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Meribear Productions, Inc. v. Frank

Court of Appeals of Connecticut

October 15, 2019

MERIBEAR PRODUCTIONS, INC.
v.
JOAN E. FRANK ET AL.

          Considered June 26, 2019

         Procedural History

         Action to, inter alia, enforce a foreign judgment rendered against the defendants in California, and for other relief, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Tyma, J.; judgment for the plaintiff, from which the defendants appealed to this court, which affirmed the trial court's judgment; thereafter, the defendants, on the granting of certification, appealed to our Supreme Court, which reversed the judgment of this court and remanded the case to this court with direction to dismiss the defendants' appeal; subsequently, the plaintiff filed a withdrawal of action as to two counts of its complaint, and the defendants appealed to this court; thereafter, the plaintiff filed a motion to dismiss the appeal; subsequently, the defendant filed a motion for permission to file a late appeal. Motion to dismiss denied; motion for permission to file late appeal granted.

          Anthony J. LaBella, in support of the motion to dismiss and in opposition to the motion for permission to file late appeal.

          Michael S. Taylor, in opposition to the motion to dismiss and in support of the motion for permission to file late appeal.

          Alvord, Keller and Prescott, Js.

          OPINION

          PRESCOTT, J.

         The plaintiff, Meribear Productions, Inc., filed a motion to dismiss the appeal of the defendants, Joan Frank and George Frank. The plaintiff argued that the defendants' joint appeal was untimely and, thus, subject to dismissal. See Practice Book §§ 63-1 and 66-8. In response, the defendants filed a motion for permission to file a late appeal. The defendants argued that permission to file a late appeal was warranted because they would suffer a loss of their appellate rights if the appeal was not allowed. We agreed with the defendants and, therefore, granted nunc pro tunc the defendants' motion to file a late appeal, and denied the plaintiff's motion to dismiss the appeal as untimely, indicating in our order that an opinion would follow. We write to explain our reasons for permitting this late appeal.

         The following procedural history is relevant to our discussion of the parties' motions. In 2011, the defendants, who were selling their home in Westport, hired the plaintiff to provide home staging services. See Meribear Productions, Inc. v. Frank, 328 Conn. 709, 711-12, 183 A.3d 1164 (2018). The defendants ultimately defaulted on their payment obligations to the plaintiff and, in 2012, the plaintiff, a California corporation, filed an action against the defendants in California Superior Court. The California court entered a default judgment against the defendants in the amount of $259, 746.10.

         Thereafter, in 2013, ‘‘the plaintiff commenced the present action in Connecticut seeking to hold the defendants jointly and severally liable under the foreign default judgment and to recover additional attorney's fees, costs, and postjudgment interest. In response to the defendants' assertion of a special defense that the judgment was void because the California court lacked personal jurisdiction over them, the plaintiff amended its complaint to add two counts seeking recovery against both defendants under theories of breach of contract and quantum meruit. Prior to trial, a prejudgment attachment in the amount of $259, 746.10, together with 10 percent postjudgment interest, pursuant to provisions of the California Code of Civil Procedure, was entered against the Westport real property owned by Joan Frank.

         ‘‘In a trial to the court, the plaintiff litigated all three [counts of the complaint]. In its post trial brief, the plaintiff requested that the court give full faith and credit to the California judgment, plus postjudgment interest; ‘[i]n the alternative,' find that the defendants had breached the contract and award damages in the same amount awarded in the California judgment, plus interest, fees and costs; and, ‘[f]inally, in the event [that] neither request is . . . granted,' render judgment in the plaintiff's favor on the quantum meruit count in the same amount.

         ‘‘The court issued a memorandum of decision finding in favor of the plaintiff on count one against George Frank and on count two against Joan Frank. The court acknowledged at the outset that the three count complaint was for ‘common-law enforcement of a foreign default judgment, and alternatively, for breach of contract and quantum meruit.' Turning first to count one, the trial court determined that, as a result of the manner in which process was served, the California court lacked personal jurisdiction over Joan Frank but had jurisdiction over George Frank. In rejecting George Frank's argument that the exercise of jurisdiction did not comply with the dictates of due process, the court cited his admission ‘that he signed a guarantee of the staging agreement . . . that provides that Los Angeles is the appropriate forum.' Consequently, the court stated that it would render judgment on count one for Joan Frank and against George Frank.

         ‘‘In resolving the remaining counts, the court made no further reference to George Frank. As to count two, the court concluded that Joan Frank had breached the contract, that she could not prevail on her special defenses to enforcement of the contract, and that judgment would be rendered for the plaintiff and against Joan Frank. As to count three, the court cited case law explaining that parties routinely plead alternative counts of breach of contract and quantum meruit, but that they are only entitled to a single measure of damages. The court concluded: ‘The plaintiff has proven that Joan Frank breached the contract. Therefore, the court need not consider the alternative claim for quantum meruit.'

         ‘‘The court awarded damages against George Frank on count one and against Joan Frank on count two. Although both awards covered inventory loss and lost rents, the California judgment included prejudgment interest and attorney's fees, whereas the breach of contract award included late fees related to the rental loss. The judgment file provided: ‘The court, having heard the parties, finds the issues for the plaintiff. Whereupon it is adjudged that the plaintiff recover of the defendant Joan E. Frank $283, 106.45 damages and that the plaintiff recover of the defendant George A. Frank $259, 746.10.' The court indicated that a ...


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