Multilingual Consultant Associates, LLC v. Ngoh ( 2016 )

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MULTILINGUAL CONSULTANT ASSOCIATES, LLC v.
JERRY NGOH ET AL.
(AC 37931)
Alvord, Sheldon and Keller, Js.
Argued January 20—officially released March 15, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Edward F. Stodolink, judge trial referee.)
Jerry Ngoh, self-represented, and Nelson Ngoh, self-
represented, the appellants (named defendant et al.).
Christopher Greenwood, for the appellee (plaintiff).
Opinion
ALVORD, J. The self-represented defendants Jerry
Ngoh and Nelson Ngoh1 appeal from the trial court’s
denial of their motions to open and vacate the default
judgment2 rendered in favor of the plaintiff, Multilingual
Consultant Associates, LLC. On appeal, the defendants
claim that the court’s denial was an abuse of its discre-
tion. We agree and, accordingly, reverse the judgment
of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the defendants’ appeal. The
plaintiff is engaged in the business of preparing and
filing federal and state tax returns for its clients. Jerry
Ngoh was the plaintiff’s office manager.3 Approximately
ten years after he began working for the plaintiff, he
and Danh Nguyen, the sole member of the plaintiff
limited liability company, had a disagreement, and Jerry
Ngoh left the business to pursue other opportunities.
After Jerry Ngoh’s departure, the plaintiff filed an
eight count complaint against the defendants and also
against Malvern Ngoh and Martha Ngoh.4 The plaintiff
alleged that Jerry Ngoh ‘‘wrote numerous checks from
the bank account of the plaintiff and forged the signa-
ture of the person authorized to sign said checks and
made said checks payable to himself, his family mem-
bers and other persons not entitled to receive them.’’
It further alleged that the value of the checks totaled
$182,000, and it claimed: treble damages for theft and
embezzlement, double damages for forgery, and attor-
ney’s fees and punitive damages under the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq.
With respect to Nelson Ngoh, the plaintiff alleged in
its entirety that Jerry Ngoh gave him a check in the
amount of $10,000, ‘‘which the defendant, Nelson Ngoh,
was not entitled to and was forged by the defendant,
Jerry Ngoh.’’ The plaintiff sought treble damages against
Nelson Ngoh for this alleged theft. With respect to Mal-
vern Ngoh, the plaintiff alleged that he was liable for
treble damages for theft because he received three
checks from Jerry Ngoh, totaling $51,000, ‘‘which the
defendant, Malvern Ngoh, was not entitled to and [were]
forged by the defendant, Jerry Ngoh.’’ With respect to
Martha Ngoh, the plaintiff alleged that Jerry Ngoh gave
her a check in the amount of $2500, ‘‘which the defen-
dant, Martha Ngoh, was not entitled to and was forged
by the defendant, Jerry Ngoh.’’ The plaintiff sought tre-
ble damages against Martha Ngoh for theft.5
On May 31, 2011, Jerry Ngoh signed an appearance
purporting to represent himself, Nelson Ngoh, Malvern
Ngoh, and Martha Ngoh as self-represented parties, and
gave his home address as the mailing address for all
three individuals. On the same date, Nelson Ngoh filed
a separate appearance as a self-represented party. On
June 13, 2011, Jerry Ngoh filed separate appearances
for Malvern Ngoh and Martha Ngoh, as self-represented
parties, again using his home address as their mailing
address.6 All of the foregoing appearances are part of
the trial court record, having been accepted by the
clerk’s office. For a total of three years and four months,
no further pleadings were filed and no court orders
were issued.
On September 22, 2014, the court, Bellis, J., issued
an order advising the parties that the case would be
dismissed on October 22, 2014, for failure to prosecute
with due diligence, unless the plaintiff ‘‘either
obtain[ed] judgment or file[d] a valid trial list claim’’
on or before that date. On September 22, 2014, the
plaintiff filed a motion for default for failure to plead
against the defendants, and Malvern Ngoh and Martha
Ngoh, which was granted by the court clerk on Septem-
ber 29, 2014. The plaintiff filed a certificate of closed
pleadings and a claim to the trial list on October 15,
2014, and a hearing in damages was scheduled for
November 20, 2014.7
The hearing in damages proceeded as scheduled, but
the defendants, as well as Malvern Ngoh and Martha
Ngoh, were not present in court. At that time, the plain-
tiff submitted an affidavit of debt, signed by Nguyen,
its sole member, averring that the amount of the issued
checks totaled $182,044.30. In addition to the amount
of the checks, Nguyen claimed in his affidavit that each
of the four individuals sued as defendants in this action
were liable to the plaintiff for interest at the rate of 10
percent, treble damages for theft, double damages for
forgery, and punitive damages and attorney’s fees under
CUTPA.8 The court, Hon. Edward F. Stodolink, judge
trial referee, rendered a default judgment in favor of
the plaintiff on the same day as the hearing in damages
and awarded substantially all of the damages claimed
in Nguyen’s affidavit.9
Notice of the default judgment was mailed to Jerry
Ngoh’s home address and to Nelson Ngoh’s home
address. Less than two weeks after the default judgment
was rendered, Jerry Ngoh filed a motion to open the
judgment. In the motion, he stated: ‘‘I, the defendant,
Jerry Ngoh was not around during the trial and ruling.
I also did not have a lawyer to defend me. I was out
of the country.’’ The court, without holding a hearing,
denied his motion on January 6, 2015, for the stated
reason: ‘‘No showing of a good defense.’’
On March 6, 2015, Jerry Ngoh filed another motion
to set aside the default judgment. In his second motion,
he included his proposed defenses to the action and
attached copies of pages in his passport demonstrating
that he had been out of the country from June 2, 2014,
to November 28, 2014. Nelson Ngoh filed his own
motion to set aside the default judgment on March 6,
2015. In his motion, he stated that he had come to court
on the date of the hearing in damages. Instead of going
to the courtroom, he spoke with court personnel and
made a request ‘‘that [the] date be changed because
Jerry Ngoh was out of the country.’’ He claimed that
he ‘‘was told that only my son, Jerry Ngoh, the main
defendant had the powers to change anything concern-
ing the case.’’
Also on March 6, 2015, Malvern Ngoh and Martha
Ngoh filed appearances as self-represented parties and
listed their home addresses as the mailing addresses
for correspondence pertaining to the action. At the time
they filed their appearances, they each filed a motion
to set aside the default judgment, claiming that they
had not received notice relative to the court’s entry of
default for failure to plead or notice of the hearing
in damages. They also included proposed defenses to
the action.10
Shortly after Jerry Ngoh, Nelson Ngoh, Malvern Ngoh,
and Martha Ngoh filed their motions to open the default
judgment, each defendant filed a separate request for
a hearing to argue his or her motions. The court sched-
uled a hearing for April 30, 2015, at which all of the
parties were in attendance. Jerry Ngoh submitted addi-
tional documentation at that time for the court’s review
and consideration. Following the arguments for and
against opening the default judgment, the court ruled
as follows: ‘‘Okay, I’ve heard the arguments of the
motion for the—reopen the judgment. And of course
as you pointed out, counsel, there are two prongs; that
there’s a good defense and the second prong I’ve forgot-
ten at this point, but it doesn’t make any difference.
‘‘I find that as to Malvern Ngoh and Martha Ngoh,
they have indicated that they have valid defenses and
of course they are laypersons and would not necessarily
be held to the same standards that a sophisticated law-
yer might be, so the fact that they forgot to give the
oath is not relevant.
‘‘So as to Malvern Ngoh and Martha Ngoh, I will grant
their motion to reopen the judgment. As to the—Jerry
and Nelson, I’ll deny the motion because I think they
still have some explaining to do, what they did with
the money. That’s it gentlemen and lady.’’ The defen-
dants filed their appeal from the court’s denial of their
motions to open the default judgment on May 7, 2015.
We begin with our standard of review. ‘‘The principles
that govern motions to open or set aside a civil judgment
are well established. A motion to open and vacate a
judgment . . . is addressed to the [trial] court’s discre-
tion, and the action of the trial court will not be dis-
turbed on appeal unless it acted unreasonably and in
clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did. . . .
‘‘To open a judgment pursuant to Practice Book § 17-
43 (a)11 and General Statutes § 52-212 (a),12 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 coun-
sel 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.’’ (Footnotes added;
internal quotation marks omitted.) Little v. Mackeyboy
Auto, LLC, 142 Conn. App. 14, 18–19, 62 A.3d 1164
(2013).
In the present case, the defendants are self-repre-
sented parties and have been self-represented during
the pendency of the action and this appeal. ‘‘Although
it is the established policy of the Connecticut courts to
be solicitous of [self-represented] litigants and when it
does not interfere with the rights of other parties to
construe the rules of practice liberally in favor of the
[self-represented] party . . . we are also aware that
[a]lthough we allow [self-represented] litigants some
latitude, the right of self-representation provides no
attendant license not to comply with relevant rules of
procedural and substantive law.’’ (Internal quotation
marks omitted.) Tonghini v. Tonghini, 152 Conn. App.
231, 240, 98 A.3d 93 (2014). We note that the court did
afford the defendants some latitude when it determined
that the failure to file a verified motion or an affidavit
with the motion to open the default judgment was ‘‘not
relevant’’ because they are ‘‘laypersons,’’ without the
expertise of a ‘‘sophisticated lawyer.’’ Despite making
this observation, the court then denied their motions
to open the default judgment because the court was
not satisfied that they adequately had explained the
defenses they intended to present if the case proceeded
to trial, commenting that ‘‘they still have some
explaining to do, what they did with the money.’’ We
conclude that, although an attorney may have articu-
lated with greater precision the nature of the defen-
dants’ claims, the self-represented defendants did
satisfy their burden under § 52-212 (a) of ‘‘showing rea-
sonable cause, or that a good . . . defense in whole
or in part existed at the time of the rendition of the
judgment . . . and that . . . [they were] prevented by
mistake, accident or other reasonable cause from . . .
making the defense.’’
We are mindful that we review the court’s determina-
tion to deny the defendants’ motions to open the default
judgment for a clear abuse of discretion. Little v. Mack-
eyboy Auto, LLC, supra, 142 Conn. App. 18. ‘‘The court’s
discretion, however, is not unfettered; it is a legal discre-
tion subject to review.’’ Miller v. Fishman, 102 Conn.
App. 286, 291, 925 A.2d 441 (2007), cert. denied, 285
Conn. 905, 942 A.2d 414 (2008). ‘‘[D]iscretion imports
something more than leeway in decision-making. . . .
It means a legal discretion, to be exercised in confor-
mity with the spirit of the law and in a manner to
subserve and not to impede or defeat the ends of sub-
stantial justice. . . . In addition, the court’s discretion
should be exercised mindful of the policy preference
to bring about a trial on the merits of a dispute whenever
possible and to secure for the litigant his day in court.’’
(Internal quotation marks omitted.) Tuccio v. Gara-
mella, 114 Conn. App. 205, 209, 969 A.2d 190 (2009).
When the court denied the defendants’ motions to
open the default judgment, it had for its consideration
the following information:13 (1) After the plaintiff filed
its complaint on May 24, 2011, the plaintiff took no
further action until it filed its motion for default for
failure to plead on September 22, 2014; (2) Jerry Ngoh
was out of the country, as evidenced by copies of pages
he submitted from his passport, from June 2, 2014, to
November 28, 2014; (3) when Nelson Ngoh came to
court on November 20, 2014, the date of the hearing in
damages, he was told that the hearing could not be
rescheduled because he was not the main defendant;
(4) when Jerry Ngoh returned home and discovered
that a default judgment was rendered against him, he
filed a motion to open the judgment within two weeks
of the date of the judgment; (5) Jerry Ngoh and Nguyen
had worked together building the plaintiff’s tax prepara-
tion business, and Nguyen was aware that Jerry Ngoh
wrote checks from the plaintiff’s bank account to pay
clients their tax refunds, to pay for company supplies
and expenses, and to compensate himself for his ser-
vices because he was not on the payroll as compared
to the status of the plaintiff’s other employees; (6) a
large portion of the $182,000 claimed as damages by
the plaintiff consisted of tax refund checks sent to cli-
ents, in that the Internal Revenue Service, with the
agreement of the clients, deposited the refund checks
directly into the plaintiff’s bank account and Jerry Ngoh
would then issue the client a check from that account
after deducting the fees charged by the plaintiff for
the tax preparation services; (7) the plaintiff’s business
operated under these arrangements for many years
without any issues until Jerry Ngoh and Nguyen had a
disagreement, and Jerry Ngoh left the company; (8)
because Jerry Ngoh, as the plaintiff’s assistant manager,
was so busy during tax season, he had family members
run errands for him and wrote checks to them directly
instead of first writing a check to himself as compensa-
tion for his services; (9) Nelson Ngoh received a $10,000
check from Jerry Ngoh to ‘‘carry out some errands for
him like in the past’’ and he ‘‘never had reason in the
past to doubt the source’’ of the checks; (10) if Jerry
Ngoh returned the checks he wrote to himself for ser-
vices rendered to the company, it would mean that he
‘‘worked for free’’; (11) during the three year period
that followed the filing of the complaint, Jerry Ngoh
and Nguyen reestablished their friendship, and Nguyen
has instructed his attorney to withdraw the action but
he has not done so; and (12) Nguyen e-mailed Jerry
Ngoh and told him to withdraw moneys from Jerry
Ngoh’s personal banking account after Nguyen’s attor-
ney filed an application for a financial institution execu-
tion following the rendering of the default judgment.
We do not find facts, and, therefore, we do not con-
clude that the defenses as proffered by the defendants
are to be credited. Nevertheless, the self-represented
defendants have provided sufficient information to sat-
isfy the requirements to open a default judgment as set
forth in Practice Book § 17-43 (a) and General Statutes
§ 52-212 (a). Accordingly, we are persuaded that the
court abused its discretion in denying the defendants’
motions to open the default judgment.
The judgment is reversed and the case is remanded
with direction to grant the defendants’ motions to open
the default judgment and for further proceedings
according to law.
In this opinion the other judges concurred.
1
The plaintiff also named Malvern Ngoh and Martha Ngoh as defendants,
but they are not parties to this appeal. We therefore refer in this opinion
to Jerry Ngoh and Nelson Ngoh collectively as the defendants and individu-
ally by name where appropriate.
2
‘‘The denial of a motion to open is an appealable final judgment.’’ (Internal
quotation marks omitted.) Giano v. Salvatore, 136 Conn. App. 834, 842, 46
A.3d 996, cert. denied, 307 Conn. 926, 55 A.3d 567 (2012).
3
In the complaint, the plaintiff alleged that Jerry Ngoh was its ‘‘employee
and/or agent and/or servant . . . .’’ At oral argument before this court, Jerry
Ngoh represented that he was the plaintiff’s assistant manager, whereas the
plaintiff’s counsel stated to this court that he ‘‘did not know’’ whether Jerry
Ngoh was an employee or an independent contractor of his client.
4
Nelson Ngoh is the father of Jerry Ngoh. Malvern Ngoh and Martha Ngoh
are siblings of Jerry Ngoh.
5
We note that the counts of the complaint against Nelson Ngoh, Malvern
Ngoh, and Martha Ngoh did not allege that these individuals knew or should
have known that the checks given to them were improperly issued or forged.
6
In several of the pleadings filed by Jerry Ngoh after the default judgment
was rendered, he stated that he had filed an appearance on his own behalf
and ‘‘to represent Malvern Ngoh, Nelson Ngoh, and Martha Ngoh.’’ He stated
that ‘‘they were mostly unaware of the recent developments of the case
because all court mail came to my address.’’ In the documents submitted
to the court on April 30, 2015, he further explained: ‘‘From the inception of
this case, I did not want any of my family members . . . to be involved as
I felt they were wrongly accused.’’ Apparently he was unaware that, as a
layperson, he could represent only himself in the action. Nelson Ngoh did
receive correspondence from the court because he had filed a separate
appearance as a self-represented party, and he listed his home address for
the court as his mailing address.
7
The court generated notice of the scheduled hearing in damages was
mailed to Jerry Ngoh’s home address, as listed on the individual appearance
forms for Jerry Ngoh, Malvern Ngoh, and Martha Ngoh. The notice also was
mailed to Nelson Ngoh’s home address as listed on his appearance form.
8
We further note that the complaint does not allege forgery or a violation
of CUTPA in the counts against Nelson Ngoh, Malvern Ngoh, or Martha
Ngoh. ‘‘An award of damages is controlled by the allegations of the complaint.
. . . It is fundamental in our law that the right of a plaintiff to recover is
limited to the allegations of his complaint. . . . Facts found but not averred
cannot be made the basis for a recovery.’’ (Internal quotation marks omitted.)
Argentinis v. Fortuna, 134 Conn. App. 538, 548–49, 39 A.3d 1207 (2012).
9
The court’s November 20, 2014 order provides in relevant part: ‘‘The
following order entered after hearing in damages as to defendant Jerry
Ngoh. Judgment: After reviewing the affidavits filed in this matter, the court
finds that the defendant Jerry Ngoh owes to the plaintiff $182,044.30 and
$101,641.43 in interest. The court awards treble damages for theft . . . in
the amount of $546,132.90. The court further awards punitive damages and
attorney fees for violation of [CUTPA] . . . in the amount of $250,000.
Postjudgment interest is ordered in accordance with the statute at the rate
of 6 [percent].
‘‘The following order entered after hearing in damages as to defendant
Malvern Ngoh. Judgment: After reviewing the affidavits filed in this matter,
the court finds that the defendant Malvern Ngoh owes to the plaintiff $51,000
and $28,475 in interest. The court awards treble damages for theft . . . in
the amount of $153,000. The court further awards punitive damages and
attorney fees for violation of [CUTPA] . . . in the amount of $50,000. Post-
judgment interest is ordered in accordance with the statute at the rate of
6 [percent].
‘‘The following order entered after hearing in damages as to defendant
Nelson Ngoh. Judgment: After reviewing the affidavits filed in this matter,
the court finds that the defendant Nelson Ngoh owes to the plaintiff $10,000
and $5583.38 in interest. The court awards treble damages for theft . . . in
the amount of $30,000. The court further awards punitive damages and
attorney fees for violation of [CUTPA] . . . in the amount of $30,000. Post-
judgment interest is ordered in accordance with the statute at the rate of
6 [percent].
‘‘The following order entered after hearing in damages as to defendant
Martha Ngoh. Judgment: After reviewing the affidavits filed in this matter,
the court finds that the defendant Martha Ngoh owes to the plaintiff $2500
and $1395.88 in interest. The court awards treble damages for theft . . . in
the amount of $7500. The court further awards punitive damages and attor-
ney fees for violation of [CUTPA] . . . in the amount of $20,000. Postjudg-
ment interest is ordered in accordance with the statute at the rate of 6
[percent].
‘‘Judgment is rendered for the plaintiff and the defendants must pay the
total amount of judgment and costs to the plaintiff.’’
10
All of the motions to open the default judgment were filed on March
6, 2015, which was within four months of the rendering of the default
judgment on November 20, 2014. See General Statutes § 52-212 (a)
11
Practice Book § 17-43 (a) provides in relevant part: ‘‘Any judgment
rendered or decree passed upon a default or nonsuit may be set aside within
four months succeeding the date on which notice was sent, and the case
reinstated on the docket on such terms in respect to costs as the judicial
authority deems reasonable, upon the written motion of any party or person
prejudiced thereby, showing reasonable cause, or that a good cause of action
or defense in whole or in part existed at the time of the rendition of such
judgment or the passage of such decree, and that the plaintiff or the defen-
dant was prevented by mistake, accident or other reasonable cause from
prosecuting or appearing to make the same. Such written motion shall be
verified by the oath of the complainant or the complainant’s attorney, shall
state in general terms the nature of the claim or defense and shall particularly
set forth the reason why the plaintiff or the defendant failed to appear. . . .’’
12
General Statutes § 52-212 (a) provides: ‘‘Any judgment rendered or
decree passed upon a default or nonsuit in the Superior Court may be set
aside, within four months following the date on which it was rendered or
passed, and the case reinstated on the docket, on such terms in respect to
costs as the court deems reasonable, upon the complaint or written motion
of any party or person prejudiced thereby, showing reasonable cause, or
that a good cause of action or defense in whole or in part existed at the
time of the rendition of the judgment or the passage of the decree, and that
the plaintiff or defendant was prevented by mistake, accident or other
reasonable cause from prosecuting the action or making the defense.’’
13
This information was provided in the court file, the defendants’ motions,
and Jerry Ngoh’s submission to the court at the April 30, 2015 hearing.