Southington '84 Associates v. Silver Dollar Stores, Inc., 39 Conn. App. 608

39 Conn. App. 608 | Conn. App. Ct. | 1995

PER CURIAM.

The defendants, lessees of commercial property, appeal from a judgment awarding damages for rent owed to the plaintiff rendered following a hearing in damages before the trial court. The issues raised by the defendants are all factual and cannot be retried on appeal.¹ See New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 38 Conn. App. 709, 713, 662 A.2d 818 (1995)

Although the parties initially waived oral argument before this court, our examination of the record and briefs disclosed the presence of a serious issue of law that had not been briefed. Plain error review under Practice Book § 4185² is warranted because the unaddressed issue implicates interests of fundamental justice. Lynch v. Granby Holdings, 230 Conn. 95, 99, 644 A.2d 325 (1994). The unbriefed issue concerns the power of a trial court to render judgment for an amount in excess of the sum stated in the plaintiffs amount in demand. The parties were given notice and ordered to file supplemental briefs. See id.; LoSacco v. Young, 210 Conn. 503, 509-10, 555 A.2d 986 (1989).

The following facts are pertinent to our resolution of this appeal. In compliance with General Statutes § 52-91³ and Practice Book § 131⁴ the plaintiff annexed to its complaint a statement that the amount “in demand is more than Two Thousand Five Hundred Dollars ($2,500.00) but less than $15,000.00 exclusive of interest and costs.” (Emphasis added.) Despite this statement of the amount in demand, the trial court rendered judgment for the plaintiff in the amount of $146,588.57, attorney’s fees of $3767 and costs of $849.10.

Our decision in the present case is controlled by Davis v. Naugatuck, 15 Conn. App. 185, 543 A.2d 785 (1988). Following a thorough, detailed analysis, this court held that the trial court improperly awarded damages in excess of the amount sought in the statement of the amount in demand. Id., 189-93. We reaffirm our decision in Davis, and hold that the trial court in this case improperly awarded damages in excess of $15,000.

The judgment is reversed as to the award of damages and the case is remanded with direction to modify the judgment so that it totals no more than $15,000 plus costs.

1 The defendants raised the following issues: whether the trial court improperly found that (1) the plaintiff had made reasonable efforts to mitigate damages, (2) the plaintiffs construction activities breached the lease, and (3) the defendant Louis Ursini, president and chief executive officer of Silver Dollar Stores, Inc., executed the lease in his individual capacity.

2 Practice Book § 4185 provides in relevant part: “The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

3 General Statutes § 52-91 provides in relevant part: “The first pleading on the part, of the plaintiff shall be known as the complaint and shall contain ... on a separate page of the complaint, a demand for the relief, which shall be a st atement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs. . . .”

4 Practice Book § 131 provides: “The first pleading on the part of the plaintiff shall be known as the complaint. It shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall include the information required by Gen. Stat. §52-91. . . .”