BEAR, J.
The defendant, John H. Baxter, appeals from the judgment of the trial court rendered in favor of the plaintiff, the Bohonnon Law Firm, LLC, on its complaint against the defendant for, inter alia, breach of contract for legal services. On appeal, the defendant claims that the court improperly: (1) denied his motion to dismiss, (2) denied his motion to open the default, (3) curtailed his defense as to damages, (4) awarded attorney's fees to the plaintiff and (5) failed to protect his right to due process of law. We affirm the judgment of the trial court.
The following facts and very detailed procedural history
On December 8, 2008, state marshal Neil Feinberg attested that he had attached all of the right, title and interest of
On December 30, 2008, the plaintiff filed a motion for default for failure to appear, and, on January 9, 2009, the defendant's counsel filed an appearance. On January 23, 2009, the plaintiff filed a motion for default for failure to plead, which the clerk granted on February 5, 2009. The defendant filed a motion to open the default, # 104, and a motion to discharge attachment, also #104, on February 19, 2009, and he filed a motion to dismiss for lack of subject matter jurisdiction, # 105, at the same time.
On February 20, 2009, the court sent out a "corrected order" stating that the motion for default for failure to plead was denied because "no return of writ was filed."
On May 13, 2009, the plaintiff filed an objection to the defendant's motion to open the default. On May 15, 2009, the court ordered the case stricken from the inventory of cases for hearings in damages. On June 9, 2009, the court overruled without prejudice the plaintiff's May 13, 2009 objection
On September 4, 2009, the defendant filed a motion entitled "Motion to Correct Status of Pleadings, for Rectification of Court File and for Removal from Trial List." He also filed an affidavit in which counsel averred, inter alia, that he had never received notice of the court's June 9, 2009 ruling, in which the court gave the defendant seven days to file his answer. On September 9, 2009, the defendant filed his answer. During the hearing in damages held that day, the defendant argued that the court should set aside the default. In a February 5, 2010 memorandum of decision, the court stated that it would not reconsider the February 5, 2009 default, and it rendered judgment in the amount of $19,376.69, together with costs, in favor of the plaintiff. This appeal followed.
On appeal, the defendant claims that the court improperly denied his motion to dismiss for lack of subject matter jurisdiction.
The defendant next claims that the court abused its discretion in not opening the default for failure to plead. The defendant argues that "[t]he granting, opening, mislogging of [the] motion to dismiss and regranting of the motion for default, despite the motion to dismiss, has deprived the defendant of his right to plead. It implicates the defendant's due process rights.
A motion to open a default for failure to plead is governed by Practice Book §§ 17-32 and 17-42.
In this case, the defendant's first motion to open the default for failure to plead was filed on February 19, 2009, before a claim for a hearing in damages had been filed. That default, therefore, pursuant to Practice Book § 17-32, could have been opened by the clerk upon the defendant's filing of an answer to the plaintiff's complaint. The defendant, however, did not file an answer. Accordingly, the default could not be set aside at that time. The defendant also filed a motion to open the default for failure to plead on March 26, 2009. The plaintiff, however, had filed a claim for a hearing in damages on March 10, 2009, which, pursuant to Practice Book § 17-42, meant that the court, upon good cause shown, had the discretion to grant the motion to open the default for failure to plead. "[T]he determination of whether to set aside [a] default is within the discretion of the trial court. . . and will not be disturbed unless that discretion has been abused or where injustice will result. In the exercise of its discretion, the trial court may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause . . . factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved. . . but also, the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party." (Citations omitted; internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998).
After consideration of the defendant's motion to open and the plaintiff's objection thereto, the court, on June 9, 2009, overruled the objection, without prejudice, giving the defendant seven days to file an answer. Again, the defendant did not file an answer.
Practice Book § 17-42 permits the court to set aside a default "for good cause shown upon such terms as it may impose. . . ." In this case, the court, on June 9, 2009, gave the defendant seven days to file his answer to the plaintiff's complaint, which would have set aside the default previously issued. The defendant, however, failed to comply with that order and did not file his answer for another three
The defendant next claims that "[t]he court improperly curtailed [his] defense as to damages in violation of [his] due process rights." The defendant also argues that he objected to the admission of an affidavit on the issue of the attorney's fees and that the court improperly overruled the objection, thereby precluding him from cross-examining the affiant on the issue of damages.
Although setting forth one conclusory statement that the court's actions violated his due process rights, the defendant does not set forth in his appellate brief a due process analysis of this claim, nor does he indicate whether his claim concerns procedural due process, substantive due process or both. See Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 358 n. 7, 977 A.2d 636 (2009) (party should indicate and provide separate cases and analysis on procedural due process claim and substantive due process claim). "[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) State v. Carpenter, 275 Conn. 785, 826, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S.Ct. 1578, 164 L.Ed.2d 309 (2006).
The defendant also claims that the court improperly awarded attorney's fees to the plaintiff in connection with this litigation. He argues that "[t]he court violated the defendant's rights to due process of law, both under the Connecticut and U.S. Constitutions, when it allowed an affidavit for attorney's fees but precluded a cross-examination or challenge to the affidavit by defense counsel." After citing some general law on the right to litigate the reasonableness of attorney's fees, he provides the following, which represents the entire analysis of his claim: "When it errantly allowed an [a]ffidavit for attorney's fees but precluded a cross-examination or
Furthermore, we note that the defendant's counsel expressly waived this issue during the hearing on damages when he, initially, told the court that the plaintiff's counsel did not have to testify concerning the affidavit of attorney's fees. The following colloquy occurred:
"[The Plaintiff's Counsel]: I would like to submit an affidavit of my claim for interest and an affidavit for my claim of attorney's fees in this case, based on . . . language in exhibit A [the retainer agreement], if the court should find that I'm entitled to those extra damages based on exhibit A.
"[The Defendant's Counsel]: I have to see them first to see if I have an objection, Your Honor.
"[The Plaintiff's Counsel]: I would ask the court, if the court would take a moment to review my affidavit of attorney's fees. I did approximate one entry on my affidavit, which was approximated that this matter would take one hour this morning and, Judge, in fact, it's taken three hours. So, if the court feels it's appropriate at my normal billing rate of $250 an hour, I would ask the court to, I believe, increase my claimed legal fees of $2100 to $2600, if the court felt that was appropriate.
"[The Defendant's Counsel]: Your Honor, I don't think that he is going to have to testify to it, I think, because, at this point it's a contested hearing, it's not where you could just throw an affidavit in. I mean, this isn't a default where nobody is here. We're defending this case. And, in terms of his calculations of interest, you know, I guess the court can calculate what it calculates if it wants, but I don't that it necessarily—
"The Court: All right. Is that it, gentlemen?
"[The Plaintiff's Counsel]: Your Honor, I have rested, and I have nothing further. I would ask that—
"[The Defendant's Counsel]: We would request a continuance for an opportunity to have [the defendant], when he is available, to be able to testify. He may be—it may be short. I think I would like to have the opportunity to put him on.
"The Court: Yes, I understand that.
"[The Defendant's Counsel]: I'm also going to request an opportunity to file a brief. There are some issues that need to be briefed in this case that have come out in this.
"[The Plaintiff's Counsel]: Your Honor, my position is that this is a mole hill that is being turned into a mountain. That this is a very simple, straightforward commercial collection matter, and it doesn't require a brief.
"The Court: I will give you two weeks to file your brief, counsel.
"[The Defendant's Counsel]: Okay. Can I have the opportunity to put [the defendant] on?
"The Court: No. [The defendant] had his opportunity. I don't know how long this calendar—and I don't know how long
"[The Defendant's Counsel]: I can't have him testify either? I couldn't get a continuance, I couldn't have him testify, we haven't been allowed to file an answer, but the errors that the clerk's office made, they are okay? Okay. Okay. Your Honor, in two weeks, I will file a brief."
Counsel then stated that he now was objecting to the use of an affidavit to prove attorney's fees in the case and that testimony should be required. Specifically, he stated: "I do, for the record, I object to using an affidavit of attorney's fees and an affidavit of interest too. I think he has to be able to be prepared to testify to that, and you are not requiring him to testify."
"It is axiomatic that a trial court must [afford] the parties the opportunity to present evidence and to be heard on the issue of reasonable attorney's fees. . . . [A] party seeking attorney's fees must satisfy the undisputed requirement that the reasonableness of attorney's fees and costs . . . be proven by an appropriate evidentiary showing. . . . This protects the opposing party's right to litigate fully the reasonableness of the attorney's fees." (Internal quotation marks omitted.) Arcano v. Board of Education, 81 Conn.App. 761, 770-71, 841 A.2d 742 (2004). Our Supreme Court, in Smith v. Snyder, 267 Conn. 456, 479, 839 A.2d 589 (2004), clarified the evidentiary burden required in a claim for attorney's fees, holding that "the proponent must present to the court at the time of trial . . . a statement of the fees requested and a description of services rendered." The court in Smith determined that although the plaintiffs' mere request for attorney's fees was inadequate under this standard, the court would not reverse the award of attorney's fees because opposing counsel did not object to the request. Id., at 481, 839 A.2d 589. The court concluded that "the defendants, in failing to object to the plaintiffs' request for attorney's fees, effectively acquiesced in that request, and, consequently, they now will not be heard to complain about that request." Id.
In the present case, the record reveals that the plaintiff's counsel provided to the court an affidavit on the issue of attorney's fees. The defendant's attorney initially stated that the plaintiff's attorney did not need to testify on the matter. It was only after the court again denied his request for a continuance that the defendant's counsel voiced any concern about the affidavit or about a desire to cross-examine the plaintiff's attorney. The transcript from the hearing reveals that the hearing in damages had concluded at that point, however, and that the parties merely were wrapping up a briefing schedule. "When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal." State v. Smith, 289 Conn. 598, 621, 960 A.2d 993 (2008).
Finally, the defendant claims that the court failed to protect his right to due process of law. The defendant's brief sets forth the following: "In totality, the failure to `code' the defendant's pleadings when filed, the entrance, vacation of reentrance
The judgment is affirmed.
In this opinion the other judges concurred.
"Unless otherwise provided by rule, the forms of legal process for commencement of civil actions may be as follows:
"(1) Summons for appearance before the Superior Court.
"To any proper officer:
"By authority of the state of Connecticut, you are hereby commanded to summon A.B. of . . . (list address or last known address) to appear before the superior court for the judicial district of . . . . on the. . . . Tuesday of. . . . , 20 . . , the appearance not to be in person but to be made by A.B. or his attorney by filing a written statement of appearance with the clerk of the court whose address is. . . ., (include street number and town) on or before the second day following the return date then and there to answer to C.D. of . . . . in a civil action, in which the plaintiff complains and says: . . . .
"I, J.W., the subscribing authority, hereby certify that I have personal knowledge as to the financial responsibility of the plaintiff, and deem it sufficient; or, E.F. of . . . . is recognized in $. . . . to prosecute, etc.
"Of this writ with your actions thereon make due return.
"Dated at . . . . the . . . . day of . . . . , 20 . .
"J.W., Commissioner of the Superior Court.
"(2) Writ of attachment before the Superior Court.
"To any proper officer:
"By authority of the state of Connecticut, you are hereby commanded to attach to the value of . . . . dollars the real or personal property of A.B. of . . . . (list address or last known address) and him summon to appear before the superior court for the judicial district of. . . . on the . . . . Tuesday of . . . . , 20 . . , the appearance not to be in person but to be made by A.B. or his attorney by filing a written statement of appearance with the clerk of the court whose address is . . . . , (including street number and town) on or before the second day following the return date then and there to answer to C.D. of . . . . in a civil action, in which the plaintiff complains and says:
"I, J.W., the subscribing authority, hereby certify that I have personal knowledge as to the financial responsibility of the plaintiff, and deem it sufficient; or, E.F. of . . . . is recognized in $. . . . to prosecute, etc.
"Of this writ with your actions thereon make due return.
"Dated at . . . . this . . . . day of. . . . , 20 . .
"J.W., Commissioner of the Superior Court."
"[A]lthough we acknowledge that mandatory language may be an indication that the legislature intended a time requirement to be jurisdictional, such language alone does not overcome the strong presumption of jurisdiction, nor does such language alone prove strong legislative intent to create a jurisdictional bar. . . . [A] conclusion that a time limit is subject matter jurisdictional has very serious and final consequences. It means that, except in very rare circumstances . . . a subject matter jurisdictional defect may not be waived . . . may be raised at any time, even on appeal . . . and that subject matter jurisdiction, if lacking, may not be conferred by the parties, explicitly or implicitly. . . . A challenge to a court's personal jurisdiction, however, is waived if not raised by a motion to dismiss within thirty days of the filing of an appearance. Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999) ([t]he rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [after the filing of an appearance] . . .); see also Practice Book § 10-32 ([a]ny claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss). Therefore, we have stated many times that there is a presumption in favor of subject matter jurisdiction, and we require a strong showing of legislative intent that such a time limit is jurisdictional." (Internal quotation marks omitted.) Merrill v. NRT New England, Inc., 126 Conn.App. 314, 319-20, 12 A.3d 575, cert. granted, 300 Conn. 925, 15 A.3d 629 (2011).
General Statutes § 52-46 provides: "Civil process, if returnable to the Supreme Court, shall be served at least thirty days, inclusive, before the day of the sitting of the court, and, if returnable to the Superior Court, at least twelve days, inclusive, before such day."
General Statutes § 52-46a provides: "Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day."
