Schneider v. Federman

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Schneider v. Federman

JEREMIAH T. SCHNEIDER III ET AL. v.
MARTHA FEDERMAN
(AC 47098)
Elgo, Cradle and Clark, Js.*

Syllabus

The defendant appealed from the judgment of the trial court denying her
motion to open and vacate a default judgment rendered for the plaintiffs
in their action for, inter alia, breach of contract. The defendant claimed that
the court abused its discretion in denying the motion. Held:

The trial court did not abuse its discretion in denying the defendant’s motion
to open and vacate the default judgment, as the court concluded that the
defendant failed to satisfy her burden under either of the prongs set forth
in the governing statute (§ 52-212 (a)) and rule of practice (§ 17-43), namely,
that a good defense existed at the time the adverse judgment was rendered
and that the defense was not at that time raised by reason of mistake,
accident or other reasonable cause, and the defendant provided no good
basis to disturb that determination.
Argued November 18, 2024—officially released April 8, 2025

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Danbury, where the
defendant filed a counterclaim; thereafter, the court,
Shaban J., granted the plaintiffs’ motion to strike the
counterclaim; subsequently, the court, Shaban, J.,
granted in part the plaintiffs’ motion for summary judg-
ment as to liability only; thereafter, the court, Hon.
Barbara Brazzel-Massaro, judge trial referee, entered
a default judgment against the defendant; subsequently,
after a hearing in damages, the court, Shaban, J., ren-
dered judgment for the plaintiffs; thereafter, the court,
Shaban, J., denied the defendant’s motion to open and
vacate the judgment, and the defendant appealed to
this court. Affirmed.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
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Schneider v. Federman

John Giardino, pro hac vice, with whom were Robert
M. Fleischer, and, on the brief, James Stephen O’Brien,
Jr., for the appellant (defendant).
Gregory W. Piecuch, for the appellees (plaintiffs).
Opinion

ELGO, J. The defendant, Martha Federman, appeals
from the judgment of the trial court denying her motion
to open the default judgment rendered in favor of the
plaintiffs, Jeremiah T. Schneider III and Sara Papasi-
dero. On appeal, the defendant claims that the court
improperly denied that motion. We affirm the judgment
of the trial court.
The underlying facts are largely undisputed. The
defendant acquired title to real property known as 19
Kellogg Street in Brookfield (property) by way of a
quitclaim deed dated May 14, 1979, from Henry A. Feder-
man. On October 5, 2007, the defendant conveyed title
to the property to The Federman Trust, of which she
was the sole trustee and sole primary beneficiary.
In July, 2020, the plaintiffs and the defendant entered
into a contract for the sale of the property and a closing
was scheduled for August 28, 2020. Although the plain-
tiffs fully performed their obligations under the con-
tract, the closing did not occur. On August 31, 2020, the
defendant, through her attorney, informed the plaintiffs
that she refused to sell the property.
This breach of contract action followed. On March
24, 2023, the trial court granted in part a motion for
summary judgment filed by the plaintiffs. In its memo-
randum of decision, the court concluded, inter alia, that
‘‘there is no genuine issue of material fact as to the
defendant’s liability for breach of contract and that
none of the special defenses [raised by the defendant]
preclude judgment as a matter of law.’’
The court subsequently scheduled a pretrial confer-
ence for March 29, 2023. When neither the defendant
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Schneider v. Federman

nor her counsel appeared, the court rendered a default
judgment against her and ordered the trial previously
scheduled for April 13, 2023, to proceed as a hearing
in damages.
Both the defendant and her counsel failed to appear
at the hearing in damages, which proceeded as sched-
uled on April 13, 2023. The plaintiffs called three wit-
nesses at that hearing and submitted the defendant’s
responses to requests for admissions and a dozen exhib-
its in support of their claim for damages. At the request
of the court, the plaintiffs filed a posthearing brief on
May 11, 2023. A copy of that brief was delivered to the
defendant’s counsel of record, Attorney James Stephen
O’Brien, Jr.1 The defendant nonetheless took no action
whatsoever over the next three months.
The court issued its memorandum of decision on
August 9, 2023, in which it found that the plaintiffs had
proven a total of $234,180.80 in damages.2 The court
On December 16, 2022, Attorney O’Brien filed an application to permit
1

John Giardino, an attorney licensed to practice law in the state of New
York, to appear pro hac vice on behalf of the defendant in the present
case. The record indicates that the court never ruled on the pro hac vice
application and the court, in ruling on the defendant’s motion to open and
vacate, specifically found that ‘‘no action was ever taken by [the defendant’s]
counsel of record to have the court act on [that] application.’’
Moreover, even if that application had been granted, Attorney Giardino
would not have been authorized to appear before the Superior Court without
Attorney O’Brien. When an application to appear pro hac vice is granted,
Practice Book § 2-16 requires in relevant part that ‘‘a member of the bar of
this state must be present at all proceedings . . . and must sign all plead-
ings, briefs and other papers filed with the court . . . and assume full
responsibility for them and for the conduct of the cause or proceeding and
of the attorney to whom such privilege is accorded. . . .’’ In accordance
with that directive, Attorney O’Brien attested on the application for pro hac
vice admission that he would ‘‘[b]e present at all proceedings’’ in this case.
2
The court found that the plaintiffs had proven $1914 in out-of-pocket
expenses, $55,416.80 in litigation fees and expenses, and $176,850 in damages
for the loss of available financing due to a significant rise in interest rates
between the August 28, 2020 closing date and the date of the hearing in dam-
ages.
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Schneider v. Federman

also awarded the plaintiffs postjudgment interest pursu-
ant to General Statutes § 37-3a at the rate of 4 percent
per annum and found, ‘‘[b]ased on the overall circum-
stances of this case,’’ that ‘‘the principles of equitable
conversion are appropriate and that the plaintiffs
should be declared to be the equitable owners of the
property.’’ By way of relief, the court ordered ‘‘the
defendant [to] specifically perform the terms of the
contract by selling the property to the plaintiff for the
agreed upon sales price of $600,000 less any final award
of damages found by the court. . . . Such an order will
also allow the plaintiffs to secure the benefit of the
rise in property values since the date of the breach of
contract which they would have had but for the breach.
Any other order would potentially allow the defendant
to profit from her own breach by selling the property
to a third party at higher price in order to pay the
judgment.’’3 (Footnote omitted.)
The defendant did not file an appeal to challenge the
propriety of the court’s August 9, 2023 judgment in
accordance with Practice Book § 63-1.4 Two months
later, the defendant filed a motion to open and vacate
pursuant to General Statutes § 52-212 (a) and Practice
Book § 17-43,5 in which she sought to set aside that
3
The court’s order in this regard states: ‘‘The defendant is to specifically
perform the terms of the contract. The defendant, and/or her successors
and assigns, shall within sixty days of the entry of this judgment, convey
to the plaintiffs marketable title to the property in accordance with the
terms of the contract and all local closing customs. The total amount of
money damages shall be deducted as a credit against the amount otherwise
due from the plaintiffs to the defendant at closing.’’
4
Practice Book § 63-1 (a) provides in relevant part that, ‘‘[u]nless a differ-
ent time period is provided by statute, an appeal must be filed within twenty
days of the date notice of the judgment or decision is given. . . .’’
5
General Statutes § 52-212 (a) provides in relevant part: ‘‘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 the notice
of judgment or decree was sent, and the case reinstated on the docket . . .
upon the complaint or written motion of any party or person prejudiced
thereby, showing reasonable cause . . . and that the plaintiff or defendant
was prevented by mistake, accident, or other reasonable cause from prose-
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Schneider v. Federman

judgment. In her motion, the defendant argued that
(1) ‘‘counsel was prevented from appearing before the
court due to a reasonable cause’’ and (2) a good cause
defense existed because ‘‘the judgment on interest was
obtained as a result of improper evidence.’’6 The plain-
tiffs filed an objection to the defendant’s motion to
open and vacate, and the court scheduled a hearing for
October 30, 2023.

At the outset of that hearing, the defendant’s counsel,
Attorney O’Brien, stated: ‘‘Let me start by apologizing
to the court, to the plaintiffs, and to [the plaintiffs’
counsel] for my absence at the April damages hearing.
cuting the action or making the defense.’’
Practice Book § 17-43 provides in relevant part: ‘‘(a) Any judgment ren-
dered or decree passed upon a default or nonsuit may be set aside within
four months succeeding the date on which notice was sent, and the case
reinstated on the docket on such terms in respect to costs as the judicial
authority deems reasonable, upon the 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 such
judgment or the passage of such decree, and that the plaintiff or the defen-
dant was prevented by mistake, accident or other reasonable cause from
prosecuting or appearing to make the same. . . .’’
6
More specifically, the defendant argued that the evidence presented at
the hearing in damages was insufficient to establish the damages awarded
by the court for the loss of available financing. As the defendant stated:
‘‘During the damages hearing, [the plaintiffs] introduced evidence that
included a commitment letter from TD Bank dated August, 2020, suggesting
they had secured a thirty year mortgage for $480,000 at a fixed rate of 2.875
percent with zero points. Additionally, they presented new testimony from
a loan officer, John Mascolo, asserting that mortgage interest rates had risen
to 6.875 percent as of the date of the hearing. [They] argued that their
damages should be calculated based on the difference between the 2020
mortgage rate and the rate at the time of the hearing. That argument is
simply incorrect because [the plaintiffs] provided no . . . evidence they
had secured any mortgage at any rate or, indeed, that they were in the process
of obtaining a mortgage. Without actual proof of mortgage application and
approval, the claimed damages were speculative and hypothetical rather
than actual. . . . It appears that [the plaintiffs] have sought to artificially
inflate their damages through the introduction of this questionable evidence,
potentially misrepresenting the true nature of their financial arrangements.
That compromises the credibility of their claims.’’ (Emphasis in original.)
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Schneider v. Federman

I am the attorney of record. I was in a weeklong trial in
upstate New York. I was operating under the mistaken
assumption that my law partner, Attorney Giardino,
would arrange a continuance of that. As I say, I was
mistaken. It was my obligation to arrange for the contin-
uance, I failed to do that, and I apologize for that mistake
. . . .’’ Attorney O’Brien also indicated that the defen-
dant’s only disagreement with the court’s August 9, 2023
judgment concerned the damages awarded by the court
for the loss of available financing, which he claimed
were ‘‘not justified by any damage that [the] plaintiffs
have suffered.’’
In response, the plaintiffs’ counsel argued that the
procedural posture of the case precluded the defen-
dant’s attack on the sufficiency of the evidence adduced
at the hearing in damages. Counsel also stated that
‘‘matters of attorney negligence are not mistake, acci-
dent, or other reasonable cause, and while we appreci-
ate the apology of [Attorney] O’Brien, the simple fact
of the matter is he knew about the hearing in damages.
. . . I personally emailed him the court’s . . . order
indicating that it was set down for [April 13, 2023]. If
[the] defendant’s counsel didn’t file a motion for contin-
uance, yes, that’s his fault, that’s not mistake, it’s not
reasonable cause, it’s negligence. . . . [T]hat’s not a
basis to open.’’ By order dated October 31, 2023, the
court denied the defendant’s motion to open and vacate,
and this appeal followed.
On appeal, the defendant claims that the court
improperly denied her motion to open and vacate the
default judgment. We disagree.
‘‘A motion to set aside a default judgment is governed
by Practice Book § 17-43 and . . . § 52-212. . . . To
open a judgment pursuant to Practice Book § 17-43 (a)
and . . . § 52-212 (a), the movant must make a two
part showing that (1) a good defense existed at the time
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an adverse judgment was rendered; and (2) the defense
was not at that time raised by reason of mistake, acci-
dent or other reasonable cause. . . . The party moving
to open a default judgment must not only allege, but
also make a showing sufficient to satisfy [that] two-
pronged test . . . . [B]ecause the movant must satisfy
both prongs of this analysis, failure to meet either prong
is fatal to its motion.’’ (Internal quotation marks omit-
ted.) Nationstar Mortgage, LLC v. Giacomi, 226 Conn.
App. 467, 479, 319 A.3d 794 (2024).
Appellate review of a ruling on a motion to open a
default judgment is governed by the abuse of discretion
standard. See Ruddock v. Burrowes, 243 Conn. 569, 571
n.4, 706 A.2d 967 (1998). ‘‘Because opening a judgment
is a matter of discretion . . . [t]he exercise of equitable
authority is vested in the discretion of the trial court
and is subject only to limited review on appeal. . . .
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, [an appellate] court must
make every reasonable presumption in favor of its
action.’’ (Footnote omitted; internal quotation marks
omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn.
69, 94–95, 952 A.2d 1 (2008).
We first consider whether the defendant has met her
burden of demonstrating that a good defense existed.
To be sure, the defendant raised fourteen special
defenses in responding to the plaintiffs’ complaint. In
rendering summary judgment in favor of the plaintiffs
as to liability, the court expressly found that ‘‘none of
the special defenses preclude judgment as a matter of
law.’’ On appeal, the defendant does not claim that any
of those special defenses are germane to the issues
raised at the hearing in damages.
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Instead, she argues that the evidence adduced at the
April 13, 2023 hearing was insufficient to establish the
damages awarded by the court for the loss of available
financing. See footnote 6 of this opinion. That con-
tention is unavailing in light of the procedural posture
of this case. ‘‘[I]t is well established in our jurisprudence
that [w]here an appeal has been taken from the denial
of a motion to open, but the appeal period has run with
respect to the underlying judgment, we have refused
to entertain issues relating to the merits of the underly-
ing case and have limited our consideration to whether
the denial of the motion to open was proper. . . . 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 discre-
tion 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.’’ (Internal quotation marks omitted.) Marion’s
Appeal from Probate, 119 Conn. App. 519, 520–21, 988
A.2d 390 (2010).
To contest the sufficiency of the evidence underlying
the court’s finding that the plaintiffs sustained financing
related damages, the defendant was required to either
(1) file a timely appeal from that August 9, 2023 judg-
ment or (2) file her motion to open and vacate within
the twenty day period specified in Practice Book § 63-
1 (a). She did neither. We therefore conclude that the
defendant’s failure to file her motion to open and vacate
within twenty days of the notice of the August 9, 2023
judgment precludes review of her claim that the court
improperly awarded damages to the plaintiffs for the
loss of available financing. See Dziedzic v. Pine Island
Marina, LLC, 143 Conn. App. 644, 651, 72 A.3d 406
(2013).
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Even if we were to conclude otherwise, the defendant
still could not prevail. To succeed on her claim that the
court abused its discretion in denying the motion to
open and vacate, the defendant also had to demonstrate
that she was prevented from raising a good defense at
the April 13, 2023 hearing due to ‘‘mistake, accident
or other reasonable cause.’’ (Internal quotation marks
omitted.) Nationstar Mortgage, LLC v. Giacomi, supra,
226 Conn. App. 479.
In her principal appellate brief, the defendant argues
that she had reasonable cause for not attending the
April 13, 2013 hearing in damages because ‘‘Attorney
O’Brien was on trial’’ in New York on that date. In
its order denying the defendant’s motion to open and
vacate, the court specifically found that ‘‘the defendant
had counsel of record at the time of the hearing, that
counsel had notice of the hearing and that counsel did
not appear at the hearing.’’ The court further found that
‘‘no motion for continuance was ever filed by counsel
or other request made of the court to address the issue.’’
Those factual findings are supported by the record
before us and, hence, are not clearly erroneous. See
Bridgeport v. Grace Building, LLC, 181 Conn. App.
280, 301, 186 A.3d 754 (2018).
As our courts repeatedly have observed, ‘‘[n]egli-
gence 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.’’ (Internal quotation marks
omitted.) Woodruff v. Riley, 78 Conn. App. 466, 471,
827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474
(2003); see also Disturco v. Gates in New Canaan, LLC,
204 Conn. App. 526, 533–34, 253 A.3d 1033 (2021) (‘‘a
defendant’s negligence does not constitute reasonable
cause for failing to appear’’); Dziedzic v. Pine Island
Marina, LLC, supra, 143 Conn. App. 653 (‘‘negligence
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cannot establish the requisite reasonable cause to open
a judgment’’); Postemski v. Landon, 9 Conn. App. 320,
326, 518 A.2d 674 (1986) (‘‘[the defendant’s] failure to
appear was not untainted by negligence or inatten-
tion’’); Pelletier v. Paradis, 4 Conn. Cir. 396, 399–400,
232 A.2d 925 (1966) (‘‘[t]he defendant’s failure to appear
and assert his defense . . . was not due to any mistake,
accident or other reasonable cause, unmixed with negli-
gence or inattention, so as to constitute a sufficient
reason to warrant the opening of the judgment’’), cert.
denied, 154 Conn. 745, 226 A.2d 520 (1967). Attorney
O’Brien failed to appear at both the March 29, 2023
pretrial conference and the April 13, 2023 hearing in
damages, and failed to request a continuance from the
court at any time. At the hearing on the motion to
open and vacate, Attorney O’Brien apologized for his
absence, stating: ‘‘It was my obligation to arrange for
the continuance, I failed to do that, and I apologize for
that mistake . . . .’’ In light of those undisputed facts,
the court reasonably could find that Attorney O’Brien’s
failure to appear at the April 13, 2023 hearing was due
to negligence and inattention on his part.
On appeal, the defendant suggests that Attorney
O’Brien was not acting as the defendant’s legal counsel
in light of his filing of an application to permit Attorney
John Giardino to appear pro hac vice. See footnote 1
of this opinion. The defendant’s representations in this
regard are troubling, particularly her assertion in her
appellate reply brief that ‘‘Attorney Giardino, from the
beginning of his representation of the [d]efendant,
made clear to [the plaintiffs’] counsel that he was han-
dling the matter, eliminating any confusion regarding
representation.’’ (Emphasis added.) To be clear, Attor-
ney Giardino never has been authorized to appear on
behalf of the defendant in a pro hac vice capacity before
the Superior Court and thus could not properly partici-
pate in the proceedings before that court. For that rea-
son, Attorney O’Brien stated at the conclusion of the
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October 30, 2023 hearing on the motion to open and
vacate that ‘‘it was [his] obligation to arrange for a
continuance [of the hearing in damages] and that is
notwithstanding and irrespective of the pro hac [vice]
motion . . . .’’
In denying the motion to open and vacate, the court
concluded that the defendant had failed to satisfy her
burden under either of the two prongs set forth in § 52-
212 (a) and Practice Book § 17-43. The defendant in
this appeal has provided no good basis to disturb that
determination. We therefore conclude that the court
did not abuse its discretion in denying the defendant’s
motion to open and vacate.
The judgment is affirmed.
In this opinion the other judges concurred.