Opinion
FILE No. 303
Argued October 13, 1976 —
Decided November 26, 1976
Action for summary process and for damages, brought to the Circuit Court in the second circuit where a default against the defendants for failure to appear and defend at the time of trial was granted in chambers, Jacobson, J., and a judgment was rendered thereon; a motion to open that judgment was denied by the court, Jacobson, J., from which action the defendants appealed. Error; further proceedings.
Michael L. Riccio, for the appellants (defendants).
Daniel Glassberg, with whom, on the brief, was Anthony A. Piazza, for the appellee (plaintiff).
In this case the plaintiff's damage claims were for the rental value of the premises occupied by the defendants as tenants and for waste occurring during the tenancy. It is undisputed that no formal hearing in damages was held. In oral argument the plaintiff conceded that no court reporter was present, that no testimony was taken and that the judge took his action in chambers. Although the judge did file a finding, a finding was not proper because he heard no evidence. Gary Excavating Co. v. North Haven, 160 Conn. 411, 413; Sorensen v. Cox, 132 Conn. 583, 587.
The record recites that on March 23, 1976, a "default for failure to appear defend at time of trial" was entered against the defendants. It does not appear that the default was entered in open court. Even were we to assume that the judge was authorized to order a default in chambers; but see Norwalk Street Ry. Co.'s Appeal, 69 Conn. 576, 602; the entry of the default would have entitled the plaintiff to a judgment for only nominal damages. Went v. Schmidt, 117 Conn. 257, 258. If the plaintiff wished to recover anything more than nominal damages a hearing in damages was required. Cardona v. Valentin, 160 Conn. 18, 26; Went v. Schmidt, supra, 258-59.
The plaintiff's reliance on Practice Book 285 is misplaced. That section, which permits the filing of an affidavit in proof of damages, applies only to actions of contract. The plaintiff's claim for waste is based on wilful and malicious damage to the demised premises, while his claim for rent is based, not on the tenants' express agreement, but rather on the implication from the defendants' holding over after receiving notice from the plaintiff of a rental increase. No contract can be implied from a mere holding over under such circumstances. DiCostanzo v. Tripodi, 137 Conn. 513, 515.
A hearing in damages implies a hearing. "A `hearing' is generally understood to be a proceeding where evidence is taken to the end of determining an issue of fact and a decision made on the basis of that evidence." People v. Pennington, 66 Cal.2d 508, 521. The proceeding must be such that the affected party has the means of knowing what evidence is offered or considered so that he may test, explain or refute it. Davis v. Davis, 103 N.J. Super. 284, 288. Where the judge acts in chambers and no transcript is taken of the proceedings, the defendants have no way of knowing what, if anything, the judge considered in rendering judgment and, therefore, they are deprived of a factual basis for testing the judge's action either on a motion to open or on appeal. Because a hearing in damages was not conducted in this action, the judgment was rendered erroneously.