Opinion
No. CV-06-5000359
August 27, 2009
MEMORANDUM OF DECISION
This case was tried to the court, and on August 19, 2008, the court entered judgment for the plaintiff on the second count. In addition to other relief, the court awarded damages to the plaintiff in the amount of $27,000. On August 28, 2008, the defendants filed a motion for a new trial, claiming that the defendant Gail M. Calo was prevented from offering evidence on each specific allegation of the plaintiff's complaint. Prior to the hearing on the motion, the defendants hired a new attorney who filed, on November 14, 2008, the following: Defendants' Motion for Articulation of the Court's Memorandum of Decision Dated August 19, 2008 And To Set Aside The Verdict. A hearing was held on both motions.
The first count of the complaint concerned the ownership rights and easement rights of the parties. The court determined that defendants owned the property in dispute, and that the plaintiff had easement rights which had been violated by the defendants. See Kores v. Calo, No. CV 06 5000359S, Judicial District of Litchfield at Litchfield (Aug. 20, 2008).
Because this was a trial to the court and not to the jury, there was no "verdict" in this case. Under the circumstances, however, the court treats the motion as one to set aside the judgment pursuant to § 17-4 of the Practice Book.
The motion for new trial was denied by the court from the bench based on clear evidence in the transcript that contradicted the defendants' claim. In reviewing the file, however, the court determined that it had mistakenly awarded the entire amount of attorneys fees incurred by the plaintiff as compensation for his losses. The court acknowledged this mistake and allowed the parties to submit briefs and to argue.
The defendants seek to have the court vacate the award. "It is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake. If a memorandum incorrectly formalizes the decision that was reached in deliberation, it should be corrected. Montville v. Antonio, 77 Conn.App. 862, 866, 825 A.2d 230 (2003); Jetmore v. Jetmore, 6 Conn.App. 632, 635, 507 A.2d 116 (1986); Lamont v. New Hartford, 4 Conn.App. 303, 306, 493 A.2d 298 (1985)." Section 52-212a of the Connecticut General Statutes provides that a motion to open or set aside a civil judgment must be filed within four months following the date on which it was rendered or passed. Because the court treats the motion filed by the defendants on November 14, 2008 as a motion to set aside the judgment, the court deems the defendants to have complied with the requirements of § 52-212a. The error regarding the amount of attorneys fees was made by the court. The court has the inherent power to open, correct, modify or vacate a judgment, and it exercises that discretion in the interest of justice.
The issue before the court is whether the plaintiff, having submitted evidence of attorneys fees but no evidence as to what portion of the fees were incurred to have the nuisance removed and to have the defendant enjoined from interfering with the plaintiff's easement rights, is entitled to anything other than nominal damages. Defendants argue that the plaintiff failed to satisfy his evidentiary burden to prove the reasonable attorney fees he expended to prosecute the nuisance claim. "It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty . . ." Viejas Band Of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 163 (2009). Where reimbursement is sought for a party's actual expenditures for legal services, that party is required to proffer evidence to support the amount requested. See Day v. General Electric Credit Corporation, 15 Conn.App. 677, 688, 546 A.2d 315 (1988). In the instant case, the plaintiff submitted bills for legal fees from two attorneys, but the bills failed to inform the court for what work the plaintiff was charged. It is impossible for the court to determine, based on the evidence presented, how much time was spent by the attorneys on the aspect of the case dealing with the plaintiff's easement rights and the nuisance.
In Coughlin v. Anderson, 270 Conn. 487, 515, 853 A.2d 460 (2004), a purchaser of real property brought an action against the seller and his own attorney, seeking to recover damages for the non-disclosure of an easement which burdened the property. The evidence disclosed that the encumbrance was only a partial one, but the plaintiff had provided evidence of damages only for a total encumbrance. The trial court directed a verdict for the defendant, and the plaintiff appealed. Our Supreme Court affirmed, stating that, because the plaintiff produced no evidence from which the jury could have determined a measure of damages resulting from a partial encumbrance, the trial court properly granted the defendants' motion for a directed verdict. The court noted that the failure to present such evidence resulted in the trier of fact having no means to assign a value to the encumbered portion of the property and to determine the measure of damages resulting from the partial encumbrance.
The reasoning in Coughlin persuades this court that, based on the lack of evidence as to the work that was done and charged to the plaintiff, the only damages that may be awarded are nominal damages. The lack of specificity in the bills does not allow the court to do more than speculate as to what portion of the work was attributable to the nuisance and to establishing that the defendant was in violation of the plaintiff's easement rights. Accordingly, the court opens the judgment, vacates the award of $27,000.00, and awards the plaintiff nominal damages of $100.00.