Cassella v. Kleffke

660 A.2d 378, 38 Conn. App. 340, 1995 Conn. App. LEXIS 320
CourtConnecticut Appellate Court
DecidedJuly 4, 1995
Docket13199
StatusPublished
Cited by16 cases

This text of 660 A.2d 378 (Cassella v. Kleffke) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cassella v. Kleffke, 660 A.2d 378, 38 Conn. App. 340, 1995 Conn. App. LEXIS 320 (Colo. Ct. App. 1995).

Opinion

O’Connell, J.

The defendant appeals following the trial court’s granting of the plaintiff’s motion to open a judgment of dismissal that had been rendered under the dormant case program. The defendant claims that (1) the trial court lacked jurisdiction to open the judgment of dismissal, (2) transfer of the case from Bridgeport to New Haven did not operate to set aside the judgment of dismissal, and (3) the trial court improperly found that the defendant waived her right to object to opening the judgment of dismissal. We reverse the action of the trial court and direct reinstatement of the judgment of dismissal.

The following facts are necessary to a disposition of this appeal. The plaintiff instituted this action seeking damages for personal injuries suffered in an automobile accident. The writ, summons and complaint were [342]*342returnable on October 16,1990, to the Superior Court in the judicial district of New Haven. Although New Haven was the correct venue, the writ, summons and complaint were mistakenly sent to the Superior Court in the judicial district of Fairfield at Bridgeport. There was no venue in Bridgeport.1

Despite the lack of venue, the case was entered on the Bridgeport docket, and, on November 28,1990, the Bridgeport clerk notified the plaintiffs counsel that the case had been assigned docket number CV-90-0275541 S. Despite the institution of the action, the plaintiffs counsel and the defendant’s insurance carrier continued their efforts to settle the case without actual litigation until the fall of 1991, when the matter was referred to defense counsel.

The defendant’s counsel filed an appearance dated October 29,1991, in New Haven, followed on November 26,1991, by an appearance in Bridgeport. The latter bore the correct Bridgeport docket number. On December 3, 1991, the Bridgeport Superior Court issued a report of the appearance status of the case in that court. This status report, properly listing the names and addresses of counsel for both parties, was sent to both counsel.

In the meantime, on October 16,1991, the case had appeared on the Bridgeport dormancy calendar, and the plaintiff was notified that a Practice Book § 251 [343]*343dismissal2 would enter on December 6,1991, unless the pleadings were closed by that date. The pleadings were never closed, and, on November 21,1991, the plaintiff filed a motion for exemption from dormancy, which was rejected by the court, Lewis, J., as untimely.

On November 25,1991, the plaintiff moved to transfer the matter to New Haven. The case was dismissed for dormancy in Bridgeport on December 6,1991, with notice issued on December 13, 1991. Meanwhile, on December 9,1991, the court, Hartmere, J., granted the motion to transfer, with notice issued on December 11, 1991. The file was not physically transferred to New Haven until December 27, 1991, where it was issued a new docket number — CV 90-0326473 S.

Following the transfer, the parties continued to correspond for a time in an attempt to settle the case. These efforts proved unsuccessful, and, on March 4, 1993, the plaintiff filed a motion for default for failure of the defendant to plead. The New Haven clerk returned the motion to the plaintiff on April 20, 1993, with a letter explaining that, because of the December 6,1991 dismissal, the motion could not be recorded on the computer.3

[344]*344On May 3, 1993, the plaintiff filed a motion to open the judgment of dismissal, which was granted by the court, DeMayo, J., on December 22,1993. Additional facts are included in the course of our analysis.

I

Generally, the granting of a motion to open a prior judgment is not a final judgment and, therefore, not immediately appealable. State v. Phillips, 166 Conn. 642, 646, 353 A.2d 706 (1974). An exception to this rule, however, allows the appeal if it challenges the power of the trial court to open the judgment. Solomon v. Keiser, 212 Conn. 741, 747, 562 A.2d 524 (1989). Because the gravamen of the defendant’s claim here is that the trial court lacked jurisdiction to open a Practice Book § 251 judgment of dismissal nearly seventeen months after it was rendered, the judgment is immediately appealable.

II

Because the first two issues are closely related, we will analyze them together. The purpose of § 251 is to prevent inactive cases from clogging the docket. Nickerson v. Gachim, 183 Conn. 413, 415, 439 A.2d 379 (1981). All is not lost, however, for a party against whom a § 251 dismissal has been rendered. General Statutes § 52-212a4 and Practice Book § 3265 both allow [345]*345a trial court, in its discretion, to open any such judgment within four months of the date the judgment was rendered. During the four month period, while the case lies nominally “dismissed,” of necessity it actually remains on the court docket so that motions to open may be addressed to it. Lake Garda Co. v. Lake Garda Improvement Assn., 156 Conn. 61, 65, 238 A.2d 393 (1968).

The foregoing recitation of the chapter and verse of the case’s motion history is complete and accurate and superficially appears convoluted and confusing. For purposes of this decision, however, the following brief synopsis is helpful. The plaintiff had only one case captioned “Ercole Cassella v. Beth A. Kleffke” pending on the Bridgeport docket. The plaintiff was notified that this case was dismissed under the § 251 dormancy program. The plaintiff was also notified that the case was transferred to New Haven. The plaintiff made no effort to open the dismissal in either court until nearly seventeen months after the dismissal. Because the trial court’s jurisdiction to open a judgment is limited to motions filed within four months of the dismissal, the plaintiff’s motion was untimely, and the court lacked jurisdiction to grant it.

This case involves a limited question of notice. The plaintiff does not contest receipt of notice of the December 6, 1991 dismissal of the case bearing the Bridgeport docket number. Thus, the four month period for opening the judgment indisputably expired on April 6, 1992, unless that notice was ineffective because it did not contain the recently assigned New Haven docket number.

[346]*346The plaintiff argues that he received notice of the dismissal only of a case with the proper name but bearing the Bridgeport case number, not the New Haven case number. Thus, he contends that he never received notice of dismissal of the New Haven case, and, therefore, the four months never started to run. We are not persuaded. There were never two cases with the same name but two different numbers — there was only one case, and the plaintiff received notice of its dismissal. Moreover, it was the plaintiff who sought transfer of that case from Bridgeport to New Haven. It is not realistic for the plaintiff to believe that the case dismissed in Bridgeport was anything other than the very same case that he caused to be transferred to New Haven.

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Bluebook (online)
660 A.2d 378, 38 Conn. App. 340, 1995 Conn. App. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cassella-v-kleffke-connappct-1995.