants filed a motion for articulation with this court
on July 6, 2015, requesting that the trial court clarify
the last paragraph in its memorandum of decision. The
trial court scheduled the motion for argument on July
29, 2015. By memorandum of decision dated July 31,
2015, the trial court provided the following articulation:
‘‘The court heard oral arguments on July 29, 2015. Judg-
ment entered on November 28, 2012. The original attor-
ney’s right to practice law was suspended. Attorney
Moscowitz (sic) was appointed trustee for Attorney
Lawrence. Copy of Judgment was mailed to Mike Mos-
cowitz (sic), Trustee on December 3, 2012 (see attached
order). No notice was sent to the defendants.’’
On appeal, the defendants claim that the court’s mem-
oranda of decision indicate that the court improperly
considered the notice sent to Moskowitz to be the requi-
site notice of the default judgment to the defendants
and, therefore, improperly determined that the defen-
dants’ motion to open the judgment was untimely
because it was not filed within the four month period
required by Practice Book § 17-43.9 Specifically, the
defendants argue that Lawrence, being on inactive sta-
tus, was no longer representing them and that Moskow-
itz, although the trustee for Lawrence, never filed an
appearance on behalf of the defendants and did not
represent them.10 The defendants claim that they were
unrepresented since July 27, 2012, and that no notice of
the default judgment had been sent to them individually.
Accordingly, it is their position that the four month
deadline for filing a motion to open the judgment
never commenced.
We begin with the legal principles that guide our
analysis of the defendants’ claim. While courts have an
inherent power to open, correct and modify judgments,
the duration of this power is restricted by rule of prac-
tice. Practice Book § 17-43.11 In deciding whether a
motion to open a judgment is timely, a court must deter-
mine whether it was filed within four months of the
date that the notice of the default judgment was sent
to the party in default. See Johnson v. Atlantic Health
Services, P.C., 83 Conn. App. 268, 276, 849 A.2d 853(2004). ‘‘A ruling on a timely filed motion to open is
within the trial court’s discretion, and appellate review
is limited to whether the court has acted unreasonably
or in abuse of its discretion. . . . Whether a party has
been given notice is a question of fact . . . .’’ (Citations
omitted.) Batory v. Bajor, 22 Conn. App. 4, 8–9, 575
A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541(1990). Accordingly, in the present case, we review the
trial court’s finding that notice properly was given to
the defendants under the clearly erroneous standard of
review. Id., 9.
‘‘A finding of fact is clearly erroneous when there is
no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Noroton Proper-
ties, LLC v. Lawendy, 154 Conn. App. 367, 378, 107 A.3d
980 (2014). In the present case, the court concluded that
the motion to open was not timely filed because more
than four months had passed since the date that notice
of the default judgment had been sent to Moskowitz, as
trustee for Lawrence. This finding is clearly erroneous
because Lawrence was not able to practice law while
he was placed on inactive status, Moskowitz had not
filed an appearance on behalf of the defendants and
was not representing them, and no notice of the default
judgment was sent by the court to the individual defen-
dants. The defendants were unrepresented at the time
the default judgment was rendered, yet they were not
sent notice that they were liable for a $2.8 million judg-
ment in favor of the plaintiff.
Notice of the judgment must be sent to the defaulting
party in order to determine the date that commences
the four month period within which that party may file
a motion to open the judgment. ‘‘[T]he right to move
to open and vacate a judgment assumes that the party
who is to exercise the right be given the opportunity
to know that there is a judgment to open. . . . Where
the defendants have not received notice of the default
judgment . . . the time within which they may move
to set aside the judgment is extended by the delay
in notification.’’ (Citation omitted; internal quotation
marks omitted.) Johnson v. Atlantic Health Services,
P. C., supra, 83 Conn. App. 276–77.
The plaintiff argues that the trial court could have
determined that the defendants received actual notice
of the default judgment through the various documents
filed in Priscilla Taylor’s federal bankruptcy proceed-
ings. He claims that the dates on those bankruptcy
documents clearly demonstrate that the defendants
were made aware of the default judgment more than
four months prior to the filing of the motion to open,
thereby making the motion untimely. That argument
was made before the trial court and copies of the docu-
ments were submitted to the court. The defendants
responded that none of the referenced documents pro-
vided them with the requisite notice, and they provided
reasons for discounting the plaintiff’s argument. Even
though the parties briefed the issue of the bankruptcy
court filings, the trial court made no mention whatso-
ever of those documents in its June 29, 2015 memoran-
dum of decision or in its July 31, 2015 articulation.
There are no factual findings by the trial court with
respect to the plaintiff’s claim. The only factual determi-
nation made by the court was that notice of the default
judgment had been sent to Moskowitz as the trustee
for Lawrence on December 3, 2012. For the reasons
previously discussed, notice to Moskowitz was insuffi-
cient notice to the individual defendants.
The issue of whether the defendants received notice
of the rendering of the default judgment, and, if so,
when they received that notice, is a question of fact for
the factfinder. ‘‘It is well settled that we do not find
facts.’’ Bria v. Ventana Corp., 58 Conn. App. 461, 466,
755 A.2d 239 (2000); see also Multilingual Consultant
Associates, LLC v. Ngoh, 163 Conn. App. 725, 737,
A.3d (2016). We, therefore, cannot make that deter-
mination.
The only basis provided for the trial court’s conclu-
sion that the defendants’ motion to open the judgment
was untimely was its factual finding that notice had
been given to the defendants because it had been sent
to Moskowitz on December 3, 2012; that determination
was clearly erroneous. In order to reach the merits of
the defendants’ claims in their motion, the factfinder
must first determine at an evidentiary hearing whether
the defendants received notice of the default judgment
and, if so, on what date they received such notice. The
court would then determine whether their motion was
timely filed. If the court determines that the defendants’
motion to open the judgment was untimely, then it must
deny that motion. If, however, the court concludes that
the defendants’ motion to open was timely filed, then
it must reach the merits of the defendants’ motion. See
Noethe v. Noethe, 18 Conn. App. 589, 596, 559 A.2d 1149(1989). Accordingly, we conclude that this matter must
be remanded to the trial court for that purpose.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
1
This action initially was commenced against Priscilla B. Taylor and her
husband, Paul Bradley Taylor, Jr., who died in February, 2009. The plaintiff
thereafter moved to substitute the temporary administrator of his estate in
place of the deceased. The court, Silbert, J., granted the motion to substitute
the temporary administrator as a party defendant on January 20, 2011.
2
The court’s order noted that Priscilla Taylor did not appear at the hearing
on the application for the prejudgment remedy.
3
Practice Book § 2-56 provides in relevant part: ‘‘During the time an order
placing an attorney on inactive status is in effect, such attorney shall be
precluded from practicing law. . . .’’
4
Practice Book § 17-34 (a) provides: ‘‘In any hearing in damages upon
default, 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 notice has been given to the plaintiff of the
intention to contradict such allegations and of the subject matter which the
defendant intends to contradict, nor shall the defendant be permitted to
deny the right of the plaintiff to maintain such action, nor shall the defendant
be permitted to prove any matter of defense, unless written notice has been
given to the plaintiff of the intention to deny such right or to prove such
matter of defense.’’
5
In the plaintiff’s affidavit filed with the court for its consideration at the
hearing in damages, the plaintiff averred that his medical bills through April
27, 2007, totaled $841,914.84. The court added $2 million to that amount,
for a total award of $2,841,914.84. In his affidavit, the plaintiff had requested
compensation in the amount of $50 million as fair, just and reasonable
damages.
6
At oral argument before this court, the parties’ counsel were of the
impression that the court knew Moskowitz had been appointed the trustee
for Lawrence’s files and that the court ordered notice of the judgment to
be mailed to Moskowitz during the hearing in damages. The transcript of
November 28, 2012, however, reflects that the court was aware that a trustee
had been appointed, but there was no mention of Moskowitz’ name or an
order of the court to mail a copy of the judgment to Moskowitz. Nevertheless,
the order itself does provide that a copy of the judgment was mailed to
Moskowitz on December 3, 2012.
7
In the medical records submitted by the plaintiff to the court for the
hearing in damages, there are several pages with notations that the plaintiff’s
injuries were self-inflicted. For example, in the ambulance trip report is the
statement that the plaintiff doused himself with kerosene and ignited himself
on fire. On the ambulance report transfer form, under the history of present
illness, is the statement that the plaintiff had self-inflicted burns caused by
dousing himself with kerosene and then lighting himself on fire. That form
further indicates that the plaintiff was depressed over the recent loss of a
sibling. Similar notations appear on the Yale-New Haven Hospital progress
notes and the Bridgeport Hospital operative report and discharge summary.
Months later, it appears that the plaintiff reported to some of his health
care providers that the incident was accidental in nature, although other
providers continued to characterize the incident as an attempted suicide.
8
The court’s June 29, 2015 memorandum of decision states in its entirety:
‘‘The instant case which has been pending since 2008 came to the attention
of several judges over the years before it was assigned to this court as a
hearing in damages on November 28, 2012.
‘‘Following an evidential hearing judgment in favor of the plaintiff was
entered on said date. The instant motion to open the judgment was not filed
until March 27, 2015 which was untimely as it was well beyond the four
month limitation articulated in Connecticut Practice Book 17-43.
‘‘The thrust of the defendants’ reason for failure to comply with the four
month time limitation is they lacked notice of the judgment.
‘‘According to the clerk notice of the judgment was sent to Attorney
Moskowitz, trustee for Attorney Lawrence, on December 3, 2012 whereas
noted above the motion to open judgment was far beyond time prescribed
by the Connecticut Practice Book.
‘‘Motion to open judgment is denied.’’
9
Practice Book § 17-43 (a) provides in relevant part: ‘‘Any judgment ren-
dered or decree passed upon a default or nonsuit may be set aside within
four months succeeding the date on which notice was sent, and the case
reinstated on the docket on such terms in respect to costs as the judicial
authority deems reasonable, upon the 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 such
judgment or the passage of such decree, and that the plaintiff or the defen-
dant was prevented by mistake, accident or other reasonable cause from
prosecuting or appearing to make the same. . . .’’ (Emphasis added.)
10
It is undisputed that Moskowitz never filed an appearance on behalf
on the defendants in this action.
11
Practice Book § 17-43, formerly Practice Book § 377, which sets forth
the rule for opening judgments on default, was amended on June 21, 1996,
to take effect October 1, 1996. Prior to that amendment, Practice Book
(1978) § 377 provided in relevant part that ‘‘[a]ny judgment rendered . . .
upon a default or nonsuit may be set aside within four months succeeding
the date on which it was rendered . . . .’’ (Emphasis added.) Practice Book
§ 17-43 now provides that ‘‘[a]ny judgment rendered . . . upon a default or
nonsuit may be set aside within four months succeeding the date on which
notice was sent . . . .’’ (Emphasis added.) See Johnson v. Atlantic Health
Services, P.C., 83 Conn. App. 268, 275 n.3, 849 A.2d 853 (2004).