Aguiar v. Frenzelli, 9850105 - Re: Setting aside Default after Judgment
CHRO No. 9850105
Fed No. 01-98-0339-8
Commission on Human Rights and Opportunities ex rel. :
Deborah and Raymond Aguiar, Jr., Complainants
Nancy and Ralph Frenzilli, Respondents
April 22, 2002
Ruling re: Setting Aside Default After Judgment
Order re: Scheduling of Status Conference
I. Procedural History
Deborah Aguiar and Raymond Aguiar, Jr., ("complainants") filed an Affidavit of Illegal Discriminatory Practice dated May 28, 1998 ("complaint") with the Commission on Human Rights and Opportunities ("commission"). In their complaint, the complainants allege that Nancy and Ralph Frenzilli ("respondents") illegally discriminated against them on or about May 4, 1998. The complainants allege that the respondents violated General Statutes § 46a-64c et seq. and 42 U.S.C. 3604(c) (Title VIII of the Civil Rights Act of 1966 as amended by the Fair Housing Amendments of 1988). Specifically, the complainants claim that the respondents illegally refused to rent to them a single-family house because of the complainants’ familial status, a family with minor children. At the time of the complaint, the complainants had two children ages one and two years of age.
The complaint was certified on April 1, 1999. The case was assigned to Human Rights Referee Donna Maria Wilkerson. A hearing conference was scheduled for May 6, 1999. Upon motion by the complainant, the conference was rescheduled for, and held on, May 10, 1999. On May 13, 1999, the complainants filed a motion to default the respondents for their failure to appear at either hearing conference and for their failure to file an answer pursuant to Section 46a-54-94 of the Regulations of Connecticut State Agencies. The default was granted on July 1, 1999. After notice, a hearing in damages was held on September 21, 1999. The respondents did not appear nor did they file the requisite answer. In a final decision issued on January 14, 2000, Human Rights Referee Donna Maria Wilkerson ruled in favor of the complainants and awarded them damages. The commission and the complainants brought an enforcement action in superior court.
Subsequently, on December 18, 2001, Judge Stengel remanded the matter to the commission to hold a hearing for the purpose of determining whether the default entered by Referee Wilkerson should remain in effect. Then, if the default was not set aside, a hearing in damages was to be held. Alternatively, if the default was set aside, a full hearing would then be held on the merits (liability and damages).
Upon remand, the case was reassigned to the undersigned human rights referee. A hearing was held on March 6, 2002 for the purpose of determining whether the default should remain in effect. At the request of the parties, a post-hearing briefing scheduled was ordered with the commission and the complainant to file their briefs on or before March 21, 2002 and the respondents to file their reply on or before April 4, 2002. The briefs were timely filed.
II. Issue, Parties’ Positions and Summary of Ruling
The issue is whether the default entered by Human Rights Referee Wilkerson should be set aside.
The commission and the complainant propose that, because the default order was based upon substantial evidence in the record, the default and resulting judgment should not be set aside. The commission further argues that 42 U.S.C § 3604(c) and General Statutes § 46a-64c(a)(3) are strict liability statutes that the respondents violated by their May 7, 1998 rental advertisement.
The respondents propose that the appropriate criteria for setting aside an administrative default judgment is analogous to that of a judicially ordered default judgment as set forth in Connecticut Practice Book § 17-43. Applying this standard, the respondent is required "to make a two part showing that: (1) a good defense existed at the time an adverse judgment was rendered; and (2) the defense was not at that time raised by reason of ‘mistake, accident or other reasonable cause.’" State of Connecticut v. Ritz Realty Corp., 63 Conn. App. 544, 548 (2001) quoting In re Baby Girl B., 224 Conn. 263, 284 (1992).
For the reasons set forth herein, the default is affirmed.
III. Findings of Fact
References to testimony are by transcript ("Tr.") page where the testimony is found. References to the commission’s exhibits are denoted as "Commission Exhibit", to the respondents’ exhibits as "Respondent Exhibit" and to the complainants’ exhibits as "Complainant Exhibit".
Based upon a review of the pleadings, exhibits, testimony, and transcript, the following facts relevant to this decision are found:
1-9. Having conducted an independent review of the public hearing record, I conclude that there is substantial evidence in the record supporting Referee Wilkerson’s Procedural Facts 1-9 and accordingly incorporate them herein by reference.
10-29. Having conducted an independent review of the public hearing record, I conclude that there is substantial evidence in the record supporting Referee Wilkerson’s Findings of Fact 1-20 and accordingly incorporate them herein by reference.
30. Following the April 1, 1999 certification of the complaint (Commission Exhibit 23), the commission, on April 15, 1999, mailed to the respondents copies of the complaint, the notice of public hearing, and the memorandum of contested case processes and procedures. (Commission Exhibits 1, 2, 3.) As referenced in their July 10, 1999 correspondence, the respondents received these documents on April 27, 1999. (Commission Exhibit 12, p. 3. See also the signed certified mail, return receipt card ("green card")).
31. By order dated July 1, 1999, Referee Wilkerson scheduled the hearing in damages for September 10, 1999. (Commission Exhibit 8.) The respondents received notice of the Hearing in Damages on July 19, 1999 as evidenced by the signed green card.
32. By ruling dated August 2, 1999, the hearing in damages was continued from September 10, 1999 to September 21, 1999. (Commission Ex. 17.) The respondents received notice of the continuance on August 13, 1999, as evidenced by the signed green card. In her Ruling on the Motion to Open Default dated August 31, 1999, Referee Wilkerson reiterated that the Hearing in Damages would be held on September 21, 1999. The respondents received a copy of the ruling as evidenced by their reply dated September 13, 1999. (Commission Exhibit 22.)
33. Despite notice of the default, notice of the hearing in damages and the opportunity to attend and be heard, the respondents did not appear at the hearing in damages.
34. The respondents were notified four times in 1999 (before and after the entry of the default for failure to file an answer) that Section 46a-54-94 of the Regulations of Connecticut State Agencies required the filing of a post-certification answer to the complaint. (Commission Exhibits 1, 2, 8, and 20.) The respondents did not file the requisite answer and, as of the date of this hearing, March 6, 2002, they still had not filed the answer.
35. Referee Wilkerson reminded the respondents in her August 31, 1999 ruling that it was their responsibility to represent themselves or to retain a Connecticut-licensed attorney. (Commission Exhibit 20.)
36. Both before and after the hearing in damages, the respondents repeatedly wrote that they would not attend any conference or hearing. (Commission Exhibits 9, 12, 22; Respondent Exhibit 22.)
37. The respondents specifically stated that they had no objection to any date set for a conference, hearing or meeting. (Commission Exhibit 22, p. 4.)
38. The respondents specifically stated that no continuance was requested. (Commission Exhibit 9, p. 6).
39. The only specific reasons given by the respondents for refusing to attend any hearing or conference was the travel distance and that they had already provided, in writing, all information that they felt necessary. (Commission Exhibit 9, p. 2; Commission Exhibit 12, pp. 3-4; Commission Exhibit 22.)
40. The respondents placed three advertisements in the Cheshire Herald advertising that they were renting a single family home. The advertisements ran on April 16, April 23, and May 7, 1998. (Commission Exhibit 3; Complainant Exhibit 1; Respondent Exhibit 2.)
41. The respondents’ May 7, 1998 advertisement provided in part: "No children under 6." (Commission Exhibit 3.)
42. The respondents’ assert that the May 7, 1999 advertisement was based on their reliance on a brochure published by the State of Connecticut, Department of Consumer Protection in cooperation with the Judicial Department permitting the denial of rental housing to a family with children under six. (Tr. 79-81; Commission Exhibits 9, 11, 12, 16, 21, 22; Respondent Exhibits 10, 15.) Their alleged reliance is found to be unreasonable.
43. Substantial evidence exists in the record supporting Referee Wilkerson’s entry of the order defaulting the respondents for their failure to file an answer in accordance with Sections 46a-54-94 and 46a-54-95 of the Regulations of Connecticut State Agencies.
44. Referee Wilkerson’s entry of the default was the only reasonable remedy available to vindicate the legitimate interests of the commission and the complainants.
45. At the time the default and resulting judgment were entered, the respondents lacked a good defense and/or a bona fide reason that their defense was not timely raised because of mistake, accident or other reasonable cause.
The setting aside of a default and opening of a judgment "lie within the sound discretion of the trial court. But the orderly administration of justice requires that relief be denied unless the moving party alleges and shows reasonable cause under the statute. Such relief ordinarily should not be granted if failure to comply with an order of the court resulted from the moving party’s own negligence." (Internal quotations omitted.) Jaquith v. Revson, 159 Conn. 427, 431–32 (1970).
- Commission and complainants’ positions
1. Substantial evidence exists for the entry of the default
Respondents’ proposed criteria
The complainant and the commission argue that the default should not be set aside because it is based on substantial evidence that the respondents failed to file an answer and failed to appear.
The complainant and the commission are correct that there is substantial evidence in the record that, despite notice and opportunity, the respondents failed to file a post-certification answer as required by Section 46a-54-94 of the Regulations of Connecticut State Agencies. Section 46a-54-94 requires, in part, that respondents file an answer within fifteen days of receipt of the complaint and the notice of hearing. The notice of public hearing (Commission Exhibit 1) and the accompanying memorandum regarding contested case processes and procedures ("memorandum") (Commission Exhibit 2) reiterate this requirement. The notice of hearing further warns that "[f]ailure to file an answer may result in an order of default in accordance with §46a-54-95 of the Regulations." (Bold type in the original.) The memorandum further explains that "[e]ven if it is the respondent’s intent to adopt the answer that was filed during the earlier investigation of the complaint, an answer must be filed at this stage since the public hearing is a de novo proceeding." On April 27, 1998, the respondents received the complaint, the notice of hearing, and the memorandum. (Finding of Fact ("FF") 30, 34.)
Despite having received these documents with the clearly identified requirement to file an answer, the respondents did not file the requisite answer. In her July ruling granting the motion for default, Referee Wilkerson also noted that the respondents had failed to file the answer. (FF 34, Commission Exhibit 8.) The respondents were told for the fourth time that they needed to file an answer in Referee Wilkerson’s August 31, 1999 ruling on the respondents’ motion to open default. (FF 34, 35; Commission Exhibit 20.) Despite these repeated notices, the respondents did not file the requisite answer and, as of the date of this hearing, March 6, 2002, they still had not filed the answer. (FF 34.)
The commission and the complainant also argue that the respondents were properly defaulted for their failure to appear at the May 1999 hearing conference. The memorandum states that "[t]he parties must appear for the hearing conference. If a party is represented by counsel, counsel may appear with or without the client at the hearing conference." (Commission Exhibit 2, p. 2) The respondents did not appear nor did counsel appear on their behalf. (FF 3; Commission Exhibits 7, 8.)
Although the memorandum and notice of hearing are not clear that the respondents could be defaulted for their failure to appear, the respondents themselves repeatedly stated, before and after the default was entered and the hearing in damages held, that the would not appear at any hearing. (FF 36.) "We will not be returning to Connecticut because of commitments and obligations here. … Therefore, be sure the records are marked that the Defendants can not and will not be attending any of the scheduled meetings: Settlement Conference, Prehearing Conference or Public Hearing." (Commission Exhibit 9, p. 1) "No continuance is requested." (Commission Exhibit 9, p. 6.) "We cannot attend a Settlement Conference." (Commission Exhibit 12, pp. 1-2.) "As we stated in our May 25th letter, we cannot and will not be returning to Connecticut because of commitments and obligations here." (Commission Exhibit 12, p. 7.) "There was no responsibility or reason for us to call to confirm any alternative dates – we had already notified CHRO that we would not and could not attend." (Commission Exhibit 22, p. 4.) "We had/have no objection to any dates set for any conferences, hearings or meetings." (Commission Exhibit 22, p. 4 "[W]e cannot attend any meetings …." (Commission Exhibit 22, p. 6.) "Emphasis must be placed on wording that we would not and could not return to Connecticut because of commitments and obligations here, of very ‘good cause.’" (Commission Exhibit 22, p. 6.) "We had no duty, and no reason, to contact the Office of Public Hearings to acquire any detailed information about the meetings in May 1999-we had notified CHRO in March that we had moved to Florida and that ‘the Defendant cannot and will not be attending any scheduled meetings’ for good cause." (Commission Exhibit 22, p. 18.) "If this means physical presence, it is impossible, and notice is given too late after the fact of our relocation." (Commission Exhibit 22, p. 18.) "You all have our permission to use any and all statements in this letter and every other piece of correspondence at any hearing, as if the statements are furnished under oath, and we will make any corrections required to the transcripts sent to us." (Commission Exhibit 22, p. 21.)
As detailed in the preceding paragraph, that the hearing conference date was changed and that the respondents did not receive timely notice of the rescheduled conference are irrelevant: they never had any intention to attend any conference or hearing. Further, having received timely notice of the entry of default and the hearing in damages, the respondents nevertheless chose not to appear and be heard. (FF 33.) Nor did they request a continuance of the hearing in damages.
2. Strict liability
As will be discussed, infra, the respondents argue that a default may be set aside when both a good defense existed at the time the adverse judgment was rendered and the defense was not raised because of mistake, accident or other reasonable cause. While disputing the validity of this standard, the commission argues that this default should not be set aside because the respondents do not have a good defense to the merits of the complaint. Specifically, the commission argues that 42 U.S.C § 3604(c) and General Statutes § 46a-64c(a)(3) are strict liability statutes that the respondents violated by their May 7, 1998 rental advertisement.
The respondents argue that the May 7, 1998 advertisement is irrelevant and, as will be discussed infra, that they reasonably relied on a brochure published by the Housing Court.
Under both 42 U.S.C § 3604(c) and General Statutes § 46a-64c(a)(3), it is an unlawful discriminatory practice "[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on … familial status". The respondents’ advertisement of May 7, 1998 provided in part: "No children under 6." (FF 41.)
Connecticut courts and commission hearing officers "are guided by the cases interpreting federal fair housing laws; 42 U.S.C. 3601 through 3631; despite differences between the state and federal statutes." Miko v. Commission on Human Rights and Opportunities, 220 Conn. 192, 202 (1991); Commission on Human Rights and Opportunities ex rel. Bradley Brown, Sr. v. Creative Management and Realty Co., CHRO Case Nos. 9850062, 9850063, 9850064, 9850065, 9850068, 9850069 (Ruling on Respondents’ Motion to Dismiss, November 16, 1999); Commission on Human Rights and Opportunities ex rel. Stacy Northerlington v. Frank Mondo, CHRO Case No. 8620225 (1990).
According to federal administrative case law, "[A] homeowner whose dwelling is exempt under section 3603(b), though free to discriminate with impunity in selling or renting that dwelling, does not have a right to publicly state to potential buyers or tenants his intent to so discriminate. Section 3604(c) gives persons seeking housing the right to inquire about the availability of housing from a housing provider without having to endure the insult of discriminatory statements. Although Respondents were free not to rent to a family with a child, when Mrs. Schmid stated the reason for not renting to the family (i.e., they did not want to rent to any children), she violated the Act. Section 3604(c) has been said to be essentially a ‘strict liability’ statute-all that is required to establish liability is that the challenged statement was made with respect to the rental of a dwelling and indicates discrimination based on familiar status." The Secretary, United States Department of Housing and Urban Development o/b/o Gayle Herman et al v. Paul Schmid, et al HUDAJL 02-98-0276-8, pp. 8-10 (July 15, 1999) (www.hud.gov/alj/pdf/schmiddec.pdf). The Secretary, United States Department of Housing and Urban Development o/b/o Lucia T. Terrizzi v. Theresa Dellipaoli, et al. HUDAJL 02-94-0465-8 (January 7, 1997)(www.hud.gov/alj/pdf/dellipao.pdf); The Secretary, United States Department of Housing and Urban Development o/b/o Linda Wegner, et al. v. Raymond Schuster, et al., HUDAJL 05-92-1363-1 (January 13, 1995)(www.hud.gov/alj/pdf/schuster.pdf).
Indeed, the fact pattern of this case is substantially similar to that of Northerlington, supra, and Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898 (2d Cir. 1993) and will be resolved accordingly.
In Northerlington, the African-American complainant alleged that the respondent-lessors discriminated against her on the basis of her race and color when she unsuccessfully sought to inspect a single-family rental home. The hearing officer found that the respondent Frank Mondo had already accepted a bona fide rental offer from another party prior to the complainant’s arrival to inspect the house. Nevertheless, because Mondo was also found to have made comments to a third party that he preferred to rent to white people and would not rent to African-Americans, he was found to have discriminated against the complainant. The complainant was awarded $5,000.00 in emotional distress damages.
In Ragin, the plaintiffs were African-Americans who saw display advertisements for apartment complexes. The advertisements were found to be racially discriminatory in violation of 42 U.S.C. § 3604(c). The court concluded that even if the plaintiffs were not actively seeking an apartment when they viewed the advertisement, they nevertheless had standing to file a complaint and receive $2,500 each in compensatory damages; mere receipt of a discriminatory advertisement confers standing. Ragin, supra, 6 F.3d 903-04. See also C.H.R.O. ex rel. Cynthia Watts, Complainant v. Plaza Realty, et al., CHRO Case No. 8710078 (1989).
Likewise, in the present case, the respondents made preferential, discriminatory statements orally to the complainants (FF 6, 7, 8) and in writing in their May 7, 1998 newspaper advertisement. (FF 41.) The complainants read that advertisement. (FF 10.) Under applicable federal and state statutes, liability attaches for published statements as well as oral comments. Also, under applicable federal and state law, the complainants fall within the class of people entitled to damages. Therefore, whether or not the respondents had already tentatively accepted a rental offer from a third party prior to being contacted by the complainants, they are nonetheless liable under federal and state statutes and case law for their preferential, discriminatory advertisement and/or statements.
The respondents propose a two-part criteria, analogous to Practice Book § 17-43, to determine whether the default judgment should be set aside. The respondent musts show both that a good defense existed at the time the adverse judgment was rendered and that the defense was not raised because of mistake, accident or other reasonable cause.
The respondents assert three defenses to the merits of the complaint: public estoppel, a prospective tenant, and their concern about lead paint. These defenses, respondents allege, were not timely raised because of the following mistakes, accident or other reasonable cause: they did not receive another copy of the complaint in April 1999 with the rest of the public hearing information; as a matter of policy, defaults are disfavored; pro se parties should be accorded deference; the commission’s failure at the investigatory level to comply with its own timeframes; and the respondent Nancy Frenzilli’s medical condition.
Applying the respondents’ criteria, I conclude that the respondents lacked both the existence of a good defense at the time the default and judgment were entered and/or a bona fide reason as to why their failure to raise their defense was the result of mistake, accident or other reasonable cause.
Whether a good defense existed at the time the adverse judgment was rendered
Public estoppel based upon the Housing Court brochure
The respondents claim that in making any statements concerning renting to families with children they were relying on a brochure, entitled "Moving in, Moving out: Tenants’ Rights and Responsibilities in Connecticut", published by the Connecticut Department of Consumer Protection in cooperation with the Judicial Department. The respondents received this brochure when, in response to an article they read in the newspaper, they wrote to the court asking for a copy. (Respondent Exhibit 11.)
According to the respondents, this brochure stated that the state’s discrimination laws did not apply to the rental of single family homes. Citing Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 247 (1995) in their memorandum of February 26, 2002, the respondents claim that Connecticut courts recognize a defense of public estoppel if four criteria are met. These criteria are that (1) the authorized agent for the public entity did something calculated or intended to induce the party to believe that certain facts existed and to act upon that belief, (2) the party alleging reliance exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of affairs but also had no convenient means of acquiring that knowledge, (3) the party had changed its position in reliance on those facts, and (4) the party would be subjected to a substantial loss if the public authority were permitted to negate the acts of its agents. In addition, the respondents assert that if the information contained in the brochure was incorrect, it was the obligation of the state to contact them. (FF 42, Respondent Exhibit 22, p. 21.)
The respondents’ reliance on the brochure is not reasonable. (FF 42.) The subject matter of this action occurred in 1998; yet, the brochure on its face, referencing Governor O’Neill who left office in January 1991, contains information at least seven years old. (Commission Exhibit 11, p. 3.) Also, the respondents admit to receiving the brochure in 1994, four years before this complaint. (Commission Exhibit 11, p. 1.) Further, the respondents concede that prior to the April/May 1998 rental, the brochure was revised at least once to contain the correct information: "For the record, last month we obtained a new brochure entitled ‘Rights and Responsibilities of Landlords and Tenants in Connecticut, published by the State of Connecticut Judicial Branch Superior Court. On the brochure is ‘Rev. 3/98’, the time we commenced rental of our single family house. The brochure’s wording has been changed on page 7 to read: ‘Landlords are allowed to discriminate against families with children when renting the following: buildings with four units or less if the landlord lives in one of the apartments.’" (Emphasis in original, Respondent Exhibit 24, p. 1.)
Clearly, the respondents in this case do not meet the criteria for public estoppel. They did not exercise due diligence to ascertain the truth and they failed to use convenient means to acquire updated information. It is not reasonable for them to rely for the current state of the law on a document that is at least four years old, particularly when they concede that the state reissued the brochure with updated information at least once prior to the respondents’ rental of the house. It is not reasonable for them to expect the Housing Court to notify them of changes in the law. It is not reasonable for them to fail to contact the Housing Court in early 1998 to request an updated version of the brochure.
Prior to the complainants’ inquiry, the house had already been rented subject to a credit check of the prospective tenant
The respondents claim that another good defense is that they had already rented the subject property to a third party, subject to a credit check, prior to the complainants’ telephone inquiries of April 23, May 4 and May 5. However, the respondents have nothing signed by a prospective tenant prior to May 5 (Tr. 135) and as of May 18, 1998 a ‘For Rent’ sign was still posted on the house. (Commission Exhibit 3.) Further, it is not credible that, given all the responses the respondents claim to have had to their advertisements of April 16 and 23 (Tr. 112), that they would have run the advertisement on May 7 with the discriminatory language. Finally, as previously discussed in the section on strict liability, supra, whether the respondents already had a prospective tenant is irrelevant. Under federal and state statutes and case law, they are liable to the complainants for their oral and/or written statements. C.H.R.O. ex rel. Northerlington, supra; Ragin, supra.
The respondents’ concerns about lead paint in the house
The respondents assert as a defense their concern about the possibility of lead paint in the house as a reason for not renting to families with children under the age of six. However, no testing was ever done. (Tr. 135.) Further, neither the federal nor the state anti-discriminatory statutes provide an exemption for the presence of lead paint.
2. Whether the defense was not at the time raised by reason of mistake, accident or other reasonable cause
a. Defaults disfavored
As the respondents note in their brief, default orders in administrative proceedings are generally disfavored and should be used only in the absence of any reasonable alternative. "Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." Pietraroia v. Northeast Utilities, 254 Conn. 60, 75 (2000). Before imposing a default, the hearing officer "must be satisfied that no other procedures are reasonably available to meet the legitimate needs of both parties. Thus, the sanction of dismissal [or default] should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests" of the other party. Pietraroia, supra, 254 Conn 75.
From my review of the record, I conclude that under the factual circumstances of this case Referee Wilkerson had no other reasonable alternative to the entry of the default. The respondents had been told four times of the requirement to file a post-certification answer in accordance with section 46a-54-94 of the Regulations of Connecticut State Agencies; they refused. (FF 34.) The respondents said they did not have a problem with the scheduled conference and hearing dates and that they were not seeking a continuance. (FF 37, 38); yet, they also repeatedly wrote that they would not attend any conference or hearing. (FF 36.)
Rather than file an answer and attend a hearing, the respondents apparently sought to have Referee Wilkerson decide the case based upon the correspondence they had previously submitted to her and to the investigator. "We expect that all of our written comments within your files will be available and open for complete public inspection at any conference or hearing, at any time public access is permitted. … We remain willing to submit any additional information to your offices upon request." (Commission Exhibit 9, p. 1-2.) "[W]e propose two motions for consideration: A. The Human Rights Referee review this case thoroughly, including all of our written comments of fact currently on file, and that this case be dismissed." (Commission Exhibit 9, p. 5.) "We have continued to voluntary furnish prompt responses and have always stated our willingness to furnish additional information needed immediately upon request." (Commission Exhibit 12, pp. 3-4.) "How could a Public Hearing be held without reference to our sworn statements and the State of Connecticut brochure". (Commission Exhibit 12, p. 6.) "Could we possibly furnish any more information than has been furnished in writing, which is completely admissible at any time? If this means physical presence, it is impossible, and notice is given too late after the fact of our relocation." (Commission Exhibit 22, p. 18.) "You all have our permission to use any and all statements in this letter and every other piece of correspondence at any hearing, as if the statements are furnished under oath, and we will make any corrections required to the transcripts sent to us." (Commission Exhibit 22, p. 21.)
The respondents obviously never filed the requisite answer and never had any intention of appearing at any hearing or conference regardless of when it was scheduled. Rather, respondents wanted Referee Wilkerson to "take the papers", accept their statements as admissible truthful evidence and then decide the case based upon the documentation they had submitted. However, the commission and the complainants have a right to cross-examine. Ann Howard’s Apricots Restaurant, Inc. v. CHRO, 237 Conn. 209 (1996). The respondents maintain that their statements were "written comments of fact" (Commission Exhibit 9, p. 5) "completely admissible at any time." Yet, had Referee Wilkerson proceeded to accept the respondents’ paper arguments, the commission and the complainant would have been prejudiced by their inability to cross-examine the respondents as to the alleged facts and by their inability to object to the admissibility of these statements.
b. Pro se parties should be accorded deference
In their February 26, 2002 brief, the respondents argue that they, as pro se parties in 1998, should have been accorded at least the same deference by an administrative hearing officer as by the courts. They argue that they "are entitled to a reasonable benefit of the doubt" and that "it is reasonable to expect that some official connected to this process would have taken some action to ensure that they were adequately informed of the requirements and of the possible consequences for failing to comply."
Deference, however, is not a license to create one’s own rules. "Where a defendant acts as his own counsel, as he has every right to do, his rights are subject to and will receive the same consideration as if he had been represented by an attorney. … Such a litigant is bound by the same rules of evidence and procedure as those qualified to practice law. Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedure and substantive law." (Internal quotation marks omitted; internal citations omitted.) Town of Groton v. Cathy Lewis, 58 Conn. App. 359, 362 (2000), cert. denied, 255 Conn. 912 (2000).
Sections 45a-54-94 and 45a-54-95 of the Regulations of Connecticut State Agencies require the post-certification filing of an answer and provide for the entry of a default if one is not filed. The respondents were repeatedly informed, both before and after the entry of the default, of the need to file a post-certification answer. (FF 34.) Nevertheless, they simply and repeatedly refused to comply. (FF 34.) Despite the entry of a default, the denial of their motions to dismiss and set aside the default and the scheduling of a hearing in damages, they continued to refuse to file the requisite answer. The respondents were indeed accorded great deference and more-than-adequately informed of the procedural requirements. Despite notice and opportunity, they chose not to conform to the relevant rules of procedural law.
Further, although the respondents represented themselves, they had consulted with "very good attorneys who are also very good friends". (Commission Exhibit 12, p. 13.) They also said "[i]f necessary, we’ll retain an attorney to defend our innocence. If this alleged claim of discrimination goes the full length, we will welcome the opportunity to testify publicly in this case and the facts ignored for the benefit of others in the State of Connecticut." (Commission Exhibit 12, p. 13.) However, the respondents never retained an attorney and repeatedly stated that "we cannot and will not be returning to Connecticut because of commitments and obligations here [Florida]." (Commission Exhibit 12, p. 7; FF 36.) Indeed, they berate (Commission Exhibit 22, pp. 18-19) Referee Wilkerson after she again reminded them, in her August 31 ruling (Commission Exhibit 20), that it was their responsibility to represent themselves or to retain a Connecticut-licensed attorney to represent their interests. (FF 35.)
In addition, despite notice and opportunity to be heard at the hearing in damages, the respondents did not take the opportunity to attend the hearing. (FF 33.)
c. Commission’s own failure at the investigatory stage to comply with its own timeframes
The respondents claim that had the commission completed its investigation in a timelier manner they would still have been in Connecticut for the public hearing.
This argument, also, is not a reasonable cause for setting aside the default. First, General Statutes § 46a-84(b) provides, in part, that the contested case public hearing process is "not an appeal of the commission’s processing of the complaint prior to its certification." The commission’s alleged delay in its investigation does not excuse or prevent the respondents’ failure to file the requisite post-certification answer. Second, even if the commission had been more timely in its investigation, there is no guarantee that the contested case process, with its attendant settlement conference, production schedule, prehearing conference and public hearing, would have been completed prior to the respondents’ departure to Florida.
d. Respondents’ medical condition
The respondents argue that Ms. Frenzilli’s medical issues are equitable arguments justifying setting aside the default.
The setting aside of a default and opening of a judgment "lie within the sound discretion of the trial court. But the orderly administration of justice requires that relief be denied unless the moving party alleges and shows reasonable cause under the statute. Such relief ordinarily should not be granted if failure to comply with an order of the court resulted from the moving party’s own negligence. While the defendant’s motion to open the judgment of nonsuit recites her history of illness and cause for seclusion as the reason for her failing to comply with the court order, it failed to set forth facts showing reasonable cause for not complying with the court order or that she was prevented by mistake, accident or other reasonable cause from complying. Although the defendant alleged facts which she asserted were reasonable grounds for not complying with the court order, the facts as properly found by the court clearly show that she was not prevented from complying with the order as a result of mistake, accident or other reasonable cause but, on the contrary, that her failure to comply was due to her own negligence. Thus, the court was correct in its ruling and did not abuse its discretion in denying the motion to open the judgment of nonsuit. " (Internal quotations omitted.) Jaquith, supra, 159 Conn. 431–32. Illness is not a per se reasonable cause for the setting aside of a default and the opening of a judgment.
In the present case, Ms. Frenzilli’s medical condition was never raised by her in any of her numerous and voluminous correspondences and pleadings in 1999. Indeed, in her correspondence of September 13, 1999, between two alleged surgeries and less than ten days prior to the hearing in damages, she never mentioned her health nor asked for a continuance. (FF 38, 39.) Rather, she requested that that Referee Wilkerson "[p]lease record any hearings and have a transcript sent to us with any written orders following same." (Commission Exhibit 22, p. 21.) Previously, the respondents also had said they did not have a problem with the dates, were not asking for a continuance, and would not attend any conference or hearing. (FF 36, 37, 38.)
Further, no information was proffered as to Mr. Frenzilli’s health either in any of the 1999 correspondence or at the March 2002 hearing.
Finally, as the respondents’ health did not prevent them from writing numerous and lengthy correspondence and motions, their health would not preclude them from filing the requisite answer.
Respondents are obviously unhappy with the finding of reasonable cause and the pace of the investigation. However, the respondents also obviously never filed the requisite answer and never had any intention of appearing at any hearing or conference regardless of when it was scheduled.
Effectively, even if Referee Wilkerson had not granted the default and instead proceeded with the scheduled public hearing in February 2000, the result would have been the same: the complainants would have testified on liability and damages, as they did at the September 1999 hearing in damages; the respondents would not have appeared as they repeatedly said they would not (and, indeed, did not appear at the hearing in damages); and the final decision awarding the same damages would have been issued.
- The respondents violated General Statutes § 46a-64c and 42 U.S.C. 3604(c) by their verbal statements and/or advertisement of May 7, 1998.
- The respondents have no good faith defense to the complainants’ allegations.
- The respondents’ failure to timely raise their defenses was not the result of mistake, accident or other reasonable cause.
- The entry of the default by Referee Wilkerson, under the circumstances of this case, was appropriate.
- The entry of the default order is affirmed.
For the reasons set forth herein, I affirm the entry of the default. A status conference shall be held on May 7, 2002, at 9:30 AM in Room 444, 21 Grand Street, Hartford, CT for the purpose of scheduling the hearing in damages and any related prehearing activities. If counsel represents a party, counsel may appear with or without the client.
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
Ms. D. Aguiar
Mr. R. Aguiar
Atty. R. Kor
Ms. N. Frenzilli
Mr. R. Frenzilli
Atty. G. Kelly
Atty. D. Teed