Lead Opinion
Opinion
The self-represented defendant, Richard Stein,
The following facts and procedural history are relevant to our resolution оf the defendant’s claims. On November 19, 2009, the plaintiffs commenced the present action against the defendant alleging breach of contract, unjust enrichment
The defendant filed an appearance as a self-represented party on December 16, 2009. On May 6, 2011, the plaintiffs filed a motion for default for the defendant’s failure to file a responsive pleading, which was granted by the trial court clerk on May 17,2011. OnJuly 14,2012, counsel for the plaintiffs filed a certificate of closed pleadings and claimed the matter for a hearing in damages to the court. On July 16, 2012, the court issued a notice of a hearing in damages to be held on September 20,2012, at 9:30 a.m. The defendant did not file a motion to set aside the default pursuant to Practice Book § 17-42
The defendant attended the hearing in damages on September 20,2012,
I
As a defense to the breach of contract claim, the defendant claims that he “complied with all the conditions of the agreement.” The defendant cannot prevail on his liability defense claims, however, because he failed to file an answer to the plaintiffs’ complaint and was defaulted for his failure to plead. Further, he failed to file a notice of defenses that would have allowed him to offer evidence contradicting the allegations in the complaint. See Practice Book § 17-34.
“[C]ase law makes clear . . . that once the defendants had been defaulted and had fаiled to file a notice of intent to present defenses, they, by operation of law, were deemed to have admitted to all the essential elements in the claim and would not be allowed to contest liability at the hearing in damages. ... A default admits the material facts that constitute a
Accordingly, the defendant is unable to challenge his liability to the plaintiffs under the breach of contract claim. He is, however, entitled to challenge the determination of damages awarded by the court. “In an action at law, the rule is that the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to entitle the plaintiff to some of the relief prayed. It is not the equivalent of an admission of аll of the facts pleaded. The limit of its effect is to preclude the defaulted defendant from making any further defense and to permit the entry of a judgment against him on the theory that he has admitted such of the facts alleged in the complaint as are essential to such a judgment. It does not follow that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive.” (Emphasis added; internal quotation marks omitted.) Catalina v. Nicolelli,
“[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” (Internal quotation marks omitted.) Argentinis v. Fortuna, supra,
We have carefully reviewed the testimony and the exhibits, and we find support in the record for eleven of the twelve items. Sung Gaynor’s testimony was unequivocal that the defendant had been paid for the work and that the work ha,d not been completed. “We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Porter v. Morrill,
With respect to one of the items for which the court awarded damages, however, we conclude that its finding was clearly erroneous. The court awarded the plaintiffs $5750 for “process,” and referred to exhibit seventeen as support for that finding. At the hearing in damages, the plaintiffs’ attorney asked Sung Gaynor if any items on exhibit seventeen had not been completed. She responded: “Process.” The plaintiffs’ counsel then asked her for further clarification. She responded: “That is like stone. I don’t know.” When asked where the stones were placed, she said: “I think for the front house. . . . For the steps, yes.” She testified that she paid $5750 for the process. When asked if any other items on exhibit seventeen had not been completed, she tеstified that she never
Exhibit seventeen, which is an invoice, fists four items for which the plaintiffs were billed and submitted payment. With respect to the third item, the invoice reads “Process 4 [inches] - 6 [inches].” The invoice indicates that the amount paid was $5750. The fourth item on that invoice is “Asphalt 3 [inches] compacted.” The amount paid was $4750. Sung Gaynor never claimed that the work with respect to the asphalt had not been completed.
Exhibit nine is a payment schedule that was admitted as a full exhibit at the hearing. Dated seven months earlier than exhibit seventeen, it fists dozens of items and their estimated costs. One of the items is “process for driveway” and the estimated cost is $5750. Immediately following that item is “asphalt driveway” at an estimated cost of $4760. When exhibit nine and exhibit seventeen are read together, it is apparent that the process was to be used in connection with the installation of the asphalt driveway. The prices on both exhibits are identical. Because the plaintiffs did not claim that the defendant failed to complete the work on the asphalt driveway, it was clearly erroneous for the court to have determined that the defendant billed for “process” that had not been provided in the installation of the asphalt driveway. Sung Gaynor’s testimony confirms that she was unclear what “process” was and where it was to be placed. Accordingly, the damages awarded should not have included $6750 for process.
II
The defendant also claims that the court improperly awarded the plaintiffs $14,404.19 as attorney’s fees under their CUTPA claim. We agree because the allegations in the plaintiffs’ CUTPA count, even if taken as true, are insufficient on their face to state a cause of action under CUTPA.
“An appellate court . . . may examine the allegations of a complaint to ascertain whether they are sufficient on their face to establish a valid claim for the relief requested. . . . Although the failure of a party to deny the material allegations of a pleading operates so as to impliedly admit the allegations, a default does not automatically trigger judgment for, or the relief requested by, the pleader. The pleader is entitled to an entry of judgment or a grant of relief аs a function of the nonresponsive party’s default and the attendant implied admission only when the allegations in the well pleaded filing are sufficient on their face to make out a claim for judgment or relief. . . . While an admission carries with it all reasonable implications of fact and legal conclusions . . . the admission cannot traverse beyond the bounds of the underlying pleading and admit allegations not made by the pleader; the pleading is, unless leave is granted to modify, the ceiling.” (Citation omitted; internal quotation marks omitted.) Argentinis v. Fortuna, supra,
Before reviewing the allegations in the plаintiffs’ CUTPA count, we set forth the principles applicable to CUTPA
“[N]ot every contractual breach rises to the level of a CUTPA violation.” (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp.,
The interpretation of pleadings is an issue of law. Stamford Landing Condominium Assn., Inc. v. Lerman,
To support their claim of a CUTPA violation, the plaintiffs made the following allegations in the CUTPA count of their complaint: (1) the defendant “charged the plaintiffs more for the project than originally proposed”; (2) the defendant “charged the plaintiffs for work that had not [been] completed on the property”; and (3) the defendant “changed the scope of the project and dimensions of the house without properly explaining what they were doing to the plaintiffs.”
The plaintiffs’ CUTPA count stated that the defendant, by engaging in the conduct specified in that count, “acted deceptively,
It is clear from the record that the trial court seriously questioned whether the plaintiffs’ allegations properly alleged a CUTPA claim and whether the evidence presented at the hеaring in damages allowed for a recovery under CUTPA. At the conclusion of the hearing, the court specifically requested that the plaintiffs address their CUTPA claim in their posthearing brief. The court expressed its concern with that particular claim: “I’m sorry, I don’t see—I mean evidence of bad faith would indicate that he—I mean there has to be, I think, a pattern of that or—I just don’t see that there is—usually it is based upon a violation of some principle of public policy or there are per se violations that might have been alleged, based upon failure to comply with either the New Home Act or the Home Improvement Act or various other things. But I just don’t—I don’t think what you have shown here is anything more than a standard dispute between a contractor and a homeowner. I mean I think that—it is an issue for the court, even though there is a default here. If there is a—if I have to find by law a CUTPA violation, I just don’t see how, based on those allegations, that you satisfied—but anyway, you can brief that when you file your brief.”
Following the submission of posthearing briefs, the court issued its memorandum
The court’s statements at the end of the hearing in damages, and the amount it awarded in comparison with the amount sought by the plaintiffs, undermine the viability of the plaintiffs’ CUTPA clаim that relied solely on the second , criterion of the cigarette rule. Although the plaintiffs claimed the defendant acted unethically and in bad faith, the court did “not see . . . evidence of bad faith”
Our plenary review of the complaint, together with our review of the transcript of the hearing in damages, compel the conclusion that the plaintiffs failed to allege facts in their complaint and failed to present evidence at the hearing in damages to support a claim beyond a mere breach of contract. Because the plaintiffs’ allegations are insufficient to plead a proper cause of action under CUTPA, they are not entitled to an award of attorney’s fees under CUTPA.
“[This] court may reverse . . . the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.” (Internal quotation marks omitted.) Argentinis v. Fortuna, supra,
The judgment is reversed only with respect to the awards of $5750 in contractual damages and $14,404.19 in attorney’s fees, and the case is remanded with direction to recalculate the damages award in accordance with this opinion. The judgment is affirmed in all other respects.
In this opinion PELLEGRINO, J., concurred.
Notes
The plaintiffs brought this action against Hi-Tech Homes and Richard Stein. From the testimony of the witnesses and the representations made by the parties at the hearing in damages, the trial сourt determined that Hi-Tech Homes was a trade name and not a legal entity. The court concluded that the action had been brought against Richard Stein doing business as Hi-Tech Homes.
At oral argument before this court, Stein confirmed that he had been doing business as Hi-Tech Homes when he and the plaintiffs entered into the agreement at issue in this appeal. We therefore refer to Stein as the defendant in this opinion.
The trial court found no basis for an award of additional damages to the plaintiffs under their claim of unjust enrichment.
As noted by the trial court, the agreement did not cоntain a deadline for the completion of the second phase of construction. The plaintiffs’ claims for damages all were related to the second phase of construction.
Practice Book § 17-42 provides in relevant part: “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.”
Practice Book § 17-34 (a) provides: “In any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiffs complaint, except such as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to prove such matter of defense.”
The trial court provided a transcriрt of the hearing in damages, which is contained in the court file.
The court did not include $4750 in its award of damages to the plaintiffs, and that amount is not at issue in this appeal.
Following oral argument before this court, we ordered simultaneous supplemental briefs on the following issue: “Although the allegations of the plaintiffs’ CUTPA count were deemed admitted by the defendant, are the allegations sufficient to state a cause of action under CUTPA?”
The trial court noted at the conclusion of the hearing in damages that there had been no testimony about the defendant decreasing the size of rooms without permission or any evidence as to resulting damages.
The plaintiffs’ complaint primarily contains conclusory allegations. The plaintiffs are obligated to provide grounds for their claim of deceptive and unethical behavior, something more than mere conclusions and the formulaic recitation of the elements of a CUTPA cause of action. The defect in the plaintiffs’ complaint is their failure to plead a sufficient factual basis to support a claimed CUTPA injury. See Bridgeport Harbour Place I, LLC v. Ganim,
This colloquy indicates that the trial court was well aware that the CUTPA count may not have been sufficiently pleaded, and the court brought that issue to the attention of the plaintiffs’ counsel and the defendant. For that reason, this is not a situation where an issue has been raised for the first time on appeal and we declined to review it because it would have been unfair to the trial court: “[W]e will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the triаl judge. ” (Internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc.,
The dissent objects to our review of the CUTPA issue because it concludes that it was not “adequately raised to this court by any party” and that, even if the defendant’s argument could be broadly read to include it, the claim “most clearly was inadequately briefed.” It is true that the defendant did not phrase his claim with precision nor did he brief it in an articulate and thorough manner. The defendant, however, was self-represented at the time of trial and during the appeal process. We, therefore, have afforded him some leeway and have chosen to read his claim and argument broadly so as to include the CUTPA issue addressed in this opinion.
“[I]t is our policy to give leeway to pro se litigants regarding their adherence to the rules of this court.” In re Brittany J.,
“Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Internal quotation marks omitted.) MacMillan v. Higgins,
Dissenting Opinion
dissenting. I agree with part I, but respectfully dissent from part II of the majority’s well written decision. I agree with the majority’s position that, because of the default, the only issue to be decided by the trial court with respect to liability pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., was whether the complaint can reasonably be viewed to state a viable cause of action. I believe the complaint can be so read and, perhaps more importantly, I do not believe that this issue has been adequately raised to this court by any party. Accordingly, I would not reach the issue; if the issue were reached, I would not find error.
In his brief to this court, the defendant essentially argued that, on the facts as he saw them, he fulfilled his contractual obligations. His argument regarding CUTPA, in its entirety, was “under the Connecticut Unfair Trade Practices Act that awarded the Plaintiff attorney’s fees of $14,404.19 should be reversed, because the complaint was invalid and the Plaintiff complied with all the conditions of the Agreement.” The defendant never suggested that the facts alleged in the complaint did not state a cause of action cognizable under CUTPA. Except perhaps in exceptional circumstances, we should not reach out to address issues not raised by a party. See, e.g., Harris v. Bradley Memorial Hospital & Health Center, Inc.,
This court’s order for supplemental briefing did not eliminate the problem. Although it surely ameliorated due process concerns; see Lynch v. Granby Holdings, Inc.,
Finally, in my opinion the complaint stated a cause оf action under § 42-110a et seq. The complaint alleged, for example, that the defendant “decreased the size of certain rooms without the permission of the Plaintiffs” and concluded that the defendant “acted deceptively, in bad faith and unethically when [he] changed the scope of the project and dimensions of the house without properly explaining what [he was] doing to the Plaintiffs.” The allegation is broad enough such that facts could be introduced to show deceptive and unscrupulous practices which violate CUTPA; Kosiorek v. Smigelski,
I respectfully dissent.
The very recent case of Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc.,
At this point, of course, we consider only the allegations of the complaint. Whether credible evidence might have supportеd the allegations is a different issue.
The majority stresses at footnote 11 of its opinion that because the trial court considered the question, it has not been ambushed. The difficulty at this point, however, is not whether the trial court considered the issue, but rather whether the issue was raised by a party for our consideration.
Similarly, the majority suggests that we should “give leeway” to self-represented litigants and should construe pleadings broadly to ensure an opportunity to be heard. Again, I generally agree. But the leeway provided to self-represented litigants has boundaries. As stated in Mourning v. Commissioner of Correction,