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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 rendered 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 represented 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 accordance 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. Levesque, 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 Center, 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 judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claim on

appeal. In June, 2016, the plaintiff commenced the present 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 appearance 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 obligation 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 judgment 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. . . . Success 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 position 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 consequences of the error are so grievous as to be fundamentally 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 prescribing 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 counsel . . . .’’ 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 present). In fact, in this case the court acknowledged that

the defendant did not have to be present for the scheduled 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 defendant 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 opportunity to be heard on the issues involved . . . . It is a

fundamental tenet of due process of law . . . that persons 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 rendering 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 process 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.