418 MEADOW STREET ASSOCIATION, LLC ET AL. v. STEVEN LEVINE.

2010 Ct. Sup. 18794, 50 CLR 736
No. CV-07-5012777Connecticut Superior Court Judicial District of Fairfield at Bridgeport
October 4, 2010

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO VACATE JUDGMENT
K. DOOLEY, J.

Two years and 35 days after a judgment upon default was entered against the defendant and in favor of the three plaintiffs, 418 Meadow Street Assoc. LLC, Michael Weinshel and Mark Wynnick, the judgment debtor seeks to vacate the judgment, reopen the default and permit him to contest the standing of one of the plaintiffs, thereby implicating this court’s subject matter jurisdiction as to claims by that plaintiff — 418 Meadow Street Assoc. LLC.[1]

A review of the court’s file reveals the following procedural history of this case.

It was commenced by writ, summons and complaint with a return date of December 27, 2007. The defendant’s counsel filed an appearance on January 23, 2008. The default for failure to plead entered on June 30, 2008. Thereafter, the judgment upon default entered on August 5, 2008. Following entry of the judgment, the judgment debtor appeared as summoned for an examination of his assets, as the plaintiffs sought to collect the judgment debt.

From the inception of the action through September 10, 2010, the date this motion was filed, the defendant neither pled nor asserted in any fashion a defense to the action nor a claim that one of the plaintiffs was without standing.

In his motion, the judgment debtor seeks to vacate the judgment and to reopen the default.

For the reasons set forth below, the motion is DENIED.

DISCUSSION
Generally, pursuant to General Statutes § 52-212 or its Practice Book counterpart, § 17-43, a motion to set aside a judgment upon default, must CT Page 18795 be filed within four months of the date judgment was rendered. Under most circumstances, if this time constraint is not met, the trial court lacks jurisdiction to entertain a motion to open the judgment. See, Buffered v. Yost, 51 Conn.App. 1 (1998).[2]

However, our appellate courts have also recognized that challenges to subject matter jurisdiction are of such a nature as to trigger the courts’ inherent authority to open or set aside judgments even if motions to do so are not timely filed. Urban Redevelopment v. Katsetos, 86 Conn.App. 236, 239, (2004), cert. denied, 272 Conn. 919 (2005). See also, Bove v. Bove, 77 Conn.App. 355 (2003).

Challenges to subject matter jurisdiction are not without limitations however. As the Appellate Court noted in the Urban Redevelopment case,

`As [the Supreme Court has] recently observed . . . [t]he modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal . . . Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so.’ (Emphasis in the original.) Id. at 241, quoting, Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 103-04, 616 A.2d 793 (1992).[3]

Factors to be considered in deciding whether to permit the attack on subject matter jurisdiction include: “whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments.” Id. at 242, citing Daly v. Daly, 19 Conn.App. 65, 69-70
(1989). (Court held that it would not consider a request to open a dissolution of marriage judgment brought many years after entry of the judgment after analyzing identified factors.) CT Page 18796

In addition to the analysis set forth in Urban Redevelopment, the court looks to the practice book and our statutes.[4] Under the applicable rules of pleading, the defendant’s motion is deficient in a number of respects. Those deficiencies and the analysis required by Urban Redevelopment, overlap significantly, and so are discussed together, below.

Practice Book § 17-43 provides:[5]

Any judgment rendered . . . upon a default . . . may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket upon written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good . . . defense in whole or in part existed at the time of the rendition of such judgment . . . and that the . . . defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or the complainant’s attorney, shall state in general terms the nature of the . . . defense and shall particularly set forth the reason why the . . . defendant failed to appear.

The defendant’s motion meets almost none of these requirements. As indicated, the motion is not timely filed. Indeed, it is filed almost 21 months AFTER the 4-month period within which to file such a motion expired.[6] This extraordinary delay implicates the court’s substantial interest in the finality of judgments and the rights of creditors to make efforts to collect on judgments within a reasonable period of time. Indeed, over the course of the last two years, the plaintiffs have made several efforts, at their expense, to collect the judgment from the judgment debtor.

Further, the defendant’s motion identifies no explanation as to why the default entered in the first instance. The defendant had counsel and had appeared in the action. There is no claim of mistake or accident. Nor does the defendant identify any “other reasonable cause” for his default. On this issue, the motion is silent.

Further, the defendant’s motion states his defense to the action will be to challenge the court’s subject matter jurisdiction because the individual plaintiffs do not have authority to act on behalf of 418 CT Page 18797 Meadow Street Assoc. LLC, and therefore this corporate entity is without standing.[7] He does not address any challenge to the right of the individual plaintiffs to bring the action. Weinshel and Wynnick are identified as plaintiffs in their individual capacities and have judgments reflecting same. The Clean Air litigation, on which the defendant relies, did not include any discussion of claims brought personally by Weinshel and Wynnick. Indeed, it appears that neither plaintiff brought any claims in that action in their individual capacity. Thus, even the defense proffered is of limited application here.

In addition, and of significance, there is no explanation as to why the challenge to the court’s jurisdiction could not have been or was not made at the time the original action was brought.

Finally, the defendant’s motion contains no verification from either the defendant or his counsel, stating under oath, the matters required under the practice book and the statute. See, Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160 (1984); Lopez v. Livingston, 53 Conn.App. 622 (1999).

In sum, the defendant’s motion fails under the analysis required b Urban Redevelopment, and fails to meet the requisite pleading standards. It is substantively without merit and procedurally defective and is DENIED.

[1] The complaint sounds in a single count of breach of contract in favor of all three plaintiffs.
[2] Here, the defendant challenges the standing of only the corporate entity, yet seeks to vacate the judgment in favor of the corporate entity as well as the individual plaintiffs. Arguably, his motion as to the judgment in favor of the individual plaintiffs is beyond the court’s jurisdiction. See, Buffered v. Yost, supra. However, the court does not deny the motion on this basis.
[3] As an initial matter, the “lack of jurisdiction” cannot be said to be “entirely obvious.”
[4] The court did not locate any case law which discussed the interplay, if any, between the pleading requirements and the analysis required under Urban Redevelopment. In that case, aside from the timeliness issue, there was no claim that the motion to set aside the judgment was procedurally defective. Even where, as here, the proffered defense to the original action is to challenge subject matter jurisdiction, this court sees no reason to abandon the rules of practice CT Page 18798 and statutory pleading obligations.
[5] CGS § 52-212 has virtually identical requirements.
[6] The four-month time frame for filing the motion expired on December 5, 2008. This motion was filed September 10, 2010.
[7] He relies on a recent appellate court decision, Meadow Street Assocs. LLC v. Clean Air Partners, 123 Conn.App. 416 (2010).

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