Myshkina v. Gusinski

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GALINA MYSHKINA v. VLADIMIR GUSINSKI
(AC 45192)
Bright, C. J., and Elgo and Suarez, Js.
Syllabus
Pursuant to the rules of practice (§ 17-25 (b) (1)), an affidavit of debt in
support of a motion for default and judgment must be signed by ‘‘the
plaintiff or by an authorized representative of the plaintiff who is not
the plaintiff’s attorney.’’
The plaintiff sought to recover damages from the defendant for his breach
of a promissory note. The trial court granted the plaintiff’s motion to
default the defendant for failure to appear. Subsequently, the plaintiff
filed a motion for judgment based on the defendant’s failure to appear,
which was signed the plaintiff’s counsel, G. G also signed an affidavit
of debt in support of the motion. The trial court granted the motion for
judgment and rendered judgment in favor of the plaintiff, from which
the defendant appealed to this court. Held that the trial court, in render-
ing the judgment, improperly relied on the affidavit of debt signed by
G in contravention of Practice Book § 17-25; in the present case, because
it was undisputed that the only affidavit of debt filed in support of the
plaintiff’s motion was signed by G, the court should have denied the
motion for failing to comply with § 17-25 (b) (1) or required the submis-
sion of additional information pursuant to § 17-25 (c), and it did neither.
Argued November 7, 2022—officially released January 24, 2023
Procedural History
Action to collect on a promissory note, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the defendant was
defaulted for failure to appear; thereafter, the court,
Hon. Edward T. Krumeich II, judge trial referee,
granted the plaintiff’s motion for judgment and ren-
dered judgment thereon, from which the defendant
appealed to this court. Reversed; further proceedings.
John R. Harness, for the appellant (defendant).
Opinion
PER CURIAM. The defendant, Vladimir Gusinski,
appeals from the default judgment rendered in favor of
the plaintiff, Galina Myshkina. The defendant claims
that the court, in rendering the judgment, improperly
relied on the affidavit of debt of the plaintiff’s counsel
in contravention of Practice Book § 17-25 (b) (1).1 We
agree and reverse the judgment of the trial court.
The following procedural history is relevant to our
analysis. The plaintiff initiated the underlying action by
way of a one count complaint dated August 20, 2021,
alleging that the defendant breached a promissory note.
The return of service filed with the court indicates that
the defendant was served by abode service on August
26, 2021. The plaintiff sought money damages, attor-
ney’s fees, and costs, pursuant to the terms of the note.
The complaint was signed by the plaintiff’s counsel,
Philip Russell of Philip Russell, LLC.
On October 5, 2021, the plaintiff, pursuant to Practice
Book § 17-20, filed a motion to default the defendant
for failure to appear. The court granted that motion on
October 13, 2021. On November 30, 2021, the plaintiff,
pursuant to Practice Book §§ 17-25 (b) (1) and 17-33,2
filed a motion for judgment based on the defendant’s
failure to appear. Attorney Andrew Gould signed the
motion for judgment as an attorney with Philip Russell,
LLC. Attorney Gould also signed the affidavit of debt
filed in support of the motion for judgment. In the affida-
vit, Attorney Gould identified himself as ‘‘the attorney
for [the plaintiff]’’ and averred, among other things,
that, ‘‘[a]s of today, November 30, 2021, the amount
outstanding [on the promissory note] is in excess of
[£]85,000 G.B.P. (As of the exchange rate on [November]
19, 2021, $114,333.50 U.S.D.).’’ Attorney Gould also filed
an affidavit of attorney’s fees in support of the motion
for judgment. In that affidavit, Attorney Gould averred
that he had reviewed the underlying promissory note,
sent demand letters to the defendant, and drafted the
summons, complaint, motion for default, and the
motion for judgment. He further averred that the prose-
cution of the collection matter required legal fees, as
of that date, in the amount of $7143.92. The plaintiff
presented no other evidence in support of her motion
for judgment as to the amount of the debt.
On December 13, 2021, the court, Hon. Edward T.
Krumeich II, judge trial referee, granted the motion for
judgment and rendered judgment for the plaintiff in the
amount of $114,333.50. As to attorney’s fees and costs,
the court instructed the plaintiff to ‘‘submit a bill of
costs and a fee affidavit that sets forth evidence the
fee requested is reasonable under the lodestar method
for calculation of legal fees.’’ It does not appear that
the plaintiff ever complied with this directive.3 This
appeal followed.
The defendant’s sole claim on appeal is that the court
improperly relied on Attorney Gould’s affidavit of debt
when it rendered judgment. The defendant argues that,
because the only affidavit of debt filed in support of
the plaintiff’s motion for judgment was signed by her
attorney, Attorney Gould, the court should have denied
the plaintiff’s motion for failing to comply with Practice
Book § 17-25 (b) (1), which requires that the affidavit
of debt be signed by ‘‘an authorized representative of the
plaintiff who is not the plaintiff’s attorney.’’ We agree.
The interpretation of our rules of practice is a ques-
tion of law over which we exercise plenary review. See
Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027(2010). Practice Book § 17-25 (b) (1) requires that a
plaintiff filing a motion for default for failure to appear
and judgment must file with the motion ‘‘[a]n affidavit
of debt signed by the plaintiff or by an authorized
representative of the plaintiff who is not the plaintiff’s
attorney.’’ (Emphasis added.) That mandate is clear
and unambiguous. Furthermore, § 17-25 (c) makes clear
that the requirements of § 17-25 (b) constitute the mini-
mum information necessary for the rendering of judg-
ment, as it provides: ‘‘Nothing contained in this section
shall prevent the judicial authority from requiring the
submission of additional written documentation or the
presence of the plaintiff, the authorized representative
of the plaintiff or other affiants, as well as counsel,
before the court prior to rendering judgment if it
appears to the judicial authority that additional informa-
tion or evidence is required in order to enter judgment.’’
Although § 17-25 (c) gives the court discretion to require
information in addition to that required in § 17-25 (b),
nothing in § 17-25 gives the court the discretion to
accept less than the required information.
On the basis of the plaintiff’s affidavit of debt in the
present case, the court either should have denied the
motion for judgment or required the submission of addi-
tional information pursuant to Practice Book § 17-25
(c). It did neither. Consequently, because it is undis-
puted that the only affidavit of debt before the court
was signed by Attorney Gould, who admittedly was the
plaintiff’s attorney, the court improperly granted the
plaintiff’s insufficiently supported motion for judgment.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
1
The plaintiff did not file a brief and, therefore, this court considered the
appeal on the basis of the defendant’s brief, the record, and the defendant’s
oral argument only. See Practice Book §§ 60-4 and 70-4.
2
Practice Book § 17-33 (a) provides: ‘‘If a defendant is defaulted for failure
to appear for trial, evidence may be introduced and judgment rendered
without notice to the defendant.’’
Although the plaintiff referenced Practice Book § 17-33 in her motion,
because this case never proceeded to a trial, that section is inapplicable to
her motion for judgment. The applicable section is Practice Book § 17-25,
which is discussed further in this opinion.
3
Although the court never awarded attorney’s fees, despite indicating its
intent to do so, we nonetheless have jurisdiction over this appeal. See
Ledyard v. WMS Gaming, Inc., 330 Conn. 75, 84, 191 A.3d 983 (2018) (reaf-
firming ‘‘bright line rule’’ that ‘‘judgment on the merits is final for purposes
of appeal even though the recoverability or amount of attorney’s fees for
the litigation remains to be determined’’ (internal quotation marks omitted)).