Handy v. Minwax Co.

— 55 — Opinion LAVERY, J. The defendants, Minwax Company, Inc. (Minwax) and Ring’s End, Inc. (Ring’s End), appeal from the opening of a judgment of dismissal that had been rendered against the plaintiff, Stephen L. Handy. On appeal, the defendants contend that the trial court improperly granted the plaintiffs untimely motion to open a judgment of dismissal. While the plaintiffs motion to open the judgment was filed more than fourteen months after the judgment of dismissal, the plaintiff contends that he did not possess either constructive or actual notice of the entry of the judgment of dismissal until one week prior to the filing of his motion to open. We affirm the judgment of the trial court. The record discloses the following facts and procedural history. The plaintiff suffered property damage to his home when, while refinishing a wood floor with a wood refinishing product,1 the cleaning cloths he was using burst into flames and caused a fire. In November, 1993, the plaintiff filed his second revised complaint. The case was subsequently placed on the dormancy calendar. On September 14, 1994, the parties received notice that the case had been put on the dormancy calendar for October 18, 1994. On December 9, 1994, a dormancy dismissal was entered by the trial court. The plaintiff claims that he did not receive notice of the judgment of dismissal and was unaware that the case had been dismissed until, after sending a letter on January 29, 1996, to the defendants’ counsel requesting a deposition, he was informed by a reply letter from the defendants’ counsel dated February 8,1996, that the case had been dismissed. On February 21, 1996, the plaintiff filed a motion to open the judgment of dismissal. The trial court denied the — 56 — motion. The plaintiff filed a motion for reargument, which was granted. After a reargument hearing, the court issued a subsequent memorandum of decision on June 28, 1996, opening the judgment of dismissal. The only issue on appeal is whether a court has jurisdiction to open a judgment of dismissal when a motion to open is filed fourteen months later, and it is represented by the plaintiff that actual notice of the judgment was not received until one week prior to the filing of his motion to open. “Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion. See Freccia v. Martin, 163 Conn. 160, 165, 302 A.2d 280 [1972]; Stocking v. Ives, 156 Conn. 70, 72, 238 A.2d 421 [1968]; 46 Am. Jur. 2d, Judgments, § 682.” Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1977); see also In re Baby Girl B., 224 Conn. 263, 295, 618 A.2d 1 (1992). For a trial court to open or to set aside a default judgment, a motion to open or a motion to set aside must be filed within four months of the date judgment is rendered. General Statutes § 52-212 (a);2 see also General Statutes § 52-212a;3 Practice Book — 57 — § 326.4 This court has held titiat the trial court lacks jurisdiction to open the judgment when a motion to open is not timely. Ziruk v. Bedard, 45 Conn. App. 137, 139, 695 A.2d 4 (1997). In the present case, however, the dispositive question is when the four month time limitation began to run. The plaintiff claims that the time limitation was triggered when he received the letter from the defendants’ counsel in February, 1996. He argues that the date of the letter is the notice date and so his motion to open was timely. We agree. “As in the statutory right to appeal; see Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 281, 487 A.2d 559 (1985); it is axiomatic that the 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. We have indicated that for the purpose of opening a default judgment pursuant to General Statutes § 52-212, a delay in notifying the defendant of the judgment would merely extend the time in which the defendant could move to set aside the judgment. DiSimone v. Vitello, 6 Conn. App. 390, 393, 505 A.2d 745 (1986). We find this reasoning applicable to motions to open judgments brought pursuant to General Statutes § 52-212a and Practice Book § 326 as well. . . . The existence of actual or constructive notice is a question of fact properly within the province of the trial court. Middlebury v. Steinmann, 189 Conn. 710, 714, 458 A.2d 393 (1983); Mausch v. Hartford, 184 Conn. 467, 469, 440 A.2d 157 (1981).” (Internal quotations marks omitted.) — 58 — Noethe v. Noethe, 18 Conn. App. 589, 595-96, 559 A.2d 1149 (1989). In the present case, the plaintiffs counsel testified at the hearing before the trial court that there were two Minwax files in her office concerning the same defective product, one of which was of the present action. Therefore, because plaintiffs counsel was aware of the other Minwax file, the dismissal was not brought to her attention until she attempted to take deposition in this case and received a letter from the defendants’ counsel. The trial court found, and the defendants do not challenge on appeal, that the plaintiff did not have actual notice of the dismissal. The defendants, nevertheless, contend that the plaintiff had constructive notice of the dismissal because of the receipt of the dormancy-calendar by the plaintiffs counsel. In Morelli v. Manpower, Inc., 34 Conn. App. 419, 424, 642 A.2d 9 (1994), this court addressed the question of whether the publication of the dormancy calendar constituted notice of the dismissal. We held: “The defendant . . . ruges us to find that, even if the plaintiff did not receive notice of the . . . dismissal, she was on notice that the matter was on the dormancy calendar and the calendar itself contained a notation that if certain steps were not taken, the matter would be dismissed. This is an issue more properly reserved for the trial court at a hearing to determine when the plaintiff had notice of the dismissal and, accordingly, when the four month limitation, of General Statutes § 52-212a and Practice Book § 326 expired.” Id. We again defer to the well reasoned decision of the trial corut. The trial court stated: “The court is not persuaded by Minwax’s argument that the notice on the calendar constituted that actual notice that the case would be dismissed if no further action was taken. Research has not revealed any cases in which a court — 59 — has held, as Minwax argues, that the dormancy calendar constitutes actual notice that dismissal will enter on a fixed date. Indeed, if this were the case, there would be no need for courts to hold hearings to determine whether a party actually received notice of dismissal since notice would be imputed by virtue of short calendar notice. . . . Consequently, the court finds, by the narrowest of margins, that there is ‘good cause’ to open the judgment of dismissal under [Practice Book] § 251 and, therefore, worthy of relief based on counsel’s testimony, which is found to be credible, that she was unaware of the dismissal due to two files regarding the same subject matter being open in her office simultaneously.” In sum, we agree with the trial court’s conclusion that the plaintiff did not have either constructive or actual notice that his action had been dismissed until he received a letter from the defendants’ counsel on February 8, 1996. We also agree with the trial court that the plaintiffs motion to open was timely filed. We conclude, therefore, that the trial court had jurisdiction to open the judgment of dismissal. The judgment is affirmed. In this opinion DALY, J., concurred. Footnotes [1] The wood refinishing product was manufactured by Minwax and sold and distributed by Ring’s End. [2] 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.” [3] General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law ... a civil judgment . . . may not be opened or set aside — 57 — unless a motion to open or set aside is filed within four months following the date on which it was rendered . . . .” [4] Practice Book § 326providesinrelevantpart: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months of the entry of judgment. ...”