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Wesco Ins. Co. v. Martins Drywall, LLC
WESCO INSURANCE COMPANY v.
MARTINS DRYWALL, LLC
(AC 48000)
Suarez, Westbrook and Bishop, Js.
Syllabus
The defendant appealed from the trial court’s judgment rendered in favor of the plaintiff, following the defendant’s default for failure to plead in an action for breach of contract. The defendant claimed that the court improperly rendered judgment because the plaintiff failed to wait fifteen days from the notice of the defendant’s default to file a motion for judgment as required by the rule of practice (§ 17-32 (b)). Held:
The trial court properly granted the plaintiff’s motion for judgment in accordance with the rule of practice (§ 17-33 (b)) governing contract actions involving liquidated damages, as, although the plaintiff’s motion was filed seven days after the default had entered, § 17-33 (b) does not contain a waiting period to file a motion for judgment following a default, and that rule of practice applied in the present case because the plaintiff’s breach of contract action sought liquidated damages.
Argued June 4—officially released September 22, 2026
Procedural History
Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant was defaulted for failure to plead; thereafter, the court, Clark, J., granted the plaintiff’s motion for judgment and rendered judgment thereon, from which the defendant
appealed to this court. Affirmed.
James E. Nealon, for the appellant (defendant).
Casey L. McCaffrey, with whom, on the brief, was
Scott T. Ober, for the appellee (plaintiff).
Opinion
BISHOP, J. The defendant, Martins Drywall, LLC,
appeals from the judgment of the trial court rendered
in favor of the plaintiff, Wesco Insurance Company, folWesco Ins. Co. v. Martins Drywall, LLC
lowing the defendant’s default for failure to plead. On
appeal, the defendant claims that the court improperly
rendered judgment because the plaintiff failed to wait
fifteen days from the notice of the defendant’s default
to file a motion for judgment in violation of Practice
Book § 17-32 (b).1 We disagree and, accordingly, affirm
the judgment of the trial court.
The following facts and procedural history are relevant
to our resolution of this appeal. The plaintiff commenced the present action on October 7, 2023. In its complaint,2 the plaintiff alleged the following facts: The plaintiff, a New Hampshire corporation, is an insurance carrier
authorized to do business in the state of Connecticut.
The parties entered into an agreement through which
the plaintiff would provide workers’ compensation insurance and employer’s liability insurance to the defendant, a Connecticut limited liability company. These policies
covered three distinct time periods; first from July 13,
1
The defendant also claims that the court improperly denied his motion to reargue. The purpose of a motion to reargue is well established in our law. See Palkimas v. Quilli, 238 Conn. App. 586, 602, 358 A.3d 1003 (2026) (purpose of motion to reargue is to demonstrate to trial court that there is some decision or principle of law which would have controlling effect that was overlooked, misapprehension of facts, or to ask trial court to address claim of law not ruled on and said motions are reviewed by appellate courts for abuse of discretion); Kuselias v. Zingaro & Cretella, LLC, 224 Conn. App. 192, 222–23, 312 A.3d 118 (motion to reargue not to be used for second bite at apple to raise matters that could have been presented at time of original argument), cert. denied, 349 Conn. 916, 316 A.3d 357 (2024). On the basis of our conclusion that the court properly interpreted our rules of practice and applied Practice Book § 17-33 (b) in this case, we further determine that the court did not abuse its discretion in denying the motion to reargue, and we need not address this claim further. See Tuite v. Hospital of Central Connecticut, 141 Conn. App. 573, 575, 61 A.3d 1187 (2013); Vogel v. Maimonides Academy of Western Connecticut, Inc., 58 Conn. App. 624, 631, 754 A.2d 824 (2000).
2
We note that “[a] default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant.” (Citation omitted; internal quotation marks omitted.) Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927, cert. denied, 212 Conn. 802, 560 A.2d 984 (1989); see also Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 161 n.1, 475 A.2d 310 (1984) (entry of default operates as confession by defaulted defendant of truth of material facts alleged in complaint which are essential to judgment); Gaynor v. Hi-Tech Homes, 149 Conn. App. 267, 271, 89 A.3d 373 (2014) (when appropriately made, default determines liability of defendant).
Wesco Ins. Co. v. Martins Drywall, LLC
2020, to July 13, 2021, second, from July 13, 2021, to
July 13, 2022, and third, from July 13, 2022, to April
12, 2023. Pursuant to their agreement, the defendant
agreed to pay the plaintiff amounts due upon a final audit for the periods of coverage in exchange for this insurance coverage. The plaintiff sent the defendant invoices in the amount of $32,881 for the first time period, $19,882 for
the second time period, and $12,535 for the third time
period. The amount due for these insurance policies
totaled $65,298. Despite several demands, the defendant
failed to remit payment to the plaintiff.
In its complaint, the plaintiff set forth causes of action for breach of contract and unjust enrichment. For relief, the plaintiff requested (1) money damages in excess of
$2500, (2) postjudgment interest pursuant to General
Statutes § 37-3a, (3) and other and further relief as
deemed proper by the court. The prayer for relief further stated: “This is an action to recover on an express or
implied contract to pay a definite sum of money, seeking
money damages only.” (Emphasis added.) The defendant’s counsel filed an appearance on October 26, 2023.
On November 30, 2023, the defendant’s counsel filed a
motion seeking a two week extension to file a responsive
pleading to the complaint, which the court granted on
December 20, 2023.3 Despite this extension, the defendant did not respond to the complaint, and, on February
8, 2024, the plaintiff filed a motion for default against the defendant due to its failure to file a pleading.4 This motion was granted on February 16, 2024.5
3
As a general matter, pleadings shall advance within thirty days from the return date, which in this case was October 31, 2023. See Practice Book § 10-8; Kaye v. Housman, 184 Conn. App. 808, 816, 195 A.3d 1168 (2018).
4
See, e.g., Snowdon v. Grillo, 114 Conn. App. 131, 133, 968 A.2d 984 (2009) (motion for default for failure to plead filed pursuant to Practice Book § 17-31); BBSR, LLC v. Anheuser-Busch, LLC, Docket No. X03-CV-XX-XXXXXXX-S, 2025 WL 1392276, *11 n.8 (Conn. Super. April 30, 2025) (proper procedure for obtaining default for failure to plead prior to trial is to file motion for default pursuant to Practice Book § 17-31); see also Practice Book § 10-18 (parties failing to plead according to our rules and order of judicial authority may be defaulted).
5
See Practice Book § 17-32 (a) (where defendant is defaulted for failing to plead pursuant to Practice Book § 10-8, plaintiff may file written
Wesco Ins. Co. v. Martins Drywall, LLC
Seven days after the entry of default, on February 23,
2024, the plaintiff filed a motion for a default judgment.6 After summarizing the procedural history of the case,
the plaintiff’s motion stated: “As a result of the default, the plaintiff hereby moves for a judgment against the
defendant in the amount of $65,298, plus costs and
postjudgment interest.” The plaintiff attached to this
motion an affidavit of debt signed by James Buller, the
vice president of cash operations for the operating company for the plaintiff. In his affidavit, Buller averred
that the plaintiff made several demands for payment
on the outstanding invoices sent to the defendant, but
the outstanding balance was never paid.7 The affidavit
further stated: “Therefore, the [p]laintiff seeks judgment in the amount of $65,298, plus costs of $426.63
(filing fee of $360 and [m]arshal’s fees of $66.63), for a total of $65,724.63. The [p]laintiff also requests that
post-judgment interest at the statutory rate be ordered.” The defendant did not respond to the plaintiff’s motion
for a default judgment.
On March 18, 2024, the court, Clark, J., granted the
plaintiff’s motion for a default judgment. It ordered the defendant to pay the specific amount requested by the
plaintiff, $65,724.63, and postjudgment interest at the
rate of 6 percent a year. The court also ordered that “the defendant make weekly payments of $35, to commence
twenty-one days following notice of this judgment by
the clerk.”
motion for default which shall be acted upon by clerk); see also Newtown v. Ostrosky, Superior Court, judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-S (September 13, 2018) (reprinted at 202 Conn. App. 16, 18, 245 A.3d 492) (language of Practice Book § 17-32 (a) grants authority to clerk to act on motions for default for failure to plead), aff’d, 202 Conn. App. 13, 245 A.3d 490 (2020).
6
See Wells Fargo Bank, N.A. v. Treglia, 156 Conn. App. 1, 11, 111 A.3d 524 (2015) (plaintiff who files motion for judgment when defendant is in default essentially is asking court to render judgment upon default).
7
“As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place [it] in the same position [it] would have been in had the contract been properly performed.” (Internal quotation marks omitted.) New Milford v. Standard Demolition Services, Inc., 212 Conn. App. 30, 81, 274 A.3d 911, cert. denied, 345 Conn. 908, 283 A.3d 506 (2022).
Wesco Ins. Co. v. Martins Drywall, LLC
Pursuant to Practice Book § 11-11, the defendant
moved to reargue the court’s granting of the motion
for a default judgment on April 15, 2024. It asserted
that the plaintiff’s motion for judgment was procedurally improper pursuant to Practice Book § 17-32 (b),
“which prohibits the filing of any motion for default
judgment for failure to plead until fifteen days after the court enters the initial default (i.e., which in this case was granted by the court on February 16, 2024 . . . ). As such, the earliest date that the plaintiff was permitted
to file a judgment was March 2, 2024.” (Citation omitted.) The defendant’s counsel further claimed that he
was unaware of the default or default judgment until
early April 2024 due to an issue with his email system.
The defendant’s counsel also stated: “Significantly, the
defendant does not contest liability but rather is concerned that the damages sought may be miscalculated in
the plaintiff’s favor so as to potentially result in unjust enrichment.” (Emphasis omitted.) The plaintiff objected
to this motion on August 7, 2024. The court denied the
defendant’s motion to reargue on August 20, 2024. This
appeal followed.
On appeal, the defendant claims that the court improperly rendered judgment in light of the plaintiff’s failure to wait fifteen days from the notice of the defendant’s
default to file a motion for judgment in violation of
Practice Book § 17-32 (b). Specifically, it argues that,
pursuant to the plain language of that rule of practice,
which applied to this case, the plaintiff was required
to wait at least fifteen days from the entry of a default before moving for a default judgment but failed to do so. The plaintiff counters that this case involved a contract action with liquidated damages, and, therefore, Practice
Book § 17-33 (b) applied, and that rule does not include a fifteen day waiting period for filing a motion for default judgment. In its reply brief, the defendant clarified its arguments and asserted that § 17-33 (b) applies only to
foreclosure and summary process actions, or cases involving “simple instruments” such as promissory notes. Distilled to its essence, this appeal requires us to determine
Wesco Ins. Co. v. Martins Drywall, LLC
whether § 17-32 (b) or § 17-33 (b) applies under these facts and circumstances. We conclude that § 17-33 (b) applies
in the present case because the plaintiff’s complaint
set forth a breach of contract action seeking liquidated
damages. Accordingly, the court properly granted the
plaintiff’s motion for judgment despite the fact that the motion was filed seven days after the clerk granted the
motion for default.
As noted in our recitation of the procedural history of
this case, the defendant did not file an objection to the plaintiff’s motion for default or motion for judgment.
The defendant did not file any response to the complaint
or make any arguments until it filed its motion to reargue. Although the defendant raised its claim that the
plaintiff’s motion for judgment was premature for the
first time in the motion to reargue, we nevertheless will consider it. See Wethington v. Wethington, 223 Conn.
App. 715, 726 n.10, 309 A.3d 356 (2024) (where record
demonstrated (1) defendant raised claim in motion to
reargue; (2) plaintiff objected to motion to reargue and
responded to defendant’s claim; (3) court denied motion
to reargue; and (4) defendant claimed on appeal that court abused its discretion in denying motion to reargue, said
claim, although raised for first time in motion to reargue, was preserved for appellate review); see also Curley v.
Phoenix Ins. Co., 220 Conn. App. 732, 745–55, 299 A.3d
1133 (although claim raised for first time in motion to
reargue generally is not preserved for appellate review,
circumstances can justify deviation from this rule), cert. denied, 348 Conn. 914, 303 A.3d 260 (2023); cf. United
Cleaning & Restoration, LLC v. Bank of America, N.A.,
225 Conn. App. 702, 714–15, 317 A.3d 2 (2024) (this
court declined to review claim that was raised for first
time in motion to reargue and party did not challenge
denial of motion to reargue on appeal).
This appeal requires us to interpret our rules of practice. In doing so, we apply the plenary standard of review. Compass Bank v. Dunn, 196 Conn. App. 43, 46, 228 A.3d
663 (2020); see also Myshkina v. Gusinski, 217 Conn.
Wesco Ins. Co. v. Martins Drywall, LLC
App. 376, 379, 289 A.3d 250 (2023). In Disciplinary
Counsel v. Parnoff, 324 Conn. 505, 152 A.3d 1222 (2016),
our Supreme Court explained that the interpretation of
the rules of practice is governed by the same principles
as those regarding statutory interpretation. Id., 514.
“Our fundamental objective in interpreting a rule of
practice is to ascertain and give effect to the intent of the drafters. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.”
(Internal quotation marks omitted.) U.S. Bank National
Assn. v. Weinbaum, 219 Conn. App. 597, 603, 295 A.3d
1045 (2023).
As an initial matter, it is helpful to review the principles regarding the procedural posture of this case. As
we noted, the plaintiff moved for a default as a result
of the defendant’s failure to file a responsive pleading
to the complaint. The clerk granted that motion. “Our
statutes and rules of practice provide penalties for failing to comply with the timely pleading requirements of
Practice Book § 10-8. General Statutes § 52-119 provides
that [p]arties failing to plead according to the rules and orders of the court may be . . . defaulted . . . . Section 10-18 of our rules of practice essentially mirrors that
language. We read the plain and unambiguous language
of both § 52-119 and Practice Book § 10-18 as empowering the court with the discretionary authority to impose
a default as a penalty whenever a defendant has failed to comply with our rules regarding pleadings, including the
timely advancement of such pleadings. Such authority
is in accord with the court’s broad, general authority
to act to maintain the orderly procedure of the court
docket, and to prevent any interference with the fair
administration of justice. . . .
“A default is an interlocutory ruling that establishes
that a plaintiff is entitled to judgment, but requires
further proceedings to determine the amount of money
due to the plaintiff if the action is one for monetary
Wesco Ins. Co. v. Martins Drywall, LLC
damages. . . . [A] default admits the material facts that constitute a cause of action . . . and entry of a default, when appropriately made, conclusively determines the
liability of a defendant.” (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Kaye v.
Housman, 184 Conn. App. 808, 814–15, 195 A.3d 1168
(2018); see also Deutsche Bank National Trust Co. v.
Bertrand, 140 Conn. App. 646, 657, 59 A.3d 864 (where
defendant fails to timely advance pleadings, clerk of
court, without input from judicial authority, may act on
motion for default filed by plaintiff), cert. dismissed, 309 Conn. 905, 68 A.3d 661 (2013). Stated differently, “[a]
default is not a judgment. It is an order of the court the effect of which is to preclude the defendant from making any further defense in the case so far as liability is concerned.” Automotive Twins, Inc. v. Klein, 138 Conn.
28, 33, 82 A.2d 146 (1951); see also Moran v. Morneau,
140 Conn. App. 219, 225, 57 A.3d 872 (2013) (default
does not automatically trigger judgment for, or relief
requested by, pleader).
Both Practice Book §§ 17-32 (b) and 17-33 (b) address
the time frame for filing a motion for judgment following the entry of a default. Accordingly, we consider the specific language of each of these rules of practice. Section 17-32 (b), which sets forth the general rule8 regarding
the filing of a motion for judgment after a default has
been entered, provides in relevant part: “A claim for a
hearing in damages or motion for judgment shall not be
filed before the expiration of fifteen days from the date of notice of issuance of the default under this subsection.” (Emphasis added.)
8
See, e.g., United States Bank, National Assn. v. Gonzales, Docket No. CV-XX-XXXXXXX-S, 2012 WL 5278673, *2 (Conn. Super. October 4, 2012) (Practice Book § 17-32 (b) sets forth general rule of fifteen day waiting period and Practice Book § 17-33 (b) eliminates this waiting period in certain circumstances); see generally GMAC Mortgage Corp. v. Glenn, 103 Conn. App. 264, 266 n.3, 931 A.2d 290 (2007) (plaintiff was not required to follow general rule of § 17-32 (b) when § 17-33 (b) controlled “[the] situation”).
Wesco Ins. Co. v. Martins Drywall, LLC
Practice Book § 17-33 (b) provides: “Since the effect of
a default is to preclude the defendant from making any
further defense in the case so far as liability is concerned, the judicial authority, at or after the time it renders the default, notwithstanding Section 17-32 (b), may also
render judgment in foreclosure cases, in actions similar thereto and in summary process actions, provided
the plaintiff has also made a motion for judgment and
provided further that any necessary affidavits of debt or accounts or statements verified by oath, in proper form,
are submitted to the judicial authority. The judicial
authority may render judgment in any contract action
where the damages are liquidated provided that the
plaintiff has made a motion for judgment and submitted
the affidavits and attachments specified in Section 17-25 (b) (1).” Thus, the plain language of this rule of practice provides, inter alia, that the court may render judgment
in any contract action with liquidated damages, provided
that the plaintiff had moved for judgment and complied
with the requirement of Practice Book § 17-25 (b) (1).9
This court discussed Practice Book § 17-33 (b), and
its relationship with Practice Book § 17-32 (b), in Chase Manhattan Mortgage Corp. v. Burton, 81 Conn. App.
662, 841 A.2d 248, cert. denied, 268 Conn. 919, 847 A.2d
313 (2004). In that case, the court granted the plaintiff’s motion for judgment of strict foreclosure five days after the clerk had granted the motion for default. Id., 663.
On appeal, the defendant claimed, inter alia, that title to the subject property did not vest in the plaintiff due to a procedural error that caused the improper entry of the
9
Practice Book § 17-25 (b) provides in relevant part: “The motion shall have attached to it the following affidavits: (1) An affidavit of debt signed by the plaintiff or by an authorized representative of the plaintiff who is not the plaintiff’s attorney. The affidavit shall state the amount due or the principal owed and contain an itemization of interest, attorney’s fees and other lawful charges claimed. The affidavit shall contain a statement that any documents attached to it are true copies of the originals. Any plaintiff claiming interest shall separately state the interest and shall specify the dates from which and to which interest is computed, the rate of interest, the manner in which it was calculated and the authority upon which the claim for interest is based. . . .”
Wesco Ins. Co. v. Martins Drywall, LLC
default judgment. Id., 665. “Specifically, the defendant
argues that the court did not wait the required fifteen
days after entering the default to render the judgment
of strict foreclosure pursuant to Practice Book § 17-32
(b).” Id.
At the outset of our analysis, this court observed that,
although Practice Book § 17-32 (b) contains an explicit
requirement that a motion for judgment shall not be
filed before the expiration of fifteen days from the date of notice of issuance of the default, Practice Book § 17-33 (b) lacks such a waiting period under certain circumstances, including foreclosure cases. Id., 666–67. We
further reasoned that, “[b]ecause this is a foreclosure
proceeding, Practice Book § 17-33 (b), which allows a
court to render judgment at or after the time it renders the default, is applicable. As a result, under . . . § 17-33 (b), the court properly rendered the judgment even though
it did so only five days after the default was entered.”
(Emphasis added; internal quotation marks omitted.) Id.,
667; see also U.S. Bank National Assn. v. Weinbaum,
supra, 219 Conn. App. 609–10; Branford v. Van Eck,
86 Conn. App. 441, 446 n.3, 861 A.2d 560 (2004), cert.
denied, 272 Conn. 922, 867 A.2d 839 (2005); see generally U.S. Bank National Assn. v. Gonzales, Docket No.
CV-XX-XXXXXXX-S, 2012 WL 5278673, *2 (Conn. Super.
October 4, 2012) (plain language of § 17-33 (b) specifically allows party to move for judgment in spite of waiting
period usually required by § 17-32).
Having explained the relationship between Practice
Book §§ 17-32 (b) and 17-33 (b), we next determine the
proper rule to apply in the present case. As noted, the
plaintiff’s motion for default was filed on February 8,
2024, and was granted on February 16, 2024. The motion
for judgment was filed on February 23, 2024, seven days
after the default had entered. The defendant contends
that, because the general rule of § 17-32 (b) applies, the plaintiff’s motion for judgment was filed prematurely,
and therefore the court improperly granted the motion
for judgment. The plaintiff maintains that § 17-33 (b),
Wesco Ins. Co. v. Martins Drywall, LLC
which does not contain a waiting period to file a motion
for judgment following a default, applies in this case
because it filed a breach of contract action seeking liquidated damages. See U.S. Bank National Assn. v. Weinbaum, supra, 219 Conn. App. 609 (§ 17-33 (b) expressly
exempts judicial authority from complying with § 17-32
(b) and fifteen day filing limitation). We agree with the plaintiff.
Practice Book § 17-33 (b) details the types of cases in
which it applies, namely, foreclosures, actions similar
thereto, summary process, and “any contract action
where the damages are liquidated, provided that the
plaintiff has made a motion for judgment and submitted
the affidavits and attachments specified in Section 17-25 (b) (1).” In Skyler Ltd. Partnership v. S.P. Douthett &
Co., 18 Conn. App. 245, 557 A.2d 927, cert. denied, 212
Conn. 802, 560 A.2d 984 (1989), this court expressly
stated that, in “contract actions in which the damages
are liquidated . . . the court may render judgment at the time it renders the default provided the plaintiff has also filed, among other documents, a motion for judgment.
See Practice Book § 364 (b) [now § 17-33 (b)].” Skyler Ltd. Partnership v. S.P. Douthett & Co., supra, 250;10 cf. Merrill Lynch Equity Access v. Cooper, Docket No. 228981,
1996 WL 88088, *2 (Conn. Super. February 2, 1996)
(cross claim was not foreclosure claim, summary process
claim, or claim for liquidated damages and therefore it
was improper to grant motion for default and simultaneously enter judgment on such default). The remaining
question, therefore, is whether the plaintiff’s action
involves liquidated damages. We conclude that it does.
Our Supreme Court’s decision in Costello v. Hartford
Institute of Accounting, Inc., 193 Conn. 160, 475 A.2d
310 (1984), guides our analysis. In that case, the plaintiff, over the course of several years, provided various
services at property owned by the defendant, such as
10
On the basis of this precedent, and the plain language of Practice Book 17-33 (b), we conclude that the defendant’s contention that this rule of practice applies only to foreclosure and summary process actions or to breach of contract claims involving promissory notes is without merit.
Wesco Ins. Co. v. Martins Drywall, LLC
roof repairs, painting, plumbing, carpentry, electrical,
and overall maintenance. Id., 161–62. The plaintiff submitted more than twenty bills to the defendant for this
work; only two were paid. Id., 162. At some point, the
plaintiff, with the assistance of counsel, sent an itemized accounting of the completed work to the defendant. Id.
The plaintiff subsequently sent an additional copy of its invoices to the defendant, which were neither contested
nor paid. Id. The plaintiff commenced a lawsuit and, after the defendant failed to appear, moved for default. Id.
The court granted the default and, several months
later, also granted the plaintiff’s motion for judgment.
Id., 162–63. Nearly four months later, the defendant
attempted to open the judgment. Id., 163. The court
subsequently denied the defendant’s motion to open
the judgment and the subsequent motion to reargue.
Id., 164. On appeal, the defendant argued, inter alia,
that, pursuant to the then existing rules of practice, a
hearing in damages was required because the amount
sought by the plaintiff exceeded $15,000. Id., 164–65.
The defendant further argued that then Practice Book
§ 364 (b), which is now Practice Book § 17-33 (b), did
not apply because the case did not involve liquidated
damages. Id., 165.
The trial court had explained that the damages were
liquidated because they “were ascertainable by computation of [the] plaintiff’s billings which [the] defendant was aware of and did not contest.” (Internal quotation
marks omitted.) Id. In agreeing with the reasoning of the trial court, our Supreme Court set forth the following:
“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. . . . It is sufficient for this purpose if the debt is measurable by a fixed or established external standard, or by a standard
Wesco Ins. Co. v. Martins Drywall, LLC
apparent from the documents upon which the plaintiff
bases his claim. . . . Unliquidated damages, on the other hand, are those which are not yet reduced to a certainty in respect to amount, nothing more being established than
the plaintiff’s right to recover; or such as cannot be fixed by a mere mathematical calculation from ascertainable
data in the case.” (Citations omitted; emphasis added;
internal quotation marks omitted.) Id., 165–66.
The court then explained that the defendant had
learned of the fixed amount of claimed damages during
the course of the parties’ dealings. Id., 166. Specifically, on three occasions, the plaintiff provided the precise
amount of financial obligation to the defendant. Id. “We
hold that the defendant’s failure to respond to repeated, exact billings and accountings cause their content, in
due course, to become liquidated within the meaning of
[Practice Book § 17-33 (b)], notwithstanding the parties’ failure during their initial discussion to agree on the
precise amount of compensation for the services to be
rendered.” Id., 166; see also A. Secondino & Son, Inc. v. LoRicco, 19 Conn. App. 8, 10–12, 561 A.3d 142 (1989)
(in foreclosure of mechanic’s lien, damages are liquidated where defendant is made aware of amount claimed by
virtue of recitation of lien and in complaint, as well as detailed breakdown of itemized costs and expenses in
response to interrogatory).
This court’s opinion in Forster v. Gianopoulos, 105
Conn. App. 702, 939 A.2d 1242 (2008), provides additional guidance. The plaintiff in that case commenced an
action seeking to collect on a series of unpaid promissory notes. Id., 703. After the defendant failed to comply
with certain discovery orders over an extended time
period, the trial court granted the plaintiff’s motion for a default judgment in an amount exceeding $1.1 million.
Id., 703–706. On appeal, the defendants claimed that
the court lacked the authority to render a default judgment as a sanction for violating a discovery order. Id.,
706. We disagreed and explained that the authority for
such an action derived from Practice Book § 17-33 (b).
Wesco Ins. Co. v. Martins Drywall, LLC
Id. First, this court recited the definition of liquidated damages set forth by our Supreme Court in Costello
v. Hartford Institute of Accounting, Inc., supra, 193
Conn. 165. Id., 707. We then reasoned as follows: “The
plaintiff’s complaint set forth a breach of contract action to collect unpaid principal, interest and penalties on a
series of promissory notes. The determination of the total amount due on each promissory note involved a simple
mathematical calculation of the outstanding principal
balance multiplied by the predetermined interest rate as
specified in each note. The court engaged in such a calculation at the prejudgment remedy hearing, determined
that amount to be $1,135,359.91, and subsequently
informed the defendants of that precise amount.” Id.
We then concluded that the case involved liquidated
damages and therefore was governed by § 17-33 (b) and
the court had the authority to render judgment at the
same time as the entry of default. Id., 707–708.
In the present case, the plaintiff set forth a count of
breach of contract in its complaint. Therein, it claimed
damages in the amount $32,881 for the first time period,
$19,882 for the second time period, and $12,535 for the
third time period, for a total of $65,298. The plaintiff
made several demands for payment of these amounts
without success.11 The plaintiff attached copies of the
invoices to the complaint. Following the entry of default, the plaintiff filed a motion for judgment. As part of
that filing, it attached an affidavit of debt from Buller, the vice president of cash operations for the operating
company for the plaintiff. After reviewing the plaintiff’s books and records, Buller stated that the defendant
11
To the extent that the defendant argues that it should be afforded the opportunity to contest the specific amount in the invoices, we offer the following responses. First, in our view, the facts of this case are similar to those in Costello v. Hartford Institute of Accounting, Inc., supra, 193 Conn. 161–62, and we are, of course, bound by that controlling precedent from our Supreme Court. See 65-99 Burban Associates, LLC v. New Antioch Church of God, 240 Conn. App. 442, 453, ___ A.3d ___ (2026). Additionally, the defendant forfeited the opportunity to dispute these amounts by not responding to the plaintiff’s complaint in a timely fashion.
Wesco Ins. Co. v. Martins Drywall, LLC
owed the plaintiff the amounts claimed in the complaint,
attached copies of said invoices, and asserted that the
defendant had failed to pay such sums due.
The record demonstrates that the defendant, on the
basis of its dealings with the plaintiff, was aware of the specific amount it owed the plaintiff and, therefore,
this was liquated debt. Costello v. Hartford Institute
of Accounting, Inc., supra, 193 Conn. 165–66; see also
Rifkin v. Safenovitz, 131 Conn. 411, 414, 40 A.2d 188
(1944) (amount claimed is liquidated sum because “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” (internal quotation marks omitted)). Because
the case involves liquated damages, Practice Book § 17-33 (b) applies, and the plaintiff was not required to wait
fifteen days following the entry of the default before filing a motion for judgment. See Forster v. Gianopoulos,
supra, 105 Conn. App. 707–708.
As a final matter, we note that the defendant raises
certain policy reasons as to why Practice Book § 17-32
(b) should apply in this matter. Specifically, it contends that “by enforcing the fifteen day waiting period before
a party may proceed to seek a default judgment on a contract/collections matter, this court would be protecting a defendant’s right to cure any previously entered default
during the fifteen day period or, longer, if the plaintiff waits longer than fifteen days.” This waiting period
secures a defendant’s right to automatically set aside
a default without the need to seek permission from the
trial court or a plaintiff. See Practice Book § 17-32 (b). This argument, however, ignores the competing interest in resolving cases where the damages are established
without the need for further proceedings where a party
has been defaulted. See Chase Home Finance, LLC v.
Scroggin, 178 Conn. App. 727, 738–39, 176 A.3d 1210
(2017). In this case, the defendant made no effort to
respond to the plaintiff’s complaint aside from counsel
entering an appearance and successfully obtaining an
Wesco Ins. Co. v. Martins Drywall, LLC
extension of time to plead. Additionally, we note that
elimination of the fifteen day waiting period for filing
for judgment after the entry of default is restricted to a limited subset of type of actions. For these reasons, we
conclude that the court properly granted the plaintiff’s
motion for judgment in accordance with Practice Book
§ 17-33 (b).
The judgment is affirmed.
In this opinion the other judges concurred.