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ADAM CARMON v. COMMISSIONER

OF CORRECTION

(AC 35127)

DiPentima, C. J., and Bear and Keller, Js.

Argued December 12, 2013—officially released March 18, 2014

(Appeal from Superior Court, judicial district of

Tolland, Newson, J.)
William A. Snider, assigned counsel, for the appellant (petitioner).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Michael Dearington,

state’s attorney, and David Clifton, assistant state’s

attorney, for the appellee (respondent).
Opinion

BEAR, J. Following the habeas court’s granting of

his petition for certification to appeal, the petitioner

appeals from the judgment of the habeas court rendering a default judgment against him and in favor of the

respondent, the Commissioner of Correction,1 and dismissing the petitioner’s amended petition for a writ of

habeas corpus. On appeal, the petitioner claims that

the default judgment was legally improper for a myriad

of reasons, and he requests that we reverse the judgment and remand the case for a habeas trial on the

merits. We affirm the judgment of the habeas court.

The following procedural history of this habeas petition is relevant to our consideration of the petitioner’s

appeal. On April 7, 2008, the self-represented petitioner

filed his third habeas petition his first two petitions

previously having been unsuccessful. See Carmon v.

Commissioner of Correction, 114 Conn. App. 484, 485–

87, 969 A.2d 854, cert. denied, 293 Conn. 906, 978 A.2d

1108 (2009). After at least eight motions filed by the

petitioner, he filed a certificate of closed pleadings and

claim for the trial list on January 6, 2012.

On May 30, 2012, the respondent filed a request for

a more specific statement. See Practice Book § 23-33

(request for more specific statement deemed granted

on date filed and party against whom request filed must

comply within thirty days unless objection filed in

accordance with rule). On June 7, 2012, the petitioner,

through appointed counsel, filed an amended habeas

petition, claiming that his trial counsel, first habeas

counsel and second habeas counsel all were ineffective,

that several material witnesses had given false testimony during his 1995 criminal trial, that the state had

withheld exculpatory evidence, that his conviction was

rendered on the basis of prosecutorial impropriety, and

that he is actually innocent.

On June 13, 2012, the respondent filed another

request for a more specific statement to which the petitioner did not object nor respond in a timely manner.

On July 16, 2012, the respondent filed a motion for

default for failure to plead, specifically pursuant to

Practice Book §§ 17-31 and 23-34, asking the court to

render a judgment of default if the petitioner failed

to comply fully with the request for a more specific

statement within ten days from the filing of the motion

for default. On July 27, 2012, the respondent filed a

motion for judgment on the basis that the petitioner

had failed to respond fully to the two requests for a

more specific statement and that more than ten days

had elapsed since the respondent filed the July 16, 2012

motion for default. On July 30, 2012, the court granted

the respondent’s motion for default for failure to plead,

but it gave the petitioner fifteen days to respond to the

respondent’s request for a more specific statement. The
court did not rule on the respondent’s July 27, 2012

motion for judgment at that time.

On August 10, 2012, the petitioner filed an objection

to the respondent’s motion for judgment, a motion to

reconsider the default, and a motion to open the

default.2 The petitioner also filed a document entitled

‘‘answer for a more specific statement.’’ Also on August

10, 2012, the court denied the petitioner’s motion to

reconsider the default, but it conditionally granted his

motion to open the default, specifically stating that the

motion was granted ‘‘[p]rovided the petitioner shall file

a proper amended petition which incorporates the

answer to request for more specific statement filed by

the petitioner on 8-10-12 not later than 8-20-12.’’

(Emphasis added.)

On August 14, 2012, the respondent filed a motion

for default for failure to comply with the order of the

court, asking the court to render judgment for the

respondent if the petitioner, within ten days, failed to

comply fully with the court’s order dated July 30, 2012.

The court granted that motion on August 24, 2012. The

court also granted the respondent’s July 27, 2012 motion

for judgment and overruled the petitioner’s objection

thereto. Accordingly, the court, on August 24, 2012,

rendered a default judgment in favor of the respondent,

and it dismissed the petitioner’s habeas petition. Notice

of the default judgment and dismissal of the habeas

petition was mailed on August 31, 2012. On September

10, 2012, the petitioner filed a timely petition for certification to appeal from the default judgment and the

dismissal of his habeas petition.3 On September 14,

2012, the petitioner filed a motion to reconsider the

judgment of dismissal and a motion to open the judgment of default. On September 25, 2012, the court

denied the motion, stating that the petitioner had failed

to adhere to a specific order of the court, to file a timely

objection, or to file a timely motion to reconsider. After

the granting of the petitioner’s petition for certification

to appeal, this appeal followed.

The petitioner’s arguments on appeal boil down to

his assertion that the court had no authority to render

a default judgment in favor of the respondent because

there was no viable motion for default pending before

it and that the default judgment should be set aside in

the interest of justice. We disagree.

Because the petitioner’s claim concerns the court’s

authority to render a default judgment, we agree with

his assertion that our review initially should be plenary.

‘‘To the extent that [a party] 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. . . . Construction of our rules of

practice presents a question of law over which our

review is plenary. . . . In construing our rules of prac-
tice, we are guided by the principles governing statutory

interpretation. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply. . . . 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. . . . In determining whether the trial court has

abused its discretion, we must make every reasonable

presumption in favor of the correctness of its action.

. . . Our review of a trial court’s exercise of the legal

discretion vested in it is limited to the questions of

whether the trial court correctly applied the law and

could reasonably have reached the conclusion that it

did.’’ (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).

On the issue of whether the court had the authority

to render a default judgment in this case, we look to

General Statutes § 52-119, which provides that [p]arties

failing to plead according to the rules and orders of the

court may be nonsuited or defaulted, as the case may

be,’’ and to Practice Book § 10-18, which mirrors the

language of § 52-119. Clearly, without question, both

the statutory language of § 52-119 and the language of

Practice Book § 10-18 give the court the authority to

render a default judgment or a nonsuit against a party

who fails to comply with the pleading requirements of

our rules of practice or as ordered by the court; neither

the statute nor our rules of practice contain a requirement that the court act only pursuant to a pending

motion.4 DeutscheBank National TrustCo. v.Bertrand,

supra, 140 Conn. App. 658. ‘‘Such authority is in accord

with the court’s broad, general authority to act to maintain the orderly procedure of the court docket, and to

prevent any interference with the fair administration

of justice.’’ (Internal quotation marks omitted.) Id., 656.

Nevertheless, although the court has the authority to

render a default judgment without a motion by a party,

in the present case, there were viable motions pending

before the court, and the petitioner received sufficient

prior notice of the respondent’s motions for default and

judgment, the court’s orders, and the court’s intent to

act if he did not comply with its orders.5

On July 16, 2012, the respondent filed a second

motion for default for failure to plead, and, on July 27,

2012, the respondent filed a motion for judgment. On

July 30, 2012, the court granted the respondent’s July

16, 2012 motion for default for failure to plead, but

it gave the petitioner fifteen days to respond to the

respondent’s June 13, 2012 request for a more specific

statement. The court did not rule on the motion for

judgment at that time. On August 10, 2012, the petitioner

filed a document entitled ‘‘answer for a more specific
statement,’’ and he filed motions requesting that the

court reconsider and open the default judgment. The

court denied the petitioner’s motion to reconsider the

default judgment, but it granted the motion to open the

default conditionally. The court ruled that the default

was opened ‘‘[p]rovided the petitioner shall file a proper

amended petition which incorporates the answer to

request for more specific statement filed by the petitioner on 8-10-12 not later than 8-20-12.’’ (Emphasis

added.) The respondent then filed a motion for default

on August 14, 2012, asking that judgment be rendered

if the petitioner failed to comply with the court’s order

of July 30, 2012.

The petitioner, thereafter, failed to provide an

amended petition by August 20, 2012, as had been

ordered by the court. Thus, because the petitionerfailed

to submit a ‘‘proper amended petition,’’ the July 30,

2012 default judgment was not opened because the

petitioner did not meet the condition precedent to the

opening of the default. Although the respondent had

filed a motion for judgment on August 14, 2012, six

days before the petitioner failed to meet the condition

precedent, the respondent’s motion also was conditional, i.e., it asked that judgment be rendered if the

petitioner failed to comply fully with the July 30, 2012

order, which the court, essentially, reiterated and gave

the petitioner more time with which to comply in its

August 10, 2012 order. When, by August 24, 2012, the

petitioner still had not complied with the July 30, 2012

order or the August 10, 2012 order, the court granted

the respondent’s request that it ‘‘enter judgment for

the respondent,’’ as set forth in both the respondent’s

August 14, 2012 motion for default and its July 27, 2012

motion for judgment.

The petitioner thus has no basis to deny that on July

30, 2012, when the court rendered its default judgment,

he was not in compliance with his duty to plead in

accordance with our rules of practice or with his obligation to comply with the orders of the court. The petitioner did not file an objection to either of the

respondent’s requests for a more specific statement, he

did not set forth any concern with the substance of

either of the court’s orders, nor did he ask for additional

time to comply. Under the facts of this case, we conclude that the court acted well within its authority in

rendering a default judgment, and that it did not abuse

its discretion in concluding that such a judgment was

warranted. We further conclude that the interests of

justice do not necessitate a reversal of the court’s judgment, as the petitioner has not provided to us any appropriate explanation for his failure to take advantage of

the opportunities to correct his pleadings and to comply

with the outstanding orders made available to him by

the court prior to its rendering of judgment against him.

The judgment is affirmed.
In this opinion the other judges concurred.

1 The issue of whether the petitioner should have been subject to a nonsuit

rather than a default judgment was not raised by the parties. See Segretario

v. Stewart-Warner Corp., 9 Conn. App. 355, 358–60, 519 A.2d 76 (1986)

(explaining difference between nonsuit and default judgment); see also

Practice Book § 17-19 (‘‘[i]f a party fails to comply with an order of a judicial

authority . . . the party may be nonsuited or defaulted by the judicial

authority’’). Accordingly, we take the case as it was presented on appeal.

2

In all three motions,the petitioner’s habeas counsel contended in relevant

part that the reason there was no response to either request for a more

specific statement was that the court ‘‘never acted on the [r]espondent’s

motion for more specific statement.’’ Practice Book § 23-33 very clearly

provides, however, that ‘‘[a]ny party may request a more specific statement

regarding a preceding pleading to obtain a more complete and particular

statement of the facts supporting each legal claim or to obtain any other

appropriate correction in the preceding pleading. Such request shall be

deemed to have been granted by the judicial authority on the date of the

filing and shall be complied with by the party to whom it is directed within

thirty days of filing, unless within thirty days of filing the party to whom

it is directed objects, setting forth, in concise fashion, the basis for the

objection. A request for a more specific statement, and objection, may be

ruled upon by the judicial authority without oral argument, unless the judicial

authority determines that oral argument is necessary.’’ (Emphasis added.)

3

It appears from the record that on September 12, 2012, either the petitioner refiled his petition for certification to appeal or the clerk’s office

reprocessed the original petition. The court, on September 17, 2012, denied

this second petition on the ground that it was ‘‘not timely filed.’’ The petitionerthen filed a motion to reconsiderthe denial of the petition for certification to appeal from the dismissal of his habeas petition on the ground that

the petition for certification to appeal had been timely filed. He also included

supporting documentation. The court denied this motion as moot on September 27, 2012. It also, on that same day, granted the timely original petition

for certification to appeal that had been filed on September 10, 2012.

4 Although the petitioner cites to Practice Book § 17-32 in support of his

claim, we conclude that § 17-32 is inapplicable in the present case because

it was the court and not the clerk who rendered the default judgment in

this case. See Practice Book § 17-32 (setting forth procedure whereby clerk

may act on motion for default without input from court).

5 During oral argument before this court, the petitioner’s appellate attorney

alleged that the trial court had ‘‘manipulated the pleadings’’ in this case in

order to render a default judgment. We find absolutely no support in the

record for this allegation.