Westry v. Litchfield Visitation Center

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           ERIC WESTRY ET AL. v. LITCHFIELD
                 VISITATION CENTER
                      (AC 45039)
                   Bright, C. J., and Alvord and Clark, Js.

                                   Syllabus

The plaintiff brought an action alleging, inter alia, discrimination on the
    basis of race against the defendant. After the defendant was defaulted
    for failure to plead, it filed an answer to the plaintiff’s complaint and a
    motion to set aside the default, which the trial court granted. The defen-
    dant then filed a motion to dismiss the plaintiff’s complaint on the basis
    that the court lacked subject matter jurisdiction because the plaintiff
    failed to bring the action within the ninety day statutory (§ 46a-101
    (e)) time limitation after receiving a release of jurisdiction from the
    Commission on Human Rights and Opportunities (commission). The
    court granted the defendant’s motion to dismiss on the basis of the
    plaintiff’s untimely filing. Following oral argument on the plaintiff’s
    motion for reconsideration, the court denied the request to reconsider
    its decision and reverse its ruling on the motion to dismiss. On the
    plaintiff’s appeal to this court, held:
1. The plaintiff could not prevail on his claim that the trial court abused its
    discretion in granting the defendant’s motion to set aside the default:
    the court found that the defendant’s claim that it had made a mistake
    in understanding the timing of its response was valid and further
    observed that the defendant had filed an answer by the time it was
    considering the motion; moreover, the plaintiff did not claim, either
    before the trial court or this court, that he suffered any prejudice;
    furthermore, the record reflected that this was the defendant’s first
    request to open a default and that the duration between the time when
    the default entered and when the defendant filed its answer was only
    seventeen days.
2. This court declined to review the plaintiff’s claims that the trial court
    improperly granted the defendant’s motion to dismiss for failure to
    commence the action within the ninety day time limitation set forth in
    § 46a-101 (e): it was improper for this court to review the plaintiff’s
    claims when he had not properly raised them before the trial court and
    that court did not decide the issues; moreover, although the defendant
    argued in its brief to this court that these new claims by the plaintiff were
    not preserved, the plaintiff failed to address the defendant’s argument,
    as he declined to file a reply brief and waived his right to oral argument.
       Argued September 20—officially released December 13, 2022

                             Procedural History

  Action for the defendant’s alleged discrimination on
the basis of, inter alia, race, brought to the Superior
Court in the judicial district of Waterbury where the
court, Brazzel-Massaro, J., granted the defendant’s
motion to dismiss and rendered judgment thereon, from
which the named plaintiff appealed to this court.
Affirmed.
  Eric Westry, self-represented, filed a brief as the
appellant (named plaintiff).
 Adam V. Maiocco, with whom, on the brief, was
Michael Rigg, for the appellee (defendant).
                         Opinion

   CLARK, J. The self-represented plaintiff, Eric Westry,1
appeals from the trial court’s judgment granting the
motion to dismiss filed by the defendant, Litchfield Visi-
tation Center. On appeal, the plaintiff claims that the
trial court erred in (1) setting aside a default that had
been entered against the defendant and (2) granting the
defendant’s motion to dismiss the complaint for failure
to commence the action within the ninety day time
limitation set forth in General Statutes § 46a-101 (e).
We affirm the judgment of the trial court.2
   We begin by setting forth the relevant procedural
history of this case. On August 27, 2018, the plaintiff
commenced this action against the defendant by writ of
summons and complaint. The complaint alleged, among
other things, that the defendant had engaged in a wide
variety of discriminatory practices against the plaintiff.
Appended to the complaint was a ‘‘Release of Jurisdic-
tion’’ dated May 18, 2018, from the Commission on
Human Rights and Opportunities (commission).
  On September 28, 2018, the plaintiff filed a motion
for default for failure to plead. On October 30, 2018,
the clerk granted the plaintiff’s motion.
   On November 16, 2018, the plaintiff filed a claim for
a hearing in damages. The same day, the defendant filed
both an answer to the plaintiff’s complaint and also a
motion to set aside the default.3 In its motion to set
aside the default, the defendant argued that it had made
a mistake in understanding the timing of its response
and requested that the court allow it an opportunity to
submit a proper response to the complaint.
   On November 19, 2018, the plaintiff filed an objection
to the defendant’s motion to set aside the default. Spe-
cifically, he argued that ‘‘[m]isunderstanding the rules
and law are a reason to enlist professional legal assis-
tance, to ensure mistakes admitted to, are averted.’’
   On December 3, 2018, the court, Brazzel-Massaro,
J., granted the defendant’s motion to set aside the
default. The court’s order stated: ‘‘Judgment has not
been granted at this time. Default was entered and may
be opened in accordance with [Practice Book §] 17-42
upon good cause shown. The defendant has provided a
valid reason and has filed an answer [to] the complaint.
Therefore, the motion to open default is granted.’’
  On April 1, 2019, the defendant filed a motion to
dismiss the plaintiff’s complaint on the basis that the
court lacked subject matter jurisdiction. The defendant
argued that, because the plaintiff had failed to bring
the present action within ninety days of receiving a
release of jurisdiction from the commission, the court
lacked jurisdiction over the case. On April 2, 2019, the
plaintiff filed an objection to the defendant’s motion to
dismiss. He argued that the requirement to seek
recourse with the commission before bringing an action
in the Superior Court applies only when a defendant is
a governmental entity. As such, his objection implied
that the ninety day limitation to file an action following
the release of jurisdiction from the commission did not
apply in this case because the defendant was not a
governmental entity.
   On August 19, 2019, the court, Brazzel-Massaro, J.,
issued a memorandum of decision on the defendant’s
motion to dismiss. The court disagreed with the defen-
dant that the ninety day time limitation in question was
jurisdictional. The court explained that our Supreme
Court’s decision in Williams v. Commission on Human
Rights & Opportunities, 

, 

 (2001), supports the position that the ninety day
period in this case is to be interpreted as a statute
of limitations subject to waiver and equitable tolling.
Nevertheless, the court explained that ‘‘[t]here is noth-
ing in the complaint nor in the memorandum in opposi-
tion that supports a claim of tolling or waiver.’’ The
court also rejected the plaintiff’s argument that the stat-
utory deadline for commencing an action under § 46a-
101 (e) applies only when the defendant is a governmen-
tal entity. Accordingly, the court granted the defen-
dant’s motion to dismiss on the basis of the plaintiff’s
untimely filing.
   On August 20, 2019, the plaintiff filed a motion to
reconsider the court’s dismissal, requesting that the
court reconsider its decision on the following grounds:
‘‘(1) [the] court agrees that the deadline for filing the
action was [August 16, 2018]’’; ‘‘(2) [the] court clerk
filing of complaint is clearly dated on the docket:
[August 15, 2018]’’; ‘‘(3) [t]he preceding fee waiver for
the filing granted by . . . Judge Mark Taylor is dated
the same day, [August 15, 2018]’’; and ‘‘(4) [t]he clock
for filing is stopped upon the filing—and granting—of
the fee waiver.’’ On August 22, 2019, the defendant filed
an objection to the plaintiff’s motion to reargue in which
it argued that the court properly granted the defendant’s
motion to dismiss and that the plaintiff was now
attempting to make new arguments that he failed to
make in his objection to the defendant’s motion to dis-
miss or at the time of oral argument.
   On January 13, 2020, the plaintiff’s motion for recon-
sideration and the defendant’s objection appeared on
the trial court’s short calendar, at which time the plain-
tiff and counsel for the defendant appeared and argued
their respective positions before the court, Gordon, J.
Following that argument, the court issued an order indi-
cating that it would be inappropriate for the court to
consider such arguments because Practice Book § 11-
12 (c) required the judge who decided the motion to
dismiss to decide the plaintiff’s motion to reconsider.
The court thus directed the parties to contact the
caseflow office in order to have the matter referred to
Judge Brazzel-Massaro.
   Following the referral of the plaintiff’s motion to
Judge Brazzel-Massaro, the court, Brazzel-Massaro, J.,
allowed a second oral argument on May 19, 2021. During
the hearing, the court indicated that it would also review
the transcripts of the first oral argument that the parties
presented to Judge Gordon.
   On September 16, 2021, the court issued its memoran-
dum of decision on the plaintiff’s motion for reconsider-
ation. The court observed that ‘‘[t]he plaintiff’s argu-
ment before this court on the motion to reconsider and
reargue recognizes a number of facts and case law
which were not raised at the prior argument before this
court after which the court dismissed the complaint.’’
Namely, the court observed that the plaintiff was now
arguing that his submission of a fee waiver application
on August 15, 2018, either commenced the action or
tolled the ninety day time limitation. To that end, the
court stated: ‘‘The parties agreed that the [ninety] day
time period ended on August 16, 2018. The plaintiff
submitted a fee waiver request which was filed on
August 15, 2018, in accordance with the docket entry
sheet of the complaint demonstrating the granting of
the fee waiver. The fee waiver was not filed with the
court on this date because there was no pending action
at the time. Although the fee waiver addressed the costs
of filing as well as the costs for service it did not consti-
tute commencement of an action within the court. How-
ever, the plaintiff has argued now that the time is tolled
because he submitted an August 15, 2018 waiver of the
fees to file this action.’’ (Footnote omitted.) The court
rejected the plaintiff’s tolling argument, concluding that
there is ‘‘no authority to extend the statutory time
period for commencing an action beyond the ninety
days and based upon the memorandum and argument
of the parties does not find that there is any legal basis
to support the plaintiff’s new argument.’’ The court’s
decision also noted that ‘‘[at] argument the plaintiff
inserted additional arguments for which he provided
no evidence or legal support for [the] court to consider.
Thus, the court does not address other arguments with-
out legal or factual support.’’ The court concluded by
stating that ‘‘this court has permitted a reargument but
denies the request to reconsider and reverse its ruling
on the motion to dismiss. That decision is affirmed.’’
This appeal followed.
                              I
  On appeal, the plaintiff argues that the trial court
abused its discretion in setting aside the default that
had been entered against the defendant because there
was not good cause to do so. We are not persuaded.
    We begin by setting forth our standard of review and
the relevant legal principles that inform our analysis.
‘‘It is well established that [the] determination of
whether to set aside [a] default is within the discretion
of the trial court . . . [and] such a determination will
not be disturbed unless that discretion has been abused
or where injustice will result. In the exercise of its
discretion, the trial court may consider not only the
presence of mistake, accident, inadvertence, misfor-
tune or other reasonable cause . . . factors such as
[t]he seriousness of the default, its duration, the reasons
for it and the degree of contumacy involved . . . but
also, the totality of the circumstances, including
whether the delay has caused prejudice to the nonde-
faulting party.’’ (Internal quotation marks omitted.)
Johnson v. Raffy’s Cafe I, LLC, 

, 

 (2017).
   A motion to set aside a default for failure to plead
is governed by Practice Book §§ 17-32 and 17-42. Sec-
tion 17-32 (b) provides in relevant part: ‘‘If a party who
has been defaulted under this section files an answer
before a judgment after default has been rendered by
the judicial authority, the default shall automatically be
set aside by operation of law unless a claim for a hearing
in damages or a motion for judgment has been filed. If
a claim for a hearing in damages or a motion for judg-
ment has been filed, the default may be set aside only
by the judicial authority. . . .’’ Section 17-42 provides:
‘‘A motion to set aside a default where no judgment
has been rendered may be granted by the judicial
authority for good cause shown upon such terms as it
may impose. As part of its order, the judicial authority
may extend the time for filing pleadings or disclosure
in favor of a party who has not been negligent. Certain
defaults may be set aside by the clerk pursuant to Sec-
tions 17-20 and 17-32.’’ See also Snowdon v. Grillo, 

, 

 (2009) (discussing
interplay between §§ 17-32 and 17-42).
   As an initial matter, the defendant argues that,
although it filed a motion to set aside the default with
the court, the court was not required to act on that
motion because the default automatically was set aside
by operation of law when the defendant filed its answer.
Specifically, the defendant contends that, because the
plaintiff had not requested a hearing in damages prior
to the filing of the defendant’s answer to the complaint,
the default automatically was set aside pursuant to
Practice Book § 17-32. This argument lacks merit
because, despite the defendant’s contention that it filed
its answer prior to the plaintiff’s claim for a hearing in
damages, the electronic docket in this case reflects that
the plaintiff’s claim for a hearing in damages (Docket
Entry 102.00) already had been filed by the time the
defendant filed its motion to set aside the default
(Docket Entry 107.00) and answer (Docket Entry
108.00). Although all three documents were filed on the
same day, the record reflects that the plaintiff’s claim
was filed first. As a result, the default could be set aside
‘‘only by the judicial authority.’’ See Practice Book § 17-
32 (b) (‘‘[i]f a claim for a hearing in damages or a motion
for judgment has been filed, the default may be set
aside only by the judicial authority’’).
   The question then is whether the court abused its
discretion in granting the defendant’s motion to set
aside the default. Upon our careful review of the record,
we conclude that it did not. The court found that the
defendant’s mistake as to the timing of its response
was valid and further observed that the defendant had
in fact filed an answer by the time the court was consid-
ering the motion. Additionally, neither before the trial
court nor this court did the plaintiff claim that he suf-
fered any prejudice. The record reflects that this was
the defendant’s first request to open a default and that
the duration between the time when the default entered
and when the defendant filed its answer was only seven-
teen days.
  On the basis of our review of the record, we conclude
that the court did not abuse its discretion in granting
the defendant’s motion to set aside the default.
                            II
   The plaintiff next claims that the trial court improp-
erly granted the defendant’s motion to dismiss for fail-
ure to commence the action within the ninety day time
limitation set forth in § 46a-101 (e).4 In support of his
claim, the plaintiff appears to argue that the action was
timely commenced because the writ of summons and
complaint were delivered to the marshal prior to the
expiration of the time limitation or, in the alternative,
that the time limitation to commence an action was
tolled because the defendant evaded the marshal’s ser-
vice of process, resulting in service occurring beyond
the ninety day time limitation.5 The defendant argues
that the plaintiff did not properly raise these claims
before the trial court and that the trial court did not
decide these issues. The defendant therefore argues
that it would be improper for this court to review the
plaintiff’s claims. We agree with the defendant.
  ‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal.’’ (Inter-
nal quotation marks omitted.) Guzman v. Yeroz, 

, 

, cert. denied, 

, 

 (2016). We repeatedly have
held that ‘‘[a] party cannot present a case to the trial
court on one theory and then seek appellate relief on
a different one . . . .’’ (Internal quotation marks omit-
ted.) White v. Mazda Motor of America, Inc., 

, 619, 

 (2014). ‘‘[A]n appellate court is
under no obligation to consider a claim that is not
distinctly raised at the trial level. . . . [B]ecause our
review is limited to matters in the record, we [also]
will not address issues not decided by the trial court.’’
(Citations omitted; internal quotation marks omitted.)
Burnham v. Karl & Gelb, P.C., 

, 170–71,


 (2000); see also Practice Book § 60-5. ‘‘[T]o
permit a party to raise a claim on appeal that has not
been raised at trial—after it is too late for the trial court
or the opposing party to address the claim—would
encourage trial by ambuscade, which is unfair to both
the trial court and the opposing party.’’ (Internal quota-
tion marks omitted.) Alpha Beta Capital Partners, L.P.
v. Pursuit Investment Management, LLC, 

, 454–55, 

 (2019), cert. denied, 

, 

 (2020), and cert. denied, 

, 

 (2020). Our law is also ‘‘clear
that [r]aising an issue for the first time in a motion to
reargue will not preserve that issue for appellate
review.’’ (Internal quotation marks omitted.) Doyle
Group v. Alaskans for Cuddy, 

, 227,

, cert. denied, 

, 

 (2016).
   In the present case, the plaintiff did not argue in his
written opposition to the defendant’s motion to dismiss
or at oral argument on that motion that the action was
timely commenced because he delivered the summons
and complaint to a state marshal within the ninety day
time limitation or that the time limitation to file was
tolled because the defendant somehow evaded service.
The plaintiff only argued in his opposition that the
requirement to bring a prior complaint with the commis-
sion only applied in cases where the defendant was a
governmental entity. In its August 19, 2019 memoran-
dum of decision, the court disposed of that argument
and granted the defendant’s motion to dismiss.
   The plaintiff also did not raise the claims he now
raises on appeal in either his written motion to recon-
sider the court’s decision to grant the defendant’s
motion to dismiss or at the first oral argument on that
motion. Rather, in his written motion for reconsidera-
tion, the plaintiff argued that the filing of an application
for a fee waiver either commenced the action or tolled
the limitation period. This was the focus of the plaintiff’s
oral argument at the first argument on his motion for
reconsideration. Indeed, the plaintiff explicitly stated
at that oral argument: ‘‘I’m basically here to point out
that there were facts that were overlooked in terms of
the filing of the fee waiver . . . .’’
  The first time that the plaintiff arguably raised the
claims he now asserts on appeal came in a rather convo-
luted argument made at the second oral argument on
his motion to reconsider before Judge Brazzel-Massaro
on May 19, 2021, after the motion had been referred to
her by Judge Gordon. These claims were intertwined
with general arguments to the court that the court
should not have set aside the default previously and
that the defendant had discriminated against him. After
the plaintiff raised these new claims at the second oral
argument on his motion to reconsider, counsel for the
defendant objected to these claims, arguing that ‘‘[the
plaintiff] did not bring up anything about a marshal’’
previously, and that the arguments the plaintiff was
attempting to make ‘‘were not made at the time of the
opposition to the motion to dismiss or in his papers
regarding the motion to reargue . . . .’’ The defen-
dant’s counsel argued that ‘‘[a] motion to reargue, as
the court is well aware, is not an opportunity to have
a second bite of the apple.’’
   In regard to these new claims pertaining to the mar-
shal’s alleged efforts to effect service of process and
the defendant’s alleged evasive conduct, the court, in
its memorandum of decision denying the motion to
reconsider, stated that, ‘‘[a]t argument the plaintiff
inserted additional arguments for which he provided
no evidence or legal support for this court to consider.
Thus, the court does not address other arguments with-
out legal or factual support.’’ The court instead
addressed the plaintiff’s fee waiver claim that he raised
in his written motion for reconsideration. The court
concluded that there was ‘‘no authority to extend the
statutory time period for commencing an action beyond
the ninety days and based upon the memorandum and
argument of the parties does not find that there is any
legal basis to support the plaintiff’s new argument.’’
Citing to other Superior Court decisional law, the court
observed that ‘‘the commencement of an action begins
when the writ, summons, and complaint have been
served upon the defendant.’’ The court therefore stated
that it ‘‘permitted a reargument but denies the request
to reconsider and reverse it ruling on the motion to
dismiss. That decision is affirmed.’’
   On appeal, as noted previously, the plaintiff no longer
pursues his fee waiver claims or the claim that the time
limitation in § 46a-101 (e) applies only in cases when
a defendant is a governmental entity. See footnote 5 of
this opinion. Instead, he claims that the writ of sum-
mons and complaint being delivered to the marshal
prior to the expiration of the time limitation timely
commenced the action or, in the alternative, that the
defendant’s alleged evasive behavior to avoid service
tolled the limitation period.
   Although the defendant argued in its appellee’s brief
that these new claims by the plaintiff were not pre-
served, the plaintiff does not address the defendant’s
argument, as he declined to file a reply brief addressing
the defendant’s arguments and waived his right to oral
argument. As previously stated, however, our law is
clear that ‘‘[r]aising an issue for the first time in a motion
to reargue will not preserve that issue for appellate
review.’’ White v. Mazda Motor of America, Inc., supra,

; see also Gleason v. Smolinski, 

, 404 n.11, 

 (2015) (observing that issues
mentioned for first time in postjudgment motion for
articulation or motion to reargue will not preserve those
issues for appellate review). This is especially true when
the trial court did not even rule on the claims raised.
A motion to reargue, including any attendant hearing
on that motion, ‘‘is not a device to obtain ‘a second bite
of the apple or to present additional cases or briefs
which could have been presented at the time of the
original argument.’ ’’ Durkin Village Plainville, LLC v.
Cunningham, 

, 

(2006). As such, we decline to review these claims on
appeal,6 and, consequently, affirm the court’s judgment
of dismissal.7
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     Amelia-Amenirdis Westry (Amelia) also was named as a plaintiff in this
action. The trial court noted, however, that there was never an appearance
filed for Amelia and that Eric Westry (Eric) could not ‘‘speak for her as a party
to this action.’’ Amelia did not participate in the action in the Superior Court.
   On October 14, 2021, an appeal was filed with this court indicating that
it was being initiated by both Eric and Amelia. On October 19, 2021, this
court ordered that the appeal filed on October 14, 2021, purporting to be
initiated by Eric and Amelia would be treated as an appeal by Eric only
unless a properly completed joint appeal consent form was filed on or before
October 29, 2021. A consent document was never filed with this court.
Accordingly, this court ordered that the appeal would proceed as an appeal
by Eric only. As such, any reference to the plaintiff in this opinion is to
Eric Westry only.
   2
     On September 19, 2022, the plaintiff filed with this court a request to
waive his oral argument, which was granted by the court. The parties were
notified that the oral argument would proceed, and the appeal would be
considered on the record and the defendant’s argument.
   3
     The defendant’s motion was filed on the Judicial Branch form titled
‘‘Motion to Open Judgment’’ but was treated by the court as a motion to
set aside the default because there had been no judgment rendered yet.
   4
     General Statutes § 46a-101 (e) provides: ‘‘Any action brought by the
complainant in accordance with section 46a-100 shall be brought not later
than ninety days after the date of the receipt of the release from the commis-
sion.’’
   5
     On appeal, the plaintiff no longer argues, nor does he brief, the claims
he made before the trial court that § 46a-101 (e) applies only in cases where
a defendant is a governmental entity or that an application for a fee waiver
either tolled the time limitation or commenced the action. We, accordingly,
deem those claims abandoned.
   6
     To the extent the plaintiff’s claim on appeal can be construed as challeng-
ing the court’s decision not to address in its memorandum of decision the
plaintiff’s new claims raised for the first time at the second oral argument
on his motion for reconsideration, such argument lacks merit. ‘‘The granting
of a motion for reconsideration and reargument is within the sound discre-
tion of the court. The standard of review regarding challenges to a court’s
ruling on a motion for reconsideration is abuse of discretion. As with any
discretionary action of the trial court . . . the ultimate [question for appel-
late review] is whether the trial court could have reasonably concluded as
it did.’’ (Internal quotation marks omitted.) Ray v. Ray, 

, 

 (2017).
   Here, the plaintiff, at the second oral argument on his motion for reconsid-
eration, plainly was seeking the proverbial ‘‘second bite.’’ He raised new
claims and theories that he never made in the first, or even second, instance.
Furthermore, it is clear from the record that the plaintiff failed to provide
an evidentiary or legal basis to support the new claims proffered. On the
basis of our review, we conclude that the court did not abuse its discretion
in declining to address the new claims the plaintiff raised for the first time
at the second oral argument on his motion for reconsideration. See Gleason
v. Smolinski, supra, 

 n.11 (raising new issue in postjudgment
motion generally will not preserve issue for appellate review).
   7
     We note that this court recently held that the time limitation set forth
in § 46a-101 (e) ‘‘for commencing an action in Superior Court pursuant to
§ 46a-100 is mandatory and not jurisdictional.’’ Sokolovsky v. Mulholland,

, 134, 

 (2022). As such, the proper procedure
for raising that defense is now by way of an answer and special defense;
see Practice Book § 10-50; as opposed to a motion to dismiss, which raises
jurisdictional arguments. See Practice Book § 10-30. Although the defendant
raised the time limitation defense in a motion to dismiss, we discern no
appropriate basis under the circumstances of this case to upset the court’s
judgment of dismissal. The plaintiff did not properly raise or preserve a
waiver, consent, or equitable tolling claim below or on appeal that would
warrant reversal of the court’s dismissal. We therefore affirm the court’s
judgment dismissing the plaintiff’s complaint. See Mosby v. Board of Educa-
tion, 

, 775 n.5, 

 (‘‘[b]ecause the plaintiff
presents no argument as to whether the time limit of § 46a-101 (e) is either
mandatory or jurisdictional and presents no claim of waiver, consent, or
equitable tolling, we conclude that the court properly dismissed . . . the
[plaintiff’s] claim regardless of whether the time limit is jurisdictional’’ (inter-
nal quotation marks omitted)), cert. denied, 

, 

(2019); Sempey v. Stamford Hospital, 

, 

 (2018) (same).