Joanna Esposito v. Tony's Long Wharf Services, LLC

The defendant, Tony's Long Wharf
Services, LLC, filed a writ of error with the Supreme
Court, pursuant to Practice Book § 72-1 et seq., claiming
that the trial court rendered judgment against it without
having acquired personal jurisdiction. Pursuant to Practice
Book § 65-1, the Supreme Court transferred the
matter to this court. We dismiss the writ of error.

The following facts are reflected in the record. On
November 2, 2001, the plaintiff, Joanna Esposito, commenced
a small claims action against the defendant,
seeking monetary damages for contracted repairs to
her automobile.1 The small claims writ identified
‘‘Tony's Long Wharf'' as the defendant and listed its
address as 294 Kimberly Avenue, New Haven. Judgment
was rendered against ‘‘Tony's Long Wharf'' on January
22, 2002. Following the judgment, a bank execution was issued, and the amount of $3835.84 was removed from
the account of Tony's Long Wharf, Inc. Tony's Long
Wharf, Inc., located at 294 Kimberly Avenue, New
Haven, filed a voluntary petition under chapter 11 of
the United States Bankruptcy Code. Tony's Long Wharf,
Inc., subsequently filed a bank execution exemption
claim that was granted by the court on October 22, 2002,
and the funds that had been removed were returned to
the account of Tony's Long Wharf, Inc.

On February 24, 2005, the plaintiff filed a motion to
open the judgment ‘‘to have the name amended from
Tony's Long Wharf to Tony's Long Wharf Services,
LLC.'' The address for Tony's Long Wharf Services, LLC,
also was listed as 294 Kimberly Avenue, New Haven.
The court opened the judgment, permitted the plaintiff
to amend the complaint as requested and scheduled a
hearing for May 25, 2005. Counsel for the defendant
appeared and requested a continuance at that hearing,
which was denied. The court noted in its disposition
that the notice advising of the hearing date specifically
stated that a trial could occur on the same date of the
hearing. On May 25, 2005, the court rendered judgment
in favor of the plaintiff in the amount of $3232.84.

The defendant filed a motion to open the judgment
on June 15, 2005, claiming that it had not been served
with process and was not properly made a party to the
small claims action. It argued that the change made
by the amendment was not simply a correction of the
defendant's name, but rather a substitution of a separate
and distinct entity. A hearing on the defendant's motion
was scheduled for July 19, 2005. At that hearing, the
court denied the defendant's motion with prejudice.
The court noted that the defendant presented no testimony
to support its allegations regarding failure of service.
Additionally, the court noted that the defendant
did not make such a claim at the previous hearing held
on May 25, 2005. The defendant then filed this writ
of error.2

The defendant claims that the court (1) lacked personal
jurisdiction over it because it had not been served
with process after the substitution of a party defendant
and (2) violated its due process rights by allowing the
substitution and holding the trial on May 25, 2005. We
dismiss the writ of error because we conclude that it
is not properly before us.3

Because the judgment in question is from a small
claims proceeding, the defendant could not file an
appeal with this court. Instead, it filed a writ of error
pursuant to Practice Book § 72-1.4 Section 72-1 (b) (2)
specifically provides in relevant part that a writ of error
may not be brought where the parties ‘‘by failure timely
to seek a transfer . . . have consented to have the case
determined by a court or tribunal from whose judgment
there is no right of appeal or opportunity for certification.''
The defendant did not move to have this case transferred from the small claims docket to the regular
docket of the Superior Court. Practice Book § 24-21
sets forth the procedure for such a transfer. If it had
made such a motion and it had been denied, a writ of
error could have been filed pursuant to § 72-1 (a) (3)
under those circumstances. The defendant, however,
never filed a motion to transfer and may not avail itself
now of this remedy.

The defendant argues that there is authority for bringing
a writ of error in small claims matters, citing the
cases of Safe Home Security, Inc. v. Lewis, 52 Conn.
App. 780, 727 A.2d 1289 (1999), and Veterans Memorial
Medical Center v. Townsend, 49 Conn. App. 198, 712
A.2d 993 (1998). In those cases, this court concluded
that a writ of error was proper under the limited circumstances
of those cases and relied on Practice Book § 60-
15 in reaching its conclusion. In Safe Home Security,
Inc., the small claims court rendered judgment on the
defendant's counterclaim when no such counterclaim
had been filed with the court. Safe Home Security, Inc.
v. Lewis, supra, 781–82. In Veterans Memorial Medical
Center, the small claims court dismissed the plaintiff's
action without holding a hearing of any type and without
giving notice that it was considering the dismissal of the
plaintiff's action. Veterans Memorial Medical Center v.
Townsend, supra, 201.

Safe Home Security, Inc., and Veterans Memorial
Medical Center are inapposite to the present case. Here,
the defendant was represented by counsel. Counsel
appeared at the hearing scheduled on May 25, 2005,
and at the hearing on the defendant's motion to open
the judgment on July 19, 2005. The notice of the hearing
scheduled for May 25, 2005, clearly provided that a
trial could commence that same day after the court's
consideration of the plaintiff's pending motion to open
the judgment to amend the name of the defendant.
Notably, the defendant did not argue at that time that
there had been a failure of service. Moreover, at the
hearing on its motion to open the judgment, the defendant
did not provide any evidence whatsoever to establish
that there had been a failure of service. The July
19, 2005 hearing had been scheduled for that very purpose -
to provide the defendant with an opportunity to
establish its claim that it was not properly made a party
to the action. The defendant did not avail itself of
that opportunity.