Wilson v. Troxler

• Decision Date: 11 October 2005
• Docket Number: (AC 25783).
• Citation: 91 Conn. App. 864,883 A.2d 18
• Court: Connecticut Court of Appeals
• Parties: JOLYNN WILSON v. ESTHER A. TROXLER ET AL.

91 Conn. App. 864

883 A.2d 18

JOLYNN WILSON v. ESTHER A. TROXLER ET AL.

(AC 25783).

Appellate Court of Connecticut.

Argued May 24, 2005.

Officially released October 11, 2005.

Schaller, McLachlan and Foti, Js.

Ronald D. Williams, Jr., for the appellant (defendant state fleet operations).

Thomas E. Farver, with whom was Nicholas M. Troiano, for the appellee (plaintiff).

Opinion

FOTI, J.

The defendant state of Connecticut, fleet operations (state fleet operations),¹ appeals from the judgment of the trial court denying its motion to open the judgment rendered in favor of the plaintiff, JoLynn Wilson, after it had been defaulted for failure to appear, and denying its motion to dismiss her complaint on the ground of sovereign immunity.² On appeal, state fleet operations claims that the court improperly denied (1) its motion to open because it did not receive actual notice of the plaintiff's motion for default for failure to appear and (2) its motion to dismiss because it is immune from the plaintiff's lawsuit. We agree with the first claim and, accordingly, reverse the judgment of the trial court as to the motion to open. We affirm its judgment as to the motion to dismiss.

The plaintiff alleged that she was driving her vehicle in New Haven on August 1, 2000, when she was struck from behind by a state owned vehicle driven by Esther A. Troxler. In a complaint dated July 16, 2002, the plaintiff named Troxler and state fleet operations as defendants, and alleged that Troxler negligently had struck her vehicle and had caused her to suffer injuries. The plaintiff then served process on Troxler and on the attorney general's office, which is state fleet operations' agent for service of process. Gregory T. D'Auria, an associate attorney general, accepted service of process for state fleet operations on July 24, 2002, and forwarded the writ of summons and the plaintiff's complaint to the state comptroller's office.

The plaintiff filed her complaint on August 12, 2002. The return date for the complaint was August 20, 2002. Neither Troxler nor state fleet operations filed an appearance. On October 17, 2002, the plaintiff filed a motion for default for failure to appear as to both Troxler and state fleet operations, and mailed a copy of that motion to Troxler and to the attorney general's office. The court clerk granted that motion as to both Troxler and state fleet operations. The plaintiff then filed a motion for judgment after default on February 20, 2003, and a certificate of closed pleadings on March 10, 2003, in which she requested a hearing in damages to the court. The plaintiff mailed that motion and certificate to Troxler and to the attorney general's office. On June 6, 2003, the court, Graham, J., rendered judgment for the plaintiff and awarded her $294,423.50 in damages.

Troxler and state fleet operations together filed a single appearance on August 7, 2003. Troxler submitted an affidavit that she had received process and the plaintiff's subsequent pleadings, and had sent the plaintiff's counsel a letter and then a note explaining her belief that the state would handle the lawsuit on her behalf. State fleet operations represented that it never had received the writ of summons and the plaintiff's complaint as well as subsequent pleadings from the attorney general's office or the state comptroller's office. The state comptroller's office had no record of having received the writ of summons and the plaintiff's complaint from the attorney general's office. The attorney general's office had no record of having received the plaintiff's subsequent pleadings.

The plaintiff filed a notice of judgment after default for failure to enter an appearance on September 18, 2003, and mailed that notice to Troxler, state fleet operations and to the attorney general's office. Thereafter, Troxler and state fleet operations each timely filed a motion to open the judgment and a motion to dismiss the plaintiff's complaint. On August 19, 2004, the court, Tanzer, J., granted Troxler's motion to open and motion to dismiss. Judge Tanzer denied state fleet operations' motion to open and motion to dismiss. State fleet operations then filed this appeal from the court's denial of its motions to open and motion to dismiss.

I

State fleet operations first claims that the court should have granted its motion to open because it did not receive actual notice of the plaintiff's motion for default for failure to appear. We agree.

"We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court reasonably could conclude as it did." (Citation omitted; internal quotation marks omitted.) Eilers v. Eilers, 89 Conn. App. 210, 216, 873 A.2d 185 (2005).

General Statutes § 52-212 (a) sets forth the procedure for opening a judgment upon default or nonsuit. It provides in relevant part: "Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense." See also Practice Book § 17-43. Therefore, state fleet operations must show that it (1) had a good defense when judgment was rendered and (2) did not defend against the action because of mistake, accident or other reasonable cause. As the Appellate Session of the Superior Court once explained, "[t]he fact that the defendant had no notice of the pendency of the action is a good defense against the action as well as a reasonable cause to set aside the judgment." Collins v. Scholz, 34 Conn. Sup. 501, 505-506, 373 A.2d 200 (1976).

The court determined that state fleet operations had received notice of the plaintiff's motion for default for failure to appear because the plaintiff had mailed a copy of that motion to the attorney general's office.³ The plaintiff also mailed her motion for judgment after default and certificate of closed pleadings to the attorney general's office.⁴ The court concluded that the plaintiff properly had addressed those pleadings to the attorney general's office rather than to state fleet operations because state fleet operations had not filed an appearance and the attorney general's office is state fleet operations' agent for service of process. In support of its conclusion, the court cited General Statutes § 52-64, which provides that "[s]ervice of civil process in any civil action or proceeding maintainable against . . . the state or against any institution, board, commission, department or administrative tribunal thereof . . . may be made by leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General or at his office in Hartford."

Section 52-64, however, concerns civil process, not subsequent pleadings. Civil process is the manner in which civil actions are commenced. General Statutes § 52-45a provides that civil process "consist[s] of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint. . . ." Service of subsequent pleadings is not by process, but instead usually by mail. See Practice Book § 10-13. The court therefore improperly relied on General Statutes § 52-64. The court should have relied on Practice Book § 10-12 (b), which provides: "It shall be the responsibility of counsel or a pro se party at the time of filing a motion for default for failure to appear to serve the party sought to be defaulted with a copy of the motion. Upon good cause shown, the judicial authority may dispense with this requirement when judgment is rendered." (Emphasis added.) Although the court cited Practice Book § 10-12 (b) in its memorandum of decision, it did not apply that section to the present case. Section 10-12 (b) plainly directs counsel "to serve the party sought to be defaulted," not the party's agent for service of process.

"We interpret provisions of the Practice Book according to the same well settled principles of construction that we apply to the General Statutes. . . . In determining the meaning of a statute, [it] must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. . . . We presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Citations omitted; internal quotation marks omitted.) Tyler E. Lyman, Inc. v. Lodrini, 63 Conn. App. 739, 744, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001). The plain language of Practice Book § 10-12 (b) provides that the party to be defaulted is to be served with a copy of the motion for default for failure to appear. Section 10-12 (b) does not refer to service of process, for which a party may appoint an agent. The absence of any reference to "process" in Practice Book § 10-12 (b) is significant because that term appears in other rules of practice related to service. See Connor v. Statewide Grievance Committee, 260...