Opinion
No. CV 05-4011472
December 22, 2006
ARTICULATION
This matter is before the court on the motion to open judgment upon default dated January 31, 2006 filed by the defendants, Ward Leonard Electric Company, Inc. ("Ward Leonard") and WL Real Estate Company, LLC ("WL Real Estate"), seeking to open the judgment entered by this Court (Bryant, J.) on January 24, 2006 following a default for failure to appear entered on September 29, 2005. The defendants claim that a good defense existed when the judgment entered and that they were prevented by mistake, accident, or other reasonable cause from appearing in the case. After considering all of the evidence, finding the facts set forth below and applying the applicable law, this Court concluded that the defendants did not have a good defense at the time judgment entered and were not prevented by mistake, accident, or other reasonable cause from entering appearances. Based on these conclusions the court denied the defendants' motion to open judgment.
The Court found the following facts. The plaintiff, Commissioner of Environmental Protection (the "Commissioner") filed this lawsuit after its exhaustive efforts to induce the defendants to remediate numerous, longstanding, and significant violations of state hazardous waste regulations failed. Ward Leonard's twenty violations stemmed from its manufacture of electric motors at its facility in Thomaston, Connecticut. Compl., Count One ¶¶ 2-4, 6. WL Real Estate's seven violations arose from its responsibility for the post-closure management of two in-ground hazardous waste lagoons at the Thomaston site. Compl. Count Two ¶¶ 2-5, 7.
After discovering violations of the post-closure management requirements by WL Real Estate, the state Department of Environmental Protection (the "Department") issued a first notice of violation (the "First NOV") on August 20, 2003. Gleason Aff. ¶ 4. The terms of the NOV required a response within thirty days. Id. WL Real Estate did not respond, so in early October 2003, Christine Gleason, a sanitary engineer with the Department's Bureau of Waste Management, called Susan Castle, Ward Leonard's Vice President of Human Resources and Business Systems. Gleason Aff. ¶ 5. Ms. Castle explained that she would contact Ms. Gleason in the near future about the alleged violations. Id. By October 29, 2003, WL Real Estate still had not responded to the First NOV, so Ms. Gleason sent a letter by certified mail to Ms. Castle, explaining that a response was necessary by November 12, 2003, or "formal action" may be taken. Gleason Aff. ¶ 6.
On January 20, 2004, the Department issued a second NOV (the "Second NOV") to WL Real Estate and ARCADIS Geraghty and Miller ("ARCADIS"), an environmental consultant hired to assist in the post-closure management of the hazardous waste lagoons. Gleason Aff. ¶ 7. The Second NOV identified three additional violations and also required a response within thirty days. Id.
Ward Leonard and ARCADIS responded to the First and Second NOVs by submitting in February and March 2004 information to correct some of the violations. Gleason Aff. ¶ 8. In an April 23, 2004 letter, then-Acting Director of the Bureau of Waste Management Robert Isner, Sr. acknowledged the submittals, but identified further information necessary to fully correct the violations. Id. Mr. Isner stated that if the information were not received within thirty days, the Department would consider its options to resolve the violations, "including referring the matter to the Office of the Attorney General." Id. A copy of this letter was mailed to Ms. Castle. Id.
On March 26, 2004, the Department mailed to Ms. Castle a final NOV (the "Third NOV"), which outlined significant and numerous hazardous waste management violations at Ward Leonard's Thomaston facility discovered through a December 2003 inspection. Gleason Aff. ¶ 9. Like the two prior NOVs, the Third NOV required a response within thirty days. Id. In a cover letter to Ms. Castle, Mr. Isner stated that the Department intended to pursue "a more formal enforcement action" because of the significance of the violations, and proposed a consent order and payment of a civil penalty. Id. Mr. Isner concluded that if the Department did not hear from Ms. Castle by April 9, 2004, the Department would assume Ward Leonard did not wish to settle the violations through a consent order, "and other enforcement options will be recommended." Id.
Ward Leonard never confirmed whether it would enter into a consent order. Gleason Aff. ¶ 10. In April 2004, Ms. Gleason called and left a voice message for Ms. Castle regarding Ward Leonard's decision to enter into a consent order, but Ms. Castle did not return her call. Id. On May 10, 2004, more than one month after the April 9 deadline, Ms. Gleason prepared a letter for Mr. Isner's signature to Ms. Castle explaining that if the Department did not hear from Ward Leonard within five days after the receipt of his letter, the Department would assume Ward Leonard did not wish to settle the violations and would consider other enforcement options. Id. The letter was sent by certified mail, return receipt requested. Id. Ward Leonard received the letter on May 12, 2004, but did not respond. Id.
Mr. Isner also attempted to contact Jon Carter, President of Ward Leonard, in an effort to resolve the violations. Mr. Carter was aware of the First and Second NOVs, at the very least, as demonstrated by his certification of a May 26, 2004 submittal from ARCADIS to the Department in response to the NOVs. On July 9, 2004, Mr. Isner called Mr. Carter, but Mr. Carter was unavailable. Isner Aff. ¶ 5. Mr. Isner then spoke with Ms. Castle and explained that Ward Leonard had not reconciled the violations with the Department. Id. Mr. Isner said that the case appeared suitable for referral to the Office of the Attorney General for civil action, and stated that if Ward Leonard wished to reconcile the violations through a consent order, a representative of Ward Leonard must meet with representatives of the Department shortly. Id. Despite the NOVs and Ms. Gleason's call, Ms. Castle incredulously claimed she believed the outstanding issues had been corrected, and confirmed Ward Leonard's desire to resolve the matter. Id.
On July 22, 2004, Ms. Castle met with Ms. Gleason and Mr. Isner in a "final attempt" to confirm whether Ward Leonard would enter into a consent order to resolve the violations. Isner Aff. ¶ 6; Gleason Aff. ¶ 12. At the meeting, Mr. Isner asked Ms. Castle to provide within two or three weeks a written commitment signed by Mr. Carter to enter into a consent order. Isner Aff. ¶ 6; Gleason Aff. ¶ 12.
Mr. Carter never provided a written commitment, so Mr. Isner again attempted to contact him. Gleason Aff. ¶ 13. On August 25, 2004, Mr. Isner sent a letter to Mr. Carter, explaining how he had asked Ms. Castle at the July 22, 2004 meeting for a written commitment from Mr. Carter to enter into a consent order. Id. The letter stated that, because the Department had not received such written commitment, the Department "now intends to take other action in this matter." Id. A copy of this letter was mailed to Ms. Castle. Id.
As of October 2005, Mr. Carter still had not provided a written commitment, so Mr. Isner again attempted to contact Mr. Carter. Isner Aff. ¶ 7. Mr. Isner called Mr. Carter by telephone, but was told Mr. Carter was unavailable. Id. Mr. Isner asked to speak with Mr. Carter's administrative assistant or another representative of the company who managed Mr. Carter's affairs. Id. Mr. Isner was transferred to the voice mail of Mr. Carter's administrative assistant. Id. Mr. Isner identified himself, left a clear message that the Department had not received a written commitment to enter into a consent order, and that a quick response was necessary to avoid the filing of a lawsuit. Id. In the message, Mr. Isner stated that he would also mail to Mr. Carter a letter affirming the substance of his voice message. Id. On October 25, the Department mailed such letter to Mr. Carter, with a copy to Ms. Castle. Gleason Aff. ¶ 14.
Ms. Castle received the October 25 letter as evidenced by the fact that on or about October 28, 2004, she called and left a message for Ms. Gleason, stating that she called in response to the October 25, letter, and stated that the violations had been resolved. Gleason Aff. ¶ 15. On November 2, 2004, Ms. Gleason returned her call and reviewed all of the outstanding violations with her. Gleason Aff. ¶ 16. Ms. Castle stated she would respond to the outstanding violations. Id. Regarding the written commitment to enter into a consent order, Ms. Castle said she would speak with Mr. Carter about it when he returned to the office. Id.
On November 2 and 8, 2004, Ms. Castle submitted further information to the Department. Gleason Aff. ¶ 17. These submittals did not address all of the outstanding violations, nor did they contain a written commitment from Mr. Carter to enter into a consent order. Id. With the November 8 submittal, Ms. Castle sent a draft, unsigned letter that referred to a "sincere hope that Ward Leonard and the [Department] can come to an agreement that will allow us to use resources to continue our efforts toward achieving a safe and improved environment for Connecticut." Id. Clearly, this was not what the Department had requested. Id. The Department referred this matter to the Office of the Attorney General in January 2005, initiating the enforcement proceeding which it had warned the defendants about for more than a year. Gleason Aff. ¶ 18.
The defendants were served with the Commissioner's writ, summons and complaint through their agent for service on April 28, 2005. Service was duly made on the defendants' agents for service of process which forwarded the material to the defendants' outside counsel which in turn forwarded the material to Ms. Castle (Castle Aff.). Ms. Castle admits in her affidavit that she received copies of the summons and complaint on May 4, 2004. Castle Aff. ¶ 5. The defendants were aware of the impendency as well as the pendency of this lawsuit. Ms. Castle and Mr. Carter were repeatedly informed, both orally and in writing that a lawsuit would be filed if Mr. Carter did not sign a consent decree. Mr. Carter did not sign a consent decree. Each time the Department attempted to involve Mr. Carter, he referred them back to Ms. Castle. Ms. Castle and the defendants' agent for service of process and outside counsel had actual knowledge of the pendency of the lawsuit. Every pleading was sent to the defendants, yet they continued to ignore the matter.
On May 5, 2005, Ms. Castle called Assistant Attorney General Krista E. Trousdale, who had brought this lawsuit on behalf of the Commissioner. Trousdale Aff. ¶ 3. In their conversation, Ms. Castle claimed that the lawsuit was brought in error because the defendants had corrected all the violations. Trousdale Aff. ¶ 4. Ms. Trousdale dispelled Ms. Castle's mistaken belief by specifically identifying three continuing violations of Ward Leonard, and confirming that the resolution of the lawsuit would require the negotiation and payment of a civil penalty for the past violations. Trousdale Aff. ¶ 5. Despite this, Ms. Castle continues to assert incredulously in her affidavit in support of the motion to open that she thought the matter was resolved.
On September 16, 2005, the Commissioner filed a motion for default for failure to appear, and certified service of the motion by prepaid mail to both defendants at their places of business. Ms. Castle admits in her affidavit she received copies of the motion for default in late September or early October. Castle Aff. ¶¶ 11-12. Once again Ms. Castle ignored the matter.
Default against both defendants entered on September 19, 2005. The record confirms that the court mailed official notice of the entry of default on September 30, 2005 to both defendants. Trousdale Aff. ¶ 6, Att. 1. The defendants did not file an appearance, a motion to set aside or any other pleading.
The litigation proceeded. On December 5, 2005, the Commissioner filed a certificate of closed pleadings and claimed the case to the hearings in damages list. That pleading, like all others, was served on both defendants. The defendants' neglect of the case continued. On January 19, 2006, the Commissioner filed her motion for judgment, serving copies on both defendants. Ms. Castle admits in her affidavit that she received copies of the motion for judgment. Castle Aff. ¶ 17. The defendants' neglect persisted. The defendants did not respond with so much as a telephone call to the Commissioner's numerous entities. The motion appeared on the short calendar of January 24, 2006 and was granted on that date.
On the following day the defendants filed an answer and a motion to open default (##103 and 104, respectively). They also filed an appearance. On January 3, 2006, the defendants filed a motion to open judgment on default and the supporting affidavit of Ms. Castle. Given the history of this matter and Ms. Castle's course of dealing in this matter, the court does not find her affidavit credible.
The limited bases upon which a court may open a judgment rendered after default are stated both in § 52-212 of the General Statutes and Practice Book § 17-43. To prevail on a motion to open a judgment, the moving party must show that (1) a good cause of action or defense existed when judgment was rendered, and (2) the moving party was prevented from appearing by mistake, accident, or other reasonable cause. Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 167 (1984) (affirming a judgment upon default for failure to appear). Section 52-212 "is remedial, but is intended to confine the opening of default judgments to meritorious cases." Eastern Elevator Co., Inc. v. Scalzi, 193 Conn. 128, 134 (1984). "[T]he orderly administration of justice requires that relief be denied unless the moving party alleges and shows reasonable cause for relief under the statute." Jaquith v. Revson, 159 Conn. 427, 431-32 (1970) (court, applying § 52-212, affirmed judgment of nonsuit of counterclaim against individual defendant who recited "history of illness and cause for seclusion" as basis of her motion to open). A moving party must show that a good defense, the nature of which must be set forth, existed at the time judgment was rendered. Conn. Gen. Stat. § 52-212(a). The moving party may state the defense in general terms, but the showing of the defense is "critical." Eastern Elevator Co., supra, at 132.
The moving party must also show that he was prevented by mistake, accident, or other reasonable cause, unrelated to his own negligence, from making the defense before the court rendered judgment. See Manchester State Bank v. Reale, 172 Conn. 520, 525 (1977); Cholewinski v. Conway, 14 Conn.App. 236, 241-42 (1988). "[A] reasonable degree of liberality should be exercised in determining whether a default has resulted from excusable neglect." Trichilo v. Trichio, 190 Conn. 774, 783 (court affirmed judgment upon default for failure to appear after default appeared only after rendering of judgment). Excusable neglect, however, is distinct from negligence. Jaconski v. AMF, Inc., 208 Conn. 230, 238-39 (1988). Section 52-212 embodies "the legislative determination . . . that not all deviations from ideal performance constitute negligence, and that a limited class of deviations may be excusable because they were the result of mistake, accident or other reasonable cause." Jaconski, supra, at 239 (internal quotation marks omitted). In such cases, a trial court may exercise its discretion to open a judgment. Id.
In contrast, "[n]egligence is no ground for vacating a judgment, and we have held consistently 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." Pantlin v. Chananie Development Corp. v. Hartford Cement and Building Supply Co., 196 Conn. 233, 235 (1985); see Woodruff v. Riley, 78 Conn.App. 466, 471-72 (2003) (court affirmed judgment of injunctive relief and costs upon default for failure to appear against pro se defendant served with process the day she separated from her husband). A trial court's finding of negligence signifies that the moving party has "not fulfilled the statutory prerequisites," and forecloses the trial court's discretion to open the judgment. Jaconski, supra, at 238.
"A court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court's authority." State v. Ritz Realty Corp., 63 Conn.App. 544, 548 (2001) (court affirmed judgment upon default providing injunctive relief and $231,870 in restitution and civil penalties).
Ward Leonard claims it had a good defense to this action before the rendering of judgment on January 24, 2005. Castle Aff. ¶ 18. In essence, the defense is that Ward Leonard had corrected the violations that serve as the basis of this action and had a "good faith belief" that certain regulatory requirements did not apply to it. Id. Ward Leonard fails to make the requisite showing that a good defense existed before the rendering of judgment. This action is premised on not just Ward Leonard's three alleged continuing violations, but also on the seventeen alleged prior, long-term violations Ward Leonard had corrected as of the commencement of this action. Pursuant to her statutory mandate and authorization at § 22a-6 of the General Statutes, the Commissioner commenced this action to correct the alleged continuing violations, hold Ward Leonard accountable for the alleged prior violations, and ensure, through court order, that such violations would not recur. The proffered defense that Ward Leonard corrected the violations is simply no defense, much less the requisite "good defense," to the Commissioner's allegations concerning the prior violations. Indeed, the fact that Ward Leonard corrected the violations confirms the violations occurred, which warrants a civil penalty pursuant to § 22a-438(a) of the General Statutes. Moreover, Ms. Castle's affidavit does not contain any information concerning her education, training or experience. Environmental law compliance is technical. As such, her opinion is unreliable.
Ward Leonard's defense is also insufficient because it is premised in part on Ward Leonard's "good faith belief" that certain hazardous waste management requirements did not apply. Ward Leonard appears to offer this defense as an explanation for its non-compliance with applicable requirements. This defense is invalid on its face. The Commissioner brought this action based on violations of Chapters 445 of the General Statutes, governing hazardous waste, and § 22-446k, governing water pollution control. Complaint, ¶ 1. These environmental statutes are strict liability statutes. See Holbrook v. Devcon Enterprises, Inc., 1997 Conn.Super. LEXIS 3493 (Dec. 30, 1997) [ 20 Conn. L. Rptr. 670]; Keeney v. Adams, 1992 Conn.Super. LEXIS 2496 (Aug. 21, 1992) [ 7 Conn. L. Rptr. 266]; Carothers v. American Airlines, Inc., 1990 Conn.Super. LEXIS 1238 (Sept. 24, 1990) [ 2 Conn. L. Rptr. 256]. Accordingly, "liability is established when the state has proved that the prohibited act was performed." American Airlines, 1990 Conn. Super. LEXIS 1238 at *8. The defendants' good faith belief regarding the applicability of these statutes and their implementing regulations is simply irrelevant to the defendants' liability pursuant to these requirements and the defendants do not claim offenses were not committed.
In regard to WL Real Estate, the motion to open fails to allege that WL Real Estate had a good defense before judgment was rendered.
Ward Leonard fails to show that it had a good defense before judgment was rendered, and WL Real Estate fails to even allege that it had a good defense when judgment was rendered. Accordingly, the court should deny their motion to open. Even if they had, they fall on the second prong.
Ward Leonard says that it was prevented from appearing and defending the action because of mistake, accident, or other reasonable cause. In support, Ms. Castle states in her affidavit that she believed that "the issues at the heart of the lawsuit" were resolved, the lawsuit was filed in error, and the lawsuit would be resolved without any further action on behalf of Ward Leonard. Castle Aff. ¶¶ 7-9. In addition, Ms. Castle states that, at all relevant times, she suffered extreme emotional stress which impaired her ability to "address and appreciate the nature and ramifications of this lawsuit." Castle Aff. ¶ 10. These claims lack credibility. If the Department's repeated communications to Ms. Castle and Mr. Carter did not disavow them, the initiation of suit should have. Ms. Castle's mental state, if substantiated, might be persuasive, but for the fact that Mr. Carter was aware of the matter and repeated efforts to get him to resolve it failed. The court believes that he would have dealt with the matter if Ms. Castle's emotional condition prevented her from doing so. Instead, every time the Department succeeded in communicating with him he delegated responsibility to follow through to Ms. Castle.
Despite these warnings, and both legal and actual notice of the commencement of this action, the defendants simply chose to not appear. In the nine months following service of process, the defendants received five additional notices of the progress of this action toward judgment: (1) Ms. Castle's telephone conversation with Ms. Trousdale; (2) the Commissioner's motion for default; (3) the court's notice of entry of default; (4) the Commissioner's certificate of closed pleadings; and (5) the Commissioner's motion for judgment. The defendants' neglect of this action is inexcusable gross negligence.
The defendants question the validity of the service of the motion for default and motion for judgment by citing Practice Book 10-12 through 10-14 and Triton Assocs. v. Six New Corp., 14 Conn.App. 172, 178 (1988). Practice Book § 10-12(b) provides that a motion for default for failure to appear be served upon the pro se party. The defendants incorrectly cite Triton Associates v. Six New Corp., 14 Conn.App. 172, 540 A.2d 95 cert. denied 268 Conn. 806, 545 (1988) for the proposition that a motion for default for failure to appear must be served upon a party's agent for service of process. Triton, holds that a notice of entry of default and a motion for judgment were properly served on a non-appearing party's agent for service; it does not hold that a motion for default must be so served on the agent rather than the party. In a subsequent case, the Appellate Court explained that its holding in Triton was based on the fact that the defendant in Triton had actual notice of both the entry of default and motion for judgment even though the pleadings had not been sent directly to them. Wilson v. Troxler, 91 Conn.App. 864, 872-73 (2005). In that case the court distinguished between service of process initiating an action and service of pleadings after a case has been initiated, saying:
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.
Id. at 870. The motions were properly served and the judgment cannot be attacked on the basis of improper service.
The motion to open default was denied because the defendants failed to satisfy the requirements for relief pursuant to § 52-212 of the General Statutes and Practice Book § 17-43. Both defendants have failed to allege and show that they had a good defense to this action existed before judgment was rendered. In addition, the history of this case demonstrates that the defendants failed to appear because of their own inexcusable neglect and not because of mistake, accident, or other reasonable cause. Finally, the defendants' claim that the pleadings were not properly served is unavailing, all pleadings were properly in accordance with the law of this state and the defendants received and had actual notice of every pleading filed with the court. Motions must be served on parties as provided in Sections 10-12 through 10-17 of the Practice Book. Practice Book § 11-1 under those rules, service may be made on a pro se party by mailing a copy of the motion to the last known address of the party. Practice Book § 10-13. Only pleadings asserting a new cause of action or claim must be served. Practice Book § 12.