Danise v. Budget Rent-A-Car of Westchester, Inc.

FOTI, J.

The plaintiff appeals following the trial court’s denial of her motion to open the judgment of dismissal for failure to prosecute with reasonable diligence.

The plaintiff, a passenger in a rented car, was injured in a single car accident in May, 1988. She commenced suit against the driver, Martin W. Martonik; the car’s lessee, Mary C. Danise; the lessor, Budget Rent-A-Car of Westchester, Inc.; and the permittee of the restaurant where Martonik had allegedly consumed alcohol prior to the accident, William Cavanaugh. The action was dismissed in December, 1991, pursuant to Practice Book § 251.¹ Thereafter, the plaintiff commenced the present action against the same four defendants pursuant to the accidental failure of suit statute, General Statutes § 52-592. Two defendants, Martonik and Cavan-augh, were defaulted for failure to appear.² On June 24, 1994, this second action was dismissed for failure to prosecute with reasonable diligence, pursuant to Practice Book § 251. The plaintiffs motion to open the judgment of dismissal, filed pursuant to Practice Book § 326, was denied. The trial court granted the plaintiffs motion to reargue her motion to open but denied the relief sought. The plaintiff filed this appeal on September 12, 1994.

On June 20, 1995, the plaintiff withdrew her appeal against Budget Rent-A-Car of Westchester, Inc., and, on September 25, 1995, withdrew her appeal against the defendant Mary C. Danise.

The plaintiffs appellate brief was filed on January 6, 1995. As no appellee’s brief had been filed in response, the parties were directed to appear on September 20, 1995,³ to address whether the appeal should be disposed of pursuant to Practice Book § 4055.⁴ The plaintiff indicated that the appeal was being withdrawn against the last appearing defendant, but requested relief as against the two nonappearing and defaulted defendants.⁵

Where a court has the power to open a judgment, its action represents the exercise of discretion. Cichy v. Kostyk, 143 Conn. 688, 697, 125 A.2d 483 (1956). We will not disturb that decision on appeal unless the court acted unreasonably and in clear abuse of its discretion. Connecticut National Bank v. Oxenhandler, 30 Conn. App. 541, 546, 621 A.2d 300 (1993); Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990).

Our review of the record discloses that the trial court did not act unreasonably under the particular circumstances of this case, nor did the court abuse its discretion in denying the plaintiffs motion to open.⁶ We see no practical purpose in reviewing the background of this matter. Our inquiry does not end there, however. Because of the particular circumstances of this case, we choose to act pursuant to our authorization under Practice Book § 4055.

When this matter was dismissed on June 24, 1994, pursuant to § 251, the action affected all parties, including the defaulted nonappearing parties. The motion to open the judgment of dismissal was directed to all four defendants, and the denial of that motion involved all of them. The timely appeal, taken by the plaintiff, was from the action of the court denying her request to open, as against all defendants, including the two defaulted nonappearing defendants. The two defendants, Mar-tonik and Cavanaugh, have failed to defend the appeal with proper diligence. Because of their inaction in failing to appear in the trial court, they have deprived themselves of the ability to defend on appeal, a self-induced position for which the plaintiff should not be penalized.

While the plaintiff may have transgressed in failing to move for judgment on the defaults, under the particular circumstances of this case, that inaction should not prejudice her as against the nonappearing and defaulted defendants. A party is presumed to be aware of the rules of practice; Jaconski v. AMF, Inc., 208 Conn. 230, 235, 543 A.2d 728 (1988); and, therefore, of the potential consequences of failing to comply with the requirements of filing an appearance.

“Only when the defendant is defaulted for failure to appear for trial may judgment be rendered without notice to the defendant. Practice Book § 364 (a).” Skyler Ltd. Partnership v. S. P. Douthett & Co., 18 Conn. App. 245, 250, 557 A.2d 927 (1989). Thus, we also conclude that notice of the appeal itself was not required to either nonappearing defaulted defendant, nor are those defendants deprived of appellate review. While the entry of a default for failure to appear does not constitute a final judgment from which an appeal may be taken; Practice Book § 4000; an appealable final judgment exists when the judgment is rendered on that default. Automotive Twins, Inc. v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951).

The rules of practice will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work an injustice. Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). Pursuant to Practice Book § 4055, we, therefore, sua sponte, set aside the judgment of dismissal as against the only remaining defendants, the nonappearing and defaulted parties, Martonik and Cavanaugh.⁷

The judgment of dismissal as to the defendants Martin W. Martonik and William Cavanaugh is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion LANDAU, J., concurred.

1 Practice Book § 251 provides in relevant part: “If a party shall fail to prosecute an action with reasonable diligence, the court may . . . render a judgment dismissing the action . . . .”

2 The plaintiff never moved for judgment to be rendered on those defaults.

3 The defendant, Mary C. Danise, was still aparty to this appeal at that time.

4 Practice Book § 4055 provides: “If a party shall fail to prosecute an appeal with proper diligence, the court may, on motion by any other party to the appeal or on its own motion, dismiss the appeal with costs. If a party shall fail to defend against an appeal with proper diligence, the court may, on motion by any other party to the appeal or on its own motion, set aside in whole or in part, the judgment under attack, with costs, and direct the entry of an appropriate final judgment by the trial court against the party guilty of the failure. If that party is a defendant in the action, the directed judgment may be in the nature of a judgment by default for such amount as may, upon a hearing in damages, be found to be due. If that party is a plaintiff in the action, the directed judgment may be one dismissing the action as to that plaintiff, and the judgment shall operate as an adjudication upon the merits. The statutory provisions regarding the opening of judgments of nonsuit and by default shall not apply to a judgment directed under the provisions of this rule. A motion to dismiss or for judgment based on lack of diligence may be filed at any time.”

5 This court,, sua sponte, ordered that the appeal be considered on the appellant’s brief and the record only.

6 At the time of the denial of the plaintiffs motion to open, both appearing defendants were still in the case, and the defendant Budget Rent-A-Car of Westchester, Inc., had filed an objection both to the motion to open and to the motion to reargue the denial of the motion to open. The denial of the motion to open the judgment of dismissal rendered pursuant to § 251 acts as a disciplinary measure. Morelli v. Manpower, Inc., 226 Conn. 831, 837, 628 A.2d 1311 (1993).

7 We exercise our discretion in setting aside this judgment pursuant to Practice Book § 4055. See Douglas v. Warden, 218 Conn. 778, 787, 591 A.2d 399 (1991). We do not agree with the dissent that the nonappearing defendants axe not “xelevant paxties to the appeal under consideration.”