Guzman v. Yeroz , 167 Conn. App. 420 ( 2016 )

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JUAN GUZMAN v. ZEYNULLAH YEROZ ET AL.
(AC 37436)
Keller, Prescott and Cremins, Js.
Argued April 4—officially released August 2, 2016
(Appeal from Superior Court, judicial district of New
Haven, Hon. John C. Flanagan, judge trial referee
[judgment]; Frechette, J. [motion to open judgment].)
Hugh D. Hughes, for the appellant (named
defendant).
Robert F. Carter, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The defendant Zeynullah Yeroz
appeals from the trial court’s denial of his motion to
open the judgment, rendered after a hearing in damages,
awarding the plaintiff, Juan Guzman, compensatory and
statutory damages for personal injuries that Guzman
suffered while employed in a pizza restaurant owned
and operated by the defendant.1 We affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff sustained a serious
laceration and permanent injury to his left hand while
working for the defendant in the defendant’s restaurant.
Because the defendant did not have workers’ compen-
sation insurance, the plaintiff brought this action
against the defendant pursuant to General Statutes § 31-
284 (b). The plaintiff’s complaint alleged that the defen-
dant failed to provide a reasonably safe work environ-
ment and that his employment was terminated
unlawfully by the defendant in retaliation for the plain-
tiff’s attempt to exercise his rights under the Workers’
Compensation Act (act), General Statutes § 31-275 et
seq. See General Statutes § 31-290a. The plaintiff sought
compensatory damages for his injuries and punitive
damages for the defendant’s violation of § 31-290a.
The defendant, who was served ‘‘in hand’’ with the
summons and complaint, was subsequently defaulted
for failure to appear.2 The court, Hon. John C. Flana-
gan, judge trial referee, conducted a hearing in dam-
ages, at which the defendant also did not appear.
Following the hearing, the court, in a written memoran-
dum of decision, awarded the plaintiff $287,570 in com-
pensatory damages, and $96,500 in punitive damages
for the defendant’s wilful violation of the act. The court
awarded the plaintiff a total of $386,070.3 Judgment
entered accordingly on June 23, 2014.
On August 6, 2014, forty-four days after judgment was
rendered, the defendant first appeared in this action and
moved to open the judgment. In his motion to open,
the defendant asserted that he never had been served
with the complaint, and, thus, he was prevented from
defending the action ‘‘by [reason of] mistake, accident
or other reasonable cause . . . .’’ General Statutes
§ 52-212.
On November 5, 2014, the court, Frechette, J., denied
the defendant’s motion to open. The court concluded,
after an evidentiary hearing, that the defendant’s testi-
mony that he lacked knowledge of this action and was
never served with process was not credible.
On November 24, 2014, the defendant filed this
appeal. Despite the fact that the twenty day period in
which to appeal from the judgment on the complaint
had expired on July 14, 2014; see Practice Book § 63-
was not filed within that period; see Practice Book § 63-
1 (c) (1); Worth v. Korta, 132 Conn. App. 154, 158–59,
31 A.3d 804 (2011), cert. denied, 304 Conn. 905, 38 A.3d
1201 (2012); the defendant’s appeal form indicates that
he is attempting to appeal from both the original judg-
ment and the denial of the motion to open. The plaintiff,
however, did not move to dismiss that portion of the
appeal challenging the merits of the underlying
judgment.
In his preliminary statement of the issues and his brief
on appeal, the defendant has not raised any challenge to
the court’s denial of the motion to open. Instead, the
defendant’s claims on appeal address only the merits
of the underlying judgment. Specifically, the defendant
claims in his brief that the trial court (1) improperly
found that the plaintiff suffered a permanent disability
to his left hand because the expert report admitted at
the hearing in damages states that the injury was to
the plaintiff’s right hand, (2) awarded excessive non-
economic damages, and (3) improperly construed the
act to permit an award of punitive damages under the
circumstances of this case.
Following oral argument before this court, we
ordered the parties to file simultaneous supplemental
briefs addressing two questions: ‘‘Should this court
review the merits of the underlying judgment rendered
after a hearing in damages when the appellant did not
file a motion to open or a direct appeal within twenty
days of the date the court issued notice of its judgment
on June 23, 2014? (See Dziedzic v. Pine Island Marina,
LLC, 143 Conn. App. 644, 651, [72 A.3d 406] [2013];
Practice Book § 63-1 [b] and [c] [1])’’; and ‘‘If we con-
clude the appellant’s claims are reviewable, since he
failed to appear at the hearing in damages to raise and
preserve any evidentiary or legal issues, is our standard
of review limited to plain error review?’’
In his supplemental brief, the defendant concedes
that his appeal from the judgment on the merits was
untimely. He argues, however, that because the appeal
period in this case is set by the Practice Book and,
therefore, is not jurisdictional in nature, the plaintiff
waived his right to challenge the untimeliness of the
appeal because he failed to file, pursuant to Practice
Book § 66-8, a motion to dismiss that portion of the
appeal within ten days of the filing of the appeal.
Regarding the standard of review, the defendant, relying
on California case law, contends that this court should
review the trial court’s factual findings made after the
hearing in damages pursuant to a clearly erroneous
standard. The defendant’s supplemental brief is silent
as to the standard of review that he believes this court
should apply in reviewing his claim that the court
improperly interpreted the act when it awarded the
plaintiff punitive damages, but his principal brief con-
tended that this court should engage in plenary review
of his claims of legal error.
The plaintiff contends in his supplemental brief that
even though he failed to file a motion to dismiss that
portion of the appeal challenging the judgment on the
merits, this court should decline to review the judgment
on the merits.4 Specifically, the plaintiff relies upon our
decision in Dziedzic v. Pine Island Marina, LLC, supra,
143 Conn. App. 651, in which we refused to entertain
on appeal a challenge to the merits of a judgment in
similar circumstances: ‘‘[I]t is well established in our
jurisprudence that [w]here an appeal has been taken
from the denial of a motion to open, but the appeal
period has run with respect to the underlying judgment,
we have refused to entertain issues relating to the merits
of the underlying case and have limited our consider-
ation to whether the denial of the motion to open was
proper. . . . When a motion to open is filed more than
twenty days after the judgment, the appeal from the
denial of that motion can test only whether the trial
court abused its discretion in failing to open the judg-
ment and not the propriety of the merits of the underly-
ing judgment. . . . This is so because otherwise the
same issues that could have been resolved if timely
raised would nevertheless be resolved, which would,
in effect, extend the time to appeal. . . . The defen-
dant’s failure to file its motion to open within twenty
days of the notice of judgment precludes review of its
. . . claims [challenging the propriety of the merits of
the underlying judgment] . . . .’’ (Citation omitted;
internal quotation marks omitted.) Id.
Our decision in Dziedzic, however, is silent as to
whether the appellee in that case had filed a motion
to dismiss the portion of the appeal challenging the
underlying merits of the judgment. We conclude, in the
circumstances of this case, that it is unnecessary to
decide whether the rule set forth in Dziedzic and in
other cases should apply only if the appellee files a
motion to dismiss the portion of the appeal purporting
to challenge the merits of the underlying judgment.
Instead, we conclude that even if the defendant is some-
how entitled to review of the merits of the underlying
judgment, he cannot prevail on that challenge because
all of his claims pertaining to that judgment are unpre-
served and he is not entitled to relief under the plain
error doctrine.
As previously discussed, the defendant did not appear
at the hearing in damages to present to the trial court
any legal or factual objections to the plaintiff’s claims.
‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal. . . .
[A]n appellate court is under no obligation to consider
a claim that is not distinctly raised at the trial level.
. . . [B]ecause our review is limited to matters in the
record, we [also] will not address issues not decided
by the trial court. . . . The purpose of our preservation
requirements is to ensure fair notice of a party’s claims
to both the trial court and opposing parties. . . . These
requirements are not simply formalities. They serve to
alert the trial court to potential error while there is still
time for the court to act.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) White v.
Mazda Motor of America, Inc., 313 Conn. 610, 619–20,
99 A.3d 1079 (2014).
On appeal, the defendant has not affirmatively
requested plain error relief. ‘‘[I]t is well established that
this court [is not obligated to] apply the plain error
doctrine when it has not been requested affirmatively
by a party . . . .’’ Connecticut Light & Power Co. v.
Gilmore, 289 Conn. 88, 125 n.26, 956 A.2d 1145 (2008);5
see also, e.g., Johnson v. Commissioner of Correction,
288 Conn. 53, 60, 951 A.2d 520 (2008) (declining to apply
plain error doctrine in absence of affirmative request
for such review); Robert J. Barnabei Contracting, LLC
v. Greater Hartford Jewish Community Center, Inc.,
127 Conn. App. 507, 519, 14 A.3d 461 (same), cert.
denied, 301 Conn. 914, 19 A.3d 1260 (2011).
Even if a party were not obligated to affirmatively
request relief under the plain error doctrine, we con-
clude that such relief would not be appropriate in this
case. ‘‘[T]he plain error doctrine . . . is not . . . a rule
of reviewability. It is a rule of reversibility. That is, it
is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly
preserved or never raised at all in the trial court, none-
theless requires reversal of the trial court’s judgment,
for reasons of policy. . . . [T]he plain error doctrine
is reserved for truly extraordinary situations where the
existence of the error is so obvious that it affects the
fairness and integrity of and public confidence in the
judicial proceedings.’’ (Internal quotation marks omit-
ted.) State v. Darryl W., 303 Conn. 353, 371–73, 33 A.3d
239 (2012).
After a thorough review of the record and the defen-
dant’s challenges to the merits of the underlying judg-
ment, we see nothing in the factual findings and legal
conclusions of the trial court that would meet this
extraordinarily high standard. Accordingly, we affirm
the judgment of the trial court.
The judgment is affirmed.
In this opinion the other judges concurred.
1
This action was initiated by the plaintiff against Yeroz and the defendant
Avellino’s Apizza Restaurant, LLC. At the hearing in damages in this matter,
the plaintiff represented that, in essence, he was withdrawing his claim
against the restaurant. Accordingly, the court rendered judgment against
Yeroz only. We therefore refer to Yeroz as the defendant.
We also note that the Second Injury Fund was permitted by the trial court
to intervene and file an intervening complaint, which remains pending. The
judgment against the defendant, however, is a final judgment for purposes
of appeal because judgment was rendered on the entire complaint filed by
the plaintiff against the defendant. See Practice Book § 61-2. The Second
Injury Fund did not participate in this appeal.
2
The entry of a default judgment conclusively establishes the facts alleged
in the plaintiff’s complaint. Smith v. Snyder, 267 Conn. 456, 468, 839 A.2d
589 (2004).
3
We note the arithmetic error, but it was not challenged by the plaintiff.
See O’Connell v. O’Connell, 101 Conn. App. 516, 519 and n.4, 922 A.2d 293
(2007); cf. Milazzo v. Schwartz, 88 Conn. App. 592, 597, 871 A.2d 1040 (2005).
4
The plaintiff also argues that, even if the defendant is entitled to any
review of the merits of the underlying judgment, the decision should be
reversed only for plain error.
5
In State v. Elson, 311 Conn. 726, 740–55, 91 A.3d 862 (2014), our Supreme
Court overruled prior decisions that held that if a party seeks review of an
unpreserved constitutional claim, it must first affirmatively request relief
under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). The
court, however, has not disturbed its prior decisions requiring that a party
must affirmatively request relief under the plain error doctrine. Although
in Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 84 A.3d 840 (2014), our Supreme Court reiterated that
a reviewing court is not precluded from raising issues involving plain error
sua sponte; id., 161–162; it also clarified in a footnote that a court is not
obligated to raise or consider plain error if a party has failed to do so. Id.,
162 n.33. In other words, a party must raise plain error itself to be entitled
to its application. We also note that the defendant has not asserted on appeal
that any of his claims are of constitutional magnitude.