Opinion
(13997)
Argued September 14, 1995
Decision released October 24, 1995
Action to recover damages for breach of a lease agreement, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford, where the court, Langenbach, J., entered a default against the defendants for failure to appear; following a hearing in damages, the court rendered judgment for the plaintiff, from which the defendants appealed to this court. Reversed in part; further proceedings.
Joseph R. Crispino, for the appellants (defendants).
Francis X. Drapeau, with whom, on the brief, was John D. Ward, for the appellee (plaintiff).
The defendants, lessees of commercial property, appeal from a judgment awarding damages for rent owed to the plaintiff rendered following a hearing in damages before the trial court. The issues raised by the defendants are all factual and cannot be retried on appeal. See New Haven v. Local 884 of Council No. 4, 38 Conn. App. 709, 713, 662 A.2d 818 (1995).
The defendants raised the following issues: whether the trial court improperly found that (1) the plaintiff had made reasonable efforts to mitigate damages, (2) the plaintiff's construction activities breached the lease, and (3) the defendant Ursini executed the lease in his individual capacity.
Although the parties initially waived oral argument before this court, our examination of the record and briefs disclosed the presence of a serious issue of law that had not been briefed. Plain error review under Practice Book § 4185 is warranted because the unaddressed issue implicates interests of fundamental justice. Lynch v. Granby Holdings, 230 Conn. 95, 99, 644 A.2d 325 (1994). The unbriefed issue concerns the power of a trial court to render judgment for an amount in excess of the sum stated in the plaintiff's amount in demand. The parties were given notice and ordered to file supplemental briefs. See id.; LoSacco v. Young, 210 Conn. 503, 509-10, 555 A.2d 986 (1989).
Practice Book § 4185 provides in relevant part: "The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . ."
The following facts are pertinent to our resolution of this appeal. In compliance with General Statutes § 52-91 and Practice Book § 131 the plaintiff annexed to its complaint a statement that the amount "in demand is more than Two Thousand Five Hundred Dollars ($2,500.00) but less than $15,000.00 exclusive of interest and costs." (Emphasis added.) Despite this statement of the amount in demand, the trial court rendered judgment for the plaintiff in the amount of $146,588.57, attorney's fees of $3767 and costs of $849.10.
General Statutes § 52-91 provides in relevant part: "The first pleading on the part of the plaintiff shall be known as the complaint and shall contain . . . on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs. . . ."
Practice Book § 131 provides: "The first pleading on the part of the plaintiff shall be known as the complaint. It shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall include the information required by Gen. Stat. § 52-91. . . ."
Our decision in the present case is controlled by Davis v. Naugatuck, 15 Conn. App. 185, 543 A.2d 785 (1988). Following a thorough, detailed analysis, this court held that the trial court improperly awarded damages in excess of the amount sought in the statement of the amount in demand. Id., 189-93. We reaffirm our decision in Davis, and hold that the trial court in this case improperly awarded damages in excess of $15,000.