Argentinis v. Fortuna, No. 33045.

Decision Date03 April 2012
Docket NumberNo. 33045.
Citation39 A.3d 1207,134 Conn.App. 538
CourtConnecticut Court of Appeals
PartiesOurania ARGENTINIS et al. v. Lisa FORTUNA et al.

OPINION TEXT STARTS HERE

Brian J. Harte, pro se, the appellant (defendant).

Jessica L. Braus, for the appellee (plaintiffs).

LAVINE, ALVORD and BEAR, Js.

LAVINE, J.

Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties. See Watkins v. Thomas, 118 Conn.App. 452, 456, 984 A.2d 106 (2009). Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice; see, e.g., Oliphant v. Commissioner of Correction, 274 Conn. 563, 569–70, 877 A.2d 761 (2005); the purpose of which “is to provide a just determination of every proceeding.” (Internal quotation marks omitted.) Snowdon v. Grillo, 114 Conn.App. 131, 137, 968 A.2d 984 (2009). A motion for default for failure to plead may enter against a defendant who fails to answer a complaint; see Practice Book § 17–32; and judgment may be rendered on the default. See Practice Book § 17–33. If, however, the default judgment constitutes plain error,1 our supervisory powers 2 permit us to reverse said judgment “to ensure the fair and just administration of the courts.” (Internal quotation marks omitted.) State v. Elson, 125 Conn.App. 328, 361, 9 A.3d 731 (2010) (en banc), cert. granted on other grounds, 300 Conn. 904, 12 A.3d 572 (2011). This is such a case.

Following a hearing in damages in this case, the self-represented defendant, Brian Harte, appealed from the judgment of the trial court rendered in favor of the plaintiffs, Ourania Argentinis and Panagiotis Argentinis. On appeal, Harte claims that (1) he never received notice of the hearing in damages, (2) discovery and settlements with codefendants will demonstrate that he did not remove certain bushes as alleged by the plaintiffs and (3) an award of treble and punitive damages pursuant to General Statutes § 52–560 was not justified. We reverse, in part, the judgment of the trial court.

The following facts, as gleaned from the record, are relevant to our resolution of Harte's appeal. On April 13, 2009, the plaintiffs filed an application for a prejudgment remedy supported by an affidavit in which Ourania Argentinis attested that she has owned the real property at 17 Catherine Terrace in Fairfield for more than fifteen years. The named defendant, Lisa Fortuna, has owned the adjoining property at 31 Catherine Terrace for seven years. Ourania Argentinis also attested that she had taken care of certain bushes that “border[ed] both” properties and that the care she provided was not authorized by the prior owner of 31 Catherine Terrace nor by Fortuna. Ourania Argentinis claimed that her taking care of the bushes was exclusive, open and hostile. She claimed ownership of the bushes and the land on which they were situated by adverse possession. Moreover, she attested that, while Fortuna was renovating her house at 31 Catherine Terrace, Fortuna authorized certain contractors to enter the plaintiffs' land, displacing the soil and ruining the grass. Ourania Argentinis attested further that Fortuna created a nuisance by changing the grade of her land, causing flooding on the plaintiffs' property. Ourania Argentinis believed that there was probable cause that a judgment would enter in the plaintiffs' favor in the amount of $35,000.

On May 1, 2009, the plaintiffs filed a seven count, amended complaint 3 against nine defendants,4 including Harte, whom the plaintiffs alleged was a carpenter hired to frame Fortuna's house. In all counts of the amended complaint, the plaintiffs alleged that [s]ince February 28,1972, the [plaintiffs have] used and enjoyed a portion of the property now owned by ... Fortuna which was formerly owned by Julia Sheila McGar ... of an approximately one hundred ... foot by ten ... foot rectangular strip of land ... that lies parallel to the plaintiffs' southerly boundary and [Fortuna's] northerly boundary and the landscaping contained thereon, including a row of bushes planted therein, all used exclusively by the plaintiffs.” The plaintiffs alleged that the defendants, including Harte, intentionally entered their land and removed the bushes; cut, destroyed and/ or carried away trees, timber and/or shrubbery without the plaintiffs' permission in violation of § 52–560; breached the duty of care owed the plaintiffs by causing damage to their shrubbery; were unjustly enriched by using the rectangular strip of land to store “dirt” without paying for the use of the land; and created a private nuisance by (1) changing the roof line on Fortuna's house and the grading on Fortuna's land causing water to run onto the plaintiffs' land and (2) placing an air-conditioning unit between her house and the plaintiffs' house. The plaintiffs sought a judgment determining the rights of the parties in the strip of land and an order settling title thereto, equitable relief, costs, damages, treble damages pursuant to § 52–560, interest and such other relief as the court deemed proper.

Harte represented himself and filed an appearance on May 11, 2009, and the plaintiffs deposed him. Harte, however, failed to respond to the plaintiffs' amended complaint, and a default for failure to plead entered against him on September 16, 2009. The plaintiffs withdrew their claims against the defendants Mark Laracuenta, Sean Thomas, John Mino, Sean Ferris and Edward Vizzo on October 27, 2009. On July 1, 2010, counsel for the plaintiffs filed a certificate of closed pleadings and claimed the matter for a hearing in damages to the court. On July 14, 2010, the plaintiffs withdrew the action as to the defendants Jeff Stopa and Stopa Landscaping, LLC. The action against Fortuna and Bank of America, N.A., was withdrawn on August 16, 2010, leaving Harte and Rivendell Home Improvement, LLC,5 as the remaining defendants. On September 4, 2010, the court issued a notice of a hearing in damages to be held on December 6, 2010, at 10 a.m.6

Harte failed to attend the hearing in damages, where the plaintiffs' counsel presented the court with an affidavit from Ourania Argentinis for damages totaling $60,334.11,7 more than $25,000 in excess of the amount adverted to in the probable cause estimate. The court rendered judgment in the amount of $60,334.11 plus costs,8 ordered a weekly payment in the amount of $35 but failed to indicate which of the defendants was to pay the weekly order. On December 8, 2010, the plaintiffs filed a notice of judgment against Harte and Rivendell Home Improvement, LLC, in the amount of $60,334.11 plus costs in the amount of $1226.60. Harte filed an appeal from the judgment on December 22, 2010.

The parties appeared for oral argument before this court on November 29, 2011. On January 10, 2012, we ordered,9 sua sponte, the trial court “to articulate the factual and legal basis for each and every item of damages awarded the plaintiffs against” Harte. The court filed its articulation on January 20, 2012. In its articulation, the court referred to Practice Book § 17–34 stating that that section “implies that each and every allegation of the plaintiffs' complaint is proven, except the amount of damages, and then only after a notice of defenses. No such notice of defenses was filed by the defendants and the defendants did not appear at the hearing in damages.... The court adopted the plaintiffs' Affidavit RE: Damages since it conforms to the allegations contained in the plaintiff's complaint.” 10

ILIABILITY

On appeal, Harte claims that we should reverse the judgment against him because (1) he did not receive notice of the hearing and (2) deposition testimony and other facts demonstrate that he did not remove the plaintiffs' bushes. We disagree. Harte cannot prevail on his liability claims because he failed to file an answer to the amended complaint.

A

As to his claim that he did not receive notice of the hearing in damages, the record demonstrates that notice was sent to Harte at his address of record. During oral argument before this court, Harte stated that the notice was delivered to his downstairs neighbor and was lost in “junk mail.” It is axiomatic that this court does not take evidence and does not make factual determinations. See, e.g., Weil v. Miller, 185 Conn. 495, 502, 441 A.2d 142 (1981). Whether Harte was prevented from attending the hearing in damages “by mistake, accident or other reasonable cause”; see General Statutes § 52–212; 11 is not for this court to determine.

B

Harte also claims that the deposition testimony of Fortuna and Stopa, the landscaper, demonstrate that he did not remove the bushes.12 Although Harte entered an appearance, he never filed an answer to the plaintiffs' amended complaint nor a notice of defense. Our rules of practice therefore preclude him from challenging the allegations contained in the complaint. See Practice Book § 17–34.

Practice Book § 17–34(a) provides [i]n any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff's complaint, except such as relate to the amount of damages, unless notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to prove such matter of defense.”

This court has noted that [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...

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