Disturco v. Gates in New Canaan, LLC

• Decision Date: 11 May 2021
• Docket Number: AC 44115
• Citation: 253 A.3d 1033,204 Conn.App. 526
• Court: Connecticut Court of Appeals
• Parties: Jean M. DISTURCO v. GATES IN NEW CANAAN, LLC

204 Conn.App. 526

253 A.3d 1033

Jean M. DISTURCO

v.GATES IN NEW CANAAN, LLC

AC 44115

Appellate Court of Connecticut.

Argued February 10, 2021

Officially released May 11, 2021

Andrew Ranks, with whom, on the brief, was A. Jeffrey Somers, for the appellant (defendant).

Eric G. Blomberg, Stamford, for the appellee (plaintiff).

Elgo, Moll and DiPentima, Js.

DiPENTIMA, J.

The defendant, Gates in New Canaan, LLC, appeals from the judgment of the trial court denying its motion to open the judgment rendered in favor of the plaintiff, Jean M. Disturco, after the defendant was defaulted for failure to appear. The defendant claims that the court improperly (1) determined that it had failed to satisfy General Statutes § 52-212 and (2) ruled on its motion to open without a hearing after the court had granted the defendant's motion to reargue. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as alleged in the plaintiff's complaint,¹ or as undisputed in the record, and procedural history are relevant to this appeal. The plaintiff instituted the underlying action against the defendant on June 18, 2019. The return date for the complaint was July 23, 2019. The complaint alleged that on or about October 27, 2017, the plaintiff was "an invitee, customer, patron and/or guest" of Gates Restaurant, a restaurant owned by the defendant. The defendant is a limited liability company organized and existing under the laws of Connecticut. On the date in question, the plaintiff became locked in the restroom of the restaurant at which point "an agent, servant and/or employee attempted to forcefully open the door to the restroom causing a piece of wood to strike the plaintiff's head." The complaint further alleged that the incident was caused by the "negligence and/or carelessness of the defendant" and that the plaintiff suffered "painful, severe, and/or permanent" injuries and damages as a result of the employee's attempt to free her from the restroom. The complaint sought money damages and costs.

The defendant's registered agent for service, Heather M. Brown-Olsen, Esq., was served with the complaint and summons on June 18, 2019. On July 29, 2019, the plaintiff filed a motion for default for the defendant's failure to appear. The court clerk granted the plaintiff's motion on August 6, 2019, pursuant to Practice Book § 17-20 (d).² After an evidentiary hearing in damages, the court rendered a judgment on the default in favor of the plaintiff and awarded her $1,000,000 in damages on January 9, 2020.

On March 20, 2020, the defendant filed an appearance and a motion to open the judgment pursuant to Practice Book § 17-43,³ stating that its failure to appear was "the result of a mistake or inadvertence" and that it had a "good defense to the plaintiff's claim, which should be heard on its merits." Accompanying the defendant's motion to open was an affidavit from John W. Luther III, the defendant's managing member (Luther affidavit), in which Luther averred the following: "I first became aware of the subject lawsuit on August 26, 2019, when I received an August 21, 2019 letter from the company's then registered agent for service as to a default for failure to appear, which had been entered on August 6, 2019. The agent for service notified me in that same letter that she was resigning as agent for service .... Prior to August 26, 2019, [the defendant] had no knowledge of the claim or service of the lawsuit. ... On August 26, 2019, I sent an e-mail to an individual at the Solomon Insurance Agency ... whom I believed to be the agent handling our account, notifying them of the lawsuit and the default. ... Subsequently, on September 23, 2019, I sent another e-mail to [the insurance agent] at Solomon when I received additional papers" regarding the underlying action. The affidavit also stated that the defendant believed that the "Solomon Insurance Agency would notify [its] insurance carrier

to arrange for an attorney to represent and defend [its] interests," and that, on January 24, 2020, after learning that judgment had been rendered, it reached out to the Solomon Insurance Agency at which point thereafter, on January 28, 2020, the agency reported the claim to Utica First Insurance Company, the defendant's insurance carrier. The plaintiff filed an objection to the defendant's motion on May 1, 2020. The motion appeared on the short calendar on May 4, 2020, which the defendant marked as "take papers."

The court sustained the plaintiff's objection to the defendant's motion and denied the defendant's motion to open on May 4, 2020, concluding that the defendant had failed to meet the provisions of § 52-212 because it "neither articulated a bona fide defense to the action, nor articulated facts indicating that the failure to assert a defense was prevented by mistake, accident or other reasonable cause as compared to mere neglect or negligence."⁴

Thereafter, the defendant filed a motion to reargue its motion to open the judgment on May 22, 2020, in which it asserted that it was filing the motion to reargue pursuant to " Practice Book [§§] 11-11 and/or 11-12." The plaintiff filed an objection to the defendant's motion to reargue on June 5, 2020. On June 5, 2020, the court granted the defendant's motion to reargue and considered the motion on the papers. The court reaffirmed its denial of the motion to open after considering the

additional information that the defendant had provided. The additional information included an affidavit from Robert Gulla, a claims examiner with Utica First Insurance Company, averring that the insurance company did not have notice of the underlying action until after judgment had been rendered. The court determined that, even if the insurance company did not have notice, there was no dispute that the defendant had notice of the plaintiff's action before the default and subsequent judgment were rendered. Moreover, the court rejected the defendant's argument that its action of forwarding the summons and complaint to its insurance broker and "mak[ing] efforts to communicate with this broker" was "commercially reasonable" or satisfied the requirements of § 52-212.

The court concluded that the defendant failed to "[show] reasonable cause to open the judgment nor [did it] specifically [articulate] a bona fide defense that existed when judgment entered." Lastly, the court determined that the defendant's circumstances did not "support the conclusion that the defendant was prevented by mistake, accident or other reasonable cause" from making its defense because "the conduct at issue [did] not rise beyond mere negligence or neglect." This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first contends that the court erred in denying its motion to open the judgment on the basis of its finding that the defendant had failed to meet the requirements under § 52-212. Specifically, the defendant argues that it is sufficient simply to show reasonable cause under § 52-212 and that, because the defendant established reasonable cause for its failure to appear, the court erred when it denied the defendant's motion to open the judgment. We are not persuaded.

We begin by setting forth the standard of review and governing legal principles. To the extent that we need to interpret a statute, our review is plenary. Meadowbrook Center, Inc. v. Buchman , 328 Conn. 586, 594, 181 A.3d 550 (2018) ("The interpretation and application of a statute ... involves a question of law over which our review is plenary. ... In seeking to determine [the] meaning [of a statute, we] ... first ... consider the text of the statute ... itself and its relationship to other statutes ...." (Internal quotation marks omitted.)).

"We review a trial court's ruling on motions to open under an abuse of discretion standard. ... Under this standard, we give every reasonable presumption in favor of a decision's correctness and will disturb the decision only where the trial court acted unreasonably or in a clear abuse of discretion. ... As with any discretionary action of the trial court ... the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did." (Internal quotation marks omitted.) General Linen Service Co. v. Cedar Park Inn & Whirlpool Suites , 179 Conn. App. 527, 531, 180 A.3d 966 (2018). "[I]n order to determine whether the court abused its discretion [in ruling on a motion to open], we must look to the conclusions of fact upon which the trial court predicated its ruling. ... Those factual findings are reviewed pursuant to the clearly erroneous standard ...." (Internal quotation marks omitted.) Harris v. Neale , 197 Conn. App. 147, 158–59 n.11, 231 A.3d 357 (2020).

"A motion to set aside a default judgment is governed by Practice Book § 17-43 and ... § 52-212." State v. Ritz Realty Corp. , 63 Conn. App. 544, 548, 776 A.2d 1195 (2001). "To open a judgment pursuant to Practice Book § 17-43 (a) and ... § 52-212 (a), the movant must 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. ... The party moving to open a default judgment must not only allege, but also make a showing sufficient to satisfy the two-pronged test [governing the opening of default judgments]. ... The negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment. ... Finally, because the movant must satisfy both prongs of this analysis, failure to meet either prong is fatal to its motion." (Footnotes omitted; internal quotation marks omitted.) Multilingual Consultant Associates, LLC v. Ngoh , 163 Conn. App. 725, 733, 137 A.3d 97 (2016).

On appeal, the defendant argues that the two-pronged test delineated in Multilingual Consultant Associates, LLC v. Ngoh , supra, 163 Conn....