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LARRY PERCY v. LAMAR CENTRAL OUTDOOR, LLC
                 (AC 34960)
                 Lavine, Beach and Sullivan, Js.
   Argued October 11, 2013—officially released January 28, 2014

  (Appeal from Superior Court, judicial district of
      Hartford, Housing Session, Oliver, J.)
 John B. Kennelly, for the appellant (defendant).
 Donald E. Weisman, for the appellee (plaintiff).
                          Opinion

  SULLIVAN, J. The defendant, Lamar Central Outdoor,
LLC, appeals from the judgment of the trial court, fol-
lowing a hearing in damages upon default, awarding
the plaintiff, Larry Percy, $68,837.34 for injury to his
property. The defendant claims that (1) the court
abused its discretion and violated the defendant’s due
process rights by denying the defendant’s motion to
open judgment and motions for reconsideration, and
(2) the court’s damages award was excessive. We affirm
the judgment of the trial court.
   The following facts are set forth in the plaintiff’s
amended complaint. See Mountainview Plaza Associ-
ates, Inc. v. World Wide Pet Supply, Inc., 76 Conn.
App. 627, 632–34, 820 A.2d 1105 (2003) (consequence
of default, court bound by factual allegations outlined
in plaintiff’s amended complaint). The plaintiff is the
owner of Percy’s Autobody Service, a business located
at 247 Walnut Street, Hartford (property). On August,
31, 1998, Cornelius Percy, who at that time was the
owner of the property and the business, entered into a
lease with Patrick Media Group, Inc. Under the terms
of the lease, Cornelius Percy leased large billboard signs
to Patrick Media Group, Inc., as well as the entire roof,
walls and surrounding surface area of the building
located on the property, for advertising purposes. On
or about February 29, 2000, Cornelius Percy sold the
property and business to the plaintiff, also assigning
ownership of the lease to the plaintiff. Patrick Media
Group, Inc., subsequently assigned the lease to Martin
Media Group, Inc., who then assigned the lease to
the defendant.
  In February of 2008, the defendant’s agents, servants,
and/or employees leaned ladders against the canopy of
the north side of the plaintiff’s building in order to gain
access to the building’s roof and billboard. The ladders
caused the canopy to crack, sag, and deteriorate, and
caused the edge flashing to loosen. As a result of the
loosening of the edge flashing, water entered the roofing
and seeped down into the interior of the building, caus-
ing damage to the building’s canopy, the roof, and the
building itself.
   The plaintiff brought this action for damages on Octo-
ber 26, 2009. On May 9, 2011, the court set a trial date
of October 14, 2011. On October 13, 2011, the defendant
filed a motion to dismiss and a motion for summary
judgment, which led the court to postpone trial in order
to address the jurisdictional issues raised in the motion
to dismiss. The court denied the defendant’s motion to
dismiss on November 21, 2011, and the court denied
the motion for summary judgment on January 6, 2012.
On February 24, 2012, the defendant failed to appear
at scheduled pretrial, notice having been sent on Janu-
ary 20, 2012. The plaintiff filed a motion for default
based upon this failure to appear at civil pretrial, which
was denied by the court. On April 13, 2012, the defen-
dant again failed to timely appear at scheduled pretrial,
notice of which having been sent on March 23, 2012,
instead arriving an hour late. On that date, the court
granted the plaintiff’s oral motion for default. The court
denied the defendant’s motion to open default and
motion for reconsideration. The defendant filed a sec-
ond motion for reconsideration, which the court also
denied.
  A hearing in damages was held before the court on
June 6, 2012. On August 7, 2012, the court, in a written
decision, rendered judgment for the plaintiff, and
awarded the plaintiff $68,837.34 in damages. This appeal
followed. Additional facts will be presented as nec-
essary.
                             I
   The defendant first claims that the court abused its
discretion and violated the defendant’s due process
rights by denying the its motion to open default and
motions for reconsideration. Specifically, the defendant
asserts that (1) it demonstrated good cause to set aside
the default, pursuant to Practice Book § 17-42, and (2)
it was denied due process of law because any issues
of liability would not be considered as a result of the
default. We are not persuaded.
   In its corrected articulation, dated November 15,
2012, the court detailed that it denied the defendant’s
motion to open default, and subsequent motions for
reconsideration, ‘‘[p]ursuant to the [c]ourt’s authority
pursuant to Practice Book §§ 14-12 et. seq. and § 17-42,
based on the defendant’s violation of scheduling orders,
untimely filing of motions resulting in the delay of a
long-scheduled trial, and for twice failing to appear for
pre-trial conferences without good cause . . . .’’ The
court noted in its articulation that ‘‘[t]he ‘eve of trial’
filings by the defendant required the [c]ourt to postpone
the trial in order to address the jurisdictional issues in
the [m]otion to [d]ismiss’’ and that ‘‘the plaintiff was
trial-ready and had present in court his expert witness.’’
The court also noted that, after the defendant’s first
failure to timely appear at civil pretrial, the court denied
the plaintiff’s subsequent motion for default ‘‘in an
attempt to preserve the defendant’s right to a fair hear-
ing on the merits.’’
  The court may set aside a default when no judgment
has been rendered ‘‘for good cause shown upon such
terms as it may impose.’’ Practice Book § 17-42. ‘‘[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, misfor-
tune 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 nonde-
faulting party.’’ (Internal quotation marks omitted.)
Bohonnon Law Firm, LLC v. Baxter, 131 Conn. App.
371, 381, 27 A.3d 384, cert. denied, 303 Conn. 902, 31
A.3d 1177 (2011).
   The defendant argues that the court should have
granted its motion to open because it sufficiently estab-
lished that counsel’s errors were the result of mistake
and accident; specifically, that counsel for the defen-
dant did appear for the April 13, 2012, rescheduled
pretrial, ‘‘albeit an hour late,’’ and that ‘‘late appearance
does, in fact, constitute an appearance, and the mistake
in time should serve as a defense against default.’’ Fur-
ther, counsel asserts that his perpetual tardiness did
‘‘not signify an unwillingness to enthusiastically litigate
the pending case,’’ and that ‘‘prior to the pretrial confer-
ence which was the reason for the default order, the
defendant had attended previous pretrial conferences,
had filed substantive motions for summary judgment
and to dismiss, and had deposed the plaintiff. Addition-
ally, on November [21] 2011, both parties were in court,
ready to proceed with scheduled trial. On that date the
defendant filed numerous motions in limine.’’ As to his
claim that the court improperly denied his motions for
reconsideration, the defendant reasserts these same
arguments.
   Considering the totality of the circumstances, the
court’s determination that the defendant failed to estab-
lish good cause to set aside the default, pursuant to
Practice Book § 17-42, was not an abuse of discretion.
Counsel for the defendant exhibited a pattern of disre-
gard for the court’s orders and procedures. First, the
defendant simultaneously filed a motion for summary
judgment and a motion to dismiss on the eve of trial,
in direct violation of Practice Book §§ 10-30 and 17-
44, and the scheduling order issued by the court.1 As
articulated by the court, these filings impeded the oper-
ation of the court and the preparation of the plaintiff.
Second, regardless of counsel’s sincerity as to his mis-
take, he failed to timely appear at two scheduled pretrial
conferences ordered by the court, to which notice of
the date and time as to each had been sent more than
one month prior. Third, after the court denied the plain-
tiff’s first motion for default ‘‘in an attempt to preserve
the defendant’s right to a fair hearing on the merits,’’
and counsel had notice of this leniency, counsel never-
theless failed to appear at the proper time for the
rescheduled pretrial. See, e.g., Automotive Twins, Inc.
v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951) (‘‘[Practice
Book § 17-19] provides that a party who fails to comply
with an order of the court may be defaulted. . . . The
defendant’s failure to appear for trial was a failure to
comply with an order of court and was ample cause
for defaulting him.’’).
   The record indicates that counsel for the defendant
received notice of the date and time of both pretrial
conferences but failed to appear at the first, and arrived
an hour late to the second, due to counsel’s own inatten-
tiveness. ‘‘This court repeatedly has stated that negli-
gence is an improper ground on which to set aside a
default.’’ Sessa v. Province, 98 Conn. App. 564, 566, 910
A.2d 992 (2006), cert. denied, 281 Conn. 912, 916 A.2d
51 (2007). As a result, the court’s decision to not set
aside the default was not an abuse of its discretion.
Compare id. (‘‘The record indicates that the defendants
received notice of [the court’s] orders regarding the
mediation session and failed to comply with them. In
light of the defendants’ negligence, [the court] reason-
ably concluded that the defendants had failed to demon-
strate good cause to set aside the default.’’), with
Patterson v. Travelers Casualty & Surety Co., 104 Conn.
App. 824, 827, 936 A.2d 241 (2007) (defendant’s failure
to receive notice of date and time of pretrial conference
constituted good cause for its nonappearance), cert.
denied, 286 Conn. 920, 949 A.2d 481 (2008); see also
Barton v. Barton, 123 Conn. 487, 489–91, 196 A. 141
(1937); Bohonnon Law Firm, LLC v. Baxter, supra, 131
Conn. App. 381–82.
   The defendant also argues that the court’s denials of
its motion to open and motions for reconsideration
were a denial of due process. Specifically, it alleges
that, by denying its motions, the court limited the issues
that the defendant could bring forth in the hearing in
damages in that any issues of liability would not be
considered, thereby denying the defendant due process
of law.
   The defendant’s due process argument is unavailing.
‘‘After a default, a defendant may still contest liability.
Practice Book §§ 17-34, 17-35 and 17-37 delineate a
defendant’s right to contest liability in a hearing in dam-
ages after default. Unless the defendant provides the
plaintiff written notice of any defenses, the defendant
is foreclosed from contesting liability. . . . If written
notice is furnished to the plaintiff, the defendant may
offer evidence contradicting any allegation of the com-
plaint and may challenge the right of the plaintiff to
maintain the action or prove any matter of defense.
. . . This approximates what the defendant would have
been able to do if he had filed an answer and special
defenses.’’ (Citations omitted; footnote omitted; inter-
nal quotation marks omitted.) Schwartz v. Milazzo, 84
Conn. App. 175, 178–79, 852 A.2d 847, cert. denied,
271 Conn. 942, 861 A.2d 515 (2004); see also General
Statutes § 52-221; Bank of New York v. National Fund-
ing, 97 Conn. App. 133, 139–40, 902 A.2d 1073, cert.
denied, 280 Conn. 925, 908 A.2d 1087 (2006), cert. denied
sub nom. Reyad v. Bank of New York, 549 U.S. 1265,
127 S. Ct. 1493, 167 L. Ed. 2d 229 (2007).
   There is no indication in the record, and the defen-
dant does not claim, that the court prevented the defen-
dant from utilizing these available procedural remedies.
‘‘A party who allows the ten day period from the notice
of default to expire without filing a notice of defenses
does so at his peril.’’ Whalen v. Ives, 37 Conn. App. 7,
20, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d
645 (1995); see also Practice Book § 17-35 (b). The court
did not limit the defendant’s ability to be heard.
  Accordingly, the court did not abuse its discretion
and did not violate the defendant’s due process rights
by denying the defendant’s motion to open judgment
and subsequent motions for reconsideration.
                            II
   The defendant also claims that the court’s damages
award was clearly erroneous. Specifically, the defen-
dant argues that (1) there is no evidence to support the
court’s inclusion of the cost of a full new roof, $46,500,
in its damages award of $68,837.74, and (2) the court’s
damages award is excessive because it places the plain-
tiff in a better position than he would have been had
the defendant not been negligent. We are not persuaded.
   The following additional facts are relevant to this
claim. Following the default, and the court’s denials of
the defendant’s motion to open and motions for recon-
sideration, the court took evidence on June 6, 2012, at
a hearing in damages. At the hearing in damages, the
court heard testimony from the plaintiff, along with
James Fitzgerald, president of The State Awning Com-
pany, and James Hopkins, chief executive officer of
Rite-Way Restoration and Roofing Specialist, LLC, who
testified as to the damage to the overhang and the roof,
respectively. The only evidence provided by the defen-
dant was that which could be gleaned through cross-
examination of these witnesses.
   As to the issue of the extent of the damage to the
roof, the plaintiff submitted as evidence a copy of the
bid created in 2012 by Hopkins, which called for the
replacement of the roof. Hopkins testified that this bid
was nearly the same as one which he had created for
the plaintiff in 2009, but that the 2012 bid was slightly
higher to account for the increased cost of materials.
Testimony from both the plaintiff and Hopkins estab-
lished that a portion of the roof was repaired in 2011
after it caved in from the weight of snow, and that this
repair was paid for by insurance. There was no evidence
provided as to the cost of the 2011 repair to the roof,
and there was no evidence provided as to the cost to
replace the portion of the roof that was not repaired
in 2011.
  The defendant first argues that there was no testi-
mony elicited from Hopkins that established that it was
necessary to replace the entire roof; instead, Hopkins’
quote was created out of a desire to perform the job
properly, and not necessity. The defendant also argues
that the court’s award was clearly erroneous because
the court’s determination that the entire roof now needs
to be replaced is undermined by evidence that estab-
lished that the roof had been repaired in 2011.
   ‘‘We first set forth our standard of review with respect
to damages. [T]he trial court has broad discretion in
determining damages. . . . The determination of dam-
ages involves a question of fact that will not be over-
turned unless it is clearly erroneous. . . . [W]hether
the decision of the trial court is clearly erroneous . . .
involves a two part function: where the legal conclu-
sions of the court are challenged, we must determine
whether they are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision; where the factual basis of
the court’s decision is challenged we must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
those facts are clearly erroneous. . . . In a case tried
before a court, the trial judge is the sole arbiter of the
credibility of the witness and the weight to be given
specific testimony. . . . On appeal, we will give the
evidence the most favorable reasonable construction
in support of the verdict to which it is entitled. . . . A
factual finding may be rejected by this court only if it
is clearly erroneous. . . . A finding is clearly erroneous
when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Centi-
mark Corp. v. Village Manor Associates Ltd. Partner-
ship, 113 Conn. App. 509, 527–28, 967 A.2d 550, cert.
denied, 292 Conn. 907, 973 A.2d 103 (2009). ‘‘Moreover,
it is the exclusive province of the trier of fact to weigh
the conflicting evidence, determine the credibility of
witnesses and determine whether to accept some, all or
none of a witness’ testimony. . . . Thus, if the court’s
dispositive finding . . . was not clearly erroneous,
then the judgment must be affirmed. . . . The function
of the appellate court is to review, and not retry, the
proceedings of the trial court.’’ (Internal quotation
marks omitted.) Keith E. Simpson Associates, Inc. v.
Ross, 125 Conn. App. 539, 543, 9 A.3d 394 (2010).
   Hopkins testified that to repair the roof he ‘‘would
have to rip it . . . down to the tongue and groove. . . .
[A]nything . . . can penetrate right through the roof,
it’s too heavy.’’ The defendant first argues that Hopkins
based his quote upon a desire to perform a thorough
job, and not out of necessity. To support this argument,
the defendant cites the portion of the transcript in which
Hopkins responded, when prompted by counsel for the
defendant to address whether the repairs in 2011 had
any effect on his current quote, ‘‘Well when I go in to
do a job I don’t go in and do it half, I go in and I take
it all off because I’m doing it now.’’
  On the other hand, although the defendant asserts
throughout its brief that there was no testimony from
Hopkins indicating that the entire roof needed to be
replaced, this is inaccurate. Hopkins testified that the
roof needed to be replaced because the damage to the
canopy caused water to enter the roof’s tongue and
groove system and warp the boards.2 Accordingly, there
was evidence before the court that the damage to the
canopy necessitated replacement of the entire roof.
   The defendant also argues that, because the 2012
quote did not take into account the 2011 repairs, the
court’s reliance on the 2012 quote in its calculation of
damages was clearly erroneous. We are not persuaded.
The current cost of repair estimates can be evidence
of the extent of earlier damage. See Willow Springs
Condominium Assn., Inc. v. Seventh BRT Development
Corp., 245 Conn. 1, 60–61, 717 A.2d 77 (1998) (‘‘In Whit-
man Hotel Corp. [v. Elliot & Watrous Engineering Co.,
137 Conn. 562, 573, 79 A.2d 591 (1951)], we rejected
the argument that permitting recovery for the actual
cost of repairs puts the plaintiff in a better position than
it was in before the damage was done. . . . As we have
stated, the cost of repairs is evidence of the diminution
in value resulting from [the defendant’s] actionable con-
duct. [E]xpenditure for repairs would restore the build-
ing of the plaintiff to its condition of usefulness prior
to the [damage] . . . .’’ [Citation omitted; emphasis in
original; internal quotation marks omitted.]); see also
Calderwood v. Bender, 189 Conn. 580, 584–85, 457 A.2d
313 (1983) (holding that actual cost of repairing faulty
septic system was proper measure of damages). Here,
Hopkins submitted a quote in 2009 for a new roof, and
Hopkins testified that, when making his quote in 2012,
he witnessed the 2011 repairs, but that these repairs
did not affect his quote. It is unclear from the defen-
dant’s brief why Hopkins testimony is evidence that the
repairs in 2011 remedied the need to replace the roof
in full; on the contrary, Hopkins testimony is evidence
that the 2011 repairs did nothing to remedy the damage
caused by water to the roof’s tongue and groove system
as a whole.
  As his final argument, the defendant asserts that the
court’s inclusion of the cost of a new roof in its damages
award is excessive because it places the plaintiff in a
better position than he would have been had the defen-
dant not been negligent. We disagree.
  ‘‘In determining the proper measure for damages to
land, the legal effort . . . is to compensate the land-
owner for the damage done. . . . This is essentially
true whether the injury is redressed under a theory of
tort or breach of contract. . . . The basic measure of
damages for injury to real property is the resultant
diminution in its value. . . . There is, however, a well
established exception to this formula; such diminution
in value may be determined by the cost of repairing the
damage, provided, of course, that that cost does not
exceed the former value of the property and provided
also that the repairs do not enhance the value of the
property over what it was before it was damaged.’’
(Citations omitted; internal quotation marks omitted.)
Willow Springs Condominium Assn., Inc. v. Seventh
BRT Development Corp., supra, 245 Conn. 59; see also
Whitman Hotel Corp. v. Elliot & Watrous Engineering
Co., supra, 137 Conn. 573.
  Here, there was no evidence to indicate that the cost
of replacing the full roof would exceed the purchase
price of the property being repaired; see Willow Springs
Condominium Assn., Inc. v. Seventh BRT Development
Corp., supra, 245 Conn. 60; and there was no evidence
that a new roof enhanced the value of the property over
what it was before it was damaged. See Whitman Hotel
Corp. v. Elliot & Watrous Engineering Co., supra, 137
Conn. 573–74. Accordingly, we are not persuaded that
the court’s inclusion of the cost of a full roof in its
measure of damages was an improper measure of the
diminution of the value of the plaintiff’s property that
resulted from the defendant’s negligence. See, e.g., Cen-
timark Corp. v. Village Manor Associates Ltd. Partner-
ship, supra, 113 Conn. App. 531–33. In consideration
of this evidence, we are not left with a definite and firm
conviction that a mistake has been made.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    The parties agreed to file motions for summary judgment by January
14, 2011.
  2
    The following colloquy occurred during the cross-examination and subse-
quent redirect examination of Hopkins.
  ‘‘[The Defendant’s Counsel]: [I]s the tongue and grove roofing failing due
to the weight of the later roofing systems and the billboard, or because
there’s some water had gotten in? . . .
  ‘‘[Hopkins]: [W]hen you disturb any part of the roofing system [in]which
the awning [is] supposed to go underneath, you have to replace the whole
thing. Because what he did was create a monster, because the water’s going
to keep on, like the wind blowing and the rain it go in through that hole
and it will start, and once the water get in . . . it’s a no brainer, it travels
everywhere . . . . What it did throughout the years was got into that tongue
and groove and the boards then got warped. So tongue and groove stick
together like this, so now it’s separating them and it’s making an open-
ing. . . .
  ‘‘[The Defendant’s Counsel]: And you had testified that . . . it was
because the roof was too heavy?
  ‘‘[Hopkins]: ‘‘Yes. But when I heard him talk about he messed with—
whoever touched that awning, if it found an opening no telling where the
water at. . . . [T]hat’s what I say, because I know the system. . . .
  ‘‘[The Plaintiff’s Counsel]: Just to clarify this, you told me had there been
no water damage the roof would not have to be replaced, is that correct?
  ‘‘[Hopkins]: That’s correct.’’
