142 Conn. App. 366
Conn. App. Ct.2013Background
- Plaintiff sought strict foreclosure of a mechanic’s lien on property owned by defendants Killackey and Maidenstone Trust.
- Plaintiff alleged it supplied labor and materials under a contract and was owed $100,032 (exclusive of interest/costs).
- Defendants admitted ownership and contract existence but claimed poor workmanship and Home Improvement Act noncompliance.
- Trial began Oct. 2008; Gillotte testified to services, materials, and costs; his direct testimony consumed the day.
- Gillotte became unavailable for cross-examination due to illness/absence; court allowed other witnesses and admitted an affidavit of debt.
- Court later entered a liability finding of $40,130 based largely on Gillotte’s testimony and an admitted spreadsheet; judgment of strict foreclosure followed, then appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did denial of cross-examination require striking Gillotte’s testimony? | Gillotte’s testimony, with exhibits, sufficed to prove liability. | Defendants were deprived of cross-examination, making testimony untrustworthy. | No; cross-examination denied, Gillotte’s testimony should have been stricken. |
| Was the judgment supported by the admitted evidence despite striking issue? | Exhibits and Killackey’s testimony supported damages. | Evidence was insufficient without Gillotte’s testimony; error harmed defendants. | No; court erred by not striking testimony and remand for new trial. |
| Was the failure to strike Gillotte’s testimony harmless error given other evidence? | Other evidence, including spreadsheets, corroborated liability. | Harmlessness cannot be presumed; crucial testimony was central. | Not harmless; reversal required. |
Key Cases Cited
- Gordon v. Indusco Management Corp., 164 Conn. 262 (1973) (absolute right to cross-examination when denied; trial error cannot be ignored)
- Fahey v. Clark, 125 Conn. 44 (1938) (cross-examination is vital to truth-seeking; due process concerns)
- Golding v. State, 213 Conn. 233 (1989) (harmlessness standard for constitutional trial errors; burden on state)
- Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209 (1996) (unavailable witness; strike or remand when damages testimony undisputed or cumulative)
- Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563 (1979) (due process requires opportunity to confront and cross-examine when facts are pivotal)
- Delaware v. Van Arsdall, 475 U.S. 673 (1986) (harmlessness of denial of cross-examination is difficult to prove; assessing impact)