Saint Francis Hospital & Medical Center v. Malley , 189 Conn. App. 68 ( 2019 )

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SAINT FRANCIS HOSPITAL AND MEDICAL
CENTER v. EDWARD MALLEY ET AL.
(AC 40619)
Alvord, Sheldon and Eveleigh, Js.
Syllabus
The plaintiff brought this action against the defendants, T and E, to collect
a debt for unpaid medical expenses incurred by E. L, an attorney, filed
an appearance and answer on behalf of both defendants, although he
had filed motions to withdraw his appearance on behalf of T that were
denied by the court. After L informed the court that he was prepared
to stipulate to a judgment on behalf of E, the court asked how it should
proceed with regard to T, to which the plaintiff’s counsel responded
that it should render a default judgment. L said nothing in response to
that request from the plaintiff’s counsel, and the court thereupon ren-
dered a default judgment against T in the same amount as the stipulated
judgment against E. On T’s appeal to this court, held that the default
judgment rendered against T was improper and constituted plain error:
the trial court erred when it entered a default against T because it clearly
lacked a basis to do so, as the court acknowledged that although T was
not present in court on the scheduled trial date, she did not have to be
present because her counsel, L, was present and had appeared on her
behalf, and despite L’s prior attempts to withdraw his appearance on
behalf of T, the court did not grant any of his motions to withdraw and,
at the time of the court’s entry of a default against T, T was still repre-
sented by L; moreover, the consequences of the court’s error were so
grievous as to be fundamentally unfair or manifestly unjust, as T was
unable to challenge her liability for E’s medical expenses, the erroneous
entry of a default against T was the sole basis for the court’s rendering
of a substantial judgment against her, the entry of a default against
T implicated her due process rights in that she was deprived of her
opportunity to be heard on the merits of the case, and the unwarranted
rendering of a default judgment against T was likely to undermine public
confidence in the judiciary because the court’s actions deviated from
established rules and procedures and denied T’s due process rights.
Argued January 8—officially released April 2, 2019
Procedural History
Action to collect a debt, brought to the Superior Court
in the judicial district of New Britain, where the court,
Young, J., rendered judgment for the plaintiff in accor-
dance with a stipulation of the parties as against the
named defendant; thereafter, the court rendered a
default judgment against the defendant Tracy Malley,
from which the defendant Tracy Malley appealed to
this court. Reversed; further proceedings.
Michael S. Taylor, with whom was Brendon P. Lev-
esque, for the appellant (defendant Tracy Malley).
Opinion
EVELEIGH, J. The defendant Tracy Malley1 appeals
from the default judgment rendered against her in favor
of the plaintiff, Saint Francis Hospital and Medical Cen-
ter, in this action to collect a debt for unpaid medical
expenses incurred by Edward Malley. On appeal, the
defendant claims that there was no basis for the entry
of a default against her, and, therefore, the rendering
of the default judgment was improper.2 The plaintiff,
who prevailed before the trial court, did not file a brief,
therefore, this appeal was considered on the basis of
the defendant’s brief, argument, appendix and record
only. We agree with the defendant and reverse the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s claim on
appeal. In June, 2016, the plaintiff commenced the pre-
sent action by serving a complaint, in which it claimed
$37,913.27 for unpaid medical services it had provided
to Edward Malley on five occasions between February
12, 2015, and July 15, 2015. Further, the plaintiff alleged
that, under General Statutes § 46b-37,3 the defendant
was liable for the unpaid medical services rendered to
Edward Malley.
In July, 2016, Attorney Jon C. Leary filed an appear-
ance on behalf of the defendant and Edward Malley.
Leary also filed an answer on behalf of both individuals
on August 26, 2016. On three occasions, however, Leary
filed motions with the court for permission to withdraw
his appearance on behalf of the defendant. The clerk
of court rejected Leary’s first two motions to withdraw,
and the third motion was marked off by the court and
not again considered until the scheduled trial date.
On June 14, 2017, Leary informed the court that he
was prepared to stipulate to a judgment on behalf of
Edward Malley, and he further indicated that he had
unsuccessfully attempted to withdraw his appearance
on behalf of the defendant and that he had been unable
to communicate with her. The court responded: ‘‘I can’t
just grant you your motion to withdraw as counsel today
. . . because we don’t have notice of that being heard
today with [the defendant].’’ The court went on to state:
‘‘Nevertheless, although [the defendant] has no obliga-
tion to be here, she’s not here to defend herself.’’
Leary read into the record a stipulation for judgment
against Edward Malley in the amount of $38,355.15 plus
costs in the amount of $441.89. The court then asked
how it should proceed with regard to the defendant, to
which the plaintiff’s counsel responded that it should
render a default judgment. Leary said nothing in
response to this request from the plaintiff’s counsel. The
court thereupon entered a default against the defendant
and, immediately thereafter, rendered a default judg-
ment against the defendant in the same amount as the
stipulated judgment against Edward Malley. This
appeal followed.
‘‘We first briefly discuss our standard of review of
the defendant’s claim. To the extent that the defendant
challenges the court’s authority to enter a default, our
review is plenary. . . . We also engage in plenary
review with regard to the construction of any relevant
statutory provisions or rules of practice. . . . Finally,
provided we determine that the court had that authority
to act, we review its exercise of that authority under
an abuse of discretion standard.’’ (Citations omitted;
internal quotation marks omitted.) Deutsche Bank
National Trust Co. v. Bertrand, 140 Conn. App. 646,
655–56, 59 A.3d 864, cert. dismissed, 309 Conn. 905,
68 A.3d 661 (2013). When, however, the court lacks
authority to default a party, its entry of a default is
erroneous as a matter of law and, thus, constitutes an
abuse of discretion. People’s United Bank v. Bok, 143
Conn. App. 263, 272–73, 70 A.3d 1074 (2013).
Because the defendant’s claims were not raised
below, we must at the outset also address the issue
of reviewability. The defendant argues that ‘‘this court
should reverse because the trial court’s entry of default
against [her] constitutes plain error.’’ We agree with
the defendant.
‘‘Codified in Practice Book § 60-5, [t]he plain error
doctrine . . . is not . . . a rule of reviewability. It is
a rule of reversibility. . . . It is a doctrine that should
be invoked sparingly and only on occasions requiring
the reversal of the judgment under review. . . . Suc-
cess on such a claim is rare. Plain error review is
reserved for truly extraordinary situations where the
existence of the error is so obvious that it affects the
fairness and integrity of and public confidence in the
judicial proceedings. . . .
‘‘We engage in a two step analysis in reviewing claims
of plain error. First, we must determine whether the
trial court in fact committed an error and, if it did,
whether that error was indeed plain in the sense that
it is patent [or] readily discernable on the face of a
factually adequate record, [and] also . . . obvious in
the sense of not debatable. . . . [T]his inquiry entails
a relatively high standard, under which it is not enough
for the defendant simply to demonstrate that his posi-
tion is correct. Rather, the party seeking plain error
review must demonstrate that the claimed impropriety
was so clear, obvious and indisputable as to warrant
the extraordinary remedy of reversal. . . . Because [a]
party cannot prevail under plain error unless it has
demonstrated that the failure to grant relief will result
in manifest injustice . . . under the second prong of
the analysis we must determine whether the conse-
quences of the error are so grievous as to be fundamen-
tally unfair or manifestly unjust.’’ (Citations omitted;
emphasis omitted; footnote omitted; internal quotation
marks omitted.) Clougherty v. Clougherty, 131 Conn.
App. 270, 273–74, 26 A.3d 704, cert. denied, 302 Conn.
948, 31 A.3d 383 (2011).
Addressing the first prong of plain error analysis, we
conclude that the court erred when it entered a default
against the defendant because it clearly lacked a basis
to do so. ‘‘The failure to follow a procedural rule pre-
scribing court procedures can also constitute plain
error.’’ (Internal quotation marks omitted.) State v.
Corona, 69 Conn. App. 267, 274, 794 A.2d 565, cert.
denied, 260 Conn. 935, 802 A.2d 88 (2002). One of the
rules that governs the court’s entry of a default against
a party is Practice Book § 17-19, which 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.’’ (Emphasis added.) ‘‘[O]ur rules of practice
do not require parties to be present for trial in civil
cases, but permit them, rather, to appear through coun-
sel . . . .’’ Housing Authority v. Weitz, 163 Conn. App.
778, 782–83, 134 A.3d 749 (2016) (reversing court’s entry
of default against defendant on basis of defendant’s
failure to appear for trial when her counsel was pre-
sent). In fact, in this case the court acknowledged that
the defendant did not have to be present for the sched-
uled trial because her counsel was present, stating that
‘‘she has no obligation to be here . . . .’’
Despite Leary’s attempts to withdraw his appearance
for the defendant prior to the scheduled trial date, the
court did not grant any of his motions to withdraw. At
the time of the court’s entry of a default against the
defendant, therefore, Leary still represented her in this
action. See Practice Book § 3-10 (e) (‘‘[t]he attorney’s
appearance for the party shall be deemed to have been
withdrawn upon the granting of the motion’’). Leary
admitted as much at the beginning of the hearing held
on June 14, 2017, the scheduled trial date, when he
introduced himself and stated that he was present ‘‘on
behalf of both defendants.’’ (Emphasis added.) Because
the defendant’s counsel was present at that time, it was
not proper for the court to enter a default against her
on the basis of her failure to appear.4
Turning to the second prong of plain error analysis,
we conclude that the consequences of the error are so
grievous as to be fundamentally unfair or manifestly
unjust. The consequences of the error were grievous
for the defendant, in that she was unable to challenge
her liability for Edward Malley’s medical expenses. The
court’s erroneous entry of a default against the defen-
dant was the sole basis for the court’s rendering of a
substantial judgment against her. Moreover, the entry
of a default against the defendant implicated her due
process rights, as she was thereby deprived of her
opportunity to be heard on the merits of the case. See,
e.g., Perugini v. Giuliano, 148 Conn. App. 861, 883–84,
89 A.3d 358 (2014) (‘‘A fundamental premise of due
process is that a court cannot adjudicate any matter
unless the parties have been given a reasonable oppor-
tunity to be heard on the issues involved . . . . It is a
fundamental tenet of due process of law . . . that per-
sons whose . . . rights will be affected by a court’s
decision are entitled to be heard at a meaningful time
and in a meaningful manner.’’ [Internal quotation
marks omitted.]).
As part of plain error analysis, courts assess whether
the error is likely to undermine public confidence in
the judiciary. See, e.g., Schimenti v. Schimenti, 181
Conn. App. 385, 392, 168 A.3d 739 (2018). In the present
case, the unwarranted entry of a default and the render-
ing of a default judgment against the defendant are
likely to undermine public confidence in the judiciary
because those actions deviated from established rules
and procedures and denied the defendant’s due pro-
cess rights.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The trial court also rendered a judgment by stipulation against Edward
Malley. Edward Malley is not a party in the present appeal. All references
to the defendant, therefore, are to Tracy Malley.
2
The defendant also argues that even if the entry of default was proper,
the trial court’s rendering of a default judgment immediately after the entry
of default was improper. Because we conclude that it was plain error for
the court to enter a default against the defendant, we need not address
this claim.
3
General Statutes § 46b-37 (b) provides in relevant part: ‘‘[I]t shall be the
joint duty of each spouse to support his or her family, and both shall be
liable for . . . [t]he reasonable and necessary services of a physician or
dentist . . . .’’
4
It is worth noting that a party may also be defaulted for failure to plead
according the rules and orders of the court; see General Statutes § 52-121,
Practice Book §§ 10-18, 17-31, and 17-32; failure to comply with discovery
requests; see Practice Book § 13-14; and failure to comply with a court
order; see Practice Book § 17-19. There is nothing in the record to suggest
the defendant acted in a manner that justified the entry of a default against
her on any of these bases.