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WEINSTEIN AND WISSER, P.C. v. FREDERICK

B. CORNELIUS

(AC 35656)

Beach, Sheldon and Peters, Js.

Argued February 19—officially released June 24, 2014

(Appeal from Superior Court, judicial district of

Hartford, Tanzer, J. [judgment]; Schuman, J. [motions

to open, to dismiss and to reargue].)

Frederick B. Cornelius, self-represented, the appellant (defendant).

Kerry M. Wisser, for the appellee (plaintiff).
Opinion

BEACH, J. The defendant, Frederick B. Cornelius,

appeals from the judgment of the trial court denying

his motion to dismiss the complaint of the plaintiff,

Weinstein & Wisser, P.C. We reverse the judgment of

the trial court.

In August, 2007, the plaintiff filed a complaint alleging

that the parties entered into an agreement whereby

the plaintiff was to provide the defendant with legal

representation in regard to an action taken by the

Department of Banking. The plaintiff further alleged

thatthe plaintiffrepresented the defendantin the matter

from December, 2003, until May, 2006, and billed the

defendant accordingly. The plaintiff claimed that the

defendant made only sporadic payments, and breached

the agreement by refusing to pay a remaining balance

of $24,509.66. In September, 2007, the plaintiff filed a

motion for default, seeking that the court enter a default

against the defendant for his failure to enter an appearance in the matter. The court granted the motion. In

November, 2007, the plaintiff filed a motion for judgment after default. The court granted the motion and

rendered judgment in favor ofthe plaintiff in the amount

of $24,509.66, plus $362.40 in costs.

There the matter stood for approximately five years.

On January 23, 2013, the defendant filed a motion to

dismiss the complaint on the ground that the court

did not have personal jurisdiction over the defendant

because of insufficient service of process. The defendant attached an affidavit to his motion in which he

averred that he had not resided at 127 Sunset Farm

Road, West Hartford, the address at which service had

been made, at any time on or before the date of purported service of process. The plaintiff filed a memorandum of law in opposition to the defendant’s motion to

dismiss and attached an affidavit by a state marshal

who attested that, on August 8, 2008, he had made

service upon the defendant by leaving a copy of the

writ of summons and complaint at the defendant’s usual

place of abode. He further averred that when he arrived

at the address on the summons, 637 Park Road, West

Hartford, the building was unoccupied and being renovated; the marshal was informed that the defendant

was residing with his parents at 127 Sunset Farm Road

in West Hartford. The marshal stated that when he

arrived at 127 Sunset Farm Road, he was told by an

older gentleman, who the marshal believed was the

defendant’s father, that the defendant was not there at

the time, but that the defendant did reside there. Also

attached to the plaintiff’s motion was an affidavit of a

legal assistant in the plaintiff’s office, who averred that

several court documents had been mailed to the defendant at 127 Sunset Farm Road during the course of the

action, that no piece of mail addressed to the defendant

at 127 Sunset Farm Road had been returned as undeliv-
erable, and that it was not until after judgment liens

had been filed in 2012 on two of the defendant’s properties that mail was returned as nondeliverable.

At the same time as he filed the motion to dismiss,

the defendant also filed a motion to open the default

judgment ‘‘on the ground that the court did not have

jurisdiction over [the defendant] due to insufficiency

of service of process (Practice Book § 10-31 [a] [5]) for

the reasons articulated in his motion to dismiss.’’ The

court denied the motion to open because the defendant

had not shown that a good defense existed at the time

judgment was rendered. The defendant filed a motion

for articulation, which the court granted. It explained

that it had considered his motion as a standard motion

to open brought pursuant to General Statutes § 52-212

(a) and Practice Book § 17-43 (a). Under the two-prong

standard used in deciding such motions,1

the court

found that the defendant did not make any initial showing, under the first prong, that a good defense existed at

the time the judgment was rendered. It later articulated

that, because the first prong was not satisfied, there

was no need to address the second prong of the test,

that is, whether the defense had not been raised by

reason of mistake, accident, or other reasonable cause.

The court denied the motion to dismiss, on the ground

that the case would have to be opened before it could

consider the motion to dismiss. This appeal followed.

I

As a preliminary matter, the plaintiff claims that the

appeal is moot. It argues that an opening of the default

judgment is a precondition to consideration of the

defendant’s motion to dismiss, but the defendant

appealed from only the denial of his motion to dismiss

and did not appeal from the denial of his motion to

open. The plaintiff contends that the court’s denial of

the motion to open remains in effect and unchallenged,

and, as a result, no practicalrelief can be granted by this

court. The defendant argues that relief can be afforded

because the judgment of default is void for want of

personal jurisdiction and there is no need formally to

open void judgments. He contends that his ‘‘mistake is

not in neglecting to appeal the failure to open a judgment that doesn’t exist, rather it was his improper procedural methodology at the trial level. In addition to

the properly requested . . . motion to dismiss, the

defendant mistakenly simultaneously requested the

court to open a judgment that doesn’t exist. What should

have been an innocuous error allowed the trial court

to misconstrue and confuse the basis of his argument

resulting in an erroneous decision. . . . The issue is

not whether the decision to deny the motion to open

was proper, the issue is . . . whether the motion to

dismiss was properly denied.’’ (Emphasis in original.)

Because ‘‘[m]ootness implicates [this] court’s subject

matter jurisdiction and is thus a threshold matter for
[it] to resolve . . . ordinarily, we would be required to

address that issue first, before considering the merits

of [an] appeal. This is so because [i]t is a well-settled

general rule that the existence of an actual controversy

is an essential requisite to appellate jurisdiction; it is

not the province of appellate courts to decide moot

questions, disconnected from the granting of actual

relief or from the determination of which no practical

relief can follow.’’ (Citation omitted; internal quotation

marks omitted.) Argent Mortgage Co., LLC v. Huertas,

288 Conn. 568, 575, 953 A.2d 868 (2008). In this case,

however, as in Argent Mortgage Co., LLC, the issue of

mootness is ‘‘inextricably intertwined’’; id.; with the

issue raised by the defendant on appeal, namely,

whether the trial court improperly denied his motion to

dismiss despite his claim that the court lacked personal

jurisdiction over him due to defective service of process— ‘‘[i]n other words, our determination of whether

the defendant can be granted any practical relief

depends on whether the trial court had personal jurisdiction over the defendant when it rendered [its default

judgment].’’ Id., 575–76.

In the circumstances of the present case, the motion

to open and the motion to dismiss were, as in Argent

Mortgage, Co., LLC, inextricably intertwined. The

defendant stated in his motion to open that it should

be granted ‘‘for reasons articulated in his motion to

dismiss.’’ The motions asserted the same grounds and

sought very similar relief. In order to avoid a mootness

challenge, the defendant properly should have appealed

from the denial of the motion to open. But in the unusual

circumstances of this case, where the two grounds of

decision are by no means independent—and the court

in fact denied the motion to dismiss ‘‘in view of [its]

decision on [the motion to open’’—it would doubtlessly

exalt form over substance to avoid considering the merits of the appeal because the defendant appealed from

the wrong ruling.

II

The defendant argues that the court erred in treating

his motion to open as ‘‘a standard motion to [open]’’

and in analyzing his claim solely under § 52-212 (a) and

Practice Book § 17-43 (a). He argues that he relied not

on § 52-212 (a) or Practice Book § 17-43 (a), but rather

on a common-law jurisdictional argument.

We begin by noting that ‘‘[t]o open a judgment pursuant to Practice Book § 17-43 (a) and General Statutes

§ 52-212 (a), the movant must make a two part showing

that (1) a good defense existed at the time an adverse

judgment was rendered; and (2) the defense was not

at that time raised by reason of mistake, accident or

other reasonable cause. . . . The party moving to open

a default judgment must not only allege, but also make

a showing sufficient to satisfy the two-pronged test

[governing the opening of default judgments]. . . . The
negligence of a party or his counsel is insufficient for

purposes of § 52-212 to set aside a default judgment.

. . . Finally, because the movant must satisfy both

prongs of this analysis, failure to meet either prong is

fatal to its motion.’’ (Citations omitted; internal quotation marks omitted.) Nelson v. The Contracting Group,

LLC, 127 Conn. App. 45, 49, 14 A.3d 1009 (2011).

The court acknowledged in its articulation that the

defendant had attempted to raise a jurisdictional argument, but stated that it nonetheless applied the straightforward standard expressed in § 52-212 (a) and Practice

Book § 17-43 (a). The defendant’s motion to dismiss,

however, did raise a jurisdictional claim. See Grenier

v. Commissioner of Transportation, 306 Conn. 523,

536, 51 A.3d 367 (2012) (interpretation of pleadings

question of law requiring plenary review). ‘‘Although

. . . § 52-212 [opening a judgment upon default] . . .

normally limit[s] the authority [of the trial court] to

open judgments to a four month period, [this statute

does] not preclude the opening of a default judgment

that is rendered without jurisdiction over a defendant.

. . . As a matter of law, in the absence of jurisdiction

over the parties, a judgment is void ab initio and is

subject to both direct and collateral attack. . . . A trial

court’s authority to open such judgments does not arise

from . . . § 52-212 (a) or Practice Book [§ 17-43] but

from its inherent power to open a judgment rendered

without jurisdiction. . . . In other words, a court

always has the inherent authority to open a default

judgment, irrespective of the four month rule and the

valid defense and good cause requirement in Practice

Book § 17-43 and General Statutes § 52-212 (a), if the

judgment was rendered without jurisdiction of the parties or of the subject matter.’’ (Citations omitted; internal quotation marks omitted.) Devore Associates, LLC

v. Sorkin, 132 Conn. App. 244, 250–51, 31 A.3d 420

(2011). Accordingly, because the defendant’s motion to

open raised a jurisdictional claim, the court erred in

analyzing it solely under § 52-212 (a) and Practice Book

§ 17-43 (a).

III

The defendant argues that an evidentiary hearing

regarding personal jurisdiction was required because

he submitted an affidavit disputing the factual question

of whether service was made at his usual place of abode.

The plaintiff argues that because the defendant raised

the issue of lack of personal jurisdiction postjudgment,

he must make a preliminary showing that service of

process was insufficient and that he has not waived

such a claim or consented to the court’s exercise of

jurisdiction. The plaintiff contends that without such a

preliminary requirement, a defendant who knows of

an action and/or judgment against him can delay the

assertion of a defense of personal jurisdiction ‘‘for years

after the judgment’s entry to a time when it suits his
purpose [and that] is intolerable to the judicial process.’’

The plaintiff asserts that the defendant’s affidavit did

not make such a preliminary showing because the

defendant only averred that he did not reside at 127

Sunset Farm Road; he did not state that his parents

resided at that address, where he resided at the time

of service, and that he did not have actual knowledge

of the proceedings or judgment. The plaintiff argues

that, because the defendant presented no facts to contest effective service of process, waiver or consent, an

evidentiary hearing on the issue of personal jurisdiction

was not warranted.

‘‘A motion to dismiss admits all facts well pleaded

and invokes any record that accompanies the motion,

including supporting affidavits that contain undisputed

facts. . . . see also Ferreira v. Pringle, 255 Conn. 330,

346–47, 766 A.2d 400 (2001) ([w]here . . . the motion

[to dismiss] is accompanied by supporting affidavits

containing undisputed facts, the court may look to their

content for determination of the jurisdictional issue

and need not conclusively presume the validity of the

allegations of the complaint) . . . . When issues of fact

are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be

held, in which an opportunity is provided to present

evidence and to cross-examine adverse witnesses. . . .

Put another way, the due process requirement of a

hearing is required only when issues of facts are disputed.’’ (Citations omitted; emphasis omitted; internal

quotation marks omitted.) Weihing v. Dodsworth, 100

Conn. App. 29, 37–38, 917 A.2d 53 (2007).2

In the present case, there were disputed facts regarding the defendant’s place of residence. The plaintiff

submitted an affidavit from a marshal, who attested

to hearsay evidence that the defendant resided at 127

Sunset Farm Road in West Hartford, and submitted an

affidavit from a legal assistant stating that during the

duration of the action several court documents had

been sent to 127 Sunset Farm Road, and none had

been returned as undeliverable. The defendant, as noted

previously, averred that he did not live at 127 Sunset

Farm Road. The affidavits present a factual dispute

regarding the defendant’s place of abode at the time of

service. Accordingly, the case must be remanded for

an evidentiary hearing to comport with due process.

The judgment is reversed and the case is remanded

for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

1

‘‘To open a judgment pursuant to Practice Book § 17-43 (a) and General

Statutes § 52-212 (a), the movant must make a two part showing that (1) a

good defense existed at the time an adverse judgment was rendered; and

(2) the defense was not at that time raised by reason of mistake, accident

or other reasonable cause.’’ (Internal quotation marks omitted.) Nelson v.

The Contracting Group, LLC, 127 Conn. App. 45, 49, 14 A.3d 1009 (2011).

2 We see no reason to set forth different evidentiary procedures by which

to decide motions to dismiss filed in an open, pending case and motions to

open filed later.