Bordiere v. Ciarcia Construction, LLC

Citations

• 196 Conn. App. 70

Syllabus

The plaintiff, M, brought an action against the defendant C, alleging, inter alia, that C had failed to make payments due on a mortgage note held by M. In May, 2009, after a trial, the trial court rendered judgment in favor of M. In July, 2013, M died and, subsequently, in July, 2017, his wife, P, as executrix of his estate, filed a motion to open the judgment and to substitute herself as the plaintiff, which the court denied. In October, 2017, P again filed a motion to substitute herself as the plaintiff, which the court granted. The court also vacated its prior order denying the July, 2017 motion to open and C appealed to this court. Held that P should not have been substituted as the plaintiff, as the trial court erred in premising its decision to open the judgment and to substitute P as the plaintiff on a statute (§ 52-107) which is inapplicable in instances in which a case has reached final judgment: the statutory language of § 52-107 clearly and unambiguously conveys the meaning that it is applicable only in cases in which an action is presently pending before the court, and not in cases in which a final judgment has been rendered, and, in the present case, there was no action pending before the court at the time it relied on § 52-107 to grant P's motion to substitute herself as the plaintiff, as P's motions were filed approximately four years after the death of M and eight years after final judgment was rendered in the present case; moreover, although P claimed that the right of survival statute (§ 52-599) provided the court with broad discretion to grant her untimely motion to substitute herself as the plaintiff on a showing of good cause, the record failed to support the plaintiff's claim that the court must have considered § 52-599 and conducted a good cause analysis, as it was clear from the language of the court's articulation, which did not cite to § 52-599, that it, instead, considered and relied on the standards provided in § 52-107 and our rule of pr