Gaynor v. Homes

149 Conn.App. 267

89 A.3d 373

Sung GAYNOR et al.

v.HI–TECH HOMES et al.

No. 35302.

Appellate Court of Connecticut.

Argued Oct. 23, 2013.

Decided April 8, 2014.

Richard Stein, self-represented, the appellant (defendant).

Robert D. Russo, Southport, with whom was Elizabeth LaMura, for the appellees (plaintiffs).

BEACH, ALVORD and PELLEGRINO, Js.

ALVORD, J.

The self-represented defendant, Richard Stein,¹ appeals from the judgment of the trial court, following a hearing in damages, awarding $72,022.19 to the plaintiffs, Sung Gaynor and Donald Gaynor. On appeal, the defendant claims that the court improperly (1) awarded damages for breach of the parties' agreement because he had completed all of the work, and (2) awarded attorney's fees under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq. We affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's claims. On November 19, 2009, the plaintiffs commenced the present action against the defendant alleging breach of contract, unjust enrichment ² and violation of CUTPA. In their complaint, the plaintiffs claimed that in 2004, they purchased real estate located in Westport with the intention of demolishing an existing structure, building a new residence in its place, and then selling the property at a profit. On October 19, 2005, the plaintiffs and the defendant signed an agreement that provided that the defendant would (1) deliver and erect a modular home on the plaintiffs' property for a specified price, and (2) supervise the completion of the modular home by subcontractors approved by the plaintiffs for additional compensation. The plaintiffs alleged that the defendantbreached the agreement by charging more than the contract price, by failing to timely complete the construction and assembly of the modular home,³ and by collecting payments for work that had not been completed.

The defendant filed an appearance as a self-represented party on December 15, 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. On July 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 § 17–42⁴ nor did he file a notice of defenses pursuant to Practice Book § 17–34⁵ prior to the scheduled hearing in damages.

The defendant attended the hearing in damages on September 20, 2012,⁶ where the plaintiffs' counsel called Sung Gaynor and the defendant as witnesses. The defendant cross-examined Sung Gaynor, and he had the opportunity to object to exhibits submitted by the plaintiffs and to present his own exhibits for the court's consideration. Following the hearing, the court requested the parties to file briefs on the computation of damages. On November 30, 2012, the court issued its memorandum of decision and awarded damages to the plaintiffs in the amount of $57,618, together with attorney's fees under CUTPA in the amount of $14,404.19. This appeal followed.

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 failed 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 cause of action ... and entry of default, when appropriately made, conclusively determines the liability of a defendant.... Following the entry of a default, all that remains is for the plaintiff to prove the amount of damages to which it is entitled.... At a minimum, the plaintiff in such instances is entitled to nominal damages.” (Citations omitted; internal quotation marks omitted.) Argentinis v. Fortuna, 134 Conn.App. 538, 545–46, 39 A.3d 1207 (2012).

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 all 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, 90 Conn.App. 219, 221, 876 A.2d 588 (2005).

“[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, 134 Conn.App. at 548, 39 A.3d 1207. At the hearing in damages, Sung Gaynor testified that she paid the defendant for work that he had not completed. She submitted various invoices marked “paid,” some of which were initialed or signed by the defendant, in support of her claim. The court, referring to those exhibits in its memorandum of decision, credited her testimony with respect to twelve items, which totaled $57,618.

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 had not been completed. “We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Porter v. Morrill, 108 Conn.App. 652, 664, 949 A.2d 526, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008).

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 testified that she neverreceived the garage door openers and that the gutters and leaders had not been installed.

Exhibit seventeen, which is an invoice, lists 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.⁷

Exhibit nine is a payment schedule that was admitted as a full exhibit at the hearing. Dated seven months earlier than exhibit seventeen, it lists 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 $4750. 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 $5750 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.⁸

“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...