A. Secondino & Son, Inc. v. LoRicco

561 A.2d 142, 19 Conn. App. 8, 1989 Conn. App. LEXIS 222
CourtConnecticut Appellate Court
DecidedJuly 4, 1989
Docket6492
StatusPublished
Cited by56 cases

This text of 561 A.2d 142 (A. Secondino & Son, Inc. v. LoRicco) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A. Secondino & Son, Inc. v. LoRicco, 561 A.2d 142, 19 Conn. App. 8, 1989 Conn. App. LEXIS 222 (Colo. Ct. App. 1989).

Opinion

O’Connell, J.

This is the defendant’s appeal from a judgment granting foreclosure by sale of a mechanic’s lien. The defendant claims that the trial court erred (1) in permitting the amount of damages to be established by an affidavit of debt, (2) in rendering judgment without a prior hearing in damages, (3) in denying his motion to set aside the judgment, (4) in denying the defendant’s motion to make Richard A. LoRicco a party defendant, and (5) in awarding the plaintiff attorney’s fees. We find no error.

The following facts are relevant to this appeal. On September 29, 1986, the plaintiff commenced foreclosure of a mechanic’s lien on a commercial building owned by the defendant. Following numerous mesne pleadings, the court ordered the defendant to file an [10]*10answer by April 30, 1987. When the defendant failed to do so, the plaintiff moved, pursuant to Practice Book § 351, that the defendant be defaulted for failure to comply with the court’s order. That motion was granted on June 8, 1987, and, on June 10, 1987, notice of the default was mailed to counsel of record.

On June 22,1987, the defendant moved to set aside the default. He claimed that, in rendering the default, the court was not aware that the defendant had filed an objection to the plaintiffs motion for default because it had not been placed in the court file at the time the court had considered the plaintiff’s motion. The court heard the defendant’s motion to set aside the default on July 6,1987, “took the papers,” and denied it later that day.

Prior to the July 6, 1987 hearing, the plaintiff had filed a motion for judgment of strict foreclosure. Upon receiving notice of the court’s denial of his motion to set aside the default, the defendant objected to the foreclosure and sought to reargue the default entered against him. After a hearing on July 27,1987, the court overruled the defendant’s objection and denied the motion to reargue. On October 5, 1987, it rendered judgment of foreclosure by sale and awarded the plaintiff attorney’s fees and costs.

On October 23, 1987, the defendant moved to set aside the judgment of foreclosure by sale. In that motion, he again challenged the default entered against him. In addition, he claimed that the court erred in failing to conduct a hearing in damages prior to rendering the judgment of foreclosure and in awarding attorney’s fees to the plaintiff. The trial court denied the relief sought and this appeal followed.

I

The defendant’s first claim is that the trial court erred in allowing the amount due to be established by an affi[11]*11davit of debt. Practice Book § 364 (b) allows proof of damages by affidavit of debt in foreclosure cases in which the debt is liquidated. He raises a question as to whether his debt was liquidated.

The facts of the present case are similar to those in Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 475 A.2d 310 (1984). There, as here, the trial court defaulted the defendant and rendered judgment against him based on an affidavit of debt submitted by the plaintiff for the cost of maintenance and repair work that it had performed and that the defendant failed to pay.

In response to the defendant’s claim that he was entitled to a hearing in damages because the debt was not liquidated, the Costello .court found that the defendant had been informed by repeated billings of the amount claimed by the plaintiff during the course of the proceedings. His failure to respond caused the debt to become liquidated within the meaning of § 364 (b), notwithstanding the parties’ failure to come to an agreement during their initial discussions concerning the exact amount due. Id., 166.

“When a debtor knows precisely how much he is to pay and to whom he is to pay it, his debt is a liquidated one.” Id., 165. As in Costello, the defendant in the present case was aware of the amount claimed by virtue of its recitation in the lien and in the complaint. Furthermore, the plaintiff furnished a detailed breakdown of the itemized costs and expenses in response to an interrogatory. If a claim is for an amount certain or “ ‘susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in the possession or knowledge of the party to be charged’ ” it is a liquidated debt. Id.; Perri v. Cioffi, 141 Conn. 675, 678, 109 A.2d 355 (1954).

[12]*12Under the circumstances of this case, we have no difficulty concluding that the amount claimed by the plaintiff for materials furnished and services rendered in the construction and renovation of the defendant’s commercial building falls within the definition of a liquidated debt as set forth in Costello. Accordingly, the trial court did not err in allowing the amount due to be established by an affidavit of debt.

II

The defendant next claims that the court erred by rendering a judgment of foreclosure without a prior hearing in damages. The short answer to this claim is that the procedure followed here is expressly sanctioned by Practice Book § 364 (b) which provides in pertinent part that “the court, at the time it renders the default, may also render judgment in foreclosure cases . . . provided the plaintiff has also made a motion for judgment and provided further that any necessary affidavit of debt or accounts or statements verified by oath, in proper form, are submitted to the court.” The effect of this section is to substitute the affidavit of debt for a hearing in damages in appropriate cases.

Here, the plaintiff made a motion for judgment, and its affidavit of debt was in proper form. Nothing more was required to authorize the court to follow the procedure set forth in Practice Book § 364 (b). This claim is meritless.

III

The defendant next claims that the trial court erred in denying his motion to set aside the judgment of foreclosure rendered upon a default. General Statutes § 52-212 furnishes the authority for granting the relief the defendant contends he deserves. It provides in pertinent part that any judgment rendered upon a default “may be set aside . . . upon the complaint or writ[13]*13ten motion of any party . . . showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment . . . and that the . . . defendant was prevented by mistake, accident or other reasonable cause from making the defense.”

To qualify under § 52-212, the movant must meet a two-prong test: (1) there must be a showing that a good defense, the nature of which must be set forth, existed at the time judgment was rendered; and (2) the party seeking to set aside the judgment had to have been prevented from making the defense because of mistake, accident or other reasonable cause. Cholewinski v. Conway, 14 Conn. App. 236, 241, 540 A.2d 391 (1988). The decision to grant or deny this relief rests within the trial court’s discretion. Id.

The defendant argued vigorously that he had several defenses to assert that he had set forth in a “Notice as to Hearing in Damages” filed on July 16,1987, after he was defaulted.

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Bluebook (online)
561 A.2d 142, 19 Conn. App. 8, 1989 Conn. App. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-secondino-son-inc-v-loricco-connappct-1989.