Costello v. Hartford Institute of Accounting, Inc.

475 A.2d 310, 193 Conn. 160, 1984 Conn. LEXIS 584
CourtSupreme Court of Connecticut
DecidedMay 15, 1984
Docket12191
StatusPublished
Cited by49 cases

This text of 475 A.2d 310 (Costello v. Hartford Institute of Accounting, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Costello v. Hartford Institute of Accounting, Inc., 475 A.2d 310, 193 Conn. 160, 1984 Conn. LEXIS 584 (Colo. 1984).

Opinion

Grillo, J.

The plaintiff, a general contractor conducting business under the name of “Francis E. Costello, Building Contractor,” instituted an action in 1982 to recover for maintenance and repair services performed from 1979 to 1982 on property owned by the defendant, The Hartford Institute of Accounting, Inc. A default for failure to appear was rendered against the defendant, and the court rendered judgment for the plaintiff in the amount of $25,356.36. After the trial court denied its motion to open the judgment of default, the defendant filed the present appeal from the denial of its motion and from the judgment rendered upon the default. The defendant claims that the court lacked jurisdiction to render a judgment of default in the absence of a hearing in damages. In the alternative, it maintains that the trial court’s denial of its motion to open the judgment of default was erroneous.

The following facts are gleaned from the complaint, the exhibits and the affidavits pertaining to the motion to open judgment.1 From the fall of 1979 and through January of 1982, the plaintiff rendered various services for the defendant including roof repair, painting, plumbing, carpentry work, electrical work, snow plowing, lawn maintenance, and overall services of main[162]*162tenance and repair. During this period, the plaintiff submitted approximately twenty-one bills to the defendant. Except for two occasions, he was not paid for the work done, despite assurances that he would be. At no time did the defendant complain about the quality of the services performed.

In February of 1982, the plaintiff turned the matter over to counsel. Correspondence with the defendant corporation resulted in the submission, on March 1, 1982, to the defendant of an itemized accounting of work completed. On March 25, 1982, the plaintiff again submitted copies of each of the twenty-one bills which he had sent to the defendant during his years of service. These bills were neither contested nor paid.

Suit was subsequently commenced. After the defendant failed to appear, the plaintiff moved for default and judgment for failure to appear. At the same time, in support of his motion for judgment and pursuant to rule 364 (b)2 of the Practice Book, the plaintiff submitted an account. Both the motion for default and judgment and the plaintiffs account were sent to the defendant at its post office address, and also to the principal officer of the corporation at her residence, being specifically addressed to Marjorie Wechsler. Neither copy of these pleadings was returned to counsel.

On July 30,1982, the court granted a default. On September 2,1982, the plaintiff moved for judgment, specifically alleging compliance with § 364 (b). A copy of this motion was sent to the defendant at its post office [163]*163address, and also to the principal officer of the corporation, it being specifically addressed to Marjorie Wechsler. Once again, neither copy of this pleading was returned to counsel.

On September 27,1982, the court sent notice of the judgment to the parties. This was received by the defendant. On January 18 and 19, 1983, within one week of the expiration of the time prescribed by Practice Book § 377 relative to opening judgments after default,3 the defendant moved to open the judgment. The motions of January 18 and 19 were accompanied by affidavits of counsel.

Upon notice by the plaintiff, on January 31, 1983, the court heard oral argument, at which time the defendant filed an affidavit by Marjorie Wechsler representing that the principal officer of the defendant was a Germaine C. Carroll, who was seventy-six years old, a diabetic, and in poor health; that Carroll was unaware of the significance of filing the complaint [164]*164by the plaintiff; that she had not sought counsel; and that “[t]o the best of my knowledge” Carroll had not received a copy of the judgment.

After hearing oral argument, the court requested briefs, which were filed by both parties on February 8,1983. At that time, both the plaintiff and his counsel filed affidavits to counter that of Marjorie Wechsler of January 31, 1983. Taken together, these affidavits stated the following: (a) during the period when the work was performed, the plaintiff dealt almost exclusively with Marjorie Wechsler; (b) during the period before suit was instituted the plaintiffs counsel dealt exclusively with Marjorie Wechsler, not Germaine C. Carroll; (c) the defendant had notice of the proceedings before suit was instituted, and the complaint was properly served on the defendant in accordance with statutory requirements; and (d) the defendant and its principal officer were both sent copies of the motion for default and the motion for judgment.

On April 14,1983, the court denied the defendant’s motion to open the judgment of default. Thereafter, the defendant moved to reargue its motion to open the judgment, filing a third affidavit, again by Marjorie Wechsler. This affidavit made representations as to the authority of the plaintiff to perform the work for which he billed, the quality of his work, and the amounts he billed for the same. The court denied this motion without opinion. Thereafter, the defendant filed its notice of appeal.

In its first claim of error, the defendant argues that since the amount demanded in the complaint exceeded $15,000, Practice Book § 356 (c)4 required that the trial court conduct a hearing in damages prior to render[165]*165ing a judgment after a default. The defendant maintains that since this is not a case involving liquidated damages, Practice Book § 364 (b),5 which provides an exception to the hearing in damages requirement, did not apply. We disagree.

In its memorandum of decision, the trial court found that the defendant was on notice of the motion for judgment and that the plaintiff had fully complied with the provisions of § 364 (b). The court then framed the determinative issue at both the trial level and on appeal when it stated that “[wjhether the court had jurisdiction to enter a judgment in excess of $15,000 without first holding a hearing in damages, hinges on whether this was a contract action where the damages were liquidated.” The court proceeded to render judgment for the plaintiff, finding that the “damages were ascertainable by computation of [the] plaintiffs billings which [the] defendant was aware of and did not contest.”

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. 22 Am. Jur. 2d, Damages §§ 180, 184 (1965). An amount claimed to be due is a liquidated sum when it is “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.” Rifkin v. Safenovitz, 131 Conn. 411, [166]*166414, 40 A.2d 188 (1944), quoting Cochrane v. Forbes, 267 Mass. 417, 420, 166 N.E. 752 (1929); see Perri v. Cioffi, 141 Conn. 675, 678, 109 A.2d 355 (1954). It is sufficient for this purpose if the debt is measurable by a fixed or established external standard, or by a standard apparent from the documents upon which the plaintiff bases his claim. Ramada Development Co. v.

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Bluebook (online)
475 A.2d 310, 193 Conn. 160, 1984 Conn. LEXIS 584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/costello-v-hartford-institute-of-accounting-inc-conn-1984.