Oquendo v. Club Assist Road Service U.S., Inc
| Decision Date | 09 August 2016 |
| Docket Number | HHBCV146026540S |
| Court | Connecticut Superior Court |
| Parties | Christopher Oquendo v. Club Assist Road Service U.S., Inc |
UNPUBLISHED OPINION
On August 27, 2014, the plaintiff, Christopher Oquendo, filed a six-count complaint against the defendant, Club Assist Road Services U.S., Inc., seeking lost wages and damages for an alleged breach of contract and violation of the Fair Labor Standards Act, 29 U.S.C. § 215 et seq. The defendant provides roadside assistance services and is a foreign corporation registered to conduct business in the state of Connecticut. The plaintiff alleges that on or around September 16, 2011, he entered into an agreement with the defendant to provide emergency road services in and around the city of New Britain, Connecticut. The complaint alleges that the defendant unlawfully terminated their employment relationship because he filed a complaint with the Connecticut Department of Labor.
Service of process was made upon the Connecticut Secretary of the State pursuant to General Statutes § 33-929 on August 13, 2014. The parties do not dispute that service of process was proper as the defendant is a foreign corporation and appointed the Secretary of the State as its registered agent.
On February 17, 2015, the court granted the plaintiff's motion for default for failure to appear (#102.01). On August 10, 2015, following a hearing in damages, the court entered judgment for the plaintiff, awarding general damages punitive damages, attorneys fees and other costs (#115.00). JDNO notice of the hearing in damages and judgment was issued on August 12, 2015 by the court.[1] The plaintiff filed a bill of costs on August 11, 2015, including a signed certification page that states: " I hereby certify that a copy of the foregoing has been mailed to the following non-appearing Defendant: Club Assist Road Service U.S., Inc 3550 Wilshire Blvd., Suite 650 Los Angeles, CA 90010 Agent for Service: Secretary of the State 30 Trinity Street Hartford, CT 06106-0470" (#112.00).
On three occasions in January 2016, the plaintiff filed applications for financial institution [bank] execution. Each was rejected by the clerk because the plaintiff had failed to comply with Practice Book § 17-22 by sending a notice of the judgment to the non-appearing defendant with a copy filed with the clerk's office. On April 27, 2016, the plaintiff filed an application for a bank execution in the amount of $518, 222.50 (#120.00). Attached to the application was a copy of the court's JDNO notice and a certification page from plaintiff's counsel certifying that a copy of the application and JDNO was sent to the defendant's Wilshire Blvd. address and to the Secretary of the State. That application was successful and the execution was issued by the clerk.
On May 19, 2016, the defendant filed an emergency motion to stay the bank execution and to open default judgment pursuant to General Statutes § 52-212 and Practice Book § 17-43 (#121.00). The plaintiff filed an objection on May 23, 2016 (#125.00). The defendant filed a reply on June 6, 2016 (#126.00). The court granted the motion to stay and ordered the parties to file briefs regarding the motion to open default judgment (#124.01). The parties presented oral argument on June 10, 2016, and filed supplemental briefs in support of their respective positions.
The defendant argues that the motion to open the default judgment should be granted because the defendant did not know about this action until its bank informed it of the pending compliance with the execution on May 18, 2016. The defendant further asserts that the motion is timely filed within the four-month period because it did not receive actual notice of the default judgment until May 18, 2016. In its motion, the defendant states: The defendant argues that it satisfies the two-prong test required under § 52-212 because a good defense existed and its failure to appear earlier is a " classic case of mistake, accident or other reasonable cause."
In his objection, the plaintiff contends that the motion is untimely because notice of the default judgment was rendered on August 10, 2015, and the motion's filing is well past the four-month time period. He further argues that the defendant had actual or constructive notice of the proceedings, and the motion should not be granted because the defendant was negligent in failing to update its address with its registered agent for service of process in Connecticut, the Secretary of the State.
In order to " open a judgment pursuant to Practice Book § 17-43(a) and General Statutes § 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." (Internal quotation marks omitted.) Weinstein & Wisser v. Cornelius, 151 Conn.App. 174, 180, 94 A.3d 700 (2014); see also Estela v. Bristol Hospital, Inc., 165 Conn.App. 100, 108, 138 A.3d 1042 (2016) (). In addition, the moving party on a motion to open " must not only allege, but also make a showing sufficient to satisfy the two-pronged test . . . A bald assertion that one existed is inadequate." (Citation omitted; internal quotation marks omitted.) Moore v. Brancard, 89 Conn.App. 129, 132, 872 A.2d 909 (2005).
In order to open a judgment pursuant to General Statutes § 52-212 and Practice Book § 17-43, the defendant must (i) file the motion within four months of when the judgment was passed, (ii) satisfy the two-part test showing a good defense existed at the time judgment was rendered and was not raised due to mistake, accident or other reasonable cause. Weinstein & Wisser v. Cornelius, supra, 151 Conn.App. 180. The court will first discuss the timeliness of the motion.
General Statues § 52-212(a) sets forth the requirements of a motion to open a judgment upon default or nonsuit if filed within four months on which the judgment was rendered or passed.[2] Practice Book § 17-43(a) tracks the language of General Statutes § 52-212(a) and adds language that the four months runs succeeding the date notice was sent.[3] The 1997 comment to the rule change clearly states that this notice is sent by the court.[4] The rule and comment do not require the notice to be sent by the court to nonappearing defendants. The JDNO only goes to appearing parties. Therefore, no court notice is sent to nonappearing defendants nor is there any obligation on the court to do so.
Practice Book § 17-22, however, does obligate the prevailing party to send notice of the judgment after default for failure to enter an appearance to the party against whom it is directed, which, necessarily, is the nonappearing party.[5] Service must be made in accordance with Practice Book § 10-14 with a copy filed with the clerk's office. Section 10-14 requires the certification to a nonappearing party be made in accordance with Practice Book § 10-12(a) and (b) and specify the address upon which it is made.[6]
Judgment was entered on August 10, 2015 (116.00). JDNO notice of judgment was properly sent by the court on August 12, 2015 pursuant to § 17-43(a). No notice was sent to the nonappearing party by the court, nor was it required. The four-month period of time to set aside or open the judgment either commenced on August 10, 2015, according to General Statutes § 52-212(a) or on August 12, 2015, according to Practice Book § 17-43(a). No motion to set aside or open the judgment was filed within either four-month period; however, the plaintiff was required to send a notice of the judgment to the nonappearing defendant within ten days of the entry of the judgment pursuant to Practice Book § 17-22 with a copy filed with the clerk's office. That date is August 20, 2015. It appears that sending notice to the nonappearing defendant's last known address would have sufficed. A review of the record shows that the plaintiff did not comply with § 17-22.
In McLaughlin v. Smoron, 62 Conn.App. 367, 771 A.2d 201 (2001), the court determined that the defendants' motion to open, although filed more than two years later, was timely because the plaintiff did not send proper notice of the default judgment required by Practice Book § 17-22.[7] See also Tyler E. Lyman, Inc. v Lodrini, 63 Conn.App....
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