Rowe v. Goulet, (AC 24557).

• Decision Date: 28 June 2005
• Docket Number: (AC 24557).
• Citation: 89 Conn. App. 836,875 A.2d 564
• Court: Connecticut Court of Appeals
• Parties: JEFFREY ROWE v. ROSEMARY GOULET ET AL.

89 Conn. App. 836

875 A.2d 564

JEFFREY ROWE v. ROSEMARY GOULET ET AL.

(AC 24557).

Appellate Court of Connecticut.

Argued March 23, 2005.

Officially released June 28, 2005.

Dranginis, Flynn and Bishop, Js.

Brian B. Staines, for the appellant (defendant Kenneth Conrad).

Eric Onore, for the appellee (plaintiff).

Opinion

BISHOP, J.

The defendant Kenneth Conrad¹ appeals challenging the trial court's denial of his motion to open the default that had been entered against him for failure to plead. Conrad claims that the court (1) abused its discretion in denying his motion to open, (2) lacked personal jurisdiction over the parties pursuant to General Statutes § 51-183b and (3) improperly calculated the award of double damages. We reverse in part the judgment of the trial court as it pertains to the award of double damages.

The following facts and protracted procedural history are germane to our review of Conrad's appeal. On July 1, 1989, the plaintiff rented a room in a boarding house at 7 Federal Court in Bristol pursuant to a week to week rental agreement with Conrad and the defendant Rosemary Goulet. The plaintiff returned to the boarding house one evening in February, 1990, and found that he was locked out. The defendants told the plaintiff to get off of the property, even though he was current on his rental payments.

Consequently, the plaintiff left the apartment and went to a friend's house where he allegedly attempted suicide because he was very worried about becoming homeless. Soon thereafter, the plaintiff was taken to Bristol Hospital, then transferred to Cedarcrest Hospital in Newington, in which he remained as a patient for approximately three weeks. Following his discharge, the plaintiff went to the boarding house on Federal Court to retrieve his belongings. At that time, he discovered that his property had been placed in the cellar and that several items were missing or damaged.

Thereafter, the plaintiff filed a seven count complaint against the defendants claiming, inter alia, unlawful entry, unlawful entry and detainer, unfair trade practices and infliction of emotional distress. He also sought a temporary injunction that was granted in part. On March 8, 1990, the court held a hearing, at which both defendants were present, regarding whether the temporary injunction should be maintained against them. After the hearing, the court found that there had been an illegal entry and detainer, and the temporary injunction was continued in effect. On March 20, 1990, the defendants entered pro se appearances. On October 12, 1990, Stephen J. Duffy, an attorney, filed an appearance on behalf of Goulet only.² On October 18, 1990, the court dismissed the case for failure to prosecute with due diligence pursuant to Practice Book § 14-3. Subsequently, the plaintiff filed a motion to open, which was granted, despite Goulet's objection, on March 14, 1991, and a default for failure to plead was entered against the defendants on October 11, 1991.³ Although Goulet answered the complaint on October 23, 1991, Conrad never filed an answer. During that time period, Duffy was disbarred from the practice of law, and a stay of prosecution was entered by the court on the basis of Duffy's circumstances.

Although the plaintiff's motion for relief from stay was granted on December 13, 1993, it appears from the record that the next significant event in the procedural life of the case was a hearing in damages scheduled for October 5, 2000. On that date, however, because only the plaintiff and his counsel were present, the court continued the hearing to give all parties an opportunity to attend. Ultimately, the hearing in damages was set for June 5, 2002, on which date Christopher M. Reeves, an attorney who had been appointed as trustee for Duffy's clients (and, therefore, in this instance, Goulet), reported to the court that he had contacted both defendants and notified them of the June 5, 2002 hearing date.⁴ Although Conrad attended the hearing, Goulet was absent. During the hearing, the plaintiff and Conrad testified and had the opportunity to cross-examine each other and to make arguments to the court. Later, on July 10, 2002, Reeves entered an appearance on behalf of Conrad and filed a motion to open the default against him. That motion was denied after a hearing on May 28, 2003. Subsequently, on August 6, 2003, the court issued its memorandum of decision awarding damages in favor of the plaintiff against the defendants. This appeal followed.

I

Conrad first claims that the court abused its discretion by denying his motion to open the default for failure to plead. He maintains that the procedurally tortured path of the case justified setting aside the default. Additionally, he claims that the court incorrectly applied Practice Book § 17-43 rather than Practice Book § 17-42 in assessing the motion to open. We disagree.

At the outset, we set forth general precepts relating to the court's response to a motion to open a default. "A motion to open . . . is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion." (Internal quotation marks omitted.) Rino Gnesi Co. v. Sbriglio, 83 Conn. App. 707, 711, 850 A.2d 1118 (2004). The motion to open the default, in this case, is governed by Practice Book § 17-42 because the default was entered prior to final judgment. See Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, 49 Conn. App. 731, 733, 715 A.2d 819, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998). Section 17-42 provides in relevant part: "A motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown . . . ."

In deciding whether to open a default, the court may consider the presence of mistake, accident, inadvertence, misfortune or other reasonable cause, including such factors as the seriousness of the default, its duration, the reasons therefor and the degree of contumacy involved, as well as the totality of the circumstances. Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998). Additionally, "[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . [T]he right of self-representation [however] provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) State v. Van Eck, 69 Conn. App. 482, 493, 795 A.2d 582, cert. denied, 260 Conn. 937, 802 A.2d 92, cert. denied, 261 Conn. 915, 806 A.2d 1057 (2002). Furthermore, a court should not open a default when the defendant admits that he received actual notice and chose to disregard the court's authority. Woodruff v. Riley, 78 Conn. App. 466, 471, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003). "Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence." (Internal quotation marks omitted.) Id.

In this instance, Conrad presents several arguments to advance his claim that the court should have opened the default. In addition to his claim that the court incorrectly applied Practice Book § 17-43 instead of Practice Book § 17-42 in reviewing the motion to open the default, Conrad also points out that he was a pro se litigant throughout the entire case until July 10, 2002, when Reeves entered an appearance on his behalf, and that the case had languished over the years to such an extent that Conrad thought that the matter had been concluded. On the basis of the foregoing, Conrad argues that the court abused its discretion in denying the motion to open the default.

First, although Conrad asserts that the court applied the requirements of Practice Book § 17-43, instead of Practice Book § 17-42, his contention finds no support in the record. To the contrary, the transcript of the hearing on May 28, 2003, reveals that the court applied Practice Book § 17-42 in rendering its decision to deny the motion open. Therefore, Conrad's argument in that regard is unavailing.

Next, a review of the pleadings and the court's reasoning in denying Conrad's motion to open the default discloses that the court did not abuse its discretion in denying the motion. Although we agree with Conrad that this case has a protracted and stutter-stepped history, the default for failure to plead was entered against him on October 11, 1991, relatively early in the life of the case. On appeal, Conrad makes no claim that he did not receive notice of the default entered against him, and the court file reveals that Conrad never filed an answer to the complaint.⁵ Because Conrad did not file a motion to open the default until May, 2002, it cannot be said that he seasonably responded to the default entered against him. To the extent that Conrad relies on any confusion in the file attendant to Duffy's disbarment, any activity related to Duffy is immaterial to Conrad's claims because Duffy never represented him. It was only after the second hearing in damages in 2002, that Conrad retained counsel who filed, on his behalf, a motion to open the default.

Although we agree with the general proposition that a party to an action is entitled to an adequate notice and opportunity to be heard; LaRosa v. Kline, 36 Conn. App. 501, 505, 651 A.2d 1324 (1995); nothing in the record suggests that Conrad was deprived of those fundamental due process rights. To the contrary, it appears that the court was keenly sensitive to the parties' rights to participate meaningfully in the proceedings. For example, at the October 5, 2000 hearing in damages, when the court became concerned that both of the...