Ryan v. Cassella

180 Conn.App. 461

184 A.3d 311

John RYAN

v.Paul A. CASSELLA

AC 38910

Appellate Court of Connecticut.

Argued December 11, 2017

Officially Released March 27, 2018

Joshua A. Winnick, for the appellant (defendant).

Sheldon, Elgo and Shaban, Js.

ELGO, J.

This is a case about a misspelled last name. The defendant, Paul A. Cassella, appeals from the denial of his motion to open the judgment of the trial court, following the granting of a motion to correct the default judgment rendered in favor of the plaintiff, John Ryan,¹ in the amount of $8429.42. On appeal, the defendant claims that the court (1) improperly granted the motion to correct filed by the plaintiff and (2) abused its discretion in denying his motion to open. We disagree and, accordingly, affirm the judgment of the trial court.

The relevant facts are not in dispute. In early 2014, the plaintiff commenced a collection action with a return date of February 25, 2014. His writ of summons and complaint both identified the defendant as "Paul Cascella dba CIA Integrated Marketing Systems"² whose principal place of business was located at 27 Lucy Street in Woodbridge (Woodbridge address). State Marshal William Stuart, in his return of service to the court, attested that "[a]bode service was made upon Paul Cascella at 101 Derby Avenue, Orange, Connecticut" (Orange address) on February 4, 2014.

In his nine sentence complaint, the plaintiff alleged that the parties entered into an agreement in October, 2012, regarding certain advertising services that the plaintiff would perform on the defendant's behalf for the sum of $10,000. The complaint further alleged that, after the plaintiff fully performed his obligations under the contract, the defendant made an initial payment of $2000 but thereafter refused to pay the remaining $8000 due to the plaintiff. The defendant did not file an appearance or otherwise respond to that pleading.

On May 28, 2014, the plaintiff moved for permission to file an amended writ of summons and complaint pursuant to Practice Book § 10–60, which the court granted. As the plaintiff indicated in his motion to the court, the primary purpose of that amendment was to include the Orange address, which he claimed was the defendant's residential address. The amended writ of summons and complaint both included the Woodbridge and the Orange addresses.³ In the certification to the amended writ of summons and complaint, the plaintiff's counsel stated that "a copy of the foregoing was mailed, USPS postage prepaid, to ... Paul Cascella dba CIA Integrated Marketing Systems" at both his Woodbridge and his Orange addresses. The return of service provided by the state marshal indicates that service of process of the amended writ of summons and complaint was made at the defendant's Orange address on May 22, 2014. The defendant again did not respond in any manner to the amended pleading.

On June 16, 2014, the plaintiff filed a motion for default due to the defendant's failure to appear. By order dated June 24, 2014, the trial court clerk granted that motion against "Paul Cascella dba CIA Integrated Marketing Systems." The order further indicated that if the defendant filed an appearance before judgment was rendered, "the default for failure to appear shall automatically be set aside by operation of law." A copy of that order was sent to the defendant.

When the defendant did not file an appearance or otherwise respond to the order, the plaintiff, on July 25, 2014, filed a certificate of closed pleadings and a claim for a hearing in damages on the previously entered default. A hearing in damages was held on September 11, 2014, at which two checks were admitted into evidence. The first, dated January 17, 2013, was drawn on the account of "Integrated Marketing Sys Inc. 27 Lucy St. Woodbridge, CT 06525–2213." That check, in the amount of $1000, was made payable to "John Ryan Advertising." The authorized signature on that check is indecipherable. The second check, dated January 20, 2013, was drawn on the account of "On The Road Again LLC 27 Lucy St. Woodbridge, CT 06525." That check, also in the amount of $1000, was made payable to "John Ryan Advertising." Although the authorized signature on that check also is indecipherable, it closely resembles the first check that was admitted into evidence as exhibit 1. At the conclusion of the hearing, the court rendered judgment in favor of the plaintiff in the amount of $8429.42. The court also ordered postjudgment interest at the rate of 6 percent.

In accordance with Practice Book § 17–22, the plaintiff mailed notice of that judgment to "Defendant Paul Cascella dba CIA Integrated Marketing Systems" at both his Woodbridge and his Orange addresses. On October 22, 2014, the plaintiff obtained a financial institution execution pursuant to General Statutes § 52–367b against "Paul Cascella dba CIA Integrated Marketing Systems" as the judgment debtor.

On June 2, 2015, the plaintiff filed an application for an examination of judgment debtor, which the court granted. A hearing thereon was scheduled for July 20, 2015. The marshal's return of service filed with the court indicates that a copy of the plaintiff's application and notice of the July 20, 2015 hearing were served on "Paul Cascella dba CIA Integrated Marketing" at his Orange address on July 7, 2015. When the defendant did not appear at that hearing, an assistant clerk of the Superior Court, acting on behalf of the court, Bellis, J. , sent a letter addressed to "Paul Cascella" at the Orange address. That correspondence stated in relevant part: "You were ordered to appear before the court for an Examination of Judgment Debtor on July 20, 2015. You failed to appear on that date. You are now requested to appear on August 3, 2015 ... to comply with the request .... If you fail to appear on that day, a capias will be issued for your arrest ." (Emphasis in original.)

The very next day, the court received a written response from Attorney Joshua A. Winnick. In his letter, Winnick stated: "Please be advised that I represent Paul A. Cassella, the sole male resident [at the Orange address] and President of Integrated Marketing Systems, Inc. Mr. Cassella is not now, nor has he ever been, known as Paul Cas c ella, nor has he ever done business as CIA Integrated Marketing Systems (redacted copy of Mr. Cassella's Connecticut driver's license and printout from the Secretary of State for Integrated Marketing Systems, Inc. enclosed).⁴ Marshal William Stuart attempted to make service on Paul Cas c ella by leaving a complaint and Petition/Application for Examination of Judgment Debtor at [the Orange address]. Similarly, [the plaintiff's attorneys] have [sent] certified copies of pleadings to Paul Cas c ella at that address, and the court has attempted to give notice to Paul Cas c ella at that address that a capias will be issued against him if he does not appear in Bridgeport Superior Court on August 3, 2015 (copy of July 20, 2015 letter enclosed). Obviously, since Paul Cas c ella does not reside at [the Orange address], all of the documents served on him and mailed to him at that address are not valid and have no legal consequence. Finally, if a capias is issued for Paul Cas c ella as a result of his failure to appear in court on August 3, 2015, it should not be served on Paul A. Cassella. Please contact me if you have any questions about this letter." (Emphasis in original; footnote added.)

In response, the plaintiff filed a motion to correct that was predicated on Winnick's representations in the July 21, 2015 letter. Specifically, the plaintiff asked the court to "recognize that ‘Paul Cascella’ and ‘Paul A. Cassella’ be known to this court for purposes of this proceeding as one [and] the same person. Additionally, [the plaintiff] moves this court to recognize that ‘CIA Integrated Marketing Systems’ and ‘Integrated Marketing Systems, Inc.’ be known to this court for purposes of this proceeding as one [and] the same entity." That motion further stated that it was predicated on the misstatement of the defendant's name and that "[p]ursuant to General Statutes § 52–123, this circumstantial defect shall have no bearing on the judgment in this case." The plaintiff served a copy of that motion to correct on the defendant on September 8, 2015, at both the Orange address and at 17 Anns Farm Road in Hamden, as documented in the marshal's return of service filed with the court. The defendant did not respond in any manner to that pleading. By order dated October 6, 2015, the court summarily granted the plaintiff's motion to correct.

On October 19, 2015, Winnick filed an appearance on behalf of the defendant. On that date, he also filed a motion to reargue the motion to correct. In that one page motion, the defendant stated that he sought reargument "on the grounds that Paul A. Cassella dba Integrated Marketing Services, Inc. does not properly describe a party, as required by [General Statutes] § 52–45a and Practice Book § 8–1. A party can be an individual, or a party can be a corporation. A party cannot be an individual doing business as a corporation. An individual doing business as a corporation is not a valid legal entity."⁵

The court held a hearing on the defendant's motion to reargue, wherein Winnick reiterated the foregoing argument. In so doing, he repeatedly noted that "[t]here's always been one defendant" in the case. As Winnick stated: "[T]he point is there's only one defendant. That defendant was and still according to the docket sheet, remains a gentleman by the last name of Cascella; C–A–S–C–E–L–L–A. That is not the individual in court with me today." The plaintiff's counsel at that time advised the court that the plaintiff had "pursued this action against [the defendant] in his personal capacity.... [W]e've had a ... judgment in place for over a year against [the defendant] in his personal capacity." The plaintiff's counsel further reminded the court that the motion to correct was due to a "single letter...