Mary Merritt v. Timothy Fagan

The defendant, Timothy Fagan, appeals from
the judgment of the trial court, rendered in favor of the
plaintiff, Mary Merritt, after he was defaulted for failure
to plead, which was followed by a hearing in damages.
On appeal, the defendant claims that the court improperly (1) denied his motion to set aside the default, (2)
found that the plaintiff held a fee interest in the property
at issue, (3) failed to consider his claim of avoidable
consequences, and (4) awarded punitive damages and
attorney's fees. We affirm the judgment of the trial
court.

The court found the following facts. The defendant
owned and operated a business that purchased and sold
antiques, works of arts, collectibles and other items.
The parties' relationship was a casual one, formed as
a result of the location of the defendant's business near
the business of the plaintiff's niece.

On or about February 16, 1998, the plaintiff invited
the defendant to her home to obtain his opinion on
the value of several items. After looking through the
plaintiff's attic, the defendant found a painting of the
Grand Canyon by Arthur Wesley Dow (painting) and
asked if he could purchase it from her. The plaintiff
declined the offer. The defendant then offered to take
the painting and have it appraised. The plaintiff
accepted that offer, and they both agreed that as soon
as the defendant received the appraisal, he would return
the painting to her with a copy of the appraisal.

Despite the plaintiff's numerous inquiries into the
painting's location, the defendant did not tell the plaintiff
its whereabouts, nor did he provide her with a copy
of the appraisal report. Ultimately, the plaintiff learned
that the defendant had taken the painting to an auction
facility where it had been auctioned for $165,000. The
defendant retained the net proceeds from the sale at
auction, which amounted to $150,000.

The plaintiff brought an action against the defendant
claiming (1) conversion of the painting, (2) breach of
contract, (3) violation of the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq., and (4) negligent infliction of emotional distress.
The plaintiff's complaint, filed on November 30, 1999,
recited a return date of December 14, 1999. The defendant
appeared through counsel, but failed to file an
answer within the time prescribed by the rules of practice.
Consequently, pursuant to Practice Book § 17-32,
the plaintiff filed a motion for default for failure to
plead on October 22, 2001, which the court clerk granted
that same day. The plaintiff then claimed the matter
for a hearing in damages on November 7, 2001.

The defendant waited until February 26, 2002, the
day of the scheduled hearing in damages, to file his
answer and to file a motion to set aside the default. The
court denied that motion, and the hearing in damages
proceeded on March 5, 2002. After the hearing in damages,
the court issued a memorandum of decision in
which it found that the plaintiff was entitled to (1)
$150,000 for the conversion of her property, (2) $150,000
for the CUTPA violation as punitive damages, (3) interest of $58,000 and (4) attorney's fees of $37,030. This
appeal followed. Additional facts will be set forth as
necessary.

I

The defendant first claims that the court improperly
denied his motion to set aside the default entered
against him on October 22, 2001. Specifically, the defendant
argues that the court improperly denied the motion
because he had filed his answer timely pursuant to
General Statutes § 52-121 (a) and Practice Book § 17-
32 (b).

We begin by setting forth the standard of review that
will govern our analysis. We review a court's ruling on
a motion to set aside a default under the abuse of
discretion standard. Richards v. Trudeau, 54 Conn.
App. 859, 863, 738 A.2d 215 (1999). ‘‘In reviewing claims
that the trial court abused its discretion, great weight is
given to the trial court's decision and every reasonable
presumption is given in favor of its correctness. . . .
We will reverse the trial court's ruling only if it could
not reasonably conclude as it did.'' (Internal quotation
marks omitted.) Terracino v. Fairway Asset Management,
Inc., 75 Conn. App. 63, 73, 815 A.2d 157, cert.
denied, 263 Conn. 920, 822 A.2d 245 (2003).

A

The defendant first argues that the court improperly
denied his motion to set aside the default because he
filed his answer timely in accordance with General Statutes
§ 52-121 (a). We do not agree.

The defendant argues that there was no legal basis
for the court's denial of his motion to set aside the
default. In support of his argument, the defendant cites
General Statutes § 52-121 (a), which provides that
‘‘[a]ny pleading in any civil action may be filed after
the expiration of the time fixed by statute or by any
rule of court until the court has heard any motion for
judgment by default or nonsuit for failure to plead which
has been filed in writing with the clerk of the court in
which the action is pending.'' The defendant argues that
even though he filed his answer beyond the time period
fixed by Practice Book § 10-8, it was timely filed pursuant
to General Statutes § 52-121 (a) and, as a result, the
court should have granted his motion to set aside the
default judgment.

Under the circumstances, the court did not improperly
deny the defendant's motion to set aside the default.
Although the defendant claims that General Statutes
§ 52-121 (a) afforded him an opportunity to file his
answer, ‘‘we cannot say that the trial court was deprived
of its inherent authority to control the proceedings
before it to ensure that there was no prejudice or inordinate
delay.'' Gianquitti v. Sheppard, 53 Conn. App. 72,
76, 728 A.2d 1133 (1999). In Gianquitti, the defendant
claimed that the trial court improperly had precluded it from filing its special defenses on the day trial commenced.
Id. In support of its argument, the defendant
cited General Statutes § 52-121 (a) to support the proposition
that it ‘‘was entitled as of right to file its pleading
. . . .'' (Internal quotation marks omitted.) Id. Despite
the fact that a motion for default was never filed, the
trial court in Gianquitti exercised its discretion and did
not allow the filing of the special defenses. Id., 76–77.

Following the line of reasoning from Gianquitti with
respect to General Statutes § 52-121 (a), we conclude
that the court did not abuse its discretion in denying
the defendant's motion to set aside the default. We
specifically note that unlike the situation in Gianquitti
in which a default motion was not filed, the plaintiff here
did file a motion for default, which the clerk granted.We
also note that it was more than two years from the
original return date that the defendant filed his answer
and special defenses and that he did so on the day of
the scheduled hearing in damages. Additionally, despite
the defendant's being in default, the court gave him
what it described as ‘‘a wide latitude with respect to
his participation in the hearing [in damages] and in such
defenses as he believed existed to the litigation as a
matter of courtesy and certainly not as a matter of
right.'' As such, an injustice has not been done. The
court was well within its discretion to handle the situation
as it did. Accordingly, we conclude that the court
did not abuse its discretion in denying the defendant's
motion to set aside the default.

B

The defendant next argues that the court improperly
denied his motion to set aside the default pursuant to
Practice Book § 17-32 (b). We do not agree.

Section 17-32 (b) provides in relevant part that ‘‘[i]f
a party who has been defaulted under this section files
an answer before a judgment after default has been
rendered by the judicial authority, the clerk shall set
aside the default. If a claim for a hearing in damages
or a motion for judgment has been filed the default
may be set aside only by the judicial authority. . . .''
Accordingly, a defendant seeking to file an answer after
the plaintiff has filed a claim for a hearing in damages
will succeed only by first filing a motion with the judicial
authority to open the default. Richards v. Trudeau,
supra, 54 Conn. App. 862–63.We review a court's refusal
to open the default under the abuse of discretion standard.
Id., 863.

The plaintiff filed a certificate of closed pleadings
and claimed the matter to the trial list on June 29, 2001.
Subsequently, the plaintiff filed a motion for default for
failure to plead, which the court granted on October
22, 2001. Then, on November 7, 2001, the plaintiff
claimed the matter to the hearing in damages list. It
was not until February 26, 2002, the day of the scheduled hearing in damages, that the defendant filed an answer
and a motion to set aside the default. Because the plaintiff
had claimed the matter to the hearing in damages
list before the defendant filed his answer, the power
to open the default was within the discretion of the
court. See Practice Book § 17-32 (b); Richards v. Trudeau,
supra, 54 Conn. App. 862–63.

Our review of the record reveals adequate support
for the court's decision not to set aside the default. The
defendant waited until the day of the scheduled hearing
in damages, nearly two years from the original return
date, to file his answer and a motion to set aside the
default. Additionally, despite going forward with the
hearing in damages, the court still afforded the defendant
wide latitude with respect to his participation in
the hearing. As such, we conclude that the court did
not abuse its discretion in denying the defendant's
motion to set aside the default.

II

The defendant next claims that the court improperly
found that the plaintiff held a fee interest in the painting.
Specifically, the defendant argues that the court (1) did
not have a sufficient evidentiary basis to conclude that
the plaintiff held a fee interest in the painting and (2)
improperly admitted the plaintiff's testimony on the
issue of her ownership of the painting. We do not agree
and will address each aspect of the defendant's claim
in turn.

The following additional facts underlie the defendant's
claim. On November 28, 1967, the plaintiff's husband,
Walter Gordon Merritt, executed his will. In one
provision, Walter Merritt devised certain property to
the plaintiff in the following language: ‘‘If [the plaintiff]
survives me, I give and devise to her TO HAVE AND
TO HOLD during her life . . . all tangible personal
property of every description customarily used in connection
therewith, including household furnishings but
excepting the items specifically bequeathed by me to
others in Article SEVENTH . . . .'' The defendant contends
that the language of Walter Merritt's will, among
other evidence, supports a conclusion that the plaintiff
did not possess a full fee interest in the painting. As a
result, the defendant argues that the court could not
award to the plaintiff the full amount of the painting
as damages.

On that issue, the court heard testimony from the
plaintiff that she had seen the estate's inventory list
and that the painting was not mentioned or contained
therein. Consequently, the court found that the evidence
supported a conclusion that the plaintiff possessed a
fee interest in the painting, that it was not an asset of
the estate and therefore was free of any life estate
limitation contained in Walter Merritt's will.

A

The defendant claims that the court's finding that the
plaintiff held a fee interest in the painting did not have
a proper evidentiary basis.

Our standard of review of such claims is well established.
‘‘When the factual basis of the trial court's decision
is challenged on appeal, the role of this court is
to determine whether the facts set out in . . . the 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. . . . On appeal, the
function of this court is limited solely to the determination
of whether the decision of the trial court is clearly
erroneous. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or 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.'' (Citation omitted; internal quotation
marks omitted.) Wren v. MacPherson Interiors, Inc.,
69 Conn. App. 349, 353–54, 794 A.2d 1043 (2002).

In its memorandum of decision, the court clearly set
forth the basis of its findings. Specifically, the court
noted its consideration of the language of Walter Merritt's
will and of the plaintiff's testimony that the painting
was not on the estate's inventory list in making
the implicit factual finding that the plaintiff held a fee
interest in the painting.1 After considering the evidence
before it, the court stated that ‘‘this particular item of
personal property passed directly to the plaintiff free
from the burden of the life estate limitation.''

Essentially, the defendant now asks this court to
review the evidence on which the trial court made its
factual findings and to conclude otherwise. We decline
to do so. After a careful review of the entire record,
we conclude that the court's finding that the plaintiff
held a fee interest in the painting does not leave us
with a ‘‘definite and firm conviction that a mistake has
been committed.'' (Internal quotation marks omitted.)
Id., 354. As such, the court's finding in that regard was
not clearly erroneous.

B

The defendant next claims that the court improperly
admitted the plaintiff's testimony regarding the painting's
absence from the estate's inventory list. The defendant,
however, concedes that he did not preserve his
claim, but now argues that the court's conduct constituted
plain error. See Practice Book § 60-5; Sorrentino
v. All Seasons Services, Inc., 245 Conn. 756, 765–66,
717 A.2d 150 (1998).

‘‘To prevail under the plain error doctrine, the defendant
must demonstrate that the claimed error is both
so clear and so harmful that a failure to reverse the
judgment would result in manifest injustice. . . . This
doctrine is not implicated and review of the claimed error is not undertaken unless 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. Kennison, 62 Conn. App.
256, 259–60, 774 A.2d 987, cert. denied, 256 Conn. 908,
772 A.2d 601 (2001).

We will not undertake a plain error review of that
claim because it is not one that, by implication, would
affect the ‘‘fairness and integrity of and public confidence
in the judicial proceedings.'' (Internal quotation
marks omitted.) Macy v. Lucas, 72 Conn. App. 142, 157,
804 A.2d 971, cert. denied, 262 Conn. 905, 810 A.2d 272
(2002). Plain error review is not warranted.

III

The defendant next claims that the court improperly
failed to consider his claim of avoidable consequences.
Specifically, he claims that the court improperly failed
to consider whether the plaintiff had a duty to mitigate
her damages by taking reasonable efforts to recover
possession of the painting. We decline to review that
claim because the defendant has failed to provide an
adequate record for review.

‘‘It is the appellant's burden to provide an adequate
record for review. . . . It is, therefore, the responsibility
of the appellant to move for an articulation or rectification
of the record where the trial court has failed to
state the basis of a decision . . . to clarify the legal
basis of a ruling . . . or to ask the trial judge to rule
on an overlooked matter.'' (Citation omitted; internal
quotation marks omitted.) State v. Collic, 55 Conn. App.
196, 209, 738 A.2d 1133 (1999).

The court's memorandum of decision does not specifically
address the defendant's defense of avoidable consequences.
If the defendant believed that the court did
not address his asserted defense, he could have filed a
motion for articulation; see Practice Book § 66-5; but
he failed to do so. The defendant bears the burden of
furnishing this court with an adequate record to review
his claim. See Practice Book § 61-10. Accordingly,
because the defendant failed to make such a motion,
we must take the court's decision as properly defining
the scope of the defendant's defenses and arguments
that were presented. ‘‘Without the necessary factual
and legal conclusions furnished by the trial court . . .
any decision made by us . . . would be entirely speculative.''
(Internal quotation marks omitted.) State v. Collic,
supra, 55 Conn. App. 209. We therefore decline to
review the defendant's claim.

IV

Finally, the defendant claims that the court improperly
awarded punitive damages and attorney's fees.2 We
decline to review this claim.

‘‘It is well settled that the trial court can be expected to rule only on those matters that are put before it. . . .
With only a few exceptions . . . we will not decide an
appeal on an issue that was not raised before the trial
court. . . . To review claims articulated for the first
time on appeal and not raised before the trial court
would be nothing more than a trial by ambuscade of
the trial judge.'' (Internal quotation marks omitted.)
State v. William C., 71 Conn. App. 47, 67, 801 A.2d 823,
cert. granted on other grounds, 262 Conn. 907, 810 A.2d
277 (2002); see Narcisco v. Brown, 63 Conn. App. 578,
582, 777 A.2d 728 (2001); Baker v. Cordisco, 37 Conn.
App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907,
659 A.2d 1207 (1995).

The defendant did not object to the court's award or
otherwise seek an articulation of the court's reasoning
after it made its award. We therefore refuse to consider
the defendant's claims regarding punitive damages and
attorney's fees.

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