Housing Authority v. Weitz ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
HOUSING AUTHORITY OF THE TOWN
OF GREENWICH v. JULIANA WEITZ
(AC 36966)
Lavine, Beach and Sheldon, Js.
Submitted on briefs December 15, 2015—officially released March 15, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Housing Session, Rodriguez, J.)
Richard H. G. Cunningham filed a brief for the appel-
lant (defendant).
Louis P. Pittocco filed a brief for the appellee
(plaintiff).
Opinion
PER CURIAM. In this summary process action, the
defendant, Juliana Weitz, appeals from the judgment of
immediate possession rendered by the trial court in
favor of the plaintiff, the Housing Authority of the Town
of Greenwich, after she was defaulted for failure to
appear at trial. The defendant claims on appeal that the
trial court erred in ‘‘ordering a default judgment for
failure of the defendant to appear at trial where the
defendant appeared by counsel, counsel requested a
continuance, and when the continuance was denied,
[counsel] stated he was ready to proceed on trial, no
motion was made for default, counsel indicated that
the defendant was not personally present due to illness,
and the court had already indicated that the case would
have to be sent to Stamford for scheduling a trial.’’ We
reverse the judgment of the trial court.
On March 1, 2011, the parties entered into a written
lease agreement, in which the defendant agreed to lease
from the plaintiff an apartment located at 27 Havemeyer
Place in Greenwich. The plaintiff served this summary
process action upon the defendant, a section eight ten-
ant, on February 21, 2014, seeking immediate posses-
sion of the subject premises on the ground that the
defendant was allegedly in noncompliance with the
lease because she had failed inspections of her unit on
multiple occasions and had been storing her furniture
in the common areas. On March 19, 2014, the defendant
filed an appearance with the court. The defendant also
filed an extensive answer to the plaintiff’s complaint
on that date. The matter was scheduled for trial on
April 3, 2014. After several continuances,1 the trial was
scheduled for June 17, 2014.
On June 17, 2014, the parties, through their counsel,
appeared before the court. The defendant herself was
not present. Counsel for the defendant asked for
another continuance on the basis of the defendant’s
alleged poor health. He indicated that he had attempted
to obtain medical documentation supporting his claims
regarding the defendant’s health condition, but had
been unable to do so in time for the hearing. Despite
the defendant’s poor health, counsel indicated that he
would have someone transport her to court if the
motion for continuance was denied. The parties agreed,
with the court’s approval, to pass the matter briefly and
meet with a housing mediator to attempt to resolve
their dispute. Shortly thereafter, the parties reported
back to the court that although the meeting with the
mediator had been productive, they had not been able
to reach a final agreement. Counsel for the defendant
renewed his request for a continuance on the basis of
the defendant’s health, in addition to personal obliga-
tions of his own. Counsel for the plaintiff objected ‘‘only
because I didn’t want to continue it until a July date. I
would like to get it over with one way or another.’’
The court sustained the plaintiff’s objection and
denied the defendant’s motion for continuance and the
following colloquy ensued:
‘‘The Court: I’m not satisfied—not that your represen-
tations are not sincere, counsel, but I haven’t received
any indication of the . . . defendant’s inability to be
here, and a default will enter. . . .
‘‘[The Defendant’s Counsel]: [R]ather than default
enter, I will commence trial if we have to, rather than
have it continue.
‘‘The Court: We can’t commence trial without your
client, counsel. She’s not here.
‘‘[The Defendant’s Counsel]: I can. I can—
‘‘The Court: You can move to open a default if you
have valid grounds . . . but the default will enter
today.
‘‘[The Defendant’s Counsel]: If I may, I indicated to
. . . Your Honor, if necessary for Your Honor to evalu-
ate, the reason for it, I can have my client brought here
though she is ill, and I would ask for permission to do
so, rather than have a default enter.
‘‘The Court: Anything else?
‘‘[The Defendant’s Counsel]: No, Your Honor.
‘‘The Court: All right. The default will stand.’’
Based upon the default of the defendant for failure
to appear at trial,2 judgment of immediate possession
was rendered in favor of the plaintiff.
On June 24, 2014, the defendant filed a motion to
open the default judgment, explaining that her poor
health—which included severe pain and vomiting—had
prevented her from appearing in court on June 17, 2014.3
The plaintiff objected to the defendant’s motion. The
court denied the motion to open and this appeal
followed.
Distilled to its essence, the defendant’s claim is that
the trial court erred in defaulting her for failing to
appear at trial when she had, in fact, appeared through
her counsel, who indicated not only that he would have
her brought to court despite her illness if the court
denied his motion for continuance, but that he was
prepared to proceed with trial in her absence. We agree.
It is well established that ‘‘[e]ntry of a [nonsuit or]
default for failure to appear for trial is a matter left to
the sound discretion of the trial court. . . . Practice
Book § 17-19 provides in relevant part: If a party . . .
fails without proper excuse to appear in person or by
counsel for trial, the party may be nonsuited or
defaulted by the judicial authority.’’ (Internal quotation
marks omitted.) Alexander v. Tyson, 122 Conn. App.
493, 496, 999 A.2d 830, cert. denied, 298 Conn. 928, 5
A.3d 488 (2010).
Here, the court’s sole basis for entering a default
against the defendant was her failure to appear for
trial. However, counsel for the defendant was present
in court, was willing to have the defendant transported
to court despite her illness, and, alternatively, was pre-
pared to proceed with trial.4 Because our rules of prac-
tice do not require parties to be present for trial in
civil cases, but permit them, rather, to appear through
counsel, it was error for the trial court to default the
defendant solely on the basis of her absence when her
attorney was present and prepared to proceed.5
The judgment is reversed and the case is remanded
with direction to vacate the default entered against the
defendant and for further proceedings according to law.
1
On March 26, 2014, the plaintiff moved for a continuance of the trial
date to April 17, 2014, stating: ‘‘Counsel needs more time to prepare for trial
because of the voluminous answer to the complaint.’’ The court granted the
plaintiff’s motion and the trial was rescheduled for April 17, 2014. On April
16, 2014, the defendant moved for a continuance of the trial date to May 1,
2014, due to her ‘‘illness/disability.’’ The trial was rescheduled to May 6,
2014. On May 1, 2014, the defendant, through her newly retained counsel,
sought a continuance of the trial date on the grounds that he was ‘‘just
retained, case complicated,’’ and that he was not available because he was
scheduled for a jury trial in another matter commencing on May 5, 2014.
The court granted the motion for continuance and the trial was rescheduled
to May 15, 2014. On May 15, 2014, the parties met with a housing mediator,
but were unable to settle their dispute. The trial was continued to June 5,
2014. The defendant filed another motion for continuance, stating: ‘‘Defen-
dant is unable to appear due to illness. Defendant is requesting a continuance
as a result of a recent diagnosis of hepatitis and recurrent bouts of pancreati-
tis. Defendant’s physician has strongly advised defendant to return to hospi-
tal for treatment, which defendant will comply with treating physician’s
advice as defendant’s symptoms are worsening.’’ The plaintiff objected to
the motion for continuance on the ground that no medical evidence had
been submitted concerning any of the alleged illnesses. The court sustained
the objection and denied the motion for continuance. On June 5, 2014, the
parties again met with a housing mediator, but again were unsuccessful at
resolving their dispute. The trial was continued to June 17, 2014.
2
It is noteworthy that the plaintiff never moved for a default of the
defendant.
3
The defendant presented medical records in support of her motion to
open the default judgment.
4
The record reflects that the court intended to transfer the case to Stam-
ford for trial due to its complexity and forecasted duration. The entry of a
default for failure to appear on June 17, 2014, when trial was not, in fact,
going to proceed, is thus even more puzzling.
5
Because we reverse the court’s judgment on this basis, we need not
address the defendant’s additional claims of error.