147 Conn. App. 815
Conn. App. Ct.2014Background
- Percy purchased the property and Autobody business; lease of billboard signs and building surface to Patrick Media Group, then assigned to Martin Media Group, then to Lamar Central Outdoor; the defendant’s ladders damaged the canopy causing water intrusion and damage to canopy, roof, and building (Feb 2008).
- Plaintiff filed suit for damages on Oct 26, 2009; trial date set for Oct 14, 2011; defendant moved to dismiss and for summary judgment (Oct 13, 2011) leading to postponement to address jurisdictional issues; court denied motions to dismiss (Nov 21, 2011) and summary judgment (Jan 6, 2012).
- Defendant failed to appear at pretrial on Feb 24, 2012 and again on Apr 13, 2012; court entered default against defendant after continued nonappearance; defendant’s motions to open default and for reconsideration were denied.
- Damages hearing held June 6, 2012; court awarded plaintiff $68,837.34; evidence included Hopkins (State Awning) and Rite-Way Roofing testimonies; defendant offered only crossexamination evidence; 2012 Hopkins bid for roof replacement, with 2011 repairs funded by insurance.
- Court explained default can be opened for good cause under Practice Book § 17-42 but found defendant’s conduct—missed pretrials, scheduling violations, and late appearances—shown lack of good cause; damages measure included cost of full roof replacement, deemed appropriate under applicable case law.
- Judgment affirmed for plaintiff on both liability and damages issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused discretion in denying motion to open default and reconsiderations | Percy argues defendant showed good cause and due process required relief | Lamar contends mistake/late appearances justified setting aside default | No abuse; court acted within discretion and did not violate due process |
| Whether damages award including full roof replacement was proper | Cost of replacement reflects diminution in value and is proper under law | Cost may exceed actual damage and 2011 repairs negate need for full replacement | Damages upheld; cost of full roof proper under Willow Springs and related authorities |
Key Cases Cited
- Bohonnon Law Firm, LLC v. Baxter, 131 Conn. App. 371 (2011) (trial court discretionary; improper to distort default due to negligence)
- Sessa v. Province, 98 Conn. App. 564 (2006) (negligence not improper ground for default avoidance)
- Patterson v. Travelers Casualty & Surety Co., 104 Conn. App. 824 (2007) (nonappearance due to lack of notice may constitute good cause)
- Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1 (1998) (cost of repairs as measure of diminution in value, if not exceeding pre-damage value)
- Whitman Hotel Corp. v. Elliot & Watrous Engineering Co., 137 Conn. 562 (1951) (repair cost exception to diminution in value doctrine)
- Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509 (2009) (appellate review of damages; credibility and weight of evidence evaluation)