January 8, 2019
to collect adebt, 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. Lev-esque, for
the appellant (defendant Tracy Malley).
Alvord, Sheldon and Eveleigh, Js.
defendant Tracy Malley 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. 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.
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, the defendant was liable for the unpaid
medical services rendered to Edward Malley.
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
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
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
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
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
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 ...