Whalen v. Ives

• Decision Date: 24 April 1995
• Docket Number: No. 12764,12764
• Citation: 654 A.2d 798,37 Conn.App. 7
• Court: Connecticut Court of Appeals
• Parties: Daniel J. WHALEN v. Milton E. IVES, Sr.

Page 798

654 A.2d 798

37 Conn.App. 7

Daniel J. WHALEN v. Milton E. IVES, Sr.

No. 12764.

Appellate Court of Connecticut.

Argued Oct. 25, 1994.

Decided Feb. 21, 1995.

Certification Denied April 24, 1995.

Wesley W. Horton, with whom were Kevin C. Connors and Christy Scott, for appellant (defendant).

Daniel J. Whalen, pro se.

Before DUPONT, C.J., and LANDAU and SPEAR, JJ.

SPEAR, Judge.

The defendant appeals from a judgment rendered in favor of the plaintiff in the amount of $261,122.96. The defendant claims that the trial court improperly (1) conducted a hearing in damages after he filed an answer that required the clerk "automatically" to set aside an earlier default for failure to plead, (2) granted the plaintiff's motion to strike the defendant's notice of intention to contradict the plaintiff's allegations at the hearing in damages, and (3) denied the defendant's motion to file a late notice of defenses as to the hearing in damages. We disagree with all of the defendant's assertions and affirm the judgment of the trial court.

The plaintiff's complaint alleged that the defendant received certain valuable coins, a firearm and other articles that were stolen in a burglary of the plaintiff's home. The court granted the plaintiff's motion for default for failure to plead on January 17, 1992, and the clerk sent notice of the default to all parties on January 22, 1992.

On February 6, 1992, the defendant filed a motion to set aside the default pursuant to Practice Book § 376. ¹ On February 25, 1992, the trial court granted the motion "if defendant files affidavit setting forth the existence of a defense, and files its answer by 3-10-92." The defendant failed to file the necessary documents. On March 23, 1992, the plaintiff filed a claim for the hearing in damages list. On April 2, 1992, the defendant filed an answer and on May 6, 1992, he filed a motion to strike the case from the hearing in damages list. In the May 6 motion to strike, the defendant asserted that "the clerk of the court was obligated to automatically set aside the default pursuant to § 363A of the Practice Book." ²

The trial court denied the defendant's motion to strike, stating in its memorandum of decision that "[a]ccordingly, the defendant was defaulted not because he failed to plead but because he failed to comply with an order of the court. (Practice Book § 351.)" ³ On May 18, the defendant filed a "notice as to hearing in damages" that stated which allegations of the plaintiff's complaint he intended to deny and, if necessary, disprove. The plaintiff then filed a motion to strike that notice, asserting that the notice had not been filed within ten days of the notice of default as required by Practice Book §§ 367 ⁴ and 368. ⁵ The trial court granted the plaintiff's motion to strike, ruling that "the default was effective as of March 10, 1992, and notice of the court's order was communicated to counsel on February 25, 1992."

The defendant then filed a motion for permission to file a late "notice of defenses as to hearing in damages." That motion was denied by the trial court, and a hearing in damages was held on July 7, 1993. The trial court awarded the plaintiff compensatory damages of $78,245, which were trebled pursuant to General Statutes § 52-564. ⁶ Punitive damages of $26,387.96 were also awarded, resulting in a total judgment of $261,122.96.

I

The defendant first contends that he is entitled to use Practice Book §§ 376 and 363A because both sections address the setting aside of defaults and there is no express prohibition in the rules against using the sections seriatim. He reads the rules to allow a second opportunity to set aside a default. We disagree with the defendant's interpretation of the rules.

"The rules of statutory construction apply with equal force to Practice Book rules." Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); Brown v. Smarrelli, 29 Conn.App. 660, 663, 617 A.2d 905 (1992), cert. denied, 225 Conn. 901, 621 A.2d 284 (1993). Two principles of statutory construction militate against the interpretation urged upon us by the defendant. The first principle is: "[W]hen two statutes relate to the same subject matter every effort should be made to find a reasonable field for the operation of both statutes ... [and] where there is a reasonable field of operation for each statute which does not impinge on the domain of the other, it is the court's duty to give them concurrent effect." (Internal quotation marks omitted.) Windham First Taxing District v. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988); see also McCarthy v. Commissioner of Correction, 217 Conn. 568, 578, 587 A.2d 116 (1991).

Practice Book § 363A took effect on October 1, 1990, long after the adoption of Practice Book § 376. ⁷ Just as legislatures are presumed to act with the knowledge of existing laws, so too are the judges of the Superior Court presumed to act with knowledge of existing rules when promulgating new rules. This presumption exists in order to "create one consistent body of laws." Zachs v. Groppo, 207 Conn. 683, 696, 542 A.2d 1145 (1988); State v. Nixon, 32 Conn.App. 224, 240, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). Pursuant to Practice Book § 376, a court, upon a party's motion, may set aside a default entered for any reason where judgment has not yet been rendered "for good cause shown upon such terms as it may impose." (Emphasis added.) Practice Book § 363A, however, is limited to defaults entered for failure to plead and authorizes the clerk to set aside such a default where an answer is filed before judgment is rendered. ⁸ The second paragraph of § 363A ⁹ works in conjunction with the first paragraph that allows the clerk to enter the default for failure to plead without placing the motion for such default on the short calendar. Prior to the adoption of § 363A, a defaulted party's only remedy was to appeal to the court pursuant to § 376 or its predecessors. Section 363A, on the other hand, mandates that the clerk set the default aside upon the filing of the answer before judgment is entered. In return for the guaranteed set aside of the default, the defendant gives up the right to file a motion to dismiss, a request to revise or a motion to strike. ¹⁰ The obvious purpose of § 363A is judicial economy. Such economy is achieved by eliminating the need to place motions for default for failure to plead and motions to set aside such defaults on the short calendar when an answer is filed by the defaulting party, prior to judgment. ¹¹ There is nothing in the rule to suggest that it was intended to provide a second opportunity to set aside the same default.

Practice Book §§ 376 and 363A can be made compatible by limiting each to its proper sphere of operation. Section 376 applies to all defaults and permits the court to set aside such defaults prior to judgment. A party who is defaulted for a reason other than failure to plead must use this section. A defendant who wants to file a pleading that precedes the answer may also resort to this section. In contrast, § 363A applies only to defaults for failure to plead and only when the defendant elects to waive the right to file preceding pleadings by filing an answer prior to judgment.

Upon being defaulted for failure to plead, the defendant must make a choice of which section to invoke. To decide otherwise would run counter to a second well settled rule of statutory construction. Neither statutes nor court rules should be interpreted in a way that leads to bizarre results. "When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results." (Internal quotation marks omitted.) Gabrielle v. Hospital of St. Raphael, 33 Conn.App. 378, 386, 635 A.2d 1232, cert. denied, 228 Conn. 928, 640 A.2d 115 (1994). "[I]n construing a statute, common sense must be used and courts will assume that [the legislature intended to accomplish] a reasonable and rationale result...." (Citations omitted; internal quotation marks omitted.) Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 737, 563 A.2d 1347 (1989).

Applying these principles to rule making, it becomes clear why the defaulted defendant must choose one of the rules of practice, and is precluded from using both to address the same default. If we were to adopt the interpretation advanced by the defendant, he would be able to invoke the court's discretion pursuant to § 376, knowing full well that the court could impose conditions for setting aside the default. The defendant could then choose not to comply with those conditions (as he did here) and effectively countermand the court's order that the default stand, absent compliance, by resorting to § 363A. This interpretation would vitiate that portion of § 376 that allows the court to set the terms on which it will set aside a default. An even more egregious result could occur when the court denies a defendant's motion to set aside a default that had entered for failure to plead. Before judgment entered, that defendant could file an answer and the clerk would "automatically" have to set the default aside. Such action would effectively overrule the court's order. In adopting § 363A, the judges of the Superior Court could not have intended the bizarre result of authorizing a clerk to overrule a court's order.

A rational result may be obtained by interpreting the rules to require that the defendant elect his remedy. A defaulted defendant could take the guaranteed set aside of § 363A by filing an answer or invoke the court's discretion pursuant to § 376. This would effect the judicial economy inherent in streamlining the short calendar pursuant to § 363A without impinging on the exercise of the court's authority to deny a motion to set aside such a default or to attach conditions thereto pursuant to § 376.

We...