Telman v. Hoyt

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KATHLEEN TELMAN v. GARY W. HOYT ET AL.
(AC 41599)
Lavine, Devlin and Harper, Js.

Syllabus

The plaintiff sought to recover damages from the defendants for, inter
alia, fraud, in connection with false representations made during the
defendants’ sale of certain real property to the plaintiff. After the defen-
dants were defaulted for failure to plead, a hearing in damages was
held, after which the trial court awarded the plaintiff damages that
included $4000 in attorney’s fees. Thereafter, the plaintiff filed a motion
to set aside the verdict as to damages and for additur, which the court
denied. On appeal to this court, the plaintiff claimed that the court
abused its discretion when it denied her motion for additur as to her
attorney’s fees. Held that the trial court did not abuse its discretion in
denying the plaintiff’s motion for additur as to attorney’s fees; our rules
of practice provide for a motion for additur in connection with a jury
trial, not with respect to a hearing in damages to the court, and having
construed the requested additur as a motion for reconsideration, this
court concluded that the trial court could have reasonably decided as
it did and did not abuse its discretion.
Argued September 18—officially released November 19, 2019

Procedural History

Action to recover damages for, inter alia, the defen-
dants’ alleged fraud, and for other relief, brought to the
Superior Court in the judicial district of New Haven,
where the action was withdrawn as to the defendant
Carol Cangiano et al.; thereafter, the defendant Gary
W. Hoyt et al. were defaulted for failure to plead; subse-
quently, following a hearing in damages, the court, Hon.
Richard E. Burke, judge trial referee, rendered judg-
ment for the plaintiff; thereafter, the court denied the
plaintiff’s motion for additur, and the plaintiff appealed
to this court; subsequently, the court, Hon. Richard E.
Burke, judge trial referee, issued an articulation of its
decision. Affirmed.
Andrew S. Knott, with whom, on the brief, was Robert
J. Santoro, for the appellant (plaintiff).
Opinion

PER CURIAM. The plaintiff, Kathleen Telman,
appeals from the trial court’s judgment denying her
motion to set aside the verdict as to damages and for
additur. On appeal, the plaintiff claims that the court
abused its discretion in denying her motion to ‘‘set aside
[the] verdict’’ as to damages and for additur because
the court’s award of attorney’s fees to the plaintiff was
so low that it shocks the conscience. We conclude that
the trial court did not abuse its discretion in denying
the plaintiff’s motion for additur as to attorney’s fees
and, therefore, affirm the judgment.
The following procedural history and facts are rele-
vant to our resolution of this claim. The plaintiff com-
menced the present action against the defendants, Gary
W. Hoyt and Karen A. Hoyt,1 by way of summons and
complaint. The complaint set out nine causes of action
that sounded, inter alia, in fraud. The plaintiff alleged
that on November 20, 2015, she purchased real property
located at 1958 Hartford Turnpike, North Haven (prop-
erty) from the defendants. In the defendants’ residential
property condition disclosure report (disclosure), they
stated that ‘‘[m]onsoon rains may result in slight water
in [the] garage’’; (internal quotation marks omitted);
and that there were no other water drainage problems
associated with the property. The plaintiff alleged that
the defendants knew that water intrusion occurred in
the garage with normal rainfall and also that there were
other drainage problems associated with the landscap-
ing on the property. Therefore, the plaintiff alleged that
the defendants committed fraud in their sale of the
property by making false representations in the dis-
closure.
The defendants filed appearances in the present case
but failed to plead in response to the plaintiff’s amended
complaint. Accordingly, the plaintiff filed a motion for
default pursuant to the defendants’ failure to plead,
which was granted by the clerk.
On April 24, 2017, the court held a hearing in damages.
The defendants did not appear at the hearing and, there-
fore, the plaintiff’s claims were uncontested. The plain-
tiff presented evidence with respect to the damages
she sustained as a result of the defendants’ fraud. Her
excavation expert testified that it would cost $19,000
to cure the drainage issues associated with the property.
The plaintiff also testified that she spent 197 hours
landscaping the property before she realized that there
were drainage problems that ruined her landscaping
efforts. The plaintiff requested $6,402.05 as compensa-
tion for her time spent on her ruined landscaping
efforts, which was calculated on the basis of the hourly
rate she earned from employment.2 The plaintiff sought
punitive damages, including attorney’s fees, on the basis
of the defendants’ fraud. The plaintiff’s counsel pre-
sented evidence of $1,462.35 in court costs and $27,480
in attorney’s fees.3
Soon after the hearing, the court rendered judgment
as to damages. The court awarded the plaintiff damages
in the total amount of $24,462.35, which included
$19,000 in compensatory damages, $1462.35 in taxable
costs, and $4000 for attorney’s fees. The court also
ordered postjudgment interest in the amount of 6 per-
cent per annum. The plaintiff then filed a motion to
‘‘set aside [the] verdict’’ as to damages and for additur
pursuant to Practice Book § 16-35.4 In support of her
motion, the plaintiff argued that the court did not prop-
erly apply the law to the facts of the case because it
failed to consider the plaintiff’s lost time and expenses,
and the full amount of her attorney’s fees. The court
denied that motion.
On appeal, the plaintiff claims that the court abused
its discretion when it denied her motion for additur
as to her attorney’s fees. Following oral argument on
appeal, pursuant to Practice Book §§ 60-2, 60-5, and 61-
10, this court ordered the trial court to file a written
articulation of ‘‘the factual and legal basis for the award
of $4000 in attorney’s fees, rather than the amount
requested by counsel.’’ The trial court filed an articula-
tion stating that ‘‘in light of the facts as presented at
the hearing [in damages] and after determining the dam-
ages to be awarded, [the court] used its discretion and
awarded a percentage of the requested attorney’s fees
as punitive damages based upon fraud as requested
by counsel.’’ The articulation also highlighted that the
plaintiff’s counsel said at the hearing in damages that
he would ‘‘take whatever . . . .’’5
Our rules provide for a motion for additur in connec-
tion with a jury trial, not a hearing in damages to the
court. See footnote 4 of this opinion. Construing the
requested ‘‘additur’’ as a motion for reconsideration,6
we conclude that the trial court could have reasonably
decided as it did and did not abuse its discretion. See
Shore v. Haverson Architecture & Design, P.C., 92
Conn. App. 469, 479, 886 A.2d 837 (2005) (standard of
review regarding challenges to court’s ruling on motion
for reconsideration is abuse of discretion), cert. denied,
277 Conn. 907, 894 A.2d 988 (2006).
The judgment is affirmed.
1
Carol Cangiano, Coldwell Banker Real Estate, LLC, Coldwell Banker
Residential Real Estate, LLC, NRT LLC, NRT New England, LLC, Realogy
Franchise Group, LLC, Realogy Operations, LLC, and CBRE, Inc., were also
named as defendants but are not parties to this appeal. Our references in
this opinion to the defendants are to Gary W. Hoyt and Karen A. Hoyt.
2
There is no evidence in the record that the plaintiff was employed as
a landscaper.
3
The plaintiff’s counsel represented to the court that his legal fee, memori-
alized in his engagement letter with the plaintiff, was $300 per hour and
that he spent 91.6 hours on the plaintiff’s case.
4
Practice Book § 16-35 is in Chapter 16, which is titled ‘‘Jury Trials.’’
There was no jury trial in the present case, as the uncontested hearing in
damages was tried to the court.
5
The following is counsel’s complete statement: ‘‘So I’ll accept whatever
the court thinks is—.’’
6
‘‘It is the substance of a motion . . . that governs its outcome, rather
than how it is characterized in the title given to it by the movant.’’ State v.
Taylor, 91 Conn. App. 788, 792, 882 A.2d 682, cert. denied, 276 Conn. 928,
889 A.2d 819 (2005).