Opinion
No. FST CV 06 5001818
May 18, 2007
MEMORANDUM OF DECISION
A plaintiff's motion to strike defendants' answer, special defenses and counterclaim centers upon timeliness.
On July 1, 2006, the plaintiffs, Peter Rinfret and Cindy Rinfret, commenced this action by service of the summons and complaint against the defendants, Philippe de Givenchy and Atmosphere by Philippe de Givenchy. The return date on the summons and complaint is July 25, 2006. This action arises out of the damages the plaintiff's allegedly sustained as a result of the defendants' failure to deliver materials to them as agreed to by the parties in a series of home improvement contracts. In counts one through four of the complaint, the plaintiffs allege claims against the defendants for breach of contract, unjust enrichment, violations of the Connecticut Unfair Trade Practices Act, and piercing of the corporate veil, respectively.
The plaintiffs filed a motion for default for failure to appear on August 29, 2006, which the clerk granted on September 27, 2006, noting "No appearances filed. Notices sent." The plaintiffs then filed a motion for judgment and claim for hearing in damages on October 19, 2006, and a certificate of closed pleading on October 31, 2006. Both defendants filed appearances on December 15, 2006. On January 9, 2007, the defendants filed an answer, two special defenses and a counterclaim.
The plaintiffs previously filed a motion for default for failure to appear on August 23, 2006. The clerk denied the motion because the defendants' addresses in the certification of service thereon did not correspond to the defendants' addresses as listed in the marshal's return of service.
On January 12, 2007, the plaintiffs filed a motion to strike the defendants' answer, special defenses and counterclaim, with a memorandum of law in support thereof. On January 19, 2007, the defendants filed an objection to the plaintiffs' motion to strike.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] plaintiff can [move to strike] a special defense or counterclaim." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 496, 495 A.2d 286 (1985).
The plaintiffs argue that the defendants' answer and special defenses should be stricken because the defendants did not file a notice of defenses within ten days after they were notified that the court granted the plaintiffs' motion for default, as required by Practice Book § 17-35(b). Because the answer and special defenses should be stricken, the plaintiffs argue, the defendants' counterclaim should also be stricken. Additionally, the plaintiffs argue that pursuant to Practice Book § 17-32(b), the defendants' failure to file a motion to open the default before they filed their answer and special defenses and before the plaintiffs filed a motion for judgment and a hearing in damages precludes them from filing their special defenses or counterclaim.
Practice Book § 17-35, which applies to hearing in damages upon default, provides in relevant part: "(b) In 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."
Practice Book § 17-32, which applies to defaults for failure to plead, provides in relevant part: "(b) If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default. If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the judicial authority . . ."
The defendants counter that because they filed their appearances before a judgment of default was entered against them, under Practice Book § 17-20(c), they were no longer in default at the time they filed their answer, special defenses and counterclaim. They also correctly point out that § 17-32 does not apply here because it only applies to defendants who are defaulted for failure to plead.
Practice Book § 17-20, which applies to motions for default for failure to appear, provides in relevant part: "(a) If no appearance has been entered for any party to any action on or before the second day following the return day, any other party to the action may make a motion that a nonsuit or default be entered for failure to appear . . . (c) . . . The motion shall be granted by the clerk if the party who is the subject of the motion has not filed an appearance . . . If the defaulted party files an appearance in the action prior to the entry of judgment after default, the default shall automatically be set aside by operation of law . . ." (Emphasis added.) The Appellate Court applied this section of the practice book in Distassio v. Allstate Indemnity Co., 81 Conn.App. 92, 838 A.2d 1010 (2004). In Distassio, the defendant did not file an appearance within two days after the return date. The plaintiff filed a motion for default for failure to appear pursuant to Practice Book § 17-20, which the court clerk granted. Nineteen days later, the defendant filed an appearance, however, the clerk did not set aside the default. The defendant then filed a motion to set aside the default, which the trial court denied. The matter proceeded to a hearing in damages, after which the court awarded damages to the plaintiff and rendered judgment in his favor. The court then denied the defendant's motion to set aside the verdict. On appeal the defendant argued, that the trial court improperly denied its motion to set aside the verdict or to open the default. In the alternative, the defendant argued that it was not required to file the motion to set aside because § 17-20(c) required the clerk to set aside the default when the defendant filed its appearance. The Appellate Court agreed with the defendant's alternative argument. Id., 94.
The court clearly explained "Practice Book § 17-20(c) uses the word `shall.' That suggests that the provision is mandatory . . . Further, the use of the word `automatically' indicates that the court clerk has no discretion and must set aside the default after the party has filed an appearance. The language of the statute indicates that the defendant was not required to file a motion to set aside the default; when the defendant filed an appearance prior to the judgment, the default was required to be set aside automatically.
The failure of the clerk to set aside the default after the appearance was filed was improper. That omission directly led to and caused the other actions that the defendant claims to be improper. Neither the default nor the hearing in damages should have taken place. Moreover, the omission affected the integrity of the judicial system because it prevented the defendant from having proper access to the court to defend the action. Accordingly, the judgment of the trial court cannot stand.
"The judgment is reversed and the case is remanded with direction to place the case on the jury list and for further proceedings in accordance with law." (Citation omitted.) Distassio v. Allstate Indemnity Co., supra, 81 Conn.App. 95.
The facts of the present case mirror the facts of Distassio to the extent that the defendants here filed their appearances more than two days after the return date and after the court had granted the plaintiffs' motion for default for failure to appear, but prior to the entry of any judgment against them. As the Appellate Court stated, the defendants did not need to file a motion to set aside the default after filing their appearances because Practice Book § 17-20(c) automatically sets aside a default. Distassio v. Allstate Indemnity Co., supra, 81 Conn.App. 95. Therefore, the default entered against the defendants on September 27, 2006, was automatically required to be set aside when the defendants filed their appearances on December 15, 2006.
Furthermore, it is plain that § 17-32(b) does not apply because that section is limited to defaults for failure to plead. Finally the plaintiffs' argument that the defendants' failure to comply with § 17-35(b) by filing a notice of defenses after notice of default precludes them from contesting liability is without merit. Section 17-35(b) refers to "all actions in which there may be a hearing in damages . . ." When a default is set aside because of a defendant's filing of an appearance, "neither [a] default nor [a] hearing in damages should [take] place." Distassio v. Allstate Indemnity Co., supra, 81 Conn.App. 95. Because a hearing in damages should therefore not take place in the present dispute, Practice Book § 17-35(b) is inapplicable.
Because the default against the defendants should be set aside, the defendants may contest liability with an answer and special defenses, and they may bring their counterclaim. For the foregoing reasons, the court denies plaintiffs' motion to strike the defendants' answer, special defenses and counterclaim.