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*********************************************** 
COMMISSIONER OF LABOR v. WALNUT

TIRE SHOP, LLC, ET AL.

(AC 42986)

Lavine, Elgo and Alexander, Js.

Syllabus

The plaintiff sought to collect, inter alia, unpaid wages on behalf of two

employees of the defendant W Co. A state marshal served two copies

of the summons and complaint on the defendant B, W Co.’s president,

in both his individual capacity and as president of W Co. Following the

defendants’ failure to respond to the plaintiff’s pleadings, the trial court

granted the plaintiff’s motion for default and rendered judgment in favor

of the plaintiff. Thereafter, the defendants filed a motion to open the

default judgment pursuant to the applicable statute (§ 52-212), claiming

that they had been deprived of actual notice of the proceedings by the

plaintiff’s failure to serve the summons and complaint on W Co. The court

denied the defendants’ motion to open, and the defendants appealed to

this court. Held that the trial court did not abuse its discretion in denying

the defendants’ motion to open, as the defendants failed to comply with

the requirements of § 52-212 in that the motion was not verified under

oath by either the defendants or their attorney; furthermore, the defendants’ claim that they lacked actual notice of the plaintiff’s action

because the summons listed a nonparty individual as W Co.’s registered

agent for service was unavailing, the record having unequivocally indicated that both defendants were properly served with legal process by

service in hand to B.

Submitted on briefs September 17—officially released November 24, 2020

Procedural History

Action to collect, inter alia, unpaid wages, and for

other relief, brought to the Superior Court in the judicial

district of Hartford, where the defendants were

defaulted for failure to appear; thereafter, the court,

Gordon, J., rendered judgment in favor of the plaintiff;

subsequently, the court, Sheridan, J., denied the defendants’ motion to open the judgment, and the defendants

appealed to this court. Affirmed.

Ramiro Alcazar filed a brief for the appellants

(defendants).

Maria C. Rodriguez and Philip M. Schulz, assistant

attorneys general, and William Tong, attorney general,

filed a brief for the appellee (plaintiff).

PER CURIAM. The defendants, Walnut Tire Shop,

LLC (company), and Ramon Balbuena, appeal from the

judgment of the trial court denying their motion to open

a default judgment rendered in favor of the plaintiff,

the Commissioner of Labor. On appeal, the defendants

claim that the court abused its discretion in denying

that motion because they lacked actual notice of the

plaintiff’s action. We disagree and, accordingly, affirm

the judgment of the trial court.

It is undisputed that, at all relevant times, Balbuena

was the owner and president of the company.1 On

November 11, 2018, the plaintiff commenced an action

against the defendants on behalf of two employees to
recover unpaid wages pursuant to General Statutes

§ 31-722 and civil penalties pursuant to General Statutes

§ 31-69a. On that date, a state marshal served two copies

of the summons and complaint on Balbuena in both his

individual capacity and as president of the company.3

When the defendants did not appear or otherwise

respond to that pleading, the plaintiff filed a motion for

default, which the court granted. The plaintiff then filed

a motion for a default judgment that was accompanied

by a sworn affidavit of debt. The court granted that

motion on March 15, 2019, and rendered judgment in

favor of the plaintiff in the amount of $24,136.35.4 The

plaintiff provided notice of that judgment to the defendants in accordance with Practice Book § 17-22.

On April 24, 2019, the defendants filed a motion to

open the default judgment pursuant to General Statutes

§ 52-212.5

In that motion, they alleged that the plaintiff

had failed to serve the summons and complaint on the

company, thereby depriving the defendants of ‘‘actual

notice of those proceedings . . . .’’ The plaintiff filed

an objection, and the court thereafter denied the defendants’ motion to open. From that judgment, the defendants now appeal.

It is well established that ‘‘[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. . . . In determining

whether the trial court abused its discretion, this court

must make every reasonable presumption 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.) Walton v. New Hartford, 223 Conn. 155, 169–70, 612 A.2d 1153 (1992); see

also Purtill v. Cook, 197 Conn. App. 22, 26, 231 A.3d

245 (2020) (‘‘[o]ur review of a ruling on a motion to

open a default judgment is governed by the abuse of

discretion standard’’).

On appeal, the defendants contend that the court

abused its discretion in denying their motion to open

because they lacked actual notice of the plaintiff’s

action. For two distinct reasons, the defendants’ claim

is unavailing. First, as a procedural matter, they have

failed to comply with the mandate of § 52-212 (c) and

Practice Book § 17-43, which require motions to open

default judgments pursuant to § 52-212 to ‘‘be verified

by the oath of the complainant or [its] attorney . . . .’’

The motion to open in the present case was not verified

under oath by either the defendants or their attorney.

On that basis alone, the trial court was entitled to deny

the defendants’ motion. See Lawton v. Weiner, 91 Conn.

App. 698, 712, 882 A.2d 151 (2005) (court did not abuse

its discretion in denying defendants’ motion to open

because it was ‘‘not sworn to’’); Water Pollution Control
Authority v. OTP Realty, LLC, 76 Conn. App. 711, 713,

822 A.2d 257 (‘‘[i]t is not an abuse of discretion for a

court to deny a motion to open that does not set forth

facts, upon oath, to demonstrate that a defendant has

been prevented by mistake, accident or other reasonable cause from making a defense’’), cert. denied, 264

Conn. 920, 828 A.2d 619 (2003).

Second, as a substantive matter, the defendants’

claim that they lacked actual notice of the plaintiff’s

action is belied by the uncontroverted fact that the

marshal served copies of the summons and complaint

on Balbuena in both his individual capacity and as president of the company.6

In so doing, the marshal properly

served legal process on the company pursuant to General Statutes § 52-57 (c).7

The defendants nonetheless argue that, because the

summons listed Ramiro Alcazar as the registered agent

for service for the company, the service conducted on

its president on November 11, 2018, was invalid. They

offer no legal authority to support that assertion. To the

contrary, this court has held that ‘‘there is no exclusive

means for service on a limited liability company.

Although General Statutes § 34-105 (a) provides that

process ‘may be served upon the limited liability company’s statutory agent for service,’ subsection (e) of

§ 34-105 expressly states that ‘[n]othing contained in

this section shall limit or affect the right to serve any

process, notice or demand required or permitted by law

to be served upon a limited liability company in any

other manner permitted by law.’ ’’ Little v. Mackeyboy

Auto, LLC, 142 Conn. App. 14, 20, 62 A.3d 1164 (2013).

For that reason, this court held that service of process

conducted on an officer specified in § 52-57 (c) properly

conferred notice of the plaintiff’s action on the defendant limited liability company, even when its registered

agent was not served. Id. That precedent compels a

similar conclusion in the present case.

The record before us unequivocally indicates that

both defendants were served with legal process on

November 11, 2018. The court, therefore, did not abuse

its discretion in denying the defendants’ motion to open.

The judgment is affirmed.

1

In the complaint, the plaintiff alleged that Balbuena was the owner and

principal of the company. Moreover, in opposing the defendants’ motion to

open, the plaintiff submitted, as an exhibit, a business inquiry conducted

with the Secretary of the State’s commercial recording division, which lists

Balbuena as the ‘‘president’’ of the company.

2 General Statutes § 31-72 provides in relevant part: ‘‘When any employer

fails to pay an employee wages in accordance with the provisions of sections

31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance

with section 31-76k . . . such employee . . . shall recover, in a civil action,

(1) twice the full amount of such wages, with costs and such reasonable

attorney’s fees as may be allowed by the court, or (2) if the employer

establishes that the employer had a good faith belief that the underpayment

of wages was in compliance with law, the full amount of such wages or

compensation, with costs and such reasonable attorney’s fees as may be

allowed by the court. . . . The Labor Commissioner may collect the full

amount of any such unpaid wages . . . as well as interest calculated in
accordance with the provisions of section 31-265 from the date the wages

or payment should have been received, had payment been made in a timely

manner. In addition, the Labor Commissioner may bring any legal action

necessary to recover twice the full amount of unpaid wages . . . and the

employer shall be required to pay the costs and such reasonable attorney’s

fees as may be allowed by the court. The commissioner shall distribute any

wages . . . collected pursuant to this section to the appropriate person.’’

3

In the return of service, the marshal attested in relevant part: ‘‘Then and

there by virtue hereof and at the special direction of the plaintiff’s attorney,

I made due and legal service upon the within named defendants: Walnut

Tire Shop, LLC by leaving with and within the hands of Ramon Balbuena,

President and Ramon Balbuena by leaving with and within the hands at

153 Walnut Street, Waterbury, Connecticut, two true and attested copies

of the within, summons-civil, complaint and amount in demand with my

endorsement thereon.’’ (Emphasis in original.)

4 The court awarded the plaintiff $17,145.60 in unpaid wages, $6900 in

civil penalties, and $90.65 in costs.

5 General Statutes § 52-212 provides in relevant part: ‘‘(a) 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

rendered 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 reasonable 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. . . .

‘‘(c) The complaint or written motion shall be verified by the oath of the

complainant or his attorney, shall state in general terms the nature of the

claim or defense and shall particularly set forth the reason why the plaintiff

or defendant failed to appear. . . .’’

6

In their appellate brief, the defendants concede that ‘‘[t]he summons and

complaint were served in hand on [Balbuena] individually and as president

of [the company].’’

7 General Statutes § 52-57 (c) provides in relevant part: ‘‘In actions against

a private corporation, service of process shall be made either upon the

president, the vice president, an assistant vice president, the secretary, the

assistant secretary, the treasurer, the assistant treasurer, the cashier, the

assistant cashier, the teller or the assistant teller or its general or managing

agent or manager or upon any director resident in this state, or the person

in charge of the business of the corporation or upon any person who is at

the time of service in charge of the office of the corporation in the town

in which its principal office or place of business is located. . . .’’ (Emphasis added.)