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Kearse v. Taylor

Court of Appeals of Connecticut

May 31, 2016

SAMUEL KEARSE
v.
PRISCILLA B. TAYLOR ET AL.

          Argued April 13, 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).

          LAVINE, ALVORD AND SHELDON, JS.

          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 status[3] 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 for the 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 for the 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, ...


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