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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, LamarCentralOutdoor, 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 damagesawardwas excessive. We affirm the judgment of the trial court.
The following facts are set forth in the plaintiff’s amended complaint. See Mountainview PlazaAssociates, 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 ofPercy’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 ofthe property and the business, entered into a lease with Patrick Media Group, Inc. Under the terms ofthelease, CorneliusPercyleasedlargebillboardsigns 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 of2008, the defendant’s agents, servants, and/or employees leaned ladders against the canopy of the north side ofthe plaintiff’s building in order to gain
access to the building’s roofand billboard. The ladders caused the canopy to crack, sag, and deteriorate, and caused the edge flashing to loosen. As a result of the looseningoftheedgeflashing, waterenteredtheroofing and seeped down into the interior ofthe building, causing damage to the building’s canopy, the roof, and the building itself.
TheplaintiffbroughtthisactionfordamagesonOctober 26, 2009. On May 9, 2011, the court set a trial date ofOctober 14, 2011. On October 13, 2011, the defendant filed a motion to dismiss and a motion for summary judgment, whichledthe courtto postpone trial in order to address thejurisdictional 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 summaryjudgment 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 defaultbased upon this failure to appearat civilpretrial, which
was denied by the court. On April 13, 2012, the defendant again failed to timely appear at scheduledpretrial, notice of which having been sent on March 23, 2012, instead arriving an hour late. On that date, the court grantedtheplaintiff’s oralmotionfordefault. 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 awardedtheplaintiff$68,837.34indamages. Thisappeal 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 motionsforreconsideration. 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, basedonthe defendant’sviolationofschedulingorders, 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’ filingsbythe defendantrequiredthe [c]ourttopostpone the trial in order to address the jurisdictional issues in the [m]otion to [d]ismiss’’ and that ‘‘the plaintiff was trial-readyandhadpresentin courthis expertwitness.’’ The court also noted that, after the defendant’s first failuretotimelyappearatcivilpretrial, the courtdenied 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 nojudgment 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 notbe disturbedunlessthat discretionhasbeen 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]heseriousnessofthedefault, itsduration, thereasons 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 grantedits motionto openbecause 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 anhourlate,’’ andthat ‘‘late appearance does, infact, constitute an appearance, andthe 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 thepending case,’’ andthat ‘‘priorto thepretrial 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, bothparties 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 determinationthatthe defendantfailedto 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 articulatedbythe court, these filings impededthe operation of the court and the preparation of the plaintiff. Second, regardless of counsel’s sincerity as to his mistake, hefailedtotimelyappearattwoscheduledpretrial conferences ordered by the court, to which notice of the date and time as to each had been sent more than
one monthprior. Third, afterthe court deniedtheplaintiff’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 ofthis 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, 82A.2d 146 (1951) (‘‘[Practice Book § 17-19] provides that aparty who fails to comply with an order of the court may be defaulted.

. . . The defendant’s failure to appear for trial was a failure tocomply 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 conferencesbutfailedto appearatthe first, andarrived
anhourlatetothesecond, dueto counsel’sowninattentiveness. ‘‘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 thatthe 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] reasonablyconcludedthatthedefendantshadfailedto demonstrate good cause to set aside the default.’’), with Pattersonv. TravelersCasualty&SuretyCo., 104Conn. App. 824, 827, 936 A.2d 241 (2007) (defendant’s failure to receive notice ofdate andtime ofpretrial 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);BohonnonLawFirm, LLCv. 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, bydenyingitsmotions, the courtlimitedthe issues that the defendant could bring forth in the hearing in damages in that any issues of liability would not be considered, thereby denyingthe 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 rightto contestliabilityinahearingin 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 ofthe 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 ofNew York v. NationalFunding, 97 Conn. App. 133, 139–40, 902 A.2d 1073, cert. denied, 280Conn. 925, 908A.2d 1087(2006), cert. denied sub nom. Reyad v. Bank ofNew 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, thatthe courtpreventedthe defendantfromutilizingthese availableproceduralremedies. ‘‘Aparty 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 PracticeBook § 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 ofthe cost ofa full new roof, $46,500, in its damages award of $68,837.74, and (2) the court’s damages awardis excessive because itplacestheplaintiff in a better position than he would have been had thedefendantnotbeennegligent. Wearenotpersuaded.
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 ofthe 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 repairwaspaidforbyinsurance. Therewasno 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 establishedthat itwas 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 determinationthatthe entireroofnowneeds to be replaced is undermined by evidence that established that the roof had been repaired in 2011. ‘‘Wefirstsetforthourstandardofreviewwithrespect 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 ofthe 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 ofthe evidence and the pleadings in the whole record, those facts are clearly erroneous.

. . . In a case tried before a court, the trialjudge 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 ofthe 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.’’ (Internalquotationmarks omitted.) Centimark Corp. v. Village ManorAssociates 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 ofthe trier offact to weigh the conflicting evidence, determine the credibility of witnesses and determine whetherto acceptsome, all or
none of a witness’ testimony.

. . . Thus, if the court’s dispositive finding

. . . was not clearly erroneous, then thejudgment 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 ofnecessity. To supportthis argument, thedefendantcitestheportionofthetranscriptinwhich Hopkins responded, whenprompted by counsel forthe defendant to address whether the repairs in 2011 had any effect on his current quote, ‘‘Well when I go in todo ajob 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 roofneeded to be replaced because the damage to the canopy caused water to enter the roof’s tongue and groove systemandwarptheboards.2Accordingly, 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 CondominiumAssn., Inc. v.SeventhBRTDevelopment Corp., 245 Conn. 1, 60–61, 717A.2d 77 (1998) (‘‘In WhitmanHotel Corp. [v. Elliot & WatrousEngineering Co., 137 Conn. 562, 573, 79 A.2d 591 (1951)], we rejected the argument that permitting recovery for the actual cost ofrepairsputstheplaintiffin abetterpositionthan it was in before the damage was done.

. . . As we have stated, the cost ofrepairs is evidence ofthe diminution invalueresultingfrom [the defendant’s] actionable conduct. [E]xpenditure forrepairs 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 Calderwoodv. 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 briefwhyHopkins testimonyis evidence thatthe repairs in 2011 remedied the need to replace the roof in full; on the contrary, Hopkins testimony is evidence thatthe 2011 repairs did nothing to remedythe damage causedbywaterto the roof’stongue andgroove system
as a whole.
As his final argument, the defendant asserts that the court’sinclusionofthe costofanewroofinits damages award is excessive because it places the plaintiff in a betterposition 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 wellestablished exception to this formula; such diminution invalue maybe determined bythe cost ofrepairing 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 BRTDevelopment Corp., supra, 245 Conn. 59; see also WhitmanHotel 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 priceofthepropertybeingrepaired; see WillowSprings CondominiumAssn., Inc. v.SeventhBRTDevelopment Corp., supra, 245 Conn. 60; and there was no evidence that anewroofenhancedthevalue oftheproperty over what it was before itwas damaged. See WhitmanHotel 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 resultedfromthe defendant’snegligence. See, e.g., Centimark Corp. v. VillageManorAssociatesLtd. Partnership, supra, 113 Conn. App. 531–33. In consideration ofthis 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 Thefollowingcolloquyoccurredduringthecross-examinationandsubsequent 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 ofthe 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.’’