Opinion
No. CV 06 5000763
January 11, 2008
Before the court is the motion for summary judgment of defendant Huntington National Bank. The dispositive issue is whether plaintiff Karen Meyer can, through a separate action, collaterally attack a default judgment rendered against her in Connecticut which was issued to enforce an Ohio default judgment.
The following facts, as alleged in plaintiff Karen Meyer's complaint, are necessary for the analysis of the defendant's motion. On July 30, 2003, defendant, Huntington National Bank (HNB), obtained a judgment against plaintiff Karen Meyer in the Ohio Court of Common Pleas, Franklin County, in the amount of $97,179.76 plus interest (Ohio judgment). Meyer claims that she did not receive notice of the Ohio suit. In July 2004, HNB commenced an action against Meyer in Connecticut Superior Court to enforce the Ohio judgment. Huntington National Bank v. Meyer, Superior Court, judicial district of Middlesex, Docket No. CV 04 4000567. Meyer did not appear or respond to that action, and HNB moved for default and judgment. On November 16, 2004, the court, Abery-Wetstone, J., entered judgment against Meyer in the amount of $107,588.18 plus costs of $285.99 and issued a judgment lien against Meyer's Connecticut property (Connecticut judgment).
The following additional facts, as stated in the affidavit of Russell L. London, Connecticut counsel for HNB, are also needed for the analysis of HNB's motion. On January 10, 2005, the court issued a financial institution execution against Meyer in the amount of $107,909.08. HNB received a payment of $16,912.40. The court issued a second financial institution execution on June 2, 2005, which was served upon TD Banknorth, N.A., where Meyer had two accounts. In response, on June 28, 2005, Meyer filed for an exemption because she alleged that the funds in the account were not hers. Meyer and HNB reached an agreement on July 25, 2005 at a hearing to remove $3,700 from these two accounts.
On May 25, 2006, Meyer instituted the present action against HNB and filed an amended complaint on August 28, 2006. In the first three counts, Meyer seeks to set aside the Connecticut judgment, count one on the ground of fraud, count two because the Ohio court lacked personal jurisdiction, and count three because the Ohio court lacked subject matter jurisdiction. Meyer alleges that she had no notice of the Ohio suit because service was made to an address in Ohio where she never lived. Count four alleges unjust enrichment arising from HNB's receipt of the bank executions and judgment lien on Meyer's real property. Count five alleges a void or voidable contract on the ground that the commercial guaranty, business credit line agreement and promissory note, on which the Ohio suit was based, were forged.
In its answer, HNB raises three special defenses as to all counts, namely: Meyer's claims are (1) barred by res judicata, (2) barred by the full faith and credit clause of the United States constitution and (3) her claims constitute an impermissible collateral attack on a valid judgment of the Connecticut Superior Court. On August 14, 2007, HNB filed the present motion for summary judgment, a memorandum of law and supporting affidavits. The affidavit of Earla J. Vanscoy, staff officer, business banking collections of HNB, includes the following exhibits: a copy of Meyer's tax return and personal financial statement that she provided to HNB; a copy of the Ohio judgment; a copy of the writ, summons and complaint with the marshal's return of service from the Connecticut enforcement action; and a copy of the Connecticut judgment. The London affidavit includes the following exhibits: a copy of the Ohio judgment; a copy of the writ, summons and complaint with the marshal's return of service from the Connecticut enforcement action; a copy of the Connecticut judgment; a letter from the counsel of Wade Meyer, Meyer's son and co-borrower of the loan in question; a copy of the exemption claim form filed by Meyer on June 28, 2005; a copy of two letters dated July 6, 2005, and August 2, 2005, apparently sent by Meyer's attorney to a list of Meyer's creditors seeking a settlement agreement; and a copy of a third letter to HNB dated September 14, 2005, seeking a response to the August 2, 2005 letter.
HNB moves for summary judgment on the ground that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. HNB argues that Meyer cannot collaterally attack the Connecticut default judgment because she had a full and fair opportunity to litigate the validity of the Ohio judgment in the Connecticut action, but she failed to appear or move to open the Connecticut default judgment pursuant to General Statutes § 52-212a (1) and Practice Book § 17-43. Even if Meyer could collaterally attack the default judgment, HNB argues that she has failed to state a claim for fraud in count one. As to count four, HNB argues that Meyer cannot make a claim for unjust enrichment against a creditor that arises from a legally obtained judgment. Finally, as to count five, HNB argues that Meyer cannot attack the validity of the loan documents because this would have been a valid defense only in the Ohio enforcement action.
General Statutes § 52-212a refers to civil judgments generally whereas General Statutes § 52-212 specifically relates to default judgments. It appears that HNB meant to reference General Statutes § 52-212 and that both parties' subsequent reference to General Statutes § 52-212a was in error.
In response, Meyer argues that she may collaterally attack the Connecticut judgment because the Ohio court never had jurisdiction over her, and, therefore, the Connecticut court lacked jurisdiction to enforce the Ohio judgment. The lack of jurisdiction is based on insufficient service of process in the Ohio suit; Meyer argues that HNB knew that she was not an Ohio resident and fraudulently served process in Ohio when it knew she was a Connecticut resident. Meyer also claims that she did not appear in the Connecticut enforcement action because she was confused as to how HNB could enforce the Ohio suit, of which she never had notice. Also, she notified her son who told her that he would "take care of it." Meyer also argues that the four-month limit to file a motion to open under General Statutes § 52-212a does not apply because the court never had jurisdiction in the first place.
As to the unjust enrichment claim, Meyer argues that it is valid because HNB did not properly and legally obtain a judgment against her because it fraudulently served process in Ohio, and, therefore, was unjustly enriched. Meyer also disputes HNB's claim that she acknowledged her liability because the letters submitted by HNB are inadmissible evidence of settlement negotiations. Finally, as to the claim in count five that the contract is void or voidable, Meyer responds that she can bring this claim in Connecticut because she can collaterally attack a foreign judgment under General Statutes § 52-607.
General Statutes § 52-607 provides: "The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of complaint instead of proceeding under sections 52-604 to 52-609, inclusive, remains unimpaired."
Meyer also argues that she did not move to open the Connecticut judgment because more than four months had passed, and, therefore, she was prohibited from doing so. HNB counters that the first bank execution occurred during the four-month period, and Meyer failed to act.
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005).
The Supreme Court has stated that "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." (Citation omitted.) Id., 401-02.
A motion to open, rather than a collateral suit to set aside the judgment, is the proper procedural vehicle for obtaining the relief that Meyer seeks in this case. "The court's inherent power to open, to correct and to modify judgments is restricted by statute and the rules of practice. General Statutes § 52-212(a) provides in relevant part: Any judgment rendered . . . upon a default [or] nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered . . . and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party . . . showing reasonable cause, or that a good cause of action or defense in whole or part existed at the time of the rendition of the judgment . . . and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense. General Statutes § 52-212(b) provides: The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear. Practice Book § 17-4(a) similarly provides in relevant part: Unless otherwise provided by law . . . any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent . . ." (Internal quotation marks omitted.) American Honda Finance Corporation v. Johnson, 80 Conn.App. 164, 166-67, 834 A.2d 59 (2003).
"In his treatise on judgments, Freeman points out that `[a]n important, very often a controlling, consideration bearing on the direct or collateral character of the proceedings relates to the legal authorization for the course taken. The law of every jurisdiction prescribes the manner in which litigants must proceed to correct, vacate, review or annul judicial decisions. It specifies the remedies to be invoked and the extent to which they are available. This being true, it is but reasonable to conclude that an assailant is pursuing a very direct attack when he strikes at the judgment with one of the procedural weapons thus placed at his disposal, and per contra that his assault is essentially collateral when attempted without such legal means.' 1 Freeman, Judgments (5th Ed.) § 306, p. 606." State v. Florence, 35 Conn.Sup. 598, 601, 401 A.2d 65 (App. Sess. 1978).
The First Restatement of Judgments provides further guidance: "Where an action is brought upon a judgment in a court having jurisdiction over the parties and a judgment is rendered for the plaintiff, the second judgment is not open to collateral attack on the ground that the original judgment was void." 1 Restatement (First), Judgments § 13 (1942). The comment goes on to explain, "[w]here a court renders a judgment against a defendant over whom it has no jurisdiction, and the plaintiff thereafter brings an action upon the judgment . . . in another State, and the defendant is subject to the jurisdiction of the court in the second action and does not set up the invalidity of the judgment, and a judgment is given against the defendant, this judgment is valid and is not open to collateral attack. 1 Restatement (First), supra, § 13, comment (a).
The comment to the section provides an example that directly illustrates the scenario in this case: "A brings an action in State X against B, who is domiciled in State Y and who is not served with process in State X. B does not appear in the action and judgment is rendered against him by default. Thereafter A brings an action in . . . State Y and B is personally served with process in State Y. The judgment rendered in State Y is valid." Comment a, illustrations 1-2.
The Second Restatement of Judgments lends further support. "Relief from a judgment must be obtained by means of a motion for that purpose in the court that rendered the judgment unless relief may be obtained more fully, conveniently, or appropriately by some other procedure." 2 Restatement (Second) of Judgments, § 78 (1982). The comment goes on to explain that a "motion is to be distinguished from a separate action, traditionally one in equity, to set aside a judgment . . ." 2 Restatement (Second) of Judgments, supra, § 78, comment (a). The preference for a motion over a separate action is based on "the traditional rule that resort to equitable relief is warranted only when the remedy at law is inadequate" and practical reasons such as "the records of the proceeding leading to the judgment are most fully and conveniently available in the court where the judgment was rendered." 2 Restatement (Second) of Judgments, supra, § 78, comment (a).
In State v. Florence, supra, 35 Conn.Sup. 599, after a default judgment was entered against the defendants, they attempted to collaterally attack the judgment by filing a plea in abatement, arguing that the court lacked jurisdiction to render a default judgment due to insufficient service of process. The court held that this was an invalid collateral attack and that the defendants could have attacked the jurisdiction of the court to render a default judgment by filing a motion to open under General Statutes § 52-212, undertaking an appeal, or pursuing a direct proceeding seeking to set aside the judgment. Id., 601. Further, the court noted that "[w]hile it is an accurate statement that when the court has no jurisdiction of the subject matter or the parties it is required to dismiss the case; Paiwich v. Krieswalis, [ 97 Conn. 123, 126, 115 A. 720 (1921)]; it must be kept in mind that the party who undertakes to prove that fact must do so in an orderly way and at a proper time by sufficient remedy. The plea in abatement interposed here is a collateral attack on this judgment. The court should not have regarded it as having any legal status . . . Accordingly, the judgment in this case must stand as a valid judgment until set aside by some direct proceeding brought for that purpose." Id., 602.
In this case, Meyer seeks to challenge the validity of the Ohio judgment by collaterally attacking the Connecticut judgment in each of the five counts of her complaint in this separate action. General Statutes § 52-212 and Practice Book § 17-43 make it clear that the proper procedural vehicle would have been to file a motion to open the default judgment in the underlying case within the requisite four-month period.
Even if Meyer's suit were to be considered a proper means of attacking a default judgment under General Statutes § 52-212 and Practice Book § 17-43, Meyer has failed to satisify the requirements for relief. "To obtain relief from a judgment rendered after default a two-pronged test must be satisfied, The aggrieved person must show reasonable cause, or that a good defense existed at the time of the judgment, and that the movant was prevented by mistake, accident or other reasonable cause from making the defense." (Internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 691, 778 A.2d 981 (2001).
Meyer arguably satisfies the first prong of this test as she has stated in her affidavit that she did not receive service of process for the Ohio suit and there is therefore a question as to whether the Ohio court had jurisdiction to render a default judgment against her. Although the Connecticut Supreme Court has "strongly disfavored collateral attacks upon judgments because such belated litigation undermines the important principle of finality . . . [the Court has] recognized the widely accepted rule that a default judgment that is rendered without jurisdiction over the defendant may be attacked collaterally." (Citation omitted; internal quotation marks omitted.) CT Page 706 Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 99 n. 7, 897 A.2d 58 (2006). General Statutes "§§ 52-212 and 52-212a normally limit the authority [of the court] to open judgments to a four month period, [however] these statutes do not preclude the opening of a default judgment that is rendered without jurisdiction over a defendant. The prefatory words of § 52-212a establish that the four month limitation only operates [u]nless otherwise provided by law . . . As a matter of law, in the absence of jurisdiction over the parties, a judgment is void ab initio and is subject to both direct and collateral attack." (Internal quotation marks omitted.) Wilkinson v. Boats Unlimited, Inc., 236 Conn. 78, 83-84, 670 A.2d 1296 (1996).
HNB provided no evidence to show whether Meyer received service of process. In her affidavit, Meyer states that she has been a Connecticut resident for the past thirty years, she has never lived in Ohio, and she did not receive notice of the Ohio suit until she received service in the Connecticut action. Therefore, a genuine issue of fact exists as to whether she received service of process in the Ohio case and whether the Ohio court had jurisdiction to render a default judgment against her.
Despite the existence of a genuine issue of fact as to the first prong, this issue is not material because HNB has provided undisputed evidence to show that Meyer cannot satisfy the second prong. HNB's evidence shows that Meyer was aware of the suit but failed to act: she received service of process in the Connecticut action, and the first bank execution occurred in January 2005, within the four-month period for filing a motion to open under General Statutes § 52-212. Further, Meyer has failed to create a genuine issue by demonstrating that she was prevented from raising this issue during the pendency of the Connecticut enforcement action. "The granting of relief under [General Statutes § 52-212], when its provisions are properly complied with, lies within the sound discretion of the trial court. But the 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, 270 A.2d 559 (1970) (upholding the trial court's ruling that the plaintiff's failure to comply with a court order because of her illness was due to her own negligence, not as a result of mistake, accident or other reasonable cause).
Meyer claims in her complaint and affidavit that she did not understand the process served in Connecticut seeking to enforce the Ohio judgment and was under the impression that her son would resolve the issue on her behalf. However, there is no dispute that she had notice of the Connecticut action; HNB provided a copy of the writ, summons and complaint with the marshal's return of service, and Meyer admits receipt of process in her affidavit. She therefore had a responsibility to appear in court, regardless of the validity of the Ohio judgment being enforced. Accordingly, there is no genuine issue of material fact which prevents the court from granting the pending motion.
For the foregoing reasons, HNB's motion for summary judgment should be and hereby is granted.