Morelli v. Manpower, Inc.

Freedman, J.

This matter is currently before us on remand from our Supreme Court. Morelli v. Manpower, Inc., 226 Conn. 831, 628 A.2d 1311 (1993). When this matter was first before us we dismissed the appeal, on our own motion, on the ground that the denial of a motion to open a dismissal entered pursuant to Practice Book § 251 was not a final judgment, relying on Governors Grove Condominium Assn., Inc. v. Hill Development Corp., 187 Conn. 509, 446 A.2d 1082 (1982). Upon the granting of certification, the Supreme Court overruled Governors Grove, reversed our decision, and concluded that the denial of a motion to open a dismissal entered pursuant to Practice Book § 251 was an appealable final judgment.

The facts necessary to the resolution of this appeal were well stated in our previous decision as follows. “The plaintiff brought this negligence action against the defendant on August 23,1989. The plaintiff claimed that she was injured due to the negligence of a fellow employee while she was employed at Sears, Roebuck and Company. A motion to implead by the defendant, Manpower, Inc., was granted and a third party complaint against Sears, claiming breach of contract and indemnification, was filed. On April 17,1991, the case appeared on the Superior Court dormancy calendar, with a notice that the action would be dismissed on June 28, 1991, if counsel failed to close the pleadings or appear on that date. On June 10, 1991, the plaintiff filed a motion to exempt the action from the dormancy calendar. On June 28, 1991, the action was dismissed pursuant to Practice Book § 251 for the failure of the plaintiff to prosecute with reasonable diligence. Subsequently, the plaintiff filed a motion to open the judgment of dismissal, which was denied. This appeal is from that denial.” Morelli v. Manpower, Inc., 29 Conn. App. 132, 133, 612 A.2d 818 (1992). We went on to say in a footnote that “[t]he plaintiff claimed that she did not receive notice of the June 28, 1991 dismissal until November 19, 1991. The plaintiffs counsel claimed that he became aware of the judgment of dismissal during a discussion with the defendant’s counsel regarding a pending motion for summary judgment dated July 2, 1991, which was scheduled for hearing on the short calendar of November 25,1991. The plaintiff filed a motion to open the judgment on November 21,1991. A hearing on the plaintiff’s motion to open was scheduled for December 2, 1991, but it was not acted upon on that date. A computer generated notice, dated December 18, 1991, referring to a judgment dated December 5, 1991, was issued by the Superior Court clerk’s office and stated that the plaintiff’s motion to open the judgment was granted. Thereafter, the motion to open appeared on the December 9,1991 calendar and the trial court, A. Aronson, J., denied the motion to open. Notice of this decision was issued on December 9, 1991.

“The denial was based on Serrano v. Behar, 15 Conn. App. 308, 544 A.2d 250 (1988), which held that a trial court has no jurisdiction to open a judgment beyond the four month period described in General Statutes § 52-212a and Practice Book § 326. See also Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985).

“On January 10,1992, the trial court issued a notice that stated that ‘[conflicting notices were sent on this motion. Motion to reopen denied 12/9/91 per Aronson, J. . . . Notice granting motion sent in error. This file is dead.’ ” Morelli v. Manpower, Inc., supra, 29 Conn. App. 133-34 n.2.

The plaintiff claims that the trial court improperly denied her motion to open the judgment of dismissal on the ground that the court had no jurisdiction to open a judgment beyond the four month period described in General Statutes § 52-212a and Practice Book § 326 without first affording her a hearing on her claim that she did not receive notice of the judgment of dismissal until November 19, 1991. We agree.

Submitted along with her motion to open the judgment of dismissal dated November 21, 1991, was an affidavit of the plaintiff’s attorney. The affidavit alleged that the attorney for the plaintiff did not receive notice of the dismissal until he was informed of the dismissal by the attorney for Manpower, Inc., during a telephone conversation on November 19,1991. The conversation was in regard to a motion for summary judgment filed by Manpower, Inc., on July 9,1991, and scheduled for a hearing on November 25, 1991.

General Statutes § 52-212a provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a 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 following the date on which it was rendered or passed. . . -”1

“[I]t 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.” Noethe v. Noethe, 18 Conn. App. 589, 595, 559 A.2d 1149 (1989). The order of the trial court dated December 9,1991, denying the plaintiff’s motion to open the dismissal contains the following notation: “JDNO 12-9-91 KP A/C.” This is a standard notation used to indicate that a judicial notice of a decision or order has been sent by the clerk’s office to all parties of record. Such a notation raises a presumption that notice was sent and received in the absence of a finding to the contrary. Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990); DiSimone v. Vitello, 6 Conn. App. 390, 393, 505 A.2d 745 (1986). Because the presumption is rebuttable, it follows that the plaintiff is entitled to a hearing to have an opportunity to present such rebuttal evidence. When the trial court is required to make a finding that “depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160 (1993).

The defendant Manpower urges us to find that, even if the plaintiff did not receive notice of the June 28, 1991 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.2 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.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion Schaller, J., concurred.

1 Practice Book § 326 provides in pertinent part: “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 succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. ...”

2 We note that the defendant Manpower filed a motion for summary judgment on July 19, 1991, some ten days after the June 28, 1991, dismissal.