Opinion
No. HHD X04 CV-08-6003273 S
September 30, 2009
MEMORANDUM OF DECISION ON MOTION TO OPEN NONSUIT (#277)
This matter is before the court concerning the plaintiff's August 13, 2009 motion to open the judgment of nonsuit entered against the plaintiff as to defendants Connecticut Light and Power Company, Northeast Utilities, and Northeast Utilities Service Company (collectively "CLP defendants"). In the court's May 13, 2009 memorandum of decision (#242) (May 2009 decision), nonsuit was ordered as to the CLP defendants as a result of the plaintiff's failure to comply with court orders. The court has considered the plaintiff's motion to open, the CLP defendants' objection (#280), the plaintiff's attorney's subsequent affidavit (#287), the plaintiff's supplement to the motion to open (#289), the CLP defendants' reply (#290), the plaintiff's reply (#293), and the CLP defendants' sur-reply (#298). The last of these submissions is dated September 21, 2009.
I. STANDARD OF REVIEW
"The power of the court to set aside a judgment of nonsuit is governed by General Statutes § 52-212 . . . To obtain relief, a plaintiff must establish both `that a good cause of action, the nature of which must be set forth, existed when the judgment of nonsuit was rendered, and that the plaintiff was prevented from prosecuting it because of mistake, accident or other reasonable cause.' Biro v. Hill, 231 Conn. 462, 467, 650 A.2d 541 (1994); see also Practice Book § 17-43(a)." (Footnote omitted.) Moore v. Brancard, 89 Conn.App. 129, 132, 872 A.2d 909 (2005).
Section 52-212(a) provides, in relevant part, "[a]ny 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."
"Since the conjunctive `and' meaning `in addition to' is employed between the parts of the two-prong test, both tests must be met." (Internal quotation marks omitted.) Berzins v. Berzins, 105 Conn.App. 648, 654, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008); see Fuller v. Grace, 291 Conn. 410, 419, 969 A.2d 157 (2009) (§ 52-212 sets forth two requirements). If the movant fails to satisfy the second prong of the test, the court need not determine whether a good cause of action existed at the time of the rendition of the judgment. See Berzins v. Berzins, supra, 105 Conn.App. 653-54; General Statutes § 52-212(a).
As to this aspect of the plaintiff's motion, he requests an evidentiary hearing in order to present evidence to demonstrate that a good cause of action existed. As discussed below, the court need not reach this issue.
Where a plaintiff has "not fulfilled the statutory prerequisites for setting aside a nonsuit, the trial court . . . ha[s] no authority to set aside the nonsuit." Jaconski v. AMF, Inc., 208 Conn. 230, 238, 543 A.2d 728 (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.' . . . In those cases, the trial court may exercise its discretion and set aside a judgment of nonsuit." (Citation omitted.) Id., 239.
"[N]egligence is no ground for vacating a judgment[.]" Id., 238. Inattention is not a sufficient basis to satisfy the statutory test. See Moore v. Brancard, supra, 89 Conn.App. 133.
II. DISCUSSION
In his motion to open, the plaintiff repeats the same arguments he presented in opposition to the CLP defendants' previous motion for dismissal or, in the alternative, nonsuit (motion for dismissal), and which the court addressed in its May 2009 decision. His attorney's affidavit also presents allegations which the court previously considered.
The plaintiff argues that when after the court determined in its November 20, 2008 order that his previous objections to the CLP defendants' requests to revise were untimely, and that the requests were deemed to have been automatically granted by operation of Practice Book § 10-37, and the court directed him to file a revised complaint within fifteen days, he filed a complaint which "he believed satisfied the Court[']s Order." See plaintiff's motion, p. 3. He claims that his failure to comply with the court's order was not intentional, but a mistake in interpreting the court's order. See plaintiff's motion, p. 6. Notably, he does not explain his alleged mistake in interpretation. The plaintiff's attorney's affidavit states that, on the several occasions he amended the complaint, he believed in good faith that the revised complaint conformed to the court's order.
Similarly, in opposition to the previous motion for dismissal, the plaintiff's objection, dated April 21, 2009 (#225) stated, at page 3, that he believed that the substitute amended complaint satisfied the court's order; and, at page 5, that he did not "intend upon not complying with the Court[']s orders." Similar arguments were made by plaintiff's counsel at the oral argument heard by the court on April 8, 2009.
After considering the same arguments previously, the court issued its May 2009 decision. It concluded that "[t]here is no reasonable basis for the plaintiff to assert either that the court's [November 18, 2008] order was unclear or that it did not direct him to revise his complaint in compliance with the CLP request to revise." May 2009 decision, p. 5.
The allegations in the plaintiff's attorney's affidavit need not be credited, are contrary to the record, and were expressly considered in the court's May 2009 decision. For example, in paragraph 5, he avers that "[o]n several occasions I amended the plaintiff's complaint to conform to the Court's order." No reference is made as to how any amendment allegedly complied with the court's orders. This conclusory statement need not be credited by the court. See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
In addition, the record reflects that the plaintiff did not amend the complaint to conform to the court's orders, since the plaintiff was ordered to file a revised complaint in compliance with the CLP defendants' requests to revise and the plaintiff did not do so. See May 2009 decision, pp. 3-4. In addition, subsequent to the May 2009 decision, the plaintiff filed an amended revised substitute complaint on June 5, 2009 (#249), which included allegations against the CLP defendants even though a judgment of nonsuit had been entered against the plaintiff as to them. On July 23, 2009, the court struck that pleading. See #255. Review of that pleading shows that it did not fully incorporate the requested revisions which had been ordered by the court.
In paragraphs 6 and 7 of his affidavit, the plaintiff's attorney states that, when he amended the complaint, he believed in good faith that the revisions conformed with the court's order pertaining to the complaint, and that the plaintiff did not intentionally or willfully disregard the court's order. At page 8 in its May 2009 decision, the court found that the plaintiff's "excuses for failing to [comply with the court's orders] are not well-founded. Although the plaintiff was afforded extensions of time to file an appropriately revised complaint, he did not do so. The plaintiff's continued failure to comply with the court's clear orders evidences a willful failure to do so." In addition, the court found that "the plaintiff's continued failure to properly revise his complaint in compliance with the Practice Book evidences a lack of due regard to necessary rules of procedure." May 2009 decision, p. 12. Thus, the court found that the failure to comply was willful, not a result of a mistake in interpretation.
Since the allegations in the plaintiff's attorney's affidavit are contrary to the record, and the court's prior findings, an evidentiary hearing is not required in order to assess the plaintiff's assertions that the nonsuit resulted from "mistake, accident, or other reasonable cause." See General Statutes § 52-212(a); McCarthy v. Ward Leonard Electric Co., 104 Conn.App. 535, 545-46, 935 A.2d 189 (2007) (evidentiary hearing not required). As discussed above, similar same arguments were made at the prior hearing held by the court on the motion for dismissal. The court need not credit the plaintiff's attorney's affidavit, which, for the reasons stated above, is unpersuasive.
The willful conduct here, which resulted in the entry of the nonsuit, exceeds in severity that which occurred in Jaconski v. AMF, Inc., supra, 208 Conn. 236, where the trial court denied a motion to set aside a nonsuit which was entered after the plaintiffs failed to comply with a court order to file a revised complaint, and found that the failure was due to the plaintiffs' negligence, not mistake, accident, or reasonable cause. The Supreme Court affirmed the trial court's decision to deny the motion to open the nonsuit. See id., 238, 239.
Also, the conduct here differs markedly from that in 2500 SS Limited Partnership v. White, Superior Court, judicial district of Fairfield, Docket No. 328934 (December 3, 1996, Levin, J.) ( 18 Conn. L. Rptr. 315), cited by the plaintiff. There, the partnership/plaintiff's assertion that its failure to comply with the court's order was due to a misunderstanding of that order was found by the court to be supported by the pleadings filed by the plaintiff; although the revised complaint did "not specify the exact defamatory remarks allegedly made by the defendant, it [did] include more specific information intended to apprise the defendant of the nature of the claims asserted against him." (Emphasis in original.) Id. The court there found that the failure to comply was the result of a reasonable mistake in interpreting the court's order. See id.
Here, in contrast, the court found that the plaintiff willfully failed to comply, after the court found that the requests were deemed to be automatically granted, and after the plaintiff was ordered to file a revised complaint in compliance with the requests, and the plaintiff did not do so. The record here does not evidence a reasonable mistake or misunderstanding.
Accordingly, the plaintiff has not shown that he "was prevented by mistake, accident or other reasonable cause from prosecuting the action." See General Statute § 52-212(a). Since the plaintiff has not met this statutory prerequisite for setting aside a nonsuit, the court has no authority to set it aside. See Jaconski v. AMF, Inc., supra, 208 Conn. 238. Therefore, the court need not reach the issue of whether the plaintiff has satisfied § 52-212(a)'s other prong, as to whether he had a good cause of action against the CLP defendants.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to open the judgment of nonsuit entered against the plaintiff as to defendants Connecticut Light and Power Company, Northeast Utilities, and Northeast Utilities Service Company, is denied. It is so ordered.