Opinion
No. CV-05-4014580S
June 19, 2008
ARTICULATION
In motion #115, the defendant has moved the court to articulate its reasons for denying his motion to reargue the court's denial of his motion to open judgment. The court submits the following articulation:
On October 18, 2005, a default judgment entered against the defendant Anthony Austin, Sr. (Austin) in the amount of $4,599.39. On September 12, 2007, Attorney Sheldon Messinger entered an appearance for the defendant and filed a motion captioned "Motion to Open Judgment and Dismiss Case," (#104) along with an affidavit that Austin had executed. On October 2, 2007, a supplemental affidavit from Austin was filed. The motion to open and dismiss appeared on the non-arguable short calendar for March 10, 2008 and on March 12, 2008 the court issued a special JDNO scheduling the motion for an evidentiary hearing on April 7, 2008. On April 7, 2008, counsel for the plaintiff appeared at the appointed time, but neither Mr. Messinger nor Mr. Austin were present. Accordingly, after waiting for over one hour, the court denied the motion in light of the defendant's failure to appear.
The notice read as follows:
Notice of Hearing re: Motion #104 (Motion to Open Judgment and Dismiss Case) The court will conduct an evdientiary (sic) hearing at 9:30 a.m. on 4/7/08 in courtroom 4D on the following issues: 1) When did the defendant receive actual or constructive notice of the entry of the default judgment against him and 2) Was the defendant properly served?
On April 16, 2008, the defendant filed a motion captioned "Motion to Re-argue" (#113) which was directed at the court's denial of his motion to open the judgment. In light of the representation contained in that motion that the failure to appear was the result of "the negligence of his counsel" who "did not properly diary the notice from the court about the scheduled hearing," the court denied that motion on April 23, 2008. No explanation was provided for counsel's negligence. On May 13, 2008, the defendant moved for the court to articulate its reasons for denying the reargument motion.
On June 6, 2008, Mr. Messinger filed an affidavit setting forth certain facts involving the illness of a family member which had required him to be out of Connecticut from approximately March 11, 2008 until March 26, 2008. In the affidavit, however, he avers that he was in his office on April 7, 2008, that the notice of the scheduled hearing was in his file but that he "never saw the notice of the scheduling."
General Statutes § 52-212 provides that a default judgment may only be opened within four months following the date of its entry. However, if a defendant can establish a lack of actual or constructive notice of the entry of the judgment the commencement of the statutory limitation period may be extended. See Habura v. Kochanowicz, 40 Conn App. 590, CT Page 10269 591-92, 672 A.2d 512 (1996). Receipt of notice of the entry of a judgment is the critical date and the movant bears the burden of establishing it. See Henriquez v. Allegre, 68 Conn.App. 238, 245, 789 A.2d 1142 (2002). In the absence of such a showing, the court does not have jurisdiction to consider opening the judgment. Ziruk v. Bedard, 45 Conn.App. 137, 695 A.2d 4, cert. denied, 243 Conn. 905 (1997).
In this case, the motion to open was filed twenty-three months after the entry of judgment. The plaintiff objected to the motion to open on that ground, among others. The court scheduled the April 7, 2008 evidentiary hearing in part because Austin's affidavits did not contain any factual averments regarding the date he became aware that a default judgment had entered against him and thus failed to provide a basis for the court to determine whether it had jurisdiction to consider the motion to open. There is no doubt that the defendant was entitled to have such a hearing to present evidence regarding his receipt of notice and that the plaintiff was equally entitled to have an opportunity to challenge that evidence. See generally Morelli v. Manpower, Inc., 34 Conn.App. 419, 642 A.2d 9 (1994). Indeed, the plaintiff appeared at the scheduled date and time and was prepared to go forward with evidence.
If Austin had proven to the court that he filed his motion to open within four months of learning about the entry of a judgment against him, the court would have then proceeded to take evidence on whether the abode service reflected in the marshal's return of service had been effective. If the defendant had been able to demonstrate that he was not properly served, such evidence would have established both "reasonable cause" to open the judgment, Habura v. Kochanowicz, 40 Conn.App. 590, 594 (1996), and a basis to grant the motion to dismiss. If, however, the court concluded that the abode service was effective, both motions would have been denied.
The purpose of a motion to reargue is to demonstrate to the court that it should reconsider its decision in light of a change in the law or that it overlooked controlling law or misapprehended the facts. Chartouni v. DeJesus, 107 Conn.App. 127, 129-30, 944 A.2d 393 (2008). It "cannot be used to correct deficiencies in a prior motion." Opoku v. Grant, 63 Conn.App. 686, 692, 778 A.2d 981 (2001). In moving to reargue the court's decision to deny his motion to open, the only reason put forward for the defendant's failure to appear was the negligence of his counsel. The court has reviewed Mr. Messinger's June 6, 2008 affidavit, see footnote 2 supra, and has concluded that his negligence was not excusable. The negligent failure to appear combined with the absence of any factual averment regarding the date when Austin learned that a judgment had entered against him formed the basis for the court's denial of the motion to open the judgment and the motion to reargue.