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JUAN GUZMAN v. ZEYNULLAH YEROZ ET AL.

(AC 37436)

Keller, Prescott and Cremins, Js.

Argued April 4—officially released August 2, 2016

(Appeal from Superior Court, judicial district of New

Haven, Hon. John C. Flanagan, judge trial referee

[judgment]; Frechette, J. [motion to open judgment].)

Hugh D. Hughes, for the appellant (named

defendant).

Robert F. Carter, for the appellee (plaintiff).
Opinion

PRESCOTT, J. The defendant Zeynullah Yeroz

appeals from the trial court’s denial of his motion to

open the judgment,rendered after a hearing in damages,

awarding the plaintiff, Juan Guzman, compensatory and

statutory damages for personal injuries that Guzman

suffered while employed in a pizza restaurant owned

and operated by the defendant.1 We affirm the judgment

of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff sustained a serious

laceration and permanent injury to his left hand while

working forthe defendant in the defendant’s restaurant.

Because the defendant did not have workers’ compensation insurance, the plaintiff brought this action

against the defendant pursuant to General Statutes § 31-

284 (b). The plaintiff’s complaint alleged that the defendant failed to provide a reasonably safe work environment and that his employment was terminated

unlawfully by the defendant in retaliation for the plaintiff’s attempt to exercise his rights under the Workers’

Compensation Act (act), General Statutes § 31-275 et

seq. See General Statutes § 31-290a. The plaintiff sought

compensatory damages for his injuries and punitive

damages for the defendant’s violation of § 31-290a.

The defendant, who was served ‘‘in hand’’ with the

summons and complaint, was subsequently defaulted

for failure to appear.2 The court, Hon. John C. Flanagan, judge trial referee, conducted a hearing in damages, at which the defendant also did not appear.

Following the hearing, the court, in a written memorandum of decision, awarded the plaintiff $287,570 in compensatory damages, and $96,500 in punitive damages

for the defendant’s wilful violation of the act. The court

awarded the plaintiff a total of $386,070.3

Judgment

entered accordingly on June 23, 2014.

On August 6, 2014, forty-four days after judgment was

rendered, the defendant first appeared in this action and

moved to open the judgment. In his motion to open,

the defendant asserted that he never had been served

with the complaint, and, thus, he was prevented from

defending the action ‘‘by [reason of] mistake, accident

or other reasonable cause . . . .’’ General Statutes

§ 52-212.

On November 5, 2014, the court, Frechette, J., denied

the defendant’s motion to open. The court concluded,

after an evidentiary hearing, that the defendant’s testimony that he lacked knowledge of this action and was

never served with process was not credible.

On November 24, 2014, the defendant filed this

appeal. Despite the fact that the twenty day period in

which to appeal from the judgment on the complaint

had expired on July 14, 2014; see Practice Book § 63-

1 (a); and the defendant’s motion to open the judgment
was not filed within that period; see Practice Book § 63-

1 (c) (1); Worth v. Korta, 132 Conn. App. 154, 158–59,

31 A.3d 804 (2011), cert. denied, 304 Conn. 905, 38 A.3d

1201 (2012); the defendant’s appeal form indicates that

he is attempting to appeal from both the original judgment and the denial of the motion to open. The plaintiff,

however, did not move to dismiss that portion of the

appeal challenging the merits of the underlying

judgment.

In his preliminary statement of the issues and his brief

on appeal, the defendant has notraised any challenge to

the court’s denial of the motion to open. Instead, the

defendant’s claims on appeal address only the merits

of the underlying judgment. Specifically, the defendant

claims in his brief that the trial court (1) improperly

found that the plaintiff suffered a permanent disability

to his left hand because the expert report admitted at

the hearing in damages states that the injury was to

the plaintiff’s right hand, (2) awarded excessive noneconomic damages, and (3) improperly construed the

act to permit an award of punitive damages under the

circumstances of this case.

Following oral argument before this court, we

ordered the parties to file simultaneous supplemental

briefs addressing two questions: ‘‘Should this court

review the merits of the underlying judgment rendered

after a hearing in damages when the appellant did not

file a motion to open or a direct appeal within twenty

days of the date the court issued notice of its judgment

on June 23, 2014? (See Dziedzic v. Pine Island Marina,

LLC, 143 Conn. App. 644, 651, [72 A.3d 406] [2013];

Practice Book § 63-1 [b] and [c] [1])’’; and ‘‘If we conclude the appellant’s claims are reviewable, since he

failed to appear at the hearing in damages to raise and

preserve any evidentiary or legal issues, is our standard

of review limited to plain error review?’’

In his supplemental brief, the defendant concedes

that his appeal from the judgment on the merits was

untimely. He argues, however, that because the appeal

period in this case is set by the Practice Book and,

therefore, is not jurisdictional in nature, the plaintiff

waived his right to challenge the untimeliness of the

appeal because he failed to file, pursuant to Practice

Book § 66-8, a motion to dismiss that portion of the

appeal within ten days of the filing of the appeal.

Regarding the standard ofreview, the defendant,relying

on California case law, contends that this court should

review the trial court’s factual findings made after the

hearing in damages pursuant to a clearly erroneous

standard. The defendant’s supplemental brief is silent

as to the standard of review that he believes this court

should apply in reviewing his claim that the court

improperly interpreted the act when it awarded the

plaintiff punitive damages, but his principal brief contended that this court should engage in plenary review
of his claims of legal error.

The plaintiff contends in his supplemental brief that

even though he failed to file a motion to dismiss that

portion of the appeal challenging the judgment on the

merits, this court should decline to review the judgment

on the merits.4 Specifically, the plaintiff relies upon our

decision in Dziedzic v. Pine Island Marina, LLC, supra,

143 Conn. App. 651, in which we refused to entertain

on appeal a challenge to the merits of a judgment in

similar circumstances: ‘‘[I]t is well established in our

jurisprudence that [w]here an appeal has been taken

from the denial of a motion to open, but the appeal

period has run with respect to the underlying judgment,

we have refused to entertain issues relating to the merits

of the underlying case and have limited our consideration to whether the denial of the motion to open was

proper. . . . When a motion to open is filed more than

twenty days after the judgment, the appeal from the

denial of that motion can test only whether the trial

court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. . . . This is so because otherwise the

same issues that could have been resolved if timely

raised would nevertheless be resolved, which would,

in effect, extend the time to appeal. . . . The defendant’s failure to file its motion to open within twenty

days of the notice of judgment precludes review of its

. . . claims [challenging the propriety of the merits of

the underlying judgment] . . . .’’ (Citation omitted;

internal quotation marks omitted.) Id.

Our decision in Dziedzic, however, is silent as to

whether the appellee in that case had filed a motion

to dismiss the portion of the appeal challenging the

underlying merits of the judgment. We conclude, in the

circumstances of this case, that it is unnecessary to

decide whether the rule set forth in Dziedzic and in

other cases should apply only if the appellee files a

motion to dismiss the portion of the appeal purporting

to challenge the merits of the underlying judgment.

Instead, we conclude that even if the defendant is somehow entitled to review of the merits of the underlying

judgment, he cannot prevail on that challenge because

all of his claims pertaining to that judgment are unpreserved and he is not entitled to relief under the plain

error doctrine.

As previously discussed, the defendant did not appear

at the hearing in damages to present to the trial court

any legal or factual objections to the plaintiff’s claims.

‘‘Our appellate courts, as a general practice, will not

review claims made for the first time on appeal. . . .

[A]n appellate court is under no obligation to consider

a claim that is not distinctly raised at the trial level.

. . . [B]ecause our review is limited to matters in the

record, we [also] will not address issues not decided

by the trial court. . . . The purpose of our preservation
requirements is to ensure fair notice of a party’s claims

to both the trial court and opposing parties. . . . These

requirements are not simply formalities. They serve to

alert the trial court to potential error while there is still

time for the court to act.’’ (Citations omitted; footnote

omitted; internal quotation marks omitted.) White v.

Mazda Motor of America, Inc., 313 Conn. 610, 619–20,

99 A.3d 1079 (2014).

On appeal, the defendant has not affirmatively

requested plain error relief. ‘‘[I]t is well established that

this court [is not obligated to] apply the plain error

doctrine when it has not been requested affirmatively

by a party . . . .’’ Connecticut Light & Power Co. v.

Gilmore, 289 Conn. 88, 125 n.26, 956 A.2d 1145 (2008);5

see also, e.g., Johnson v. Commissioner of Correction,

288 Conn. 53, 60, 951 A.2d 520 (2008) (declining to apply

plain error doctrine in absence of affirmative request

for such review); Robert J. Barnabei Contracting, LLC

v. Greater Hartford Jewish Community Center, Inc.,

127 Conn. App. 507, 519, 14 A.3d 461 (same), cert.

denied, 301 Conn. 914, 19 A.3d 1260 (2011).

Even if a party were not obligated to affirmatively

request relief under the plain error doctrine, we conclude that such relief would not be appropriate in this

case. ‘‘[T]he plain error doctrine . . . is not . . . a rule

of reviewability. It is a rule of reversibility. That is, it

is a doctrine that this court invokes in order to rectify

a trial court ruling that, although either not properly

preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment,

for reasons of policy. . . . [T]he plain error doctrine

is reserved for truly extraordinary situations where the

existence of the error is so obvious that it affects the

fairness and integrity of and public confidence in the

judicial proceedings.’’ (Internal quotation marks omitted.) State v. Darryl W., 303 Conn. 353, 371–73, 33 A.3d

239 (2012).

After a thorough review of the record and the defendant’s challenges to the merits of the underlying judgment, we see nothing in the factual findings and legal

conclusions of the trial court that would meet this

extraordinarily high standard. Accordingly, we affirm

the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

1 This action was initiated by the plaintiff against Yeroz and the defendant

Avellino’s Apizza Restaurant, LLC. At the hearing in damages in this matter,

the plaintiff represented that, in essence, he was withdrawing his claim

against the restaurant. Accordingly, the court rendered judgment against

Yeroz only. We therefore refer to Yeroz as the defendant.

We also note that the Second Injury Fund was permitted by the trial court

to intervene and file an intervening complaint, which remains pending. The

judgment against the defendant, however, is a final judgment for purposes

of appeal because judgment was rendered on the entire complaint filed by

the plaintiff against the defendant. See Practice Book § 61-2. The Second

Injury Fund did not participate in this appeal.

2 The entry of a default judgment conclusively establishes the facts alleged
in the plaintiff’s complaint. Smith v. Snyder, 267 Conn. 456, 468, 839 A.2d

589 (2004).

3 We note the arithmetic error, but it was not challenged by the plaintiff.

See O’Connell v. O’Connell, 101 Conn. App. 516, 519 and n.4, 922 A.2d 293

(2007); cf. Milazzo v. Schwartz, 88 Conn. App. 592, 597, 871 A.2d 1040 (2005).

4 The plaintiff also argues that, even if the defendant is entitled to any

review of the merits of the underlying judgment, the decision should be

reversed only for plain error.

5

In State v. Elson, 311 Conn. 726, 740–55, 91 A.3d 862 (2014), our Supreme

Court overruled prior decisions that held that if a party seeks review of an

unpreserved constitutional claim, it must first affirmatively request relief

under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). The

court, however, has not disturbed its prior decisions requiring that a party

must affirmatively request relief under the plain error doctrine. Although

in Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,

Inc., 311 Conn. 123, 84 A.3d 840 (2014), our Supreme Court reiterated that

a reviewing court is not precluded from raising issues involving plain error

sua sponte; id., 161–162; it also clarified in a footnote that a court is not

obligated to raise or consider plain error if a party has failed to do so. Id.,

162 n.33. In other words, a party must raise plain error itself to be entitled

to its application. We also note that the defendant has not asserted on appeal

that any of his claims are of constitutional magnitude.