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LARRY PERCY v. LAMAR CENTRAL OUTDOOR, LLC

(AC 34960)

Lavine, Beach and Sullivan, Js.

Argued October 11, 2013—officially released January 28, 2014

(Appeal from Superior Court, judicial district of

Hartford, Housing Session, Oliver, J.)

John B. Kennelly, for the appellant (defendant).

Donald E. Weisman, for the appellee (plaintiff).
Opinion

SULLIVAN, J. The defendant, Lamar Central Outdoor,

LLC, appeals from the judgment of the trial court, following a hearing in damages upon default, awarding

the plaintiff, Larry Percy, $68,837.34 for injury to his

property. The defendant claims that (1) the court

abused its discretion and violated the defendant’s due

process rights by denying the defendant’s motion to

open judgment and motions for reconsideration, and

(2)the court’s damages award was excessive. We affirm

the judgment of the trial court.

The following facts are set forth in the plaintiff’s

amended complaint. See Mountainview Plaza Associates, Inc. v. World Wide Pet Supply, Inc., 76 Conn.

App. 627, 632–34, 820 A.2d 1105 (2003) (consequence

of default, court bound by factual allegations outlined

in plaintiff’s amended complaint). The plaintiff is the

owner of Percy’s Autobody Service, a business located

at 247 Walnut Street, Hartford (property). On August,

31, 1998, Cornelius Percy, who at that time was the

owner of the property and the business, entered into a

lease with Patrick Media Group, Inc. Under the terms

of the lease, Cornelius Percy leased large billboard signs

to Patrick Media Group, Inc., as well as the entire roof,

walls and surrounding surface area of the building

located on the property, for advertising purposes. On

or about February 29, 2000, Cornelius Percy sold the

property and business to the plaintiff, also assigning

ownership of the lease to the plaintiff. Patrick Media

Group, Inc., subsequently assigned the lease to Martin

Media Group, Inc., who then assigned the lease to

the defendant.

In February of 2008, the defendant’s agents, servants,

and/or employees leaned ladders against the canopy of

the north side of the plaintiff’s building in order to gain

access to the building’s roof and billboard. The ladders

caused the canopy to crack, sag, and deteriorate, and

caused the edge flashing to loosen. As a result of the

loosening ofthe edge flashing, water entered the roofing

and seeped down into the interior of the building, causing damage to the building’s canopy, the roof, and the

building itself.

The plaintiff brought this action for damages on October 26, 2009. On May 9, 2011, the court set a trial date

of October 14, 2011. On October 13, 2011, the defendant

filed a motion to dismiss and a motion for summary

judgment, which led the court to postpone trial in order

to address the jurisdictional issues raised in the motion

to dismiss. The court denied the defendant’s motion to

dismiss on November 21, 2011, and the court denied

the motion for summary judgment on January 6, 2012.

On February 24, 2012, the defendant failed to appear

at scheduled pretrial, notice having been sent on January 20, 2012. The plaintiff filed a motion for default
based upon this failure to appear at civil pretrial, which

was denied by the court. On April 13, 2012, the defendant again failed to timely appear at scheduled pretrial,

notice of which having been sent on March 23, 2012,

instead arriving an hour late. On that date, the court

granted the plaintiff’s oral motion for default. The court

denied the defendant’s motion to open default and

motion for reconsideration. The defendant filed a second motion for reconsideration, which the court also

denied.

A hearing in damages was held before the court on

June 6, 2012. On August 7, 2012, the court, in a written

decision, rendered judgment for the plaintiff, and

awarded the plaintiff $68,837.34 in damages. This appeal

followed. Additional facts will be presented as necessary.

I

The defendant first claims that the court abused its

discretion and violated the defendant’s due process

rights by denying the its motion to open default and

motions forreconsideration. Specifically, the defendant

asserts that (1) it demonstrated good cause to set aside

the default, pursuant to Practice Book § 17-42, and (2)

it was denied due process of law because any issues

of liability would not be considered as a result of the

default. We are not persuaded.

In its corrected articulation, dated November 15,

2012, the court detailed that it denied the defendant’s

motion to open default, and subsequent motions for

reconsideration, ‘‘[p]ursuant to the [c]ourt’s authority

pursuant to Practice Book §§ 14-12 et. seq. and § 17-42,

based on the defendant’s violation of scheduling orders,

untimely filing of motions resulting in the delay of a

long-scheduled trial, and for twice failing to appear for

pre-trial conferences without good cause . . . .’’ The

court noted in its articulation that ‘‘[t]he ‘eve of trial’

filings by the defendantrequired the [c]ourt to postpone

the trial in order to address the jurisdictional issues in

the [m]otion to [d]ismiss’’ and that ‘‘the plaintiff was

trial-ready and had present in court his expert witness.’’

The court also noted that, after the defendant’s first

failure to timely appear at civil pretrial, the court denied

the plaintiff’s subsequent motion for default ‘‘in an

attempt to preserve the defendant’s right to a fair hearing on the merits.’’

The court may set aside a default when no judgment

has been rendered ‘‘for good cause shown upon such

terms as it may impose.’’ Practice Book § 17-42. ‘‘[T]he

determination of whether to set aside [a] default is

within the discretion of the trial court . . . and will

not be disturbed unless that discretion has been abused

or where injustice will result. In the exercise of its

discretion, the trial court may consider not only the

presence of mistake, accident, inadvertence, misfor-
tune or other reasonable cause . . . factors such as

[t]he seriousness of the default, its duration, the reasons

for it and the degree of contumacy involved . . . but

also, the totality of the circumstances, including

whether the delay has caused prejudice to the nondefaulting party.’’ (Internal quotation marks omitted.)

Bohonnon Law Firm, LLC v. Baxter, 131 Conn. App.

371, 381, 27 A.3d 384, cert. denied, 303 Conn. 902, 31

A.3d 1177 (2011).

The defendant argues that the court should have

granted its motion to open because it sufficiently established that counsel’s errors were the result of mistake

and accident; specifically, that counsel for the defendant did appear for the April 13, 2012, rescheduled

pretrial, ‘‘albeit an hour late,’’ and that ‘‘late appearance

does, in fact, constitute an appearance, and the mistake

in time should serve as a defense against default.’’ Further, counsel asserts that his perpetual tardiness did

‘‘not signify an unwillingness to enthusiastically litigate

the pending case,’’ and that ‘‘prior to the pretrial conference which was the reason for the default order, the

defendant had attended previous pretrial conferences,

had filed substantive motions for summary judgment

and to dismiss, and had deposed the plaintiff. Additionally, on November [21] 2011, both parties were in court,

ready to proceed with scheduled trial. On that date the

defendant filed numerous motions in limine.’’ As to his

claim that the court improperly denied his motions for

reconsideration, the defendant reasserts these same

arguments.

Considering the totality of the circumstances, the

court’s determination that the defendant failed to establish good cause to set aside the default, pursuant to

Practice Book § 17-42, was not an abuse of discretion.

Counsel for the defendant exhibited a pattern of disregard for the court’s orders and procedures. First, the

defendant simultaneously filed a motion for summary

judgment and a motion to dismiss on the eve of trial,

in direct violation of Practice Book §§ 10-30 and 17-

44, and the scheduling order issued by the court.1 As

articulated by the court, these filings impeded the operation of the court and the preparation of the plaintiff.

Second, regardless of counsel’s sincerity as to his mistake, he failed to timely appear at two scheduled pretrial

conferences ordered by the court, to which notice of

the date and time as to each had been sent more than

one month prior. Third, after the court denied the plaintiff’s first motion for default ‘‘in an attempt to preserve

the defendant’s right to a fair hearing on the merits,’’

and counsel had notice of this leniency, counsel nevertheless failed to appear at the proper time for the

rescheduled pretrial. See, e.g., Automotive Twins, Inc.

v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951)(‘‘[Practice

Book § 17-19] provides that a party who fails to comply

with an order of the court may be defaulted. . . . The

defendant’s failure to appear for trial was a failure to
comply with an order of court and was ample cause

for defaulting him.’’).

The record indicates that counsel for the defendant

received notice of the date and time of both pretrial

conferences but failed to appear at the first, and arrived

an hourlate to the second, due to counsel’s own inattentiveness. ‘‘This court repeatedly has stated that negligence is an improper ground on which to set aside a

default.’’ Sessa v. Province, 98 Conn. App. 564, 566, 910

A.2d 992 (2006), cert. denied, 281 Conn. 912, 916 A.2d

51 (2007). As a result, the court’s decision to not set

aside the default was not an abuse of its discretion.

Compare id. (‘‘The record indicates that the defendants

received notice of [the court’s] orders regarding the

mediation session and failed to comply with them. In

light of the defendants’ negligence, [the court] reasonably concluded that the defendants had failed to demonstrate good cause to set aside the default.’’), with

Patterson v. TravelersCasualty & SuretyCo., 104Conn.

App. 824, 827, 936 A.2d 241 (2007) (defendant’s failure

to receive notice of date and time of pretrial conference

constituted good cause for its nonappearance), cert.

denied, 286 Conn. 920, 949 A.2d 481 (2008); see also

Barton v. Barton, 123 Conn. 487, 489–91, 196 A. 141

(1937); Bohonnon Law Firm, LLC v. Baxter, supra, 131

Conn. App. 381–82.

The defendant also argues that the court’s denials of

its motion to open and motions for reconsideration

were a denial of due process. Specifically, it alleges

that, by denying its motions, the court limited the issues

that the defendant could bring forth in the hearing in

damages in that any issues of liability would not be

considered, thereby denying the defendant due process

of law.

The defendant’s due process argument is unavailing.

‘‘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. Unless the defendant provides the

plaintiff written notice of any defenses, the defendant

is foreclosed from contesting liability. . . . If written

notice is furnished to the plaintiff, the defendant may

offer evidence contradicting any allegation of the complaint and may challenge the right of the plaintiff to

maintain the action or prove any matter of defense.

. . . This approximates what the defendant would have

been able to do if he had filed an answer and special

defenses.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Schwartz v. Milazzo, 84

Conn. App. 175, 178–79, 852 A.2d 847, cert. denied,

271 Conn. 942, 861 A.2d 515 (2004); see also General

Statutes § 52-221; Bank of New York v. National Funding, 97 Conn. App. 133, 139–40, 902 A.2d 1073, cert.

denied, 280 Conn. 925, 908A.2d 1087 (2006), cert. denied

sub nom. Reyad v. Bank of New York, 549 U.S. 1265,
127 S. Ct. 1493, 167 L. Ed. 2d 229 (2007).

There is no indication in the record, and the defendant does not claim, that the court prevented the defendant from utilizing these available procedural remedies.

‘‘A party who allows the ten day period from the notice

of default to expire without filing a notice of defenses

does so at his peril.’’ Whalen v. Ives, 37 Conn. App. 7,

20, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d

645 (1995); see also Practice Book § 17-35 (b). The court

did not limit the defendant’s ability to be heard.

Accordingly, the court did not abuse its discretion

and did not violate the defendant’s due process rights

by denying the defendant’s motion to open judgment

and subsequent motions for reconsideration.

II

The defendant also claims that the court’s damages

award was clearly erroneous. Specifically, the defendant argues that (1) there is no evidence to support the

court’s inclusion of the cost of a full new roof, $46,500,

in its damages award of $68,837.74, and (2) the court’s

damages award is excessive because it places the plaintiff in a better position than he would have been had

the defendant not been negligent. We are not persuaded.

The following additional facts are relevant to this

claim. Following the default, and the court’s denials of

the defendant’s motion to open and motions for reconsideration, the court took evidence on June 6, 2012, at

a hearing in damages. At the hearing in damages, the

court heard testimony from the plaintiff, along with

James Fitzgerald, president of The State Awning Company, and James Hopkins, chief executive officer of

Rite-Way Restoration and Roofing Specialist, LLC, who

testified as to the damage to the overhang and the roof,

respectively. The only evidence provided by the defendant was that which could be gleaned through crossexamination of these witnesses.

As to the issue of the extent of the damage to the

roof, the plaintiff submitted as evidence a copy of the

bid created in 2012 by Hopkins, which called for the

replacement of the roof. Hopkins testified that this bid

was nearly the same as one which he had created for

the plaintiff in 2009, but that the 2012 bid was slightly

higher to account for the increased cost of materials.

Testimony from both the plaintiff and Hopkins established that a portion of the roof was repaired in 2011

after it caved in from the weight of snow, and that this

repair was paid for by insurance. There was no evidence

provided as to the cost of the 2011 repair to the roof,

and there was no evidence provided as to the cost to

replace the portion of the roof that was not repaired

in 2011.

The defendant first argues that there was no testimony elicited from Hopkins that established that it was

necessary to replace the entire roof; instead, Hopkins’
quote was created out of a desire to perform the job

properly, and not necessity. The defendant also argues

that the court’s award was clearly erroneous because

the court’s determination that the entire roof now needs

to be replaced is undermined by evidence that established that the roof had been repaired in 2011.

‘‘We first set forth our standard ofreview with respect

to damages. [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. . . . [W]hether

the decision of the trial court is clearly erroneous . . .

involves a two part function: where the legal conclusions of the court are challenged, we must determine

whether they are legally and logically correct and

whether they find support in the facts set out in the

memorandum of decision; where the factual basis of

the court’s decision is challenged we must determine

whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light

of the evidence and the pleadings in the whole record,

those facts are clearly erroneous. . . . In a case tried

before a court, the trial judge is the sole arbiter of the

credibility of the witness and the weight to be given

specific testimony. . . . On appeal, we will give the

evidence the most favorable reasonable construction

in support of the verdict to which it is entitled. . . . A

factual finding may be rejected by this court only if it

is clearly erroneous. . . . A finding is clearly erroneous

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.’’ (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509, 527–28, 967 A.2d 550, cert.

denied, 292 Conn. 907, 973 A.2d 103 (2009). ‘‘Moreover,

it is the exclusive province of the trier of fact to weigh

the conflicting evidence, determine the credibility of

witnesses and determine whether to accept some, all or

none of a witness’ testimony. . . . Thus, if the court’s

dispositive finding . . . was not clearly erroneous,

then the judgment must be affirmed. . . . The function

of the appellate court is to review, and not retry, the

proceedings of the trial court.’’ (Internal quotation

marks omitted.) Keith E. Simpson Associates, Inc. v.

Ross, 125 Conn. App. 539, 543, 9 A.3d 394 (2010).

Hopkins testified that to repair the roof he ‘‘would

have to rip it . . . down to the tongue and groove. . . .

[A]nything . . . can penetrate right through the roof,

it’s too heavy.’’ The defendant first argues that Hopkins

based his quote upon a desire to perform a thorough

job, and not out of necessity. To support this argument,

the defendant cites the portion ofthe transcript in which

Hopkins responded, when prompted by counsel for the

defendant to address whether the repairs in 2011 had

any effect on his current quote, ‘‘Well when I go in to
do a job I don’t go in and do it half, I go in and I take

it all off because I’m doing it now.’’

On the other hand, although the defendant asserts

throughout its brief that there was no testimony from

Hopkins indicating that the entire roof needed to be

replaced, this is inaccurate. Hopkins testified that the

roof needed to be replaced because the damage to the

canopy caused water to enter the roof’s tongue and

groove system and warp the boards.2 Accordingly, there

was evidence before the court that the damage to the

canopy necessitated replacement of the entire roof.

The defendant also argues that, because the 2012

quote did not take into account the 2011 repairs, the

court’s reliance on the 2012 quote in its calculation of

damages was clearly erroneous. We are not persuaded.

The current cost of repair estimates can be evidence

of the extent of earlier damage. See Willow Springs

Condominium Assn.,Inc. v. Seventh BRT Development

Corp., 245 Conn. 1, 60–61, 717 A.2d 77 (1998) (‘‘In Whitman Hotel Corp. [v. Elliot & Watrous Engineering Co.,

137 Conn. 562, 573, 79 A.2d 591 (1951)], we rejected

the argument that permitting recovery for the actual

cost of repairs puts the plaintiff in a better position than

it was in before the damage was done. . . . As we have

stated, the cost of repairs is evidence of the diminution

in value resulting from [the defendant’s] actionable conduct. [E]xpenditure for repairs would restore the building of the plaintiff to its condition of usefulness prior

to the [damage] . . . .’’ [Citation omitted; emphasis in

original; internal quotation marks omitted.]); see also

Calderwood v. Bender, 189 Conn. 580, 584–85, 457 A.2d

313 (1983) (holding that actual cost of repairing faulty

septic system was proper measure of damages). Here,

Hopkins submitted a quote in 2009 for a new roof, and

Hopkins testified that, when making his quote in 2012,

he witnessed the 2011 repairs, but that these repairs

did not affect his quote. It is unclear from the defendant’s brief why Hopkins testimony is evidence that the

repairs in 2011 remedied the need to replace the roof

in full; on the contrary, Hopkins testimony is evidence

that the 2011 repairs did nothing to remedy the damage

caused by water to the roof’s tongue and groove system

as a whole.

As his final argument, the defendant asserts that the

court’s inclusion of the cost of a new roof in its damages

award is excessive because it places the plaintiff in a

better position than he would have been had the defendant not been negligent. We disagree.

‘‘In determining the proper measure for damages to

land, the legal effort . . . is to compensate the landowner for the damage done. . . . This is essentially

true whether the injury is redressed under a theory of

tort or breach of contract. . . . The basic measure of

damages for injury to real property is the resultant

diminution in its value. . . . There is, however, a well
established exception to this formula; such diminution

in value may be determined by the cost of repairing the

damage, provided, of course, that that cost does not

exceed the former value of the property and provided

also that the repairs do not enhance the value of the

property over what it was before it was damaged.’’

(Citations omitted; internal quotation marks omitted.)

Willow Springs Condominium Assn., Inc. v. Seventh

BRT Development Corp., supra, 245 Conn. 59; see also

Whitman Hotel Corp. v. Elliot & Watrous Engineering

Co., supra, 137 Conn. 573.

Here, there was no evidence to indicate that the cost

of replacing the full roof would exceed the purchase

price of the property being repaired; see Willow Springs

Condominium Assn.,Inc. v. Seventh BRT Development

Corp., supra, 245 Conn. 60; and there was no evidence

that a new roof enhanced the value of the property over

what it was before it was damaged. See Whitman Hotel

Corp. v. Elliot & Watrous Engineering Co., supra, 137

Conn. 573–74. Accordingly, we are not persuaded that

the court’s inclusion of the cost of a full roof in its

measure of damages was an improper measure of the

diminution of the value of the plaintiff’s property that

resulted from the defendant’s negligence. See, e.g., Centimark Corp. v. Village Manor Associates Ltd. Partnership, supra, 113 Conn. App. 531–33. In consideration

of this evidence, we are not left with a definite and firm

conviction that a mistake has been made.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The parties agreed to file motions for summary judgment by January

14, 2011.

2 The following colloquy occurred during the cross-examination and subsequent redirect examination of Hopkins.

‘‘[The Defendant’s Counsel]: [I]s the tongue and grove roofing failing due

to the weight of the later roofing systems and the billboard, or because

there’s some water had gotten in? . . .

‘‘[Hopkins]: [W]hen you disturb any part of the roofing system [in]which

the awning [is] supposed to go underneath, you have to replace the whole

thing. Because what he did was create a monster, because the water’s going

to keep on, like the wind blowing and the rain it go in through that hole

and it will start, and once the water get in . . . it’s a no brainer, it travels

everywhere . . . . What it did throughout the years was got into that tongue

and groove and the boards then got warped. So tongue and groove stick

together like this, so now it’s separating them and it’s making an opening. . . .

‘‘[The Defendant’s Counsel]: And you had testified that . . . it was

because the roof was too heavy?

‘‘[Hopkins]: ‘‘Yes. But when I heard him talk about he messed with—

whoever touched that awning, if it found an opening no telling where the

water at. . . . [T]hat’s what I say, because I know the system. . . .

‘‘[The Plaintiff’s Counsel]: Just to clarify this, you told me had there been

no water damage the roof would not have to be replaced, is that correct?

‘‘[Hopkins]: That’s correct.’’