Gutierrez v. Mosor

• Decision Date: 24 August 2021
• Docket Number: AC 43881
• Citation: 261 A.3d 850,206 Conn.App. 818
• Parties: Julio GUTIERREZ v. Daniel MOSOR
• Court: Connecticut Court of Appeals

206 Conn.App. 818

261 A.3d 850

Julio GUTIERREZ

v.Daniel MOSOR

AC 43881

Appellate Court of Connecticut.

Argued May 13, 2021

Officially released August 24, 2021

Joseph A. La Bella, for the appellant (defendant).

Deborah V. Jekot, with whom, on the brief, was Jack G. Steigelfest, Hartford, for the appellee (plaintiff).

Alvord, Clark and Sullivan, Js.

SULLIVAN, J.

The defendant, Daniel Mosor, appeals from the judgment of the trial court, rendered in favor of the plaintiff, Julio Gutierrez, after the defendant was defaulted for failing to appear at a deposition prior to a trial to a jury on the issue of damages. On appeal, the defendant claims that the court abused its discretion by (1) defaulting him for a single failure to attend the deposition, (2) refusing to set aside the default, and (3) sustaining the plaintiff's objection to the defendant's motion for permission to file a notice as to the hearing in damages, which precluded him from offering any evidence contesting liability at the trial before the jury. We agree with the defendant's first claim and, accordingly, reverse the judgment of the trial court.

The following factual and procedural history is relevant to our resolution of the claims on appeal. The plaintiff commenced this action against the defendant on January 12, 2015. In his complaint, the plaintiff alleged that the defendant was the owner or party in possession and control of certain real property at 2010 Manchester Road in Glastonbury, on which the defendant was constructing a house. In connection therewith, the defendant hired various contractors, including the plaintiff, to perform work. The complaint further alleged that, "[o]n or about June 13, 2014, the plaintiff was standing on a metal staging platform attached to two ladders on each end that were leaning against the edge of the roof," and that "[o]ne or both of the ladders shifted because the legs of the ladders were located on a soft, wet and muddy surface, causing the staging to become unstable and causing the plaintiff to fall approximately [fifteen] to [twenty] feet to the ground." According to the complaint, the plaintiff's resulting injuries were caused by the "carelessness and negligence of the defendant ...."

On January 28, 2015, the self-represented defendant filed an answer and special defense, in which he denied that he was the owner or party in possession and control of the subject property, and asserted the following as a special defense: "I subcontracted [the] roof to a subcontractor by the name of Jose Flores, who was the employer of [the plaintiff]. Jose and [the plaintiff] went on the job site on a rainy day when they had no permission and should not have been staging a roof [in] that type of weather conditions. I don't know who [the plaintiff] is, and I don't know what he was doing on the job site." Just over two years later, on January 31, 2017, the plaintiff filed a reply denying the allegations of the special defense, as well as a claim for a jury trial.¹ The next day, February 1, 2017, the plaintiff also filed a certificate of closed pleadings and a claim for the trial list.

Almost one year later, on January 29, 2018, the plaintiff's attorney issued to the defendant a "renotice" of his deposition, which was to take place on March 14, 2018, at 10 a.m. in the law office of the plaintiff's attorney. According to the plaintiff's attorney, the defendant called the attorney's office on Monday, March 12, 2018, to confirm the appointment, although he thought it was for a court appearance. The plaintiff's attorney responded in a call back to the defendant and left a message, stating that the renotice was not for a court appearance but for a deposition that was scheduled to take place at the attorney's office. The defendant never responded to that message. On March 14, 2018, the day of the deposition, the plaintiff's attorney, again, called the defendant to confirm his appearance and left another message for him, but he did not respond to that message, either.

Thereafter, on March 26, 2018, the plaintiff filed a motion for default for the defendant's failure to appear at his deposition. In support of his motion for default, the plaintiff attached the deposition notice, as well as a brief transcript of the deposition's preliminary proceeding on March 14, 2018, in which his attorney recounted the events leading up to the deposition. The motion simply asserted that the defendant had notice, and was aware of the scheduled deposition and failed to appear. In granting the plaintiff's motion for default, the court, Shapiro, J. , stated: "The defendant filed no objection in response to the motion for default. Since the defendant failed to attend his scheduled deposition, a default may enter against the defendant." Notice of the default was issued by the court on April 11, 2018.

On September 27, 2018, counsel filed an appearance on behalf of the defendant, who, until that point, had been acting as a self-represented party. The defendant's attorney also filed a motion for a continuance of a hearing in damages that was scheduled to take place on October 10, 2018. On November 29, 2018, the defendant's attorney, again, filed a motion for a continuance of the hearing in damages, which previously had been rescheduled to take place on December 5, 2018. Both motions for continuances were granted by the court.

Thereafter, on January 2, 2019, the defendant, through counsel, filed a motion to set aside the default, in which he claimed that good cause existed for setting aside the default. Specifically, he claimed that, as a self-represented party, he "was confused about where to appear and what was happening on the date of the scheduled deposition," and that he never spoke with anyone from the office of the plaintiff's attorney because they simply left him messages. On that same day, the defendant also filed a notice as to the hearing in damages, in which he sought to give notice of his defenses to the action pursuant to Practice Book § 17-34.² The plaintiff filed an objection to the motion to set aside the default, as well as an objection to the defendant's notice of defenses, claiming that the notice was not timely filed within the ten day period provided for in Practice Book § 17-35 (b).³

In a memorandum of decision dated January 17, 2019, the court, Hon. Robert B. Shapiro , judge trial referee, denied the defendant's motion to set aside the default, concluding that the defendant had failed to demonstrate good cause for setting aside the default. The court determined that the plaintiff had been "prejudiced by the defendant's delay in attending to this matter," finding that the defendant never provided an excuse for his delay in presenting the argument that he was confused by the notice of deposition, that the defendant's attorney waited more than three months after filing an appearance in this matter to file the motion to set aside the default, and that the defendant did not provide an affidavit in support of his motion to set aside the default. The court further stated that "the defendant's failure to respond to the plaintiff's motion for default may not be excused," and that, "[i]f the default were opened now, almost one year will have passed since the plaintiff's January 29, 2018 notice of deposition. The plaintiff has been prejudiced also by the defendant's delay in that [the plaintiff] consented to a motion to continue the previously scheduled hearing in damages, only to face the motion to open, which was filed shortly before the continuation date of that hearing."

Following the denial of his motion to set aside the default, the defendant filed a motion for permission to file a notice as to the hearing in damages pursuant to Practice Book § 17-34. In his motion, he alleged that, in light of the circumstances as set forth in his attached affidavit, it would be appropriate for the court to allow him to contest some of the allegations of the complaint. In his affidavit, the defendant attested to the following: he is not an attorney and lacks legal training; he was prepared to appear in court on March 14, 2018, and did, in fact appear at the courthouse in Middletown; he called the plaintiff's counsel to confirm that he would be appearing in court on March 14, 2018; he, as a self-represented party, did not understand the significance of the notice of deposition at the time it was scheduled; he did not wilfully disobey the court; he has a good and valid defense to the plaintiff's action; and he was not familiar with a notice of defenses in March and April, 2018. The court also denied the defendant's motion for permission, noting, first, that the defendant did not file a notice of defenses within the ten day period required by Practice Book § 17-35 (b), and, second, that, even though it had discretion to permit a late filing of a notice of defenses, it "[was] not persuaded by the defendant's statements about his lack of familiarity with the court process." Specifically, the court found that "the defendant did not pay proper attention to this matter," that, even though he was self-represented through most of the proceedings, "the rules of practice [could not] be ignored to the detriment of other parties," that discovery would have to be opened if the court permitted the defendant's late filing, and that it did not credit the defendant's statement that he appeared at the courthouse in Middletown given that this matter had been filed in the Superior Court in Hartford. Accordingly, the defendant was precluded from offering any evidence as to liability at the hearing in damages.

On September 17, 2019, the case proceeded to a hearing in damages before a jury, which returned a verdict in favor of the plaintiff, awarding him damages in the amount of $181,201.81. On January 16, 2020, the court, Dubay, J. , denied the defendant's motion to set aside the verdict and rendered judgment in favor of the plaintiff, stating: "While this court may have decided the...