Willamette Mgmt. Assocs., Inc. v. Palczynski

WILLAMETTE MANAGEMENT ASSOCIATES, INC. v. KIMBERLY PALCZYNSKI

AC 31641

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued November 8, 2011

Officially released March 6, 2012

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(Appeal from Superior Court, judicial district of Stamford-Norwalk, Hon. Frank H. D'Andrea, Jr., judge trial referee.)

Kenneth A. Votre, for the appellant (defendant).

Laura Pascale Zaino, with whom, on the brief, were Susan M. Kirkeby and Thomas P. O'Dea, for the appellee (plaintiff).

Opinion

BEACH, J. The defendant, Kimberly Palczynski, appeals from the judgment of the trial court rendered in favor of the plaintiff, Willamette Management Associates, Inc., in the amount of $117,739.04 following a hearing in damages. On appeal, the defendant claims that the court erred by (1) not allowing the defendant to replead her answer and special defense after granting the plaintiff leave to correct a defective return date on the writ of summons and complaint and (2) declining to enforce a subsequent agreement between the parties. We affirm the judgment of the trial court.

The court found the following facts in its memorandum of decision. ''In this case, the plaintiff . . . sues the defendant . . . for breach of contract, and the proceeding before the court is a hearing in damages.¹ The plaintiff is an accounting firm which engaged in business evaluations. It entered into a written contract with the defendant, dated January 27, 2005, by which the plaintiff agreed to perform extensive services for the defendant involving her husband's business interest in a certain corporation, in connection with a pending marital case between the couple. The work . . . included assisting the defendant's attorney during the discovery process to obtain necessary information to value such interest, preparing a valuation report and testifying at depositions and at the trial. Billing procedures were outlined in detail, the defendant paid the plaintiff $5000 as a retainer on the agreement, and she was billed twice monthly. The contract also required the defendant to pay any outstanding fees to the plaintiff before its principal, Alan Schachter, would be asked to provide expert testimony at trial.

''Shortly before the marital trial, the outstanding balance of the plaintiff's bills was $72,000, less the $5000 paid, for a total of $67,000. The plaintiff was informed by the defendant's attorney that the defendant did not have the ability to pay the bill. As a result, Schachter wrote to the [defendant] on July 20, 2007, exhorting her to make some type of arrangement with the plaintiff, since he believed his expert testimony would be important to the outcome of her case. He wrote, 'as a courtesy to you and [your lawyer] I have advised [your lawyer] that in lieu of immediate payment, my firm would be willing to accept a mortgage on your real property, a confession of judgment, or any other collateral held in escrow to secure your obligation to us.' What followed was a written agreement between the parties dated July 31, 2007 . . . calling for the plaintiff to continue to perform the same work, including trial preparation and testimony at trial, as was required by the plaintiff by the original retainer agreement. What changed was a reduction of the sum to be paid by the defendant to the plaintiff for all work done or to be done, from $67,000 to a total of $57,000,² and a newpayment schedule.³ The schedule called for monthly payments ranging from $1000 per month to $2000 per month from January 1, 2008, to June 1, 2009, and the balance monthly from July 1, 2009, at $2500 per month thereafter, until the balance of the settlement amount was paid in full. The defendant never made any payments required by the [s]ettlement [ajgreement."

The plaintiff served a one count complaint on May 28, 2008, alleging that the defendant breached agreements dated January 27, 2005 (first agreement) and July 31, 2007 (second agreement) by failing to make payments pursuant to either agreement. On June 18, 2008, the court granted the plaintiff's motion for default against the defendant for failure to appear. The defendant thereafter appeared through counsel. On July 24, 2008, the court granted the plaintiff's motion for default against the defendant for failure to plead to the complaint. On October 20, 2008, the defendant filed an answer, two special defenses and a three count counterclaim alleging that the plaintiff failed to conform its work to the relevant standard of care.⁴ The defendant also moved to strike the action from the hearing in damages list and moved to open the default for failure to plead. Noting that there was no objection, on February 9,2009, the clerk of the court granted the defendant's motion to open the default for failure to plead. Notice of the court's action, however, was not issued until February 23, 2009, and, in the interim, the plaintiff filed an objection to the motion on February 18, 2009. The court subsequently sustained the plaintiff's objection to the motion on March 19,2009, and vacated the clerk's action granting the motion to open the default.

Thereafter, at a scheduled hearing in damages on April 29, 2009, a defective return date on the writ of summons—apparently the result of a scrivener's error—was discovered. The court granted the plaintiff's motion to amend the writ of summons and complaint to correct the error; thereafter an amended complaint was filed. The defendant then filed an answer and a special defense on June 5, 2009. A hearing in damages was held, at which the court declined to recognize as effective the defendant's answer to the amended complaint because she had been defaulted and because no substantive change had been made to the complaint. The court then issued a memorandum of decision concluding that the first agreement was controlling, and, accordingly, rendered judgment in favor of the plaintiff in the amount of $117,739.04.⁵ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first argues that the court erred by declining to give effect to her answer and special defense filed after the filing of the amended complaint, which corrected the scrivener's error in the return date. We disagree.

The following additional facts are relevant to our discussion. The original complaint dated May 15, 2008, specified a return date of June 10, 2008. The writ of summons reflected a return date of June 10, 2007. The 2007 date obviously was erroneous. Apparently the error was not discovered until the April 29,2009 hearing, when the court read aloud the return date and the plaintiff's counsel stated that the return date in the writ of summons was a scrivener's error. The defendant's counsel subsequently claimed that the court lacked subject matter jurisdiction as a result of the error. The plaintiff's counsel argued that a defective return date, at most, affected personal jurisdiction, and thus the defense had been waived because it had not been raised within thirty days after the defendant's appearance pursuant to Practice Book §§ 10-30 and 10-32. The court ruled that subject matter jurisdiction was not implicated and that the issue was governed by General Statutes § 52-72,⁶ and thus it was a defect that was curable by amendment. At the court's direction, the plaintiff subsequently amended the writ of summons to reflect a return date of June 3, 2008, and served an amended complaint dated May 5, 2008, with a return date of June 3, 2008. On June 5, 2009, the defendant filed an answer and a special defense. At the rescheduled hearing in damages on August 4, 2009, the defendant moved to strike the case from the hearing in damages list on the ground that the plaintiff had not filed a reply to the special defense and that the pleadings were, therefore, still open. The court rejected the defendant's argument, finding that there had been a default for failure to appear and for failure to plead. The court did not accept the repleading as effective, noting that "[njothing changed in the substantive pleadings and [the defendant has] been defaulted.''

We begin with the applicable standard of review. ''Whether to grant a request to amend the pleadings is a matter within the discretion of the trial court, and this court will rarely overturn the decision of the trial court. . . . Judicial discretion . . . is always legal discretion, exercised according to the recognized principles of equity. . . . While its exercise will not ordinarily be interfered with on appeal to this court, reversal is required where the abuse is manifest or where injustice appears to have been...