Giano v. Salvatore
Giano v. Salvatore
Opinion of the Court
Opinion
The defendant Vanna Salvatore
On November 24, 2010, the defendant filed a verified motion to open the judgment. On December 12, 2010, the court ordered that the parties present oral argument limited to the following issue: “[Wjhether the defendant or her attorney was prevented, by accident or mistake, from presenting her defense. The question is how it came about that the defendant allowed a default judgment to enter against her in this case. The burden at such hearing will be upon the defendant to show that she did not allow such judgment to enter on account of her own or her attorney’s negligence.” The court heard the parties on the issue on February 9 and April 1, 2011.
Brignole also testified as a witness. Brignole testified that he received a physical copy of the motion for default for failure to plead on September 3, 2010. Brig-nole testified that he met with the Salvatores on approximately September 10, 2010. At that meeting, Gary Salvatore, informed Brignole that the plaintiff would be withdrawing the action and Gary Salvatore asked Brignole to prepare a withdrawal for the plaintiffs signature. Brignole prepared the withdrawal. Brignole’s office received the order of default by mail on September 15, 2010.
The court ordered that the defendant submit a post-hearing brief on April 15, 2011, and that the plaintiff submit a reply brief on April 29, 2011. On April 15, the defendant filed her posthearing brief along with a motion to dismiss for lack of subject matter jurisdiction. The plaintiff filed his reply brief on April 18, 2011, and then filed an objection to the defendant’s motion to dismiss on April 28, 2011. Before the court ruled on the
On May 16, 2011, the court issued its decision denying the motion to open the judgment. The court accepted as true that the defendant had a good defense in whole or in part at the time the judgment was rendered, but determined that the defendant was not prevented by mistake, accident or other reasonable cause from making her defense as required by General Statutes § 52-212 (a).
“Not unlike the conduct of the attorney in Nelson v. The Contracting Group, LLC, 127 Conn. App. 45 [14
As a threshold matter, we address the defendant’s claim that the court improperly refused to rule on her motion to dismiss for lack of subject matter jurisdiction. Specifically, she argued in her motion to dismiss that the plaintiff lacked standing to bring an action against her. We conclude that, even if the court improperly refused to rule on the defendant’s motion to dismiss, such an error was harmless because the defendant’s claim in that motion, that the court lacked jurisdiction, was entirely without merit.
We first set forth the well settled legal principles relating to subject matter jurisdiction. “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal. . . . Once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented. . . .
“Additionally, a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot
The defendant’s argument in her motion to dismiss rested on the premise that the plaintiff lacked standing because the plaintiff had signed a release agreement stating that he released Gary Salvatore and his heirs from any liability. The defendant argued that the release applied to her because she is an heir of Gary Salvatore. It is impossible for the defendant to be an heir of Gary Salvatore because Gary Salvatore is a living person. A living person has no heirs. See, e.g., Burke v. Ruggerio, 24 Conn. App. 700, 704, 591 A.2d 453 (“[e]ven in these modem days, the ancient legal maxim nemo est haeres viventis is still applicable”), cert. denied, 220 Conn. 903, 593 A.2d 967 (1991).
Furthermore, whether a release agreement applies to a defendant is not an issue implicating standing or subject matter jurisdiction. A release agreement is a contract. “It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts.” (Internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 42, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007). “Interpretation of the written terms of a contract and the degree of compliance by the parties are questions of fact to be determined by the trier of fact.” Burns v. Quinnipiac University, 120 Conn. App. 311, 322, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010). Accordingly, the defendant’s claim is meritless.
“The denial of a motion to open is an appealable final judgment. . . . Although a motion to open can be filed within four months of a judgment . . . the filing of such a motion does not extend the appeal period for challenging the merits of the underlying judgment unless filed within the [twenty day period provided by Practice Book § 63-1]. . . . When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. . . . This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” (Citation omitted; internal quotation marks omitted.) Worth v. Korta, 132 Conn App. 154, 158-59, 31 A.3d 804 (2011), cert. denied, 304 Conn. 905, 38 A.3d 1201 (2012).
The defendant did not appeal from the underlying judgment nor did she file her motion to open that judgment within twenty days. Judgment was rendered on October 28, 2010, but the defendant did not file her verified motion to open until November 24, 2010. Therefore, we decline to review any of the defendant’s claims regarding the propriety of the underlying judgment as they are not properly before us.
The defendant also argues that the court improperly denied her motion to open the judgment because she
“We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court reasonably could conclude as it did.” (Internal quotation marks omitted.) Wilson v. Troxler, 91 Conn. App. 864, 868, 883 A.2d 18, cert. denied, 276 Conn. 928, 929, 889 A.2d 819, 820 (2005).
It is this court’s “well settled jurisprudence that [a] court should not open a default judgment in cases where the defendants admit they received actual notice and simply chose to ignore the court’s authority. . . . Negligence is no ground for vacating a judgment, and it has been consistently held that the denial of a motion to open a default judgment should not be held an abuse of discretion where the failure to assert a defense was the result of negligence. . . . Negligence of a party or his counsel is insufficient for purposes of § 52-212 to set aside a default judgment.” (Internal quotation marks omitted.) Id., 872.
The court did not abuse its discretion in denying the defendant’s motion to open the default judgment. The court properly noted that the defendant was not prevented from presenting her defense based on “mistake, accident or other reasonable cause” because defense counsel’s actions did not constitute reasonable cause. The defendant’s counsel admitted on the witness stand that he had actual notice that a default had entered
The judgment is affirmed.
In this opinion the other judges concurred.
The named defendants also included Paul Raczynski and TD Bank, N.A., but neither Raczynski nor TD Bank, N.A., is a party to this appeal. We therefore refer in this opinion to Vanna Salvatore as the defendant.
The defendant also claims that the court erroneously failed to cite a factual or legal basis for its determination that the defendant’s counsel, who testified as a witness, was not credible. “It is well established that [t]his court will not revisit credibility determinations.” (Internal quotation marks omitted.) Sapper v. Sapper, 109 Conn. App. 99, 108, 951 A.2d 5 (2008). The court was entitled, in its role as sole arbiter of credibility, to discredit defense counsel’s testimony; id., 109; and it was not required to cite a factual or legal basis for its credibility determination.
The following colloquy took place between the court and Brignole:
“The Court: So when the ready marking came in on the motion for judgment, did you assume it was going off? What did you think was going to happen?
“[The Witness]: At that point, I assumed that my client and the plaintiff had a stay on this and that at some point my client who spoke to the plaintiff was going to not have the matter go forward on Monday morning. That was my assumption that it was not going to go forward.
“The Court: Okay, but you never got notice it was going off.
“[The Witness]: Correct.”
General Statutes § 52-212 (a) provides: “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or 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 the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”
Reference
- Full Case Name
- JOHN GIANO v. VANNA SALVATORE
- Cited By
- 7 cases
- Status
- Published