84 Conn. App. 175 | Conn. App. Ct. | 2004
Opinion
The plaintiffs
The relevant facts are as follows. In 1989, the defendant sold a business to the plaintiff Barry Schwartz for $450,000, $200,000 of which was secured by notes and mortgages, including a mortgage on Schwartz’ one-half interest in 716 Fairchild Road in Trumbull. Ana Schwartz, Barry Schwartz’ wife, held the other one-half interest in the property. When payment on the notes ceased, the defendant foreclosed the mortgage on the property. He thus became a one-half owner of the property and was awarded a deficiency judgment in the amount of $90,177.11.
Thereafter, the defendant instituted a partition action demanding a court-ordered sale of the property, which precipitated settlement discussions between the parties. The plaintiffs alleged that the proposed settlement
When the release by the defendant did not follow, the plaintiffs brought this action.
At the subsequent hearing in damages, the defendant introduced evidence and testimony that he never authorized his attorney to accept the plaintiffs’ settlement proposals or to authorize a release. Following the hearing, the court concluded that “there was never in existence the agreement as alleged” and ordered nominal damages of $1 to the plaintiffs. This appeal followed.
The plaintiffs claim that the court incorrectly concluded that the defendant’s notice of defense satisfied
“A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant.” (Citation omitted; internal quotation marks omitted.) LaRosa v. Kline, 36 Conn. App. 501, 503-504, 651 A.2d 1324 (1995). “Upon default, the plaintiff ordinarily becomes entitled to recover nominal damages. . . . The right to further substantial damages remains to be established by the plaintiff at a hearing in damages.” (Citation omitted.) Koter v. Carabetta Enterprises, Inc., 186 Conn. 460, 464, 442 A.2d 63 (1982).
After a default, a defendant may still contest liability. Practice Book §§ 17-34, 17-35 and 17-37 delineate a defendant’s right to contest liability in a hearing in damages after default.
In the present case, the defaulted defendant filed a notice of defense prior to the hearing in damages. That notice stated: “The Defendant, Samuel Milazzo, hereby notifies the Plaintiff[s] of his intentions to contradict the allegations of this complaint and all the Counts thereunder. . . . The plaintiff[s] and their attorney were aware prior to the closing that no release or agreement existed between the parties.” We must therefore assess that notice in light of the provisions of Practice Book § 17-37.
Practice Book § 17-37, entitled “Notice of Defense to be Specific,” provides in relevant part that “[t]he notice
Section 17-37 also requires that the notice “shall specify which, if any, of the allegations, or parts thereof, of the complaint will be controverted; and only those allegations should be specified which it is intended to controvert by proof. . . .” No such specificity is present in the defendant’s notice.
The defendant’s notice contained the statement that “[t]he plaintiff[s] and their attorney were aware prior to the closing that no release or agreement existed between the parties.” In addition to challenging an allegation of the complaint, a notice of defense may challenge the right of the plaintiff to maintain the action. DeBlasio v. Aetna Life & Casualty Co., supra, 186 Conn. 401. Couched in terms of the plaintiffs’ awareness, that statement presumably sought to challenge the right of the plaintiffs to maintain the action. Section 17-37, however, specifically provides that such a challenge “must go to the plaintiff’s right to maintain it in the capacity in which the plaintiff sues, and not otherwise controvert the right of action. . . .” (Emphasis added.) The defendant’s notice ran afoul of that proposition and was therefore improper.
That conclusion, however, does not end our inquiry. “Upon default, the plaintiff ordinarily becomes entitled to recover nominal damages. . . . The right to further substantial damages remains to be established by the plaintiff at a hearing in damages.” (Citation omitted.) Kloter v. Carabetta Enterprises, Inc., supra, 186 Conn. 464.
In reviewing the factual basis of the court’s decision, our role “is to determine whether [those] facts . . . are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, [they] are clearly erroneous. ... On appeal, [our] function ... is limited solely to the determination of whether the decision of the trial court is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . [W]e do not retry the facts or pass on the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Wren v. MacPherson Interiors, Inc., 69 Conn. App. 349, 353-54, 794 A.2d 1043 (2002).
On the basis of our review of the record, we conclude that even without the defendant’s testimony and evidence as to authorization, there existed sufficient evi
In light of the evidence presented by the plaintiffs, we conclude that the court properly determined that the plaintiffs failed to establish their right to further substantial damages.
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiffs are Ana Schwartz, Barry Schwartz and Creative Food and Beverage, Inc.
The complaint alleged breach of contract, unjust enrichment, promissory estoppel, fraudulent misrepresentation, negligent misrepresentation and breach of contract as to third party beneficiaries. The complaint also requested specific performance.
In his brief, the defendant failed to articulate the applicable standard of review. Practice Book § 67-5 (d) requires appellees to provide “a separate, brief statement of the standard of review the appellee believes should be applied. ...” (Emphasis added.) A mere litany of prospective standards of review does not suffice. Rather, a party must indicate precisely which standard is applicable to the present case.
Practice Book § 17-34 provides in relevant part: “(a) 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.
“(b) This notice shall apply to defaults entered on all claims, counterclaims, cross claims, and other claims for affirmative relief. . . .”
Practice Book § 17-35 provides: “(a) The notices required by Section 17-34 shall be given in the manner provided in Sections 10-12 through 10-14, the original with proof of service being filed with the clerk.
Practice Book § 17-37 provides: “The notice shall not contain a general denial, but shall specify which, if any, of the allegations, or parts thereof, of the complaint will be controverted; and only those allegations should be specified which it is intended to controvert by proof. The denial of the right of the plaintiff to maintain the action must go to the plaintiffs right to maintain it in the capacity in which the plaintiff sues, and not otherwise controvert the right of action. Any new matter by way of confession and avoidance must be specified. The defense of contributory negligence must be specified and the grounds stated. Partial defenses must be specified in the same manner as complete defenses.”
Had the notice instead stated simply that no release or agreement existed between the parties, such defense would likely have satisfied the requirements of § 17-37. That statement is distinguishable from the denial contained in the defendant’s notice, which was predicated not on whether an agreement existed, but whether the plaintiffs and their attorney were aware of the alleged nonexistence.