Warner v. Brochendorff

136 Conn.App. 24

43 A.3d 785

Scott WARNER

v.Dianna BROCHENDORFF.

No. 31453.

Appellate Court of Connecticut.

Argued March 13, 2012.

Decided June 5, 2012.

Lorinda S. Coon, with whom, on the brief, was Patrick J. Flaherty, Hartford, for the appellant-cross appellee (plaintiff).

William O. Riiska, Lakeville, for the appellee-cross appellant (defendant).

LAVINE, ALVORD and SCHALLER, Js.

ALVORD, J.

The plaintiff, Scott Warner, brought the present action to foreclose a judgment lien on certain property in Salisbury owned by the defendant, Dianna Brochendorff. The trial court, after reducing the amount of the underlying judgment, rendered a judgment of foreclosure by sale (foreclosure judgment) in favor of the plaintiff. The plaintiff appeals from the foreclosure judgment, claiming that the court improperly permitted a collateral attack on the underlying judgment. The defendant cross appeals from the foreclosure judgment, claiming that the court improperly determined the amount of damages from the evidence submitted at trial. In particular, the defendant claims that the amount awarded by the court as attorney's fees was excessive. We agree with the plaintiff and, accordingly, reverse the foreclosure judgment of the trial court.¹

The following facts and procedural history are relevant to these appeals. The plaintiff and the defendant are neighbors, owning adjoining properties on a wooded hillside in Salisbury. In 2003, the defendant made arrangements with Curtis Benson to cut down some trees on her property. Benson offered to sell the trees to a logging company and to share 50 percent of the proceeds with the defendant. Pursuant to that agreement, Benson cut trees for four days in November, 2003. The plaintiff subsequently claimed that Benson had cut trees from his property and that Benson had left behind substantial debris that needed to be removed. By letter dated January 8, 2005, the plaintiff notified the defendant that she had destroyed trees on his property and that he intended to take legal action.

The plaintiff filed a complaint in April, 2006 (underlying action), alleging that the defendant unlawfully entered upon his land. He alleged that she cut down, damaged or destroyed several trees on his property and that she left behind treetops and other debris from the logging operations. The defendant's actions, he claimed, diminished the value of his property. The defendant filed a pro se appearance in the underlying action, listing her address on the form as 11 East 67th Street, New York, New York. She was subsequently defaulted for her failure to plead.² The plaintiff claimed the matter to the trial list, and the court held a hearing in damages on September 17, 2007.

The defendant did not appear at the hearing in damages. The plaintiff presented two witnesses, Stefen Bibro, a licensed arborist and landscaper, and the plaintiff. Bibro testified that the cost of replacing the destroyed trees and removing the logging debris from the plaintiff's property would be $50,000. The plaintiff testified as to the fair market value of his property. At the conclusion of their testimony, the plaintiff's counsel stated that the plaintiff was seeking an award of $50,000, which counsel represented to be the cost of restoring the property to its condition prior to the defendant's trespass. The court, Pickard, J., then issued its ruling: “Based upon the testimony I have heard, I'm going to enter judgment in favor of the plaintiff in the amount of $50,000, plus taxable costs.”

The plaintiff filed a certificate of judgment lien in the Salisbury land records on September 24, 2007. On April 21, 2008, the plaintiff commenced the present action to foreclose the judgment lien on the defendant's property. In her answer, the defendant admitted the allegations of the complaint, but she claimed that the judgment lien was not valid. She filed two special defenses, alleging that the judgment in the underlying action was obtained through fraud and was unenforceable because (1) misrepresentations were made to the trial court and (2) she lacked notice as to the underlying proceedings. ³ One week before the trial was scheduled to commence, the plaintiff filed a motion to quash the subpoena duces tecum that had been served on the plaintiff's counsel and a motion in limine, which sought to preclude testimony that would attack collaterally the court's measure of damages in the underlying action. The defendant filed responses to those motions on January 22, 2009.

A trial on the special defenses in the foreclosure action was held on January 22, 23 and 30, 2009. On the first day of trial, the court initially addressed the two motions filed by the plaintiff. With respect to the motion to quash, the plaintiff's counsel argued that any information sought by the defendant as to the measure of damages for cutting trees would be irrelevant to the foreclosure proceeding and to the claim of fraud in the defendant's special defenses.⁴ After argument by the defendant's counsel, the court overruled the defendant's objection to the plaintiff's motion to quash the subpoena.

With respect to the motion in limine, the plaintiff's counsel stated that the defendant had disclosed two experts who planned to testify as to the proper measure of damages for cutting trees on the plaintiff's property. The plaintiff's counsel claimed that such testimony was not relevant to the defendant's allegation of fraud in her special defenses. In response, the defendant's counsel argued that the disparity between the damages awarded in the underlying action and the actual damages, as would be proved by her experts, was indicative of fraud. The court declined to rule on the motion in limine at that time, reserving decision until the time that the witnesses testified at trial.⁵

The court heard testimony from several witnesses, including the plaintiff and the defendant. The defendant acknowledged that she had filed a pro se appearance in the underlying action and that she had listed her address as 11 East 67th Street, New York, New York on the appearance form. She testified that she had lived at that address for a short time only, perhaps a total of thirty days, but that she did not realize the New York address would be used as her mailing address. She conceded that she did not notify the court of her change in address. The plaintiff and the court, accordingly, had mailed all pleadings and notices in the underlying action to the New York address.

The defendant stated at trial that she never received those pleadings and was unaware that the matter was proceeding to judgment. She testified that she assumed the matter had been withdrawn because she had heard nothing further from the plaintiff in connection with the underlying action. When asked when she first became aware that a judgment had been rendered against her in the underlying action, she responded that her attorney in another pending matter between the parties notified her of the judgment in April, 2008, when he learned of it at a court conference. It is undisputed that the defendant never appealed from the underlying judgment nor did she move to open the underlying judgment within four months from the date on which it was rendered.

Three witnesses testified at the foreclosure proceeding as to the proper measure of damages for the tree cutting operation in 2003. Mathias Kiefer, a licensed land surveyor and a licensed consulting forester, testified that the value of the trees cut on the plaintiff's property would be, at the most, $450 to $500. John Harney, a licensed real estate broker, testified that the plaintiff's property suffered no diminution in value as a result of the logging operations in 2003. He did note, however, that the logger had been “sloppy” and that debris needed to be removed from the property. Finally, Bibro, the licensed arborist and landscaper who had testified for the plaintiff as to the $50,000 replacement and removal costs at the hearing in damages in the underlying action, testified at the foreclosure proceeding in response to a subpoena served on him by the defendant. He stated that he “probably” would not have recommended that the plaintiff replace the trees that had been cut down on his property in 2003.

The parties filed posttrial briefs. On August 20, 2009, the court issued its memorandum of decision in which it found the debt owed by the defendant, “as adjusted,” to be $10,000. The court further found that the fair market value of the defendant'sproperty was $70,000, and it rendered a judgment of foreclosure by sale. The plaintiff filed a motion for articulation on September 8, 2009, requesting that the court provide its factual findings for each claim of law raised by the parties. The court filed its articulation on December 4, 2009, in which it set forth the following findings and conclusions: (1) the defendant filed a pro se appearance in the underlying action with her address listed as 11 East 67th Street, New York, New York; (2) the defendant was defaulted for her failure to plead in the underlying action on June 21, 2006; (3) the defendant failed to update the appearance form with her current address, which had changed during the course of the proceedings; (4) judgment was rendered against the defendant in the underlying action on the basis of the default and the uncontested damage evidence submitted during the hearing in damages; (5) “[a]lternate economic values were never offered to the trial court [in the underlying action] and therefore the court was unintentionally misinformed and judgment entered with the stated inflated values”; (6) the defendant presented defenses to the foreclosure action “based on fraud, accident, mistake and/or surprise”; ⁶ (7) “an unconscionable amount of money [was] awarded to the plaintiff by way of a default judgment”; (8) a foreclosure action is an equitable proceeding, and equitable principles would allow the court to make “a realistic evaluation...