Firm v. Baxter

131 Conn.App. 371

27 A.3d 384

BOHONNON LAW FIRM, LLC

v.John H. BAXTER.

No. 32115.

Appellate Court of Connecticut.

Argued June 2, 2011.Decided Sept. 13, 2011.

Kenneth A. Votre, New Haven, for the appellant (defendant).K. Wynne Bohonnon, New Haven, for the appellee (plaintiff).GRUENDEL, BEAR and MIHALAKOS, Js.BEAR, J.

The defendant, John H. Baxter, appeals from the judgment of the trial court rendered in favor of the plaintiff, the Bohonnon Law Firm, LLC, on its complaint against the defendant for, inter alia, breach of contract for legal services. On appeal, the defendant claims that the court improperly: (1) denied his motion to dismiss, (2) denied his motion to open the default, (3) curtailed his defense as to damages, (4) awarded attorney's fees to the plaintiff and (5) failed to protect his right to due process of law. We affirm the judgment of the trial court.

The following facts and very detailed procedural history ¹ are relevant to our consideration of the defendant's claims on appeal. After successfully securing an order for prejudgment remedy in the amount of $20,000 against the defendant, the plaintiff directed a marshal of the county of New London to summon the defendant. The plaintiff did not use the standard civil summons, form JD–CV–1. Rather, the plaintiff prepared its own writ of summons, which provided: “By the authority of the state of Connecticut, you are hereby commanded to Attach and Garnish to the value of TWENTY THOUSAND Dollars ($20,000) in the goods or estate of JOHN H. BAXTER (69 NECK RD., OLD LYME, CONNECTICUT) and summon her/him/it/them to Appear before the Superior Court for the New Haven Judicial District at New Haven on or before the 23 day of DECEMBER, 2008,² said Appearance to be made by the/each defendant or her/his/its/their attorney, by filing a written statement of Appearance with the Clerk of said Court on or before the second day following said Return Date, then and there to answer unto BOHONNON LAW FIRM L.L.C., a duly authorized Connecticut limited liability company maintaining a principal place of business in New Haven, Connecticut, in a civil action wherein the plaintiff complains and says....” The plaintiff's three count complaint immediately follows the writ of summons, beginning on the same page. On the third page of the document, the plaintiff sets forth its claims for relief and states: “Of this Writ, with your doings thereon, make due Service and Return. Dated at New Haven, Connecticut, this 5 day of December, 2008.” The signature of Joshua H. Brown, Commissioner of the Superior Court, is affixed, and the address and telephone number of his law firm are listed, as is his juris number.³

On December 8, 2008, state marshal Neil Feinberg attested that he had attached all of the right, title and interest of John H. Baxter in 69 Neck Road, Old Lyme. Included on that document is a description of 69 Neck Road and the following further attestation: “and on the 8th day of said December A.D., 2008, I left in said Town Clerk's office in the Town of Old Lyme the original certificate of attachment with my endorsement thereon. And I also on the 8th day of said Dec. 2008 left a like true and attested copy of this application, order, affidavit and writ [of] summons, complaint and entire process, with my endorsement thereon ... at the usual place of abode of John H. Baxter, 69 Neck Road, Old Lyme, Conn[ecticut], said Defendant....” The return of service was filed with the court on December 11, 2008.

On December 30, 2008, the plaintiff filed a motion for default for failure to appear, and, on January 9, 2009, the defendant's counsel filed an appearance. On January 23, 2009, the plaintiff filed a motion for default for failure to plead, which the clerk granted on February 5, 2009. The defendant filed a motion to open the default, # 104, and a motion to discharge attachment, also # 104, on February 19, 2009, and he filed a motion to dismiss for lack of subject matter jurisdiction, # 105, at the same time. ⁴ The defendant asserted in the motions that the writ of summons and complaint were never returned to the court. He further asserted that the only documents properly returned to the court were those for the prejudgment remedy, which contained an October 24, 2008 return day. See footnote 2 of this opinion.

On February 20, 2009, the court sent out a “corrected order” stating that the motion for default for failure to plead was denied because “no return of writ was filed.” ⁵ The defendant alleges, however, that on February 26, 2009, the court sent another notice to the parties, stating that the corrected order was in error and that the default for failure to plead properly had been entered on February 5, 2009.⁶ On March 10, 2009, the plaintiff filed a certificate of closed pleadings, claiming a hearing in damages. On March 26, 2009, the defendant again filed a motion to open the default, # 109, and a motion to dismiss for lack of subject matter jurisdiction, # 110. On April 23, 2009, the plaintiff filed an objection to the motion to dismiss. On May 11, 2009, the court held a hearing on the motion to dismiss and ruled that the marshal properly had made service, that the return day was December 23, 2008, ⁷ and that the complaint and other documents were returned to the court on December 11, 2008. Accordingly, the court sustained the plaintiff's objection and denied the motion to dismiss.

On May 13, 2009, the plaintiff filed an objection to the defendant's motion to open the default. On May 15, 2009, the court ordered the case stricken from the inventory of cases for hearings in damages. On June 9, 2009, the court overruled without prejudice the plaintiff's May 13, 2009 objection to the motion to open the default, stating that it would reconsider the objection if the defendant failed to file his answer, with special defenses or counterclaims, if any, within seven calendar days. The record indicates that the clerk's office sent notice of this decision to the defendant's counsel on June 10, 2009. On July 14, 2009, the plaintiff filed another certificate of closed pleadings, and the court scheduled the matter for a September 9, 2009 hearing in damages.

On September 4, 2009, the defendant filed a motion entitled “Motion to Correct Status of Pleadings, for Rectification of Court File and for Removal from Trial List.” He also filed an affidavit in which counsel averred, inter alia, that he had never received notice of the court's June 9, 2009 ruling, in which the court gave the defendant seven days to file his answer. On September 9, 2009, the defendant filed his answer. During the hearing in damages held that day, the defendant argued that the court should set aside the default. In a February 5, 2010 memorandum of decision, the court stated that it would not reconsider the February 5, 2009 default, and it rendered judgment in the amount of $19,376.69, together with costs, in favor of the plaintiff. This appeal followed.

I

On appeal, the defendant claims that the court improperly denied his motion to dismiss for lack of subject matter jurisdiction.⁸ The defendant argues: “The process that was served upon [the] defendant was defective in that it failed to establish a return date. It failed to be returned within [six] days of a return date and it failed to be served at least [twelve] days before a return date. Therefore, the court lacks subject matter jurisdiction over this action.” He further argues that “prejudgment remedy documents are insufficient to commence an action.... [In this case] [t]he writ of summons and complaint are not sufficient ... to commence an action.” (Citations omitted.) Although the defendant argues that his claim implicates the court's subject matter jurisdiction, we conclude that the defendant's claim implicates the court's personal jurisdiction over the defendant.⁹ See Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991) (failure to comply with statutory prerequisite to commencement of civil action pursuant to General Statutes § 52–45a ¹⁰ implicates personal jurisdiction over defendant). Furthermore, we conclude that the defendant, by filing his motion to dismiss more than thirty days after the filing of his appearance, has waived any claim regarding lack of personal jurisdiction in this case. See footnote 9 of this opinion; Pitchell v. Hartford, 247 Conn. 422, 432–33, 722 A.2d 797 (1999) (claim of lack of jurisdiction over person as result of insufficiency of service of process is waived unless raised by motion to dismiss within thirty days after filing appearance).

II

The defendant next claims that the court abused its discretion in not opening the default for failure to plead. The defendant argues that “[t]he granting, opening, mislogging of [the] motion to dismiss and regranting of the motion for default, despite the motion to dismiss, has deprived the defendant of his right to plead. It implicates the defendant's due process rights.¹¹ It also establishes good cause to open the default.” The plaintiff argues that the court did not abuse its discretion in declining to open the default because the defendant had failed to file an answer and continued to persist in his erroneous argument that a motion to dismiss was a responsive pleading that required the opening of a default for failure to plead. We agree with the plaintiff.

A motion to open a default for failure to plead is governed by Practice Book §§ 17–32 and 17–42.¹² “The opening of a default when a claim for a hearing in damages has been filed is controlled by Practice Book § 17–42 because that is the rule of practice that addresses the setting aside of a default by the judicial authority.... The distinction between whether Practice Book § 17–32 applies or Practice Book § 17–42 applies is whether a claim for a hearing in damages is filed before, or after, a motion to set aside the default is filed.” Snowdon v. Grillo, 114 Conn.App. 131, 138, 968 A.2d 984 (2009).

In this...