Opinion
HHDCV156056701S
02-19-2019
Julio GUTIERREZ v. Daniel MOSOR
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
In this personal injury matter based on claimed negligence, the plaintiff’s objection (# 125) to the defendant’s motion for permission to file a notice as to hearing in damages (# 124) appeared on the short calendar for February 11, 2019. The matter is scheduled to appear on the hearing in damages calendar on March 6, 2019, having been continued from January 23, 2019. After consideration, the court issues this memorandum of decision. For the reasons stated below, the defendant’s motion for permission is denied.
I
Background
For ease of reference, the court again summarizes the background of this matter, which was set forth in its memorandum of decision, dated January 17, 2019 (# 123) (decision) concerning the defendant’s motion to set aside default. In his complaint, the plaintiff alleges that, on June 13, 2014, the defendant was the owner and/or the party in control of property located in Glastonbury, Connecticut, was constructing a house on the property, and hired various contractors, including the plaintiff, to perform work there. The plaintiff alleges that, due to the negligence and carelessness of the defendant, he fell 15 to 20 feet to the ground from an unstable metal staging platform which was attached to two ladders, causing the plaintiff to suffer personal injuries.
The return date in this case was January 27, 2015, over four years ago. The defendant filed an appearance and an answer (# 101) as a self-represented party on January 28, 2015. The plaintiff engaged in written discovery. See ## 102, 103. The matter was claimed for a jury trial by the plaintiff on January 31, 2017 (# 105), and jury selection was scheduled for August 22, 2018.
By re-notice of deposition dated January 29, 2018 (notice), the plaintiff scheduled the defendant’s deposition for March 14, 2018. See plaintiff’s Exhibit A to motion for default (# 109) Thus, the defendant was afforded over one month’s notice of the scheduled deposition. The notice clearly stated that the deposition was scheduled to occur at plaintiff’s counsel’s office on Buckingham Street in Hartford, not at the Courthouse.
According to a transcript dated March 14, 2018 (plaintiff’s Exhibit B to motion for default), the defendant waited until March 12, 2018 to call plaintiff’s counsel’s office to confirm the appointment, but he thought it was a court appearance. Plaintiff’s counsel’s office called the defendant back and confirmed that a deposition was scheduled at plaintiff’s counsel’s office, but the defendant did not respond to the message. Plaintiff’s counsel’s office called the defendant again on the date of the deposition, March 14, 2018, and left a message for him, but he did not respond. The defendant failed to appear for the duly noticed deposition.
The plaintiff filed his motion for default (# 109) on March 26, 2018. The motion for default appeared on the short calendar on April 9, 2018. The defendant filed no papers in opposition thereto. After consideration, on April 10, 2018, the court issued an order (# 109.86), which stated, "The defendant filed no objection in response to the motion for default. Since the defendant failed to attend his scheduled deposition, a default may enter against the defendant."
The defendant subsequently retained counsel who filed an appearance in lieu of the defendant’s appearance on September 27, 2018. On that date, defense counsel also filed a motion to continue the hearing in damages which had been scheduled for October 10, 2018. See # 112. Two months later, on November 29, 2018, defense counsel again moved for a continuance of a hearing in damages, which had been scheduled for December 5, 2018. See # 114.
The defendant’s motion to set aside default was not filed until January 2, 2019. See # 116. In his objection to the motion to set aside the default, the plaintiff argued that almost nine months had passed since the entry of the default in April 2018. He cited the delay between the filing of defense counsel’s appearance on September 27, 2018 and the filing of the motion to set aside on January 2, 2019, over three months later. He argued also that when the case previously appeared on the hearings in damages calendar, it was marked off as a courtesy to defense counsel and that courtesy should not be used against the plaintiff to benefit the defendant.
As stated in the decision denying the motion to set aside, the court concluded that the plaintiff had been prejudiced by the defendant’s delay in attending to this matter. No excuse was presented for the defendant’s delay in presenting the argument that he was confused by the notice of deposition. Defense counsel appeared on September 27, 2018, but did not file the motion to open the default until over three months later, on January 2, 2019. The court noted also that the defendant’s failure to respond to the plaintiff’s motion for default may not be excused. In its decision, the court concluded that the defendant had not shown good cause to set aside the default.
As the court stated in its decision, "[a]lthough we are solicitous of self-represented parties, we do not abrogate the rules of procedure for self-represented parties as those rules operate not only to create judicial regularity and foreseeability for litigants, but they embody notions of fairness, which it would be unjust to forsake in the name of deference to the self-represented. In a similar vein, this court has previously stated: Although our courts are consistently ... solicitous of the rights of pro se litigants, the rules of practice cannot be ignored to the detriment of other parties." (Internal quotation marks omitted.) Mayo v. Adm’r, Unemployment Comp. Act, 136 Conn.App. 298, 302 n.4, 44 A.3d 883 (2012).
"Practice Book § § 17-34, 17-35 and 17-37 delineate a defendant’s right to contest liability in a hearing in damages after default ... Unless the defendant provides the plaintiff written notice of any defenses, the defendant is foreclosed from contesting liability ... If written notice is furnished to the plaintiff, the defendant may offer evidence contradicting any allegation of the complaint and may challenge the right of the plaintiff to maintain the action or prove any matter of defense ..." (Internal quotation marks omitted.) Torla v. Torla, 152 Conn.App. 241, 247, 101 A.3d 275 (2014).
Practice Book § 17-34(a) provides, "In any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff’s complaint, except such as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to prove such matter of defense."
Practice Book § 17-35(b) provides that "[i]n all actions in which there may be a hearing in damages, notice of defenses must be filed within ten days after notice from the clerk to the defendant that a default has been entered."
"[C]ase law makes clear ... that once the defendants had been defaulted and had failed to file a notice of intent to present defenses, they, by operation of law, were deemed to have admitted to all the essential elements in the claim and would not be allowed to contest liability at the hearing in damages." (Internal quotation marks omitted.) Hosp. Media Network, LLC v. Henderson, 187 Conn.App. 40, 48-49 (2019). "To be timely, notice must be given within the time period provided in Practice Book § 17-35." (Internal quotation marks omitted.) Id., 48 n.12. "A party who allows the ten-day period from the notice of a default to expire without filing a notice of defenses does so at his peril." Whalen v. Ives, 37 Conn.App. 7, 20, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995).
As noted above, the court’s order granting the default was entered on April 10, 2018. See # 109.86. According to the court’s file, the Clerk’s notice thereof was mailed to the defendant on April 11, 2018. See Practice Book § 17-36 (Notice by Clerk). The defendant does not dispute notice of the default. The defendant did not file a notice of defenses in compliance with Practice Book § 17-35(b)’s requirement. The ten-day period afforded to the defendant to file a notice of defenses after notice of the entry of the default passed in April 2018, over nine months ago.
The court has the discretion to permit a late filing of a notice of defenses. See Lawton v. Weiner, 91 Conn.App. 698, 708, 882 A.2d 151 (2005) (where notice of defenses was filed forty-six days late, trial court did not abuse its discretion in sustaining the plaintiff’s objection to the defendants’ late notice of defenses); Whalen v. Ives, supra, 37 Conn.App. 20-21 (trial court did not abuse its discretion in denying the motion where the notice of defenses was filed more than three and one-half months late).
In the motion for permission, the defendant again asserts his lack of familiarity with court procedures. He states that he did not understand the significance of a notice of deposition or of a default, and had never heard of a hearing in damages or of a notice of disclosure of defenses. He seeks to contest some allegations of the plaintiff’s complaint, citing the answer he filed in January 2015.
In support of his motion for permission, the defendant presents his own affidavit. The court is not required to credit assertions made in an affidavit. See 2830 Whitney Ave. Corp. v. Heritage Canal Dev. Assocs., Inc., 33 Conn.App. 563, 568, 636 A.2d 1377 (1994). In his affidavit, paragraph 4, the defendant states that, in March 2018, he appeared in court in Middletown, Connecticut. The court’s docket reflects that this matter was filed in Hartford Superior Court, not in Middletown. The court does not credit the defendant’s statement that he appeared in court in Middletown.
The defendant also states that an unnamed person told him "not to worry about appearing." See affidavit, ¶ 6. The court does not credit this vague statement.
In paragraph 10 of his affidavit, the defendant states that he has a good and valid defense, including that he did not know who the plaintiff was or why he was on the job site on the day he claims to have been injured. He also states that "activities on the project in question were undertaken on behalf of my LLC and not personally." If the court permitted the defendant to raise this new issue concerning the involvement of a limited liability company, discovery would have to be reopened, further delaying this matter, which already has had dates for the hearing in damages postponed previously.
In support of his objection to the motion for permission, the plaintiff’s counsel provided an affidavit, in which he avers that, during the pendency of this matter, he twice met with the defendant at the Hartford courthouse and suggested that the defendant consult an attorney to represent him. He notes that he communicated with two different attorneys who had been consulted by the defendant, neither of whom filed an appearance on behalf of the defendant.
Under these circumstances, the court is not persuaded by the defendant’s statements about his lack of familiarity with the court process. As stated in the decision, and as discussed above, it is evident that the defendant did not pay proper attention to this matter. As stated above, although courts are consistently solicitous of the rights of self-represented parties, the rules of practice cannot be ignored to the detriment of other parties. See Mayo v. Adm’r, Unemployment Comp. Act, supra, 136 Conn.App. 302 n.4. "[T]he right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Internal quotation marks omitted.) Questell v. Farogh, 175 Conn.App. 262, 271, 167 A.3d 492 (2017).
After having considered the circumstances, in the exercise of the court’s discretion, for the reasons discussed above, the defendant’s motion for permission to file a notice of defenses is denied and the plaintiff’s objection thereto is sustained.