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SAMUEL KEARSE v. PRISCILLA B. TAYLOR ET AL.

(AC 38031)

Lavine, Alvord and Sheldon, Js.

Argued April 13—officially released May 31, 2016

(Appeal from Superior Court, judicial district of New

Haven, Hon. John C. Flanagan, judge trial referee.)

Robert M. Singer, for the appellants (defendants).

Jeremy C. Virgil, with whom, on the brief, was

Michael S. Samsel, for the appellee (plaintiff).
Opinion

PER CURIAM. The defendants, Priscilla B. Taylor

and John Nicolas Tieman, temporary administrator of

the estate of Paul Bradley Taylor, Jr.,1 appeal from the

trial court’s denial of their motion to open a default

judgment rendered after a hearing in damages. On

appeal, the defendants claim that the court improperly

denied their motion as untimely because the court failed

to send them notice that a default judgment had been

rendered against them. We reverse the judgment of the

trial court and remand the case for further proceedings.

The record reveals the following relevant factual and

procedural history. On January 17, 2007, the plaintiff

suffered severe burn injuries while a tenant at the New

Haven apartment building owned by the defendants.

On December 1, 2008, he commenced the present action

against the defendants, alleging that he was relighting

a gas stove for purposes of generating heat for his

dwelling when his clothing caught fire. He alleged that

the defendants were liable for the injuries he sustained

because they knew the apartment building was not adequately heated and they failed to maintain and repair

the premises. On December 19, 2008, Attorney Patricia

A. Cofrancesco filed an appearance on behalf of the

defendants. On July 29, 2009, Attorney Howard A. Lawrence filed an appearance on behalf of the defendants

in lieu of Attorney Cofrancesco’s appearance.

While the action was pending, the plaintiff filed an

application for a prejudgment remedy against Priscilla

Taylor, which was granted by the court, A. Robinson,

J., on January 24, 2012, in the amount of $2 million.2

On March 20, 2012, the plaintiff filed a motion to default

the defendants for failure to disclose assets to satisfy

the prejudgment remedy and for failure to plead. Judge

Robinson granted the plaintiff’s motion, absent objection, on April 16, 2012. On July 27, 2012, apparently

unbeknownst to the parties or the plaintiff’s counsel,

Lawrence was placed on inactive status3

for an indefinite period by the court, Silbert, J., in Disciplinary

Counsel v. Lawrence, Superior Court, Judicial District

of New Haven, Docket No. CV-12-6028710-S (2012). In

that order, the court appointed ‘‘Attorney Michael

Moskowitz . . . as Trustee to inventory Mr. Lawrence’s files and protect the interests of Mr. Lawrence

and of his clients.’’

On September 20, 2012, which was approximately

two months after Lawrence had been placed on inactive

status, the plaintiff filed a motion forthe court to render

a judgment on the default entered on April 16, 2012,

and a request for a hearing in damages. The plaintiff

certified that he sent a copy of that motion and request

to Lawrence. No notice was sent to the individual defendants. Judge Robinson granted the motion for judgment

on the default on October 22, 2012. A court-generated
notice of the ruling was sent to all counsel of record.

At that time, the court file showed Lawrence as the

defendants’ attorney of record even though he had been

placed on inactive status. Accordingly, notice was sent

to Lawrence.

A hearing in damages was scheduled for November

28, 2012. On November 27, 2012, the plaintiff filed exhibits for the hearing, including the plaintiff’s affidavit,

photographs of the plaintiff at the hospital and during

recovery, a medical bill summary, and 369 pages of

medical records. At the outset of the hearing in damages, the court, Hon. John C. Flanagan, judge trial

referee, expressly acknowledged the absence of Lawrence and the defendants. In response, the court clerk

informed the court that Lawrence’s juris number was

inactive. The court then stated: ‘‘Well, I happen to know

from a collateral issue that his right to practice was

suspended by Judge Silbert. He did not disbar him, but

he simply suspended his right to practice law until some

medical issues have been resolved. . . . Oh, and incidentally, also I learned that another individual had been

appointed trustee.’’ The court asked the clerk whether

Lawrence had ever withdrawn his appearance for the

defendants, and the clerk responded ‘‘no.’’ The court

noted that there was no evidence in the file that Lawrence had referred this matter to any other attorney to

represent the defendants. The court then stated that it

had concerns: ‘‘The lawyer [Lawrence] did appear in

the case and the lawyer has never filed a motion to

withdraw his appearance, so he is still the counsel of

record and it disturbs me a little bit that the defendants

are not presently here to defend the matter in any way.’’

Nevertheless, because the defendants had been

defaulted, so that liability was not an issue, the court

decided to proceed with the hearing in damages.4

‘‘On

the other hand, I do have the information which consists

primarily of representations by the attorney representing the plaintiff, so it would seem to me, that fact coupled with the historical series of events with respect

to the liability portion of the case would leave me to

believe that it’s an order of the court at this time to

make a finding with respect to the amount of money

that would represent a fair, just and reasonable compensation for the injuries and losses the plaintiff has sustained.’’ The court thereafter referred to the medical

bills and the ‘‘emotional impact’’ of the injuries on the

plaintiff, and rendered a judgment in favor of the plaintiff in the amount of $2,841,914.84.5 On the ‘‘order’’

reflecting the November 28, 2012 judgment after a hearing in damages, it was noted that counsel forthe plaintiff

had been present at the time the judgment was rendered, that a court-generated notice of the judgment

had been issued on December 3, 2012, to all counsel

of record, and that a ‘‘copy of [the] judgment [was]

mailed to Mike Moscowitz (sic), trustee, on 12/3/12.’’6
On March 27, 2015, the defendants’ current counsel

filed an appearance on behalf of the defendants in lieu

of Lawrence’s July, 2009 appearance. On that same date,

the defendants filed a motion to open the November 28,

2012 default judgment. In that motion, the defendants

claimed that they never received notice that the judgment had been rendered and that they had a good and

valid defense to the action. With respect to their

defense, the defendants claimed that ‘‘the ambulance

report and hospital records submitted to the court indicate that the plaintiff set himself on fire thereby

attempting suicide, causing his own injuries.’’7

In support of their motion, the defendants filed a memorandum of law and attached copies of various pages from

the medical reports. The plaintiff filed an objection to

the defendants’ motion, arguing that the motion was

untimely because it had not been filed within four

months of the date that they received notice of the

default judgment. In support of his objection, the plaintiff filed his attorney’s affidavit, copies of pleadings and

court orders in the file, and copies of documents filed

in the bankruptcy court in connection with a chapter

13 bankruptcy petition filed by Priscilla Taylor in 2013.

Thereafter, both parties filed supplemental replies to

support their respective positions.

On April 28, 2015, the defendants filed a request for

oral argument and the opportunity to present testimony

with respect to their motion to open the judgment. That

request was denied, no hearing was held, and Judge

Flanagan issued his ruling on May 21, 2015, denying

the defendants’ motion to open the judgment without

explanation. The defendants filed an appeal from the

court’s judgment on June 5, 2015, which they amended

on June 8, 2015, to correct the name of the defendant

from Patricia Taylor to Priscilla Taylor. On June 9, 2015,

the defendants filed an additional appeal form that, this

time, showed the payment of an entry fee and the court

clerk’s signature and date.

On June 29, 2015, the court issued a memorandum

of decision that provided the reasons for its denial of

the defendants’ motion to open the judgment. The court

noted that the notice of the default judgment had been

sent to Moskowitz, the trustee for Lawrence, and that

the defendants’ motion was not filed within the four

month period required by Practice Book § 17-43.8 The

defendants filed a motion for articulation with this court

on July 6, 2015, requesting that the trial court clarify

the last paragraph in its memorandum of decision. The

trial court scheduled the motion for argument on July

29, 2015. By memorandum of decision dated July 31,

2015, the trial court provided the following articulation:

‘‘The court heard oral arguments on July 29, 2015. Judgment entered on November 28, 2012. The original attorney’s right to practice law was suspended. Attorney

Moscowitz (sic) was appointed trustee for Attorney
Lawrence. Copy of Judgment was mailed to Mike Moscowitz (sic), Trustee on December 3, 2012 (see attached

order). No notice was sent to the defendants.’’

On appeal, the defendants claim that the court’s memoranda of decision indicate that the court improperly

considered the notice sent to Moskowitz to be the requisite notice of the default judgment to the defendants

and, therefore, improperly determined that the defendants’ motion to open the judgment was untimely

because it was not filed within the four month period

required by Practice Book § 17-43.9 Specifically, the

defendants argue that Lawrence, being on inactive status, was no longer representing them and that Moskowitz, although the trustee for Lawrence, never filed an

appearance on behalf of the defendants and did not

represent them.10 The defendants claim that they were

unrepresented since July 27, 2012, and that no notice of

the default judgment had been sent to them individually.

Accordingly, it is their position that the four month

deadline for filing a motion to open the judgment

never commenced.

We begin with the legal principles that guide our

analysis of the defendants’ claim. While courts have an

inherent power to open, correct and modify judgments,

the duration of this power is restricted by rule of practice. Practice Book § 17-43.11 In deciding whether a

motion to open a judgment is timely, a court must determine whether it was filed within four months of the

date that the notice of the default judgment was sent

to the party in default. See Johnson v. Atlantic Health

Services, P.C., 83 Conn. App. 268, 276, 849 A.2d 853

(2004). ‘‘A ruling on a timely filed motion to open is

within the trial court’s discretion, and appellate review

is limited to whether the court has acted unreasonably

or in abuse of its discretion. . . . Whether a party has

been given notice is a question of fact . . . .’’ (Citations

omitted.) Batory v. Bajor, 22 Conn. App. 4, 8–9, 575

A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541

(1990). Accordingly, in the present case, we review the

trial court’s finding that notice properly was given to

the defendants under the clearly erroneous standard of

review. Id., 9.

‘‘A finding of fact is clearly erroneous when there is

no evidence in the record to support it . . . or when

although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.’’

(Internal quotation marks omitted.) Noroton Properties, LLC v. Lawendy, 154 Conn. App. 367, 378, 107 A.3d

980 (2014). In the present case, the court concluded that

the motion to open was not timely filed because more

than four months had passed since the date that notice

of the default judgment had been sent to Moskowitz, as

trustee for Lawrence. This finding is clearly erroneous

because Lawrence was not able to practice law while
he was placed on inactive status, Moskowitz had not

filed an appearance on behalf of the defendants and

was not representing them, and no notice of the default

judgment was sent by the court to the individual defendants. The defendants were unrepresented at the time

the default judgment was rendered, yet they were not

sent notice that they were liable for a $2.8 million judgment in favor of the plaintiff.

Notice of the judgment must be sent to the defaulting

party in order to determine the date that commences

the four month period within which that party may file

a motion to open the judgment. ‘‘[T]he right to move

to open and vacate a judgment assumes that the party

who is to exercise the right be given the opportunity

to know that there is a judgment to open. . . . Where

the defendants have not received notice of the default

judgment . . . the time within which they may move

to set aside the judgment is extended by the delay

in notification.’’ (Citation omitted; internal quotation

marks omitted.) Johnson v. Atlantic Health Services,

P. C., supra, 83 Conn. App. 276–77.

The plaintiff argues that the trial court could have

determined that the defendants received actual notice

of the default judgment through the various documents

filed in Priscilla Taylor’s federal bankruptcy proceedings. He claims that the dates on those bankruptcy

documents clearly demonstrate that the defendants

were made aware of the default judgment more than

four months prior to the filing of the motion to open,

thereby making the motion untimely. That argument

was made before the trial court and copies of the documents were submitted to the court. The defendants

responded that none of the referenced documents provided them with the requisite notice, and they provided

reasons for discounting the plaintiff’s argument. Even

though the parties briefed the issue of the bankruptcy

court filings, the trial court made no mention whatsoever of those documents in its June 29, 2015 memorandum of decision or in its July 31, 2015 articulation.

There are no factual findings by the trial court with

respect to the plaintiff’s claim. The only factual determination made by the court was that notice of the default

judgment had been sent to Moskowitz as the trustee

for Lawrence on December 3, 2012. For the reasons

previously discussed, notice to Moskowitz was insufficient notice to the individual defendants.

The issue of whether the defendants received notice

of the rendering of the default judgment, and, if so,

when they received that notice, is a question of fact for

the factfinder. ‘‘It is well settled that we do not find

facts.’’ Bria v. Ventana Corp., 58 Conn. App. 461, 466,

755 A.2d 239 (2000); see also Multilingual Consultant

Associates, LLC v. Ngoh, 163 Conn. App. 725, 737,

A.3d (2016). We, therefore, cannot make that determination.
The only basis provided for the trial court’s conclusion that the defendants’ motion to open the judgment

was untimely was its factual finding that notice had

been given to the defendants because it had been sent

to Moskowitz on December 3, 2012; that determination

was clearly erroneous. In order to reach the merits of

the defendants’ claims in their motion, the factfinder

must first determine at an evidentiary hearing whether

the defendants received notice of the default judgment

and, if so, on what date they received such notice. The

court would then determine whether their motion was

timely filed. If the court determines that the defendants’

motion to open the judgment was untimely, then it must

deny that motion. If, however, the court concludes that

the defendants’ motion to open was timely filed, then

it must reach the merits of the defendants’ motion. See

Noethe v. Noethe, 18 Conn. App. 589, 596, 559 A.2d 1149

(1989). Accordingly, we conclude that this matter must

be remanded to the trial court for that purpose.

The judgment is reversed and the case is remanded

for further proceedings consistent with this opinion.

1 This action initially was commenced against Priscilla B. Taylor and her

husband, Paul Bradley Taylor, Jr., who died in February, 2009. The plaintiff

thereafter moved to substitute the temporary administrator of his estate in

place of the deceased. The court, Silbert, J., granted the motion to substitute

the temporary administrator as a party defendant on January 20, 2011.

2 The court’s order noted that Priscilla Taylor did not appear at the hearing

on the application for the prejudgment remedy.

3 Practice Book § 2-56 provides in relevant part: ‘‘During the time an order

placing an attorney on inactive status is in effect, such attorney shall be

precluded from practicing law. . . .’’

4 Practice Book § 17-34 (a) provides: ‘‘In any hearing in damages upon

default, the defendant shall not be permitted to offer evidence to contradict

any allegations in the plaintiff’s complaint, except such as relate to the

amount of damages, unless notice has been given to the plaintiff of the

intention to contradict such allegations and of the subject matter which the

defendant intends to contradict, nor shall the defendant be permitted to

deny the right of the plaintiff to maintain such action, nor shall the defendant

be permitted to prove any matter of defense, unless written notice has been

given to the plaintiff of the intention to deny such right or to prove such

matter of defense.’’

5

In the plaintiff’s affidavit filed with the court for its consideration at the

hearing in damages, the plaintiff averred that his medical bills through April

27, 2007, totaled $841,914.84. The court added $2 million to that amount,

for a total award of $2,841,914.84. In his affidavit, the plaintiff had requested

compensation in the amount of $50 million as fair, just and reasonable

damages.

6 At oral argument before this court, the parties’ counsel were of the

impression that the court knew Moskowitz had been appointed the trustee

for Lawrence’s files and that the court ordered notice of the judgment to

be mailed to Moskowitz during the hearing in damages. The transcript of

November 28, 2012, however, reflects that the court was aware that a trustee

had been appointed, but there was no mention of Moskowitz’ name or an

order of the court to mail a copy of the judgment to Moskowitz. Nevertheless,

the order itself does provide that a copy of the judgment was mailed to

Moskowitz on December 3, 2012.

7

In the medical records submitted by the plaintiff to the court for the

hearing in damages, there are several pages with notations that the plaintiff’s

injuries were self-inflicted. For example, in the ambulance trip report is the

statement that the plaintiff doused himself with kerosene and ignited himself

on fire. On the ambulance report transfer form, under the history of present

illness, is the statement that the plaintiff had self-inflicted burns caused by

dousing himself with kerosene and then lighting himself on fire. That form

further indicates that the plaintiff was depressed over the recent loss of a
sibling. Similar notations appear on the Yale-New Haven Hospital progress

notes and the Bridgeport Hospital operative report and discharge summary.

Months later, it appears that the plaintiff reported to some of his health

care providers that the incident was accidental in nature, although other

providers continued to characterize the incident as an attempted suicide.

8 The court’s June 29, 2015 memorandum of decision states in its entirety:

‘‘The instant case which has been pending since 2008 came to the attention

of several judges over the years before it was assigned to this court as a

hearing in damages on November 28, 2012.

‘‘Following an evidential hearing judgment in favor of the plaintiff was

entered on said date. The instant motion to open the judgment was not filed

until March 27, 2015 which was untimely as it was well beyond the four

month limitation articulated in Connecticut Practice Book 17-43.

‘‘The thrust of the defendants’ reason for failure to comply with the four

month time limitation is they lacked notice of the judgment.

‘‘According to the clerk notice of the judgment was sent to Attorney

Moskowitz, trustee for Attorney Lawrence, on December 3, 2012 whereas

noted above the motion to open judgment was far beyond time prescribed

by the Connecticut Practice Book.

‘‘Motion to open judgment is denied.’’

9 Practice Book § 17-43 (a) provides in relevant part: ‘‘Any judgment rendered or decree passed upon a default or nonsuit may be set aside within

four months succeeding the date on which notice was sent, and the case

reinstated on the docket on such terms in respect to costs as the judicial

authority deems reasonable, upon the 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 such

judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from

prosecuting or appearing to make the same. . . .’’ (Emphasis added.)

10 It is undisputed that Moskowitz never filed an appearance on behalf

on the defendants in this action.

11 Practice Book § 17-43, formerly Practice Book § 377, which sets forth

the rule for opening judgments on default, was amended on June 21, 1996,

to take effect October 1, 1996. Prior to that amendment, Practice Book

(1978) § 377 provided in relevant part that ‘‘[a]ny judgment rendered . . .

upon a default or nonsuit may be set aside within four months succeeding

the date on which it was rendered . . . .’’ (Emphasis added.) Practice Book

§ 17-43 now provides that ‘‘[a]ny judgment rendered . . . upon a default or

nonsuit may be set aside within four months succeeding the date on which

notice was sent . . . .’’ (Emphasis added.) See Johnson v. Atlantic Health

Services, P.C., 83 Conn. App. 268, 275 n.3, 849 A.2d 853 (2004).