Resurreccion v. Normandy Heights, LLC

• Decision Date: 13 May 2003
• Docket Number: (AC 22772).
• Citation: 820 A.2d 1116,76 Conn. App. 642
• Court: Connecticut Court of Appeals
• Parties: GINA RESURRECCION v. NORMANDY HEIGHTS, LLC

76 Conn. App. 642

820 A.2d 1116

GINA RESURRECCION v. NORMANDY HEIGHTS, LLC

(AC 22772).

Appellate Court of Connecticut.

Argued March 20, 2003.

Officially released May 13, 2003.

Foti, Flynn and Dupont, Js. Benjamin F. Cardinez, for the appellant-appellee (plaintiff).

Deborah L. Bradley, for the appellee-appellant (defendant).

Anthony O. Famiglietti, for the appellee (third party defendant).

Opinion

FLYNN, J.

The plaintiff, Gina Resurreccion, appeals from the judgment of the trial court rendered following its granting of the motion to open the judgment filed by the defendant, Normandy Heights, LLC, after the defendant had been defaulted for failure to appear. The plaintiff claims that the court abused its discretion in granting the motion to open because the defendant did not demonstrate that it had a good defense or that it was prevented from filing the required appearance because of accident, mistake or other reasonable cause. The defendant cross appeals from that portion of the judgment that awarded the plaintiff $3000 as reasonable attorney's fees. It claims that the court's award of attorney's fees was clearly erroneous because there was no evidence introduced as to the fees actually charged by the plaintiff's attorney or whether those fees were reasonable. We affirm the judgment in all respects except for the award of $3000 as reasonable attorney's fees, which we reverse, and we remand the case for an evidentiary hearing.

The court found the following facts, which are not in dispute. The plaintiff entered into a six month written lease whereby she rented an efficiency apartment from the defendant for the monthly fee of $670. The lease term ran from May 1, 1999, through October 31, 1999. The lease specified the terms and conditions under which the landlord may enter the tenant's premises. Additionally, the plaintiff completed a "move-in inspection sheet," which she returned to the defendant. One of the questions on this sheet asked if the defendant could enter the plaintiff's apartment in her absence to perform work. The plaintiff circled "No," thereby directing the defendant that it did not have permission to enter her apartment in her absence. Prior to the start of the lease, the plaintiff requested that the thermopanes on a sliding glass door be replaced because of moisture that could be seen between the panes.

The plaintiff left her apartment on June 13, 1999, for a short trip to New York. Upon returning on June 15, 1999, she could not get into her apartment with her key. She went to the rental officer and retrieved another key, which also failed to gain her access. The property manager, Fatima Walton, then accompanied the plaintiff to her apartment, and they gained access to the apartment with a different key in the possession of Walton. Walton then explained to the plaintiff that the door had been double locked after a window repair company, the third party defendant Window Shop, Inc., replaced the thermopanes on the sliding glass door in her apartment on June 14, 1999. Walton apologized for the unauthorized entry into the plaintiff's apartment and, upon the plaintiff's request, gave her a written letter of apology. Walton requested that the plaintiff conduct an inspection to see if anything was missing, but the plaintiff did not do so at that time. On June 16, 1999, the plaintiff inspected her apartment and alleged that the following items were missing: A Rolex watch valued at $4850; a Tag Heuer watch valued at $250; an electronic organizer; and $450 in cash.

By a complaint dated March 7, 2000, the plaintiff commenced suit against the defendant in four counts: unauthorized entry and harassment in violation of General Statutes § 47a-16 (c) and (d);¹ loss of valuable items; breach of the covenant of quiet enjoyment; and a violation of the plaintiff's right to privacy. On June 7, 2000, the court rendered a default judgment in favor of the plaintiff and awarded $12,000 in compensatory damages and $4000 in attorney's fees, plus allowable costs, as per the plaintiff's bill of costs, which she was to submit.

Approximately three weeks later, on June 30, 2000, the defendant filed an appearance, and, on July 19, 2000, it filed a motion to open the default judgment, to which the plaintiff objected. On August 2, 2000, after a hearing, the court granted the defendant's motion to open. The plaintiff then filed a motion to reargue and a request for articulation, which the court denied. On October 4, 2000, the court granted the defendant's motion to implead Window Shop, Inc.

Trial commenced on August 15, 2001, and judgment was rendered for the plaintiff on count one, in the amount of $670, in accordance with General Statutes § 47a-18a,² and attorney's fees in the amount of $3000. The defendant also was ordered to pay costs upon the submission of the plaintiff's bill of costs. The defendant prevailed on the remaining counts of the complaint, and the third party defendant prevailed on the third party complaint. This appeal and cross appeal followed.

I

The plaintiff claims that the court improperly, and in abuse of its discretion, granted the defendant's motion to open the default judgment and that the court had no authority to retry the case and to render a new judgment. Specifically, she argues in her brief that the defendant's "motion to open the judgment upon default is defective, in both form and substance, in the following ways: First, the motion was not properly verified in violation of General Statutes § 52-212 (b) . . . second, the defendant's motion shows no reasonable cause for not appearing within the time required; and third, there is no showing that [the] defendant had a `good defense.'" The defendant argues that we should decline to review this claim on the ground that the plaintiff has not provided an adequate record for review because she did not supply this court with transcripts of the hearings on the motion to open or on the motion for reconsideration and articulation. Additionally, the defendant argues, the plaintiff never filed a motion for articulation pursuant to Practice Book § 66-5 to provide this court with a proper record of the reasons for the trial court's granting of the motion to open the default judgment. We agree that the record is inadequate for review.³

In this case, the court orally granted the defendant's motion to open the judgment. The record contains no memorandum of decision, nor does it contain a transcript of the hearing. The plaintiff also failed to provide this court with a transcript of the hearing on her motion for articulation, which also was denied without a memorandum of decision.

Practice Book § 66-7 provides in relevant part: "Any party aggrieved by the action of the trial judge as regards. . . articulation under Section 66-5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the [appellate] court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . ." Although the defendant filed a motion for articulation, which the court denied, the defendant did not seek such a review by the Appellate Court, pursuant to Practice Book § 66-7, of the trial court's denial.

The failure of a plaintiff to follow that procedure was addressed squarely in Pitchell v. Hartford, 46 Conn. App. 799, 803, 700 A.2d 1386 (1997), rev'd on other grounds, 247 Conn. 422, 722 A.2d 797 (1999). In Pitchell, the plaintiff claimed that the trial court improperly granted a motion to open a default judgment and, after filing a motion for articulation of that decision, failed to seek review upon its denial by the trial court. Id. We explained that when a plaintiff fails to seek review of the trial court's denial of a motion for articulation, there is no basis for our reviewing that decision because the plaintiff does not provide us with an adequate record for review. Id.; see Practice Book §§ 60-2, 60-5, 66-5 and 66-7.⁴ "The duty to provide this court with a record adequate for review rests with the appellant. . . . It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review [pursuant to Practice Book § 61-10]. . . . It is not the function of this court to find facts. . . . Our role is . . . to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiff's claims] would be entirely speculative." (Internal quotation marks omitted.) Ruiz v. Gatling, 73 Conn. App. 574, 575, 808 A.2d 710 (2002); see Wendover Financial Services Corp. v. Connelly, 61 Conn. App. 244, 247, 763 A.2d 670 (2000).

The record here contains a docket sheet with the notation: "Motion to open judgment granted after hearing," followed by the signature of the court, Tanzer, J. There is no memorandum of decision, and the plaintiff has provided no transcript of the hearing. Although a motion for articulation was filed, the court denied that motion. The plaintiff has neither provided us with a transcript of that hearing nor filed a motion for review pursuant to Practice Book § 66-7. The plaintiff, therefore, has failed to satisfy her burden of securing an adequate record for appellate review of an issue presented on appeal. See Ruiz v. Gatling, supra, 73 Conn. App. 575. Accordingly, we will not speculate as to what evidence, if any, and what arguments of law the trial court may have heard before rendering its decision, and we decline to review the plaintiff's claim.

II

On cross appeal, the defendant claims that the court's award of $3000 in attorney's fees was clearly erroneous. It argues that the court acted improperly because it took no evidence on the issue of attorney's fees and deprived the defendant of the opportunity to litigate the reasonableness...