DiSimone v. Vitello
| Decision Date | 11 March 1986 |
| Docket Number | No. 3551,3551 |
| Court | Connecticut Court of Appeals |
| Parties | Harry DiSIMONE v. Antoinette VITELLO et al. |
Donn A. Swift, Waterbury, for appellants (named defendant et al.).
Fred H. White, Jr., New Haven, for appellee (plaintiff).
Before BORDEN, SPALLONE and DALY, JJ.
This is an appeal from the trial court's denial of the defendants' motion to set aside a default judgment rendered, after a hearing in damages, more than three years earlier. The defendants claim that the denial of their motion was improper because (1) they did not receive notice of the judgment as required by Practice Book § 354; (2) the Superior Court clerk's office failed to provide the defendants with notice of the hearing in damages in accordance with Practice Book § 368; (3) the hearing in damages was held in violation of General Statutes § 52-221, thereby preventing the defendants from offering defenses to the action and challenging the amount of damages; and (4) they had alleged good grounds to warrant setting aside the judgment. We find no error.
The plaintiff's complaint alleged that he was assaulted in the defendants' bar on August 28, 1976, and sustained serious physical injury. The record shows that the defendants were properly served with the complaint on August 16, 1978. 1
On August 24, 1979, a default for failure to appear was entered against the defendants upon the plaintiff's noticed motion. See Practice Book § 352. On December 11, 1980, after an uncontested hearing in damages, the court rendered judgment for the plaintiff and awarded $22,000 in damages. The clerk's certification on the memorandum of decision indicates that a copy of the memorandum was sent to the parties. Thereafter, the plaintiff's lawyer mailed a letter dated July 29, 1983, to the defendants indicating the terms of the judgment and requesting its satisfaction.
No action was taken on the defendants' behalf until May 18, 1984, when the defendants moved to set aside the default judgment. The defendants alleged that the default was entered and judgment rendered without the proper notice required by Practice Book §§ 354, 367 and 368. The plaintiff opposed this motion, claiming that the defendants had been properly notified as to the default and hearing in damages. He also alleged that the default was the result of the defendants' own negligence. The court denied the defendants' motion. This appeal followed.
Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983). A trial court's denial of a timely motion to open a judgment will not be disturbed on appeal unless the court acted unreasonably and in clear abuse of its discretion. See Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985); Steve Viglione Sheet Metal Co. v. Sakonchick, supra, 190 Conn. 711, 462 A.2d 1037. After this four month period has expired, the court no longer has jurisdiction to make other than clerical modifications or corrections. Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985). Absent a claim of lack of subject matter jurisdiction; see, e.g., Broaca v. Broaca, 181 Conn. 463, 466-67, 435 A.2d 1016 (1980); the rules of practice allow for substantive modification of a judgment beyond the four month period where the parties have consented or where the court has continuing jurisdiction. Practice Book § 326.
The defendants do not claim that the court's jurisdiction is continuing or by consent. The defendants' claims of error in substance challenge the jurisdiction of the court to render the default judgment because of lack of proper notices to them preceding and subsequent to the default and judgment. Our analysis of their first claim leads us to conclude that the court did not err in refusing to set aside the judgment, because the defendants' motion was untimely and the court therefore lost jurisdiction to grant it.
The defendants' first claim is that they were never notified of the default as required by Practice Book § 354. That section states in pertinent part that "[a] notice of every ... judgment after default for failure to enter an appearance, which notice includes the terms of the judgment, shall be mailed forthwith by counsel of the...
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State v. Mobley, 6-337571
...presumptively correct; Stafford Higgins Industries, Inc. v. Norwalk, 15 Conn.App. 752, 757, 546 A.2d 340 (1988); DiSimone v. Vitello, 6 Conn.App. 390, 393, 505 A.2d 745 (1986); are not conclusive evidence of the judgment. At best, the docket sheet signed by the sentencing judge "is prima fa......
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Henriquez v. Allegre
...court properly decided the motion on the merits. 7. In discussing the issue of notice, the court in this case cited DiSimone v. Vitello, 6 Conn. App. 390, 505 A.2d 745 (1986), using the introductory signal "but see," which means that, in the court's view, the cited authority directly states......
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CFM of Connecticut v. Chowdhury
...within four months of the date that judgment is rendered. General Statutes § 52-212a; 4 Practice Book § 326; 5 DiSimone v. Vitello, [6 Conn.App. 390, 391-92, 505 A.2d 745 (1986) ]." Batory v. Bajor, 22 Conn.App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). Where "t......
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Handy v. Minwax Co., Inc.
... ... DiSimone v. Vitello, 6 Conn.App. 390, 393, 505 A.2d 745 (1986). We find this reasoning applicable to motions to open judgments brought pursuant to General ... ...