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Appellate Court Notes:  Week of April 7

Welcome to our Supreme and Appellate Court summaries webpage.  On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my own personal opinion.. Pullman & Comley’s Appellate Practice Group of which I am a member includes experienced appellate advocates in almost every area of the law.  Should you have a need to consult about a potential appeal,  please email me at mailto:emccreery@pullcom.cmo I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted April 7, 2015

  • AC35807        - Llera v. Commissioner of Correction [Not summarized.]
  • AC36240        - Customers Bank v. Tomonto Industries, LLC

Plaintiff bank acquired the assets of a defunct bank from the FDIC, including the $3 million demand note and associated guarantee executed by the defendants.  The note was in default, with a balance of over $500,000.  After obtaining summary judgment on the issue of liability alone, the court held a hearing in damages, whereupon judgment was rendered in favor of the plaintiff.  On appeal, the defendant first claimed that the Trial Court improperly admitted into evidence a summary of the defendant’s debt, in violation of Connecticut Code of Evidence § 10-5, which allows the summary of voluminous documents to be admitted, provided the originals “are available” for examination by the opponent.  The plaintiff had already made its entire file available to the defendants to review.  On the day before trial the defendants were provided a copy of the proposed exhibit, and then during trial they objected to its admission, claiming they were not provided an opportunity to review the actual documents that were used to comprise the exhibit.  This decision noted that the defendants never asked for a continuance to ascertain which documents were used to comprise the exhibit.  The defendants carried the burden to demand to know exactly which underlying documents were being summarized in the exhibit.  The time to do so is not during the trial, but rather, beforehand.  Here, the court had already granted the defendants a continuance to review the plaintiff’s entire file, and until the first aborted trial date, the defendants had filed no discovery upon the plaintiff.  The Appellate Court agreed with the trial court that the defendants cannot sit on their hands and then claim surprise.  The document was properly admitted as a full exhibit.

Next, the defendants challenged the admissibility of computer records and loan statements to reflect the balance due on the note, especially when many of the records were compiled by the now-defunct bank of which this witness had no knowledge.  The witness, however, had testified that from working on the file, he had become familiar with these type of documents and could testify that they were produced in the regular course of business.  Therefore, any challenge to the witness went to his credibility, and not to the admissibility of the documents.  [An important footnote adds that when computer records are being offered into evidence, in addition to the three-part Business Record Exception Rule, the proponent must satisfy a fourth test.  That test is that the basic elements of the computer system are reliable.  Here, however, the defendant only challenged the witness’s familiarity with the computer system, and not whether or not the plaintiff had demonstrated that the system was reliable so it was not an issue before the court.]

Finally, the decision also upheld an award of 6 percent post-judgment interest, noting that it was in the discretion of the Trial Court as a matter of equity.  It was sufficient that the plaintiff orally requested an award of interest at the end of the hearing, when their Prayer for Relief contained a clause that stated “. . . such other relief as the Court may deem equitable and necessary.”  In any event, Practice Book § 10-28 provides that interest and costs need not be specifically claimed in the Prayer for Relief in order to recover them. 

  • AC36058     - Birkhamshaw v. Socha

This was a wrongful death action, with a loss of consortium claim by the wife, when her husband was killed after being rear-ended by a UPS truck.  The jury awarded $2 million in damages, and another $2 million in loss of consortium damages.  The jury declined to award double or treble damages for recklessness under Practice Book § 14-295.  This decision’s first ruling held that the Trial Court properly refused the post-jury selection motion to dismiss the loss of consortium claims.  While the wife and her loss of consortium claim was properly added by a motion to amend the complaint to add party plaintiff, there was never a new summons by her upon the defendant, even though the defendants answered the new allegations.  The court concluded that the defect was not a matter of subject matter jurisdiction when one is not properly served with a summons, but is listed in the complaint.  Such a defect is merely circumstantial, especially when the defendant has timely notice. The proper remedy here would have been a motion to dismiss for lack of personal jurisdiction, and would have had to have been filed in a timely manner.  The defendant cannot file an answer, wait two years, and then file a motion to dismiss on the eve of trial over a personal jurisdiction issue.

Next, the defendants claimed the Trial Court should have granted their motion in limine to preclude evidence that the decedent was a generally safe and cautious driver.  The defendants contended this was character evidence that was inadmissible under Code of Evidence § 4-4 and § 4-6.  The problem with the claim on appeal was  that the Trial Court reserved judgment on the motion in limine, and then when the actual questions were asked, the defendants failed to properly object to most of them.  For some of the questions they objected  on the grounds of relevance, as opposed to character evidence.   (WARNING: You need to know your Rules of Evidence.  An objection based on relevance is not a catch-all substitute.)

In undertaking the review of this line of questioning, the court reviewed the distinction between character evidence and habit evidence under Code of Evidence § 4-6.  Habit evidence shows a person’s routine was in compliance with what happened on the day of the accident, and is admissible, whereas character evidence is a generalized description of one’s disposition as to a particular trait, such as honesty, peacefulness or carelessness.  Habit is a person’s regular practice of responding to a particular kind of situation with a specific type of conduct.  Testimony that the decedent regularly drove in the right-hand lane at the speed of 55 miles an hour was deemed properly admitted habit evidence.  Testimony, however that the witness received many safety awards and drove millions of miles without an accident was improper character evidence.  But the trial court’s mistaken allowance of that character evidence when the proper objection was asserted, was not so harmful as to require a new trial.

Next, the court ruled that the plaintiff’s expert was properly allowed to opine about the likely cause of the accident and the safety protocols violated by the UPS driver.  The expert was properly disclosed as an expert in truck driving and accident reconstruction.  He testified as to his credentials.  He summarized all of the evidence he had reviewed.  He personally visited the site and reviewed the Motor Vehicle Laws of the State of Connecticut, as well as the Federal Motor Carrier Safety Regulations.  He reviewed the accident reconstruction reports of others.  It was not necessary for the defendant witness to personally reconstruct the accident himself.  Additionally, the expert may rely upon inadmissible hearsay so long as it is based on trustworthy information typically evaluated by an expert.  The reliance upon opinions of other experts does not necessarily undermine the reliability of an expert’s opinion. 

On another point, during opening statements, the plaintiffs said they were going to call yet another expert, but they never ended up calling that person, even though one of their experts relied upon that expert’s report.  When the defense attorney made statements in his closing arguments about the missing expert’s deposition testimony that had been conveniently ignored by the plaintiff’s expert who did testify, the judge pulled him aside and cautioned him about discussing facts not in evidence, and then instructed the jury that it was improper for the defendant’s attorney to comment about the failure of the plaintiff to call a witness, and instructed the jury to disregard counsel’s closing arguments on that point. Connecticut General Statutes Section §52-216(c) allows a party to argue that the jury should draw an adverse inference  for the failure of a party to call a witness who has been proven to be available to testify, but there must be advance notice to the opponent and an argument made to the Trial Court before an attorney may do that.  It was proper for the Trial Court to warn counsel he was violating Connecticut General Statutes Section §52-216(c) when he had not established the expert’s availability, nor informed the court that he would be making such an argument.

Finally, this decision held that the Trial Court properly awarded interest and $350 in attorney’s fees pursuant to Connecticut General Statutes Section §52-192(a), when the plaintiffs had filed a unified offer for all plaintiffs against all defendants to compromise the case for $2.7 million.  The total award to all of the plaintiffs was in excess of $3.8 million.  A partial settlement of a multi-party lawsuit does little for the conservation of limited judicial resources.  The ultimate goal is always a settlement on a global basis.  Thus while the offer of judgment language in Connecticut General Statutes Section §52-192(a) does not specifically address the issue of a “global offer”, it makes sense that the Statute envisions global settlements by permitting a unified offer to multiple defendants on behalf of multiple plaintiffs.  This is especially true when the wife’s claim was totally derivative of the decedent’s claim.  Under such circumstances, a settlement of the decedent’s claim alone, might have extinguished the derivative claim of loss of consortium.  This statute adds 8 percent interest on the difference between a jury award and the offer dated from the date of the complaint, along with attorney’s fees up to $350.00.

  • AC36714     - O’Rourke v. Commissioner of Motor Vehicles [Not summarized.]
  • AC32803     - State v. Smith [Not summarized.]
  • AC36673     - Perry v. Perry

Court dissolution order that the marital home be sold did not entitle the defendant/ former husband to offer to buy out the plaintiff/former wife for her equitable interests in exchange for exclusive possession.

  • AC36046     - Eaddy v. Bridgeport

Plaintiff, a probationary police officer, claimed that she was terminated from her employment because of a perceived disability.  She asserted she suffered from an episode of “acute psychological stress reaction” which temporarily disabled her from performing her duties, but that the disability had been medically resolved, and thus if she had any aberrant behavior at work, it would not reoccur.  After a voluntary admission and discharge to a psychiatric hospital, the police chief reviewed reports from various officers stating she was afraid of crowds, yelled obscenities at fellow officers, yelled at members of the public, and refused to complete tours of duty.  The department psychologist issued an opinion that she was not fit for duty. 

The Trial Court reviewing the fact noted that even though there were differing versions of the events, none of the differences served to show the defendant concluded that the plaintiff was suffering from a mental disability.  The Trial Court was fully within its discretion to conclude that the plaintiff was not perceived to be suffering from a mental disorder, but rather, had a general lack of required temperament for the job.  Even the medical letter stating that she was unfit for duty does not necessarily mean she was unfit due to a diagnosis of a mental disorder, as there can be any number of traits that can render one unfit for duty unrelated to a mental diagnosis.

  • AC34862 - State v. Kirby [Not summarized.]

 

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  Copyright 2015 Pullman & Comley, LLC. All Rights Reserved.

 
 
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