Questell v. Farogh , 175 Conn. App. 262 ( 2017 )

 JENNIFER QUESTELL v. SHEEBA FAROGH
(AC 38716)
Alvord, Prescott and Kahn, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court,
which denied her motion to open and set aside that judgment after she
was defaulted for her failure to appear at a scheduled trial management
conference. The plaintiff had sought to recover damages for negligence
in connection with injuries she suffered when she fell on the defendant’s
real property. At a conference that both parties attended, the trial court
issued a scheduling order that set a date and time for the trial manage-
ment conference. The court thereafter issued notices that reminded the
parties of the trial management conference. After the defendant, who
was self-represented, failed to appear for the trial management confer-
ence, the court rendered judgment of default against her and, after a
hearing, awarded the plaintiff damages. The court subsequently denied
the defendant’s motion to open and set aside the judgment. On appeal,
the defendant claimed that, although she had attended the conference
in which the court scheduled the trial management conference and
had received notice reminding her of the date and time of the trial
management conference, she was prevented by mistake from appearing
at that conference because, as a nonattorney, she was unfamiliar with
the court system, and because several motions and notices that had
been filed and issued, respectively, in the month before that conference
led her to believe that it was no longer scheduled. Held that the trial
court did not abuse its discretion in denying the defendant’s motion to
open and set aside the default judgment; the defendant having admitted
that she was present when the trial management conference was sched-
uled and that she thereafter had been issued notice that confirmed the
date and time of the conference, and there having been no evidence to
suggest that she received notice from the court canceling the conference,
or that she attempted to contact the court to verify whether the confer-
ence was canceled, the court reasonably could have found that she was
not prevented from attending the trial management conference as a
result of mistake, accident or other reasonable cause, but that her failure
to attend the conference was due to her negligence.
Argued June 1—officially released August 1, 2017
Procedural History
Action to recover damages for the defendant’s alleged
negligence, brought to the Superior Court in the judicial
district of New Britain, where the defendant was
defaulted for failure to appear; thereafter, the court,
Young, J., rendered judgment for the plaintiff; subse-
quently, the court, Swienton, J., denied the defendant’s
motion to open the judgment, and the defendant
appealed to this court. Affirmed.
Joseph A. O’Brien, for the appellant (defendant).
Isaias T. Diaz, with whom were Alexa L. Parr and
Sarah Mather, for the appellee (plaintiff).
Opinion
KAHN, J. The defendant, Sheeba Farogh, appeals
from the judgment of the trial court denying her motion
to open the default judgment, which was rendered after
she failed to appear at a scheduled trial management
conference. On appeal, the defendant claims that she
was prevented from appearing at the conference by
mistake and that a valid defense existed at the time the
judgment was rendered. We affirm the judgment of the
trial court.
The following facts are relevant to this appeal. On
August 11, 2014, the plaintiff, Jennifer Questell, initiated
an action against the defendant, her landlord. The plain-
tiff alleged that on December 18, 2013, as a result of the
defendant’s negligence, she sustained injuries falling
down the exterior stairs of her apartment. Specifically,
the plaintiff alleged that her injuries resulted from the
defendant’s failure to remove ice and snow from the
apartment’s exterior stairs. The defendant filed an
answer and special defenses in response to the plain-
tiff’s complaint on October 15, 2014. On November 24,
2014, the plaintiff filed a motion for an extension of
time to respond to the defendant’s answer and special
defenses, which the court granted on December 8, 2014.
On December 17, 2014, the parties attended a schedul-
ing conference before the court, Young, J. A scheduling
order was issued in open court on that day. The order
read in relevant part: ‘‘Pretrial conference is scheduled
for 9:15 a.m. on [August 13, 2015]. Trial management
conference is scheduled for 9:15 a.m. on [September
9, 2015]. A joint report is required. Jury selection is
scheduled for 9:30 a.m. on [September 15, 2015]. Evi-
dence will commence at 10 a.m. on [September 22,
2015].’’ On December 19, 2014, the court issued notices
reminding the parties of each of these scheduled events.
The notice that set forth the date and time for the
September 9, 2015 trial management conference noted
that both parties ‘‘MUST attend’’ and that ‘‘[f]ailure to
comply with these requirements will result in the possi-
ble imposition of sanctions, including the entry of
orders of default and/or nonsuit.’’
On August 6, 2015, one week before the parties’
scheduled pretrial conference, the defendant’s husband
contacted the plaintiff’s attorney and asked if the con-
ference could be rescheduled. The plaintiff agreed and
filed a motion for a continuance requesting that the
conference be continued to August 17, 2015. The court
granted the motion, noting that a new date was ‘‘to be
assigned by the case flow coordinator.’’ The record does
not reflect that a new date was ever assigned. On August
7, 2015, the plaintiff served the defendant with several
requests for admission via certified mail. The defendant
signed the certification card, indicating that she had
received the requests for admission, but did not
respond. On August 20, 2015, the plaintiff responded
to the defendant’s special defenses, stating that ‘‘the
plaintiff denies each and every allegation as set forth
in the defendant’s special defenses.’’ The plaintiff also
filed a certificate of closed pleadings on that day.
On August 20, 2015, the court sent notices to both
parties informing them that ‘‘the following changes have
been made to the schedule for the above-referenced
case: jury selection scheduled for [September 15, 2015]
is marked off, as the certificate of closed pleadings
(#108) claimed the case to the court trial list; evidence
scheduled for [September 22, 2015] is changed to reflect
a court trial commencing on [September 22, 2015] at
9:30 a.m.’’ That same day, the court sent a second notice
to the parties informing them that the matter was sched-
uled for a court trial on September 22, 2015, at 9:30
a.m., and that ‘‘attorneys and self-represented litigants
must comply with the statewide civil court trial manage-
ment order, which may be obtained via the Internet
under the standing orders at www.jud.ct.gov or at the
civil case flow office. Failure to comply as ordered may
result in sanctions.’’ Neither of these notices mentioned
the previously scheduled September 9, 2015 trial man-
agement conference. The plaintiff subsequently filed a
motion to continue the trial to March 22, 2016, noting
that additional time was needed for discovery, ‘‘as [the]
defendant is pro se.’’ The court denied the motion on
September 2, 2015.
The defendant subsequently failed to appear at the
September 9 trial management conference. The court,
Young, J., issued an order entering a judgment of default
against the defendant for failure to attend the confer-
ence. Notice of the judgment was issued to the defen-
dant that day. The court noted in its order that ‘‘[t]he
trial on [September 22, 2015] will be a hearing in dam-
ages to the court.’’
Approximately two weeks after the judgment of
default was entered against the defendant, both parties
appeared in court for the September 22, 2015 hearing
in damages. At that hearing, the defendant attempted
to object to the plaintiff’s exhibits, arguing that the
plaintiff’s claims were false. The court, Swienton, J.,
noted that ‘‘the problem is, you’ve already been
defaulted because of a failure to show—failure to show
up at a trial management conference on September
9th, and Judge Young defaulted you.’’ In response, the
defendant argued: ‘‘I received all the papers, but—but
I did not receive any date of [September] 9th. I received
the date for [September] 22nd, so that’s why I’m showed
up today.’’ The court then noted: ‘‘[O]n December 17th,
2014, the date of September 9th was chosen, and you
were present on that date.’’ The defendant responded:
‘‘Yeah, I was there that day.’’ After some further discus-
sion, the court had a clerk print a copy of the scheduling
order, presented it to the defendant, and said: ‘‘That’s
the order that was entered on December 17th. And I
circled the sentence that says you were to appear on
September 9.’’ The court proceeded with the hearing
and awarded the plaintiff $29,992.90 in damages.
Approximately three weeks after that hearing, on
October 15, 2015, the defendant filed a motion to open
the judgment of default entered against her on Septem-
ber 9, 2015. In her motion, the defendant argued that
the judgment should be set aside because ‘‘[t]he several
motions and notices . . . which came out in the month
preceding the September 9, 2015 case management con-
ference caused the defendant, a nonattorney unfamiliar
with the court system, to mistakenly believe the Sep-
tember 9, 2015 conference was no longer on the sched-
ule.’’ She also argued that she had a ‘‘valid defense as
to liability’’ in the underlying action. The court, Swien-
ton, J., denied the defendant’s motion without a hearing
on December 7, 2015. This appeal followed.
We begin by setting forth the relevant standard of
review and applicable legal principles. ‘‘A motion to
open and vacate a judgment . . . is addressed to the
[trial] court’s discretion, and the action of the trial court
will not be disturbed on appeal unless it acted unreason-
ably and in clear abuse of its discretion. . . . In
determining whether the trial court abused its discre-
tion, this court must make every reasonable presump-
tion 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.’’
(Citations omitted; internal quotation marks omitted.)
Gillis v. Gillis, 214 Conn. 336, 340–41, 572 A.2d 323(1990).
‘‘The power of a court to open a default judgment is
controlled by § 52-212 of the General Statutes.’’ Eastern
Elevator Co. v. Scalzi, 193 Conn. 128, 131, 474 A.2d 456(1984). 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 ren-
dered 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 rea-
sonable 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.’’
In order to set aside a judgment passed upon default,
then, ‘‘there must be a showing that: (1) a good defense
existed at the time judgment was rendered; and (2) the
party seeking to set aside the judgment was prevented
from appearing because of mistake, accident, or other
reasonable cause.’’ Pantlin & Chananie Development
Corp. v. Hartford Cement & Building Supply Co., 196
Conn. 233, 240, 492 A.2d 159 (1985). ‘‘[B]ecause the
movant must satisfy both prongs of this analysis, failure
to meet either prong is fatal to [his or her] motion.’’
(Internal quotation marks omitted.) Dawson v. Bri-
tagna, 162 Conn. App. 801, 806, 133 A.3d 880 (2016).
In support of the second prong of the two part test,
the defendant claims that the court abused its discretion
in denying her motion to open because she was pre-
vented by mistake from attending the September 9, 2015
trial management conference. The record, however,
does not support the defendant’s assertion.
The transcript of the September 22, 2015 hearing in
damages reveals that the defendant admitted to Judge
Swienton that she was present in open court on Decem-
ber 17, 2014, when the trial management conference
was scheduled for September 9, 2015. She admitted in
her motion to open that she was issued a scheduling
order that confirmed that the ‘‘[p]retrial conference was
scheduled for August 13, 2015; trial management for
September 9, 2015, jury selection on September 15,
2015, and trial September 22, 2015.’’ She also admitted
that ‘‘[o]n August 20, 2015, the court issued a notice
that jury selection for September 15, 2015, was marked
off and [that a] court trial would commence on Septem-
ber 22, 2015. A separate notice was also issued that
[the] court trial would commence on September 22,
2015, at 9:30 a.m. Neither of these notices mentioned
the September 9, 2015 trial management date, which
the defendant now mistakenly believed was off.’’
(Emphasis added.) The defendant does not allege that
she ever received a notice canceling the September 9,
2015 trial management conference.
As mentioned, the December 19, 2014 notice setting
forth the date and time for the September 9, 2015 confer-
ence warned both parties that they ‘‘MUST attend’’ the
scheduled conference and that the ‘‘[f]ailure to comply
with these requirements will result in the possible impo-
sition of sanctions, including the entry of orders of
default and/or nonsuit.’’ (Emphasis added.) There is
no evidence to suggest that the defendant, despite this
warning, made any attempt to contact the clerk’s office
and clarify whether her assumption regarding the can-
cellation of the trial management conference was
correct.
We have previously stated that ‘‘[a] court should not
open a default judgment in cases where the defendants
admit they received actual notice and simply chose to
ignore the court’s authority.’’ (Internal quotation marks
omitted.) Woodruff v. Riley, 78 Conn. App. 466, 471,
827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474(2003).1 This court and our Supreme Court have also
repeatedly held that ‘‘[n]egligence is no ground for
vacating a judgment, and it has been consistently held
that the denial of a motion to open a default judgment
should not be held an abuse of discretion where the
failure to assert a defense was the result of negligence.’’
Pantlin & Chananie Development Corp. v. Hartford
Cement & Building Supply Co., supra, 196 Conn.
240–41; see also Kaplan & Jellinghaus, P.C. v. Newfield
Yacht Sales, Inc., 179 Conn. 290, 292, 426 A.2d 278(1979) (defendants’ failure to appear negligent where
‘‘defendants had notice of both the civil action for pay-
ment for legal services and of the motion for judgment,’’
and ‘‘received and ignored the legal documents’’); Oli-
phant v. Heath, 170 Conn. App. 360, 362, 364, 154 A.3d
582 (2017) (plaintiff’s failure to attend pretrial confer-
ence not ‘‘anything beyond mere negligence’’ where she
‘‘admitted that she had notice of the pretrial conference
many months in advance’’ but ‘‘failed to appear because
[trial] court failed to provide her with reminder notices
of the pretrial conference date’’).
From the record, the trial court reasonably could
have found that the defendant was not prevented from
attending the September 9, 2015 conference as a result
of mistake, accident or other reasonable cause but, on
the contrary, that her failure to attend the conference
was due to her own negligence.2 We note that
‘‘[a]lthough it is the established policy of the Connecti-
cut 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] liti-
gants some latitude, the right of self-representation pro-
vides no attendant license not to comply with relevant
rules of procedural and substantive law.’’ (Internal quo-
tation marks omitted.) Multilingual Consultant Associ-
ates, LLC v. Ngoh, 163 Conn. App. 725, 734, 137 A.3d
97 (2016). We also note that the question presented in
this appeal is not whether this court would refuse to
set aside or open the judgment of default. Instead, ‘‘[a]
motion to open and vacate a judgment . . . is
addressed to the [trial] court’s discretion, and the action
of the trial court will not be disturbed on appeal unless it
acted unreasonably and in clear abuse of its discretion.’’
(Internal quotation marks omitted.) Dziedzic v. Pine
Island Marina, LLC, 143 Conn. App. 644, 651, 72 A.3d
406 (2013). We conclude that the trial court did not
abuse its discretion in denying the defendant’s motion
to open and set aside the judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant argues in her reply brief that her failure to appear at the
conference was ‘‘not the result of negligence or ignoring the proceedings
against her.’’ The plaintiff’s attorney, by contrast, presented the following
argument at the September 22, 2015 hearing in damages: ‘‘[T]here are several
things that I’m taking issue with. One is that they’ve had more than sufficient
time to deal with this ahead of time. I have no method of contacting them
or communicating with them. They’re saying on the record that the number
they filed with the court is still adequate . . . I have photographs of their
boarded up business on my phone. . . . [W]e did everything that we were
obligated to do. And I tried to work with them. There’s been no communica-
tion, there’s been no settlement discussions, and there’s been no response
to any of my discovery requests. So, I just don’t see how giving them a
continuance would change anything. Especially considering we already have
a liability admission because they chose to ignore their request for admis-
sions that they signed for and received, certified mail.’’
2
Because the defendant failed to meet her burden as to the second prong
of the two-pronged test outlined previously, we need not address her argu-
ment as to the first prong.