Weinstein & Wisser v. Cornelius ( 2014 )

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WEINSTEIN AND WISSER, P.C. v. FREDERICK
B. CORNELIUS
(AC 35656)
Beach, Sheldon and Peters, Js.
Argued February 19—officially released June 24, 2014
(Appeal from Superior Court, judicial district of
Hartford, Tanzer, J. [judgment]; Schuman, J. [motions
to open, to dismiss and to reargue].)
Frederick B. Cornelius, self-represented, the appel-
lant (defendant).
Kerry M. Wisser, for the appellee (plaintiff).
Opinion
BEACH, J. The defendant, Frederick B. Cornelius,
appeals from the judgment of the trial court denying
his motion to dismiss the complaint of the plaintiff,
Weinstein & Wisser, P.C. We reverse the judgment of
the trial court.
In August, 2007, the plaintiff filed a complaint alleging
that the parties entered into an agreement whereby
the plaintiff was to provide the defendant with legal
representation in regard to an action taken by the
Department of Banking. The plaintiff further alleged
that the plaintiff represented the defendant in the matter
from December, 2003, until May, 2006, and billed the
defendant accordingly. The plaintiff claimed that the
defendant made only sporadic payments, and breached
the agreement by refusing to pay a remaining balance
of $24,509.66. In September, 2007, the plaintiff filed a
motion for default, seeking that the court enter a default
against the defendant for his failure to enter an appear-
ance in the matter. The court granted the motion. In
November, 2007, the plaintiff filed a motion for judg-
ment after default. The court granted the motion and
rendered judgment in favor of the plaintiff in the amount
of $24,509.66, plus $362.40 in costs.
There the matter stood for approximately five years.
On January 23, 2013, the defendant filed a motion to
dismiss the complaint on the ground that the court
did not have personal jurisdiction over the defendant
because of insufficient service of process. The defen-
dant attached an affidavit to his motion in which he
averred that he had not resided at 127 Sunset Farm
Road, West Hartford, the address at which service had
been made, at any time on or before the date of pur-
ported service of process. The plaintiff filed a memoran-
dum of law in opposition to the defendant’s motion to
dismiss and attached an affidavit by a state marshal
who attested that, on August 8, 2008, he had made
service upon the defendant by leaving a copy of the
writ of summons and complaint at the defendant’s usual
place of abode. He further averred that when he arrived
at the address on the summons, 637 Park Road, West
Hartford, the building was unoccupied and being reno-
vated; the marshal was informed that the defendant
was residing with his parents at 127 Sunset Farm Road
in West Hartford. The marshal stated that when he
arrived at 127 Sunset Farm Road, he was told by an
older gentleman, who the marshal believed was the
defendant’s father, that the defendant was not there at
the time, but that the defendant did reside there. Also
attached to the plaintiff’s motion was an affidavit of a
legal assistant in the plaintiff’s office, who averred that
several court documents had been mailed to the defen-
dant at 127 Sunset Farm Road during the course of the
action, that no piece of mail addressed to the defendant
at 127 Sunset Farm Road had been returned as undeliv-
erable, and that it was not until after judgment liens
had been filed in 2012 on two of the defendant’s proper-
ties that mail was returned as nondeliverable.
At the same time as he filed the motion to dismiss,
the defendant also filed a motion to open the default
judgment ‘‘on the ground that the court did not have
jurisdiction over [the defendant] due to insufficiency
of service of process (Practice Book § 10-31 [a] [5]) for
the reasons articulated in his motion to dismiss.’’ The
court denied the motion to open because the defendant
had not shown that a good defense existed at the time
judgment was rendered. The defendant filed a motion
for articulation, which the court granted. It explained
that it had considered his motion as a standard motion
to open brought pursuant to General Statutes § 52-212
(a) and Practice Book § 17-43 (a). Under the two-prong
standard used in deciding such motions,1 the court
found that the defendant did not make any initial show-
ing, under the first prong, that a good defense existed at
the time the judgment was rendered. It later articulated
that, because the first prong was not satisfied, there
was no need to address the second prong of the test,
that is, whether the defense had not been raised by
reason of mistake, accident, or other reasonable cause.
The court denied the motion to dismiss, on the ground
that the case would have to be opened before it could
consider the motion to dismiss. This appeal followed.
I
As a preliminary matter, the plaintiff claims that the
appeal is moot. It argues that an opening of the default
judgment is a precondition to consideration of the
defendant’s motion to dismiss, but the defendant
appealed from only the denial of his motion to dismiss
and did not appeal from the denial of his motion to
open. The plaintiff contends that the court’s denial of
the motion to open remains in effect and unchallenged,
and, as a result, no practical relief can be granted by this
court. The defendant argues that relief can be afforded
because the judgment of default is void for want of
personal jurisdiction and there is no need formally to
open void judgments. He contends that his ‘‘mistake is
not in neglecting to appeal the failure to open a judg-
ment that doesn’t exist, rather it was his improper pro-
cedural methodology at the trial level. In addition to
the properly requested . . . motion to dismiss, the
defendant mistakenly simultaneously requested the
court to open a judgment that doesn’t exist. What should
have been an innocuous error allowed the trial court
to misconstrue and confuse the basis of his argument
resulting in an erroneous decision. . . . The issue is
not whether the decision to deny the motion to open
was proper, the issue is . . . whether the motion to
dismiss was properly denied.’’ (Emphasis in original.)
Because ‘‘[m]ootness implicates [this] court’s subject
matter jurisdiction and is thus a threshold matter for
[it] to resolve . . . ordinarily, we would be required to
address that issue first, before considering the merits
of [an] appeal. This is so because [i]t is a well-settled
general rule that the existence of an actual controversy
is an essential requisite to appellate jurisdiction; it is
not the province of appellate courts to decide moot
questions, disconnected from the granting of actual
relief or from the determination of which no practical
relief can follow.’’ (Citation omitted; internal quotation
marks omitted.) Argent Mortgage Co., LLC v. Huertas,
288 Conn. 568, 575, 953 A.2d 868 (2008). In this case,
however, as in Argent Mortgage Co., LLC, the issue of
mootness is ‘‘inextricably intertwined’’; id.; with the
issue raised by the defendant on appeal, namely,
whether the trial court improperly denied his motion to
dismiss despite his claim that the court lacked personal
jurisdiction over him due to defective service of pro-
cess— ‘‘[i]n other words, our determination of whether
the defendant can be granted any practical relief
depends on whether the trial court had personal juris-
diction over the defendant when it rendered [its default
judgment].’’ Id., 575–76.
In the circumstances of the present case, the motion
to open and the motion to dismiss were, as in Argent
Mortgage, Co., LLC, inextricably intertwined. The
defendant stated in his motion to open that it should
be granted ‘‘for reasons articulated in his motion to
dismiss.’’ The motions asserted the same grounds and
sought very similar relief. In order to avoid a mootness
challenge, the defendant properly should have appealed
from the denial of the motion to open. But in the unusual
circumstances of this case, where the two grounds of
decision are by no means independent—and the court
in fact denied the motion to dismiss ‘‘in view of [its]
decision on [the motion to open’’—it would doubtlessly
exalt form over substance to avoid considering the mer-
its of the appeal because the defendant appealed from
the wrong ruling.
II
The defendant argues that the court erred in treating
his motion to open as ‘‘a standard motion to [open]’’
and in analyzing his claim solely under § 52-212 (a) and
Practice Book § 17-43 (a). He argues that he relied not
on § 52-212 (a) or Practice Book § 17-43 (a), but rather
on a common-law jurisdictional argument.
We begin by noting that ‘‘[t]o open a judgment pursu-
ant to Practice Book § 17-43 (a) and General Statutes
§ 52-212 (a), the movant must make a two part showing
that (1) a good defense existed at the time an adverse
judgment was rendered; and (2) the defense was not
at that time raised by reason of mistake, accident or
other reasonable cause. . . . The party moving to open
a default judgment must not only allege, but also make
a showing sufficient to satisfy the two-pronged test
[governing the opening of default judgments]. . . . The
negligence of a party or his counsel is insufficient for
purposes of § 52-212 to set aside a default judgment.
. . . Finally, because the movant must satisfy both
prongs of this analysis, failure to meet either prong is
fatal to its motion.’’ (Citations omitted; internal quota-
tion marks omitted.) Nelson v. The Contracting Group,
LLC, 127 Conn. App. 45, 49, 14 A.3d 1009 (2011).
The court acknowledged in its articulation that the
defendant had attempted to raise a jurisdictional argu-
ment, but stated that it nonetheless applied the straight-
forward standard expressed in § 52-212 (a) and Practice
Book § 17-43 (a). The defendant’s motion to dismiss,
however, did raise a jurisdictional claim. See Grenier
v. Commissioner of Transportation, 306 Conn. 523,
536, 51 A.3d 367 (2012) (interpretation of pleadings
question of law requiring plenary review). ‘‘Although
. . . § 52-212 [opening a judgment upon default] . . .
normally limit[s] the authority [of the trial court] to
open judgments to a four month period, [this statute
does] not preclude the opening of a default judgment
that is rendered without jurisdiction over a defendant.
. . . As a matter of law, in the absence of jurisdiction
over the parties, a judgment is void ab initio and is
subject to both direct and collateral attack. . . . A trial
court’s authority to open such judgments does not arise
from . . . § 52-212 (a) or Practice Book [§ 17-43] but
from its inherent power to open a judgment rendered
without jurisdiction. . . . In other words, a court
always has the inherent authority to open a default
judgment, irrespective of the four month rule and the
valid defense and good cause requirement in Practice
Book § 17-43 and General Statutes § 52-212 (a), if the
judgment was rendered without jurisdiction of the par-
ties or of the subject matter.’’ (Citations omitted; inter-
nal quotation marks omitted.) Devore Associates, LLC
v. Sorkin, 132 Conn. App. 244, 250–51, 31 A.3d 420(2011). Accordingly, because the defendant’s motion to
open raised a jurisdictional claim, the court erred in
analyzing it solely under § 52-212 (a) and Practice Book
§ 17-43 (a).
III
The defendant argues that an evidentiary hearing
regarding personal jurisdiction was required because
he submitted an affidavit disputing the factual question
of whether service was made at his usual place of abode.
The plaintiff argues that because the defendant raised
the issue of lack of personal jurisdiction postjudgment,
he must make a preliminary showing that service of
process was insufficient and that he has not waived
such a claim or consented to the court’s exercise of
jurisdiction. The plaintiff contends that without such a
preliminary requirement, a defendant who knows of
an action and/or judgment against him can delay the
assertion of a defense of personal jurisdiction ‘‘for years
after the judgment’s entry to a time when it suits his
purpose [and that] is intolerable to the judicial process.’’
The plaintiff asserts that the defendant’s affidavit did
not make such a preliminary showing because the
defendant only averred that he did not reside at 127
Sunset Farm Road; he did not state that his parents
resided at that address, where he resided at the time
of service, and that he did not have actual knowledge
of the proceedings or judgment. The plaintiff argues
that, because the defendant presented no facts to con-
test effective service of process, waiver or consent, an
evidentiary hearing on the issue of personal jurisdiction
was not warranted.
‘‘A motion to dismiss admits all facts well pleaded
and invokes any record that accompanies the motion,
including supporting affidavits that contain undisputed
facts. . . . see also Ferreira v. Pringle, 255 Conn. 330,
346–47, 766 A.2d 400 (2001) ([w]here . . . the motion
[to dismiss] is accompanied by supporting affidavits
containing undisputed facts, the court may look to their
content for determination of the jurisdictional issue
and need not conclusively presume the validity of the
allegations of the complaint) . . . . When issues of fact
are necessary to the determination of a court’s jurisdic-
tion, due process requires that a trial-like hearing be
held, in which an opportunity is provided to present
evidence and to cross-examine adverse witnesses. . . .
Put another way, the due process requirement of a
hearing is required only when issues of facts are dis-
puted.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Weihing v. Dodsworth, 100
Conn. App. 29, 37–38, 917 A.2d 53 (2007).2
In the present case, there were disputed facts regard-
ing the defendant’s place of residence. The plaintiff
submitted an affidavit from a marshal, who attested
to hearsay evidence that the defendant resided at 127
Sunset Farm Road in West Hartford, and submitted an
affidavit from a legal assistant stating that during the
duration of the action several court documents had
been sent to 127 Sunset Farm Road, and none had
been returned as undeliverable. The defendant, as noted
previously, averred that he did not live at 127 Sunset
Farm Road. The affidavits present a factual dispute
regarding the defendant’s place of abode at the time of
service. Accordingly, the case must be remanded for
an evidentiary hearing to comport with due process.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
‘‘To open a judgment pursuant to Practice Book § 17-43 (a) and General
Statutes § 52-212 (a), the movant must make a two part showing that (1) a
good defense existed at the time an adverse judgment was rendered; and
(2) the defense was not at that time raised by reason of mistake, accident
or other reasonable cause.’’ (Internal quotation marks omitted.) Nelson v.
The Contracting Group, LLC, 127 Conn. App. 45, 49, 14 A.3d 1009 (2011).
2
We see no reason to set forth different evidentiary procedures by which
to decide motions to dismiss filed in an open, pending case and motions to
open filed later.