CONNECTICUT LIGHT AND POWER COMPANY v. BESS P. GILMORE ET AL.
(SC 18081)
Supreme Court of Connecticut
Argued March 14—officially released October 21, 2008
289 Conn. 88
Norcott, Katz, Palmer, Zarella and Blue, Js.
The judgment is reversed as to the award of certain costs only and the case is remanded with direction to render judgment as on file except as modified to eliminate the award of costs in accordance with this opinion. The opinion is affirmed in all other respects.
In this opinion the other justices concurred.
Jeanine M. Dumont, with whom, on the brief, was Melissa A. Nesheim for the appellee (plaintiff).
Opinion
ZARELLA, J. In this collection action by the plaintiff, Connecticut Light and Power Company, against the defendants, Bess P. Gilmore, Douglas G. Gilmore, Keith P. Gilmore and Community Club Awards, Inc., for unpaid electric bills, the defendant Bess Gilmore1 appeals from the judgment of the trial court rendered in favor of the plaintiff. On appeal, the defendant claims that the judgment should be reversed and a new trial ordered because: the plaintiff‘s attorney referred during rebuttal argument to evidence excluded at trial; the jury improperly considered the excluded evidence in reaching a verdict for the plaintiff; and three jurors failed to disclose prior business relationships with the law firm of the plaintiff‘s attorney. The defendant also claims that reversal is required because the trial court improperly: denied her motion for disclosure by the
A jury reasonably could have found the following facts. The defendant resides at 11 Harding Lane in Westport with her two adult sons, Douglas Gilmore and Keith Gilmore. The residence, which is owned by the defendant, is also used by Douglas Gilmore‘s law practice and Community Club Awards, Inc., a Connecticut corporation owned and operated by the defendant and her sons, as their business address. At all relevant times, the plaintiff provided electric utility services to 11 Harding Lane at a rate approved by the department of public utility control (department).
Over the years, the defendant repeatedly complained to the plaintiff about her high electric bills. In an attempt to resolve her concerns, the plaintiff conducted an energy audit of her home on August 6, 1999, and a meter test on September 29, 1999. Thereafter, the plaintiff sent a letter to the defendant stating that the meter test indicated a meter accuracy of 99.88 percent, well within the parameters established by the department for meter accuracy.
In August, 2000, the defendant requested that an independent investigation be conducted by a review officer,2 which the plaintiff agreed to provide. Following the
The plaintiff continued to provide 11 Harding Lane with electric utility services, even though the defendant withheld payments on her account in defiance of repeated demands by the plaintiff that she pay her bills in full. On May 28, 2003, the plaintiff filed an application for a prejudgment remedy and a complaint against the defendant and her sons seeking to attach, to the value of $25,900, their respective interests in real and personal property because of their failure to pay the defendant‘s electric utility bills, which amounted to $21,375.38 for services rendered to that date. After a hearing, the trial court ruled that there was probable cause to sustain the validity of the plaintiff‘s claim. Connecticut Light & Power Co. v. Gilmore, 89 Conn. App. 164, 166–72, 875 A.2d 546, cert. denied, 275 Conn. 906, 882 A.2d 681 (2005). On September 29, 2003, the court issued a prejudgment remedy order authorizing an attachment in the amount of $22,933.18. Id., 168, 171.
On October 6, 2003, the plaintiff amended the complaint to add Community Club Awards, Inc., as a fourth defendant.3 Thereafter, the defendant and her sons appealed to the Appellate Court from the prejudgment
On December 15, 2005, the plaintiff filed a revised complaint.4 The defendants, collectively, filed an answer and special defenses, and the defendant filed a counterclaim, after which the matter was tried to a jury. On April 18, 2006, at the start of the trial, the plaintiff withdrew its claims of unjust enrichment against all defendants. On April 24, 2006, it withdrew all remaining claims against Keith Gilmore. On April 25, 2006, following presentation of the evidence, the court acknowledged that the plaintiff had withdrawn the complaint against Keith Gilmore and directed a verdict in favor of Keith Gilmore, Douglas Gilmore and Community Club Awards, Inc. The court also directed a verdict for the plaintiff on all claims raised by the defendant‘s counterclaim, except for the claim alleging breach of contract. The remaining claims against the defendant were sent to the jury, which returned a verdict for the plaintiff in the amount of $45,072.94. The jury also returned a verdict for the plaintiff on the breach of contract count of the counterclaim. Thereafter, the plaintiff filed a motion for offer of judgment interest and a bill of costs, and the defendant filed motions for judgment notwithstanding the verdict and for a new trial. The court granted the plaintiff‘s motion for offer of judgment interest and denied the defendant‘s motions. On June 20, 2006, the court rendered judgment for the plaintiff in the amount of $45,072.94, plus offer of judgment interest in the
I
The defendant first claims that the judgment should be reversed and a new trial ordered because, during rebuttal argument, counsel for the plaintiff improperly referred to evidence excluded at trial and to the defendant‘s repeated objections to admission of the excluded evidence. The defendant further claims that the trial court improperly failed to give the jury a curative instruction to neutralize the prejudicial effect of the rebuttal argument. The evidence in question consisted of the reports by the review officer and the department confirming the accuracy of the electric meter at the defendant‘s residence and concluding that there had been no error in the defendant‘s electric utility bills. The defendant contends that the remarks were especially damaging because the reports related to the principal question before the jury and one of the reports was issued by the department, which was lauded throughout the trial as an impartial expert on utility operations and the ultimate arbiter of the parties’ dispute.
The plaintiff responds that the rebuttal argument was not improper because counsel did not disclose the contents of the reports to the jury. Furthermore, the defense objected so many times to the admission of the reports that counsel‘s reference to the objections did not expose the jury to anything that they did not already know. The plaintiff finally argues that the defendant is estopped from complaining about the rebuttal argument because defense counsel himself initially brought the
At trial, when the plaintiff‘s counsel attempted to enter a copy of the review officer‘s report into evidence, defense counsel objected on hearsay grounds. The court sustained the objection but allowed Thomas Murphy, a credit and collections supervisor employed by the plaintiff, to testify that the report did not satisfy the defendant or resolve her complaints. Murphy explained that he believed this to be the case because the defendant had appealed to the department and requested another investigation after she received the report.
Murphy then testified that the department had agreed to conduct the requested investigation, and he proceeded to explain the various steps involved. Defense counsel made numerous objections to Murphy‘s testimony, all of which were overruled. When counsel objected to a question regarding the department‘s ultimate conclusions, however, the court excused the jury and conducted a hearing on the matter. The court ultimately sustained defense counsel‘s objection on the ground that the introduction of expert testimony regarding the department‘s conclusions would invade the province of the jury.7
Thereafter, defense counsel declared during closing argument that the plaintiff‘s representatives had failed to provide the defendant with a report following their visit to her residence on August 6, 1999. Counsel also stated that the defendant had not been provided with a report after a subsequent visit by Murphy in 2001 in connection with the department‘s investigation.8 Counsel for the plaintiff responded to these comments by declaring during rebuttal argument that the defendant had been given reports: “There was a report. We offered the report of . . . the review officer. [Defense counsel] objected to it. He didn‘t want you to see that. And there was another report. It went to the [department]. There‘s a report there. He objected. He didn‘t want you to see it. Okay? So there have been reports.”9
Following closing arguments and outside the presence of the jury, defense counsel objected to the comments made during rebuttal argument and requested a curative instruction that the jury was not to consider the objections he had raised at trial to admission of the
On June 1, 2006, the defendant filed a motion for a new trial based in part on her claim that opposing counsel‘s rebuttal argument was improper. At a hearing on the matter, the court explained that it had given curative instructions to mitigate any potential damage caused by the remarks. It then denied the motion.
We begin our analysis by setting forth the applicable standard of review. “A motion for a new trial is addressed to the sound discretion of the trial court and will never be granted except on substantial grounds.” (Internal quotation marks omitted.) Bernier v. National Fence Co., 176 Conn. 622, 628, 410 A.2d 1007 (1979); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983).
It is well established that “[an attorney], in fulfilling his duties, must confine himself to the evidence in the record. . . . [A] lawyer shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a witness. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument. . . . [An attorney] may [however] properly respond to inferences raised by the defendant‘s closing argument.” (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 717, 793 A.2d 226 (2002); see also 75A Am. Jur. 2d 63-64, Trial § 470 (2007) (“The law indulges a liberal attitude toward comments which are a fair retort or response to the prior argument of opposing counsel. Thus, arguments which are replies in kind or are provoked by arguments of opposing counsel do not amount to reversible error.“).
In the present case, defense counsel stated during closing argument that the defendant had not been given any reports following the inspections of her residence in 1999 and 2001. The plaintiff‘s counsel countered during rebuttal argument that reports had been produced by the review officer and the department, respectively, after their investigations and that defense counsel had objected to their admission. The remarks by the plaintiff‘s counsel thus were made to correct defense counsel‘s misrepresentation to the jury that the defendant had received no reports. Furthermore, counsel for the plaintiff did not disclose the contents of the reports, but limited her remarks to the fact that reports had been made following the investigations and that they had not been admitted into evidence because of defense counsel‘s objections.
In addition, even if the rebuttal argument left the impression that the department had not ruled in favor of the defendant, other evidence in the record—that the plaintiff determined that the meter was accurate in
Finally, to the extent that any impropriety may have occurred, the court instructed the jury that arguments are not evidence, that it could consider only those documents that had been entered into evidence and that objections raised throughout the trial were not to be held against the attorney or the client. Accordingly, the trial court did not abuse its broad discretion in denying the defendant‘s motion for a new trial on the ground of attorney misconduct because the disputed portion of the rebuttal argument, when considered in context, was invited by the defense and any potential prejudice to the defendant was mitigated by the court‘s curative instructions to the jury.
The defendant argues that the present case is similar to Hoxie v. Home Ins. Co., 33 Conn. 471, 474–75 (1866), in which a new trial was ordered after the plaintiff‘s counsel revealed to the jury during closing argument the contents of a document excluded from evidence at trial. We disagree. In Hoxie, the court observed that “the statement of the counsel had all the effect upon the minds of the jury that the [document] itself could have had, had it been received in evidence,” because defense counsel had objected to the prejudicial statement in the presence of the jury and the trial court had allowed counsel to elaborate upon the statement following the objection. Id., 475. In contrast, the plaintiff‘s counsel in the present case did not reveal to the jury the contents or conclusions of the reports, defense counsel did not object to the rebuttal argument in the presence of the jury, and the court did not render a
The defendant also argues that reversal is required under Fonck v. Stratford, 24 Conn. App. 1, 3, 584 A.2d 1198 (1991), and Wallenta v. Moscowitz, 81 Conn. App. 213, 233, 839 A.2d 641, cert. denied, 268 Conn. 909, 845 A.2d 414 (2004), in which the Appellate Court declared that “a statement by counsel, not under oath, of a material fact pertinent to the issues unsupported by evidence, and prejudicial to the opposing party, constitutes reversible error unless it appears that the prejudicial effect has been effectively averted by an instruction to disregard the statement, or otherwise. . . . It is the duty of [this court] to weigh the probable effect of the statement upon the issues of the case, then look to the action of the trial court in dealing with it, and if it is reasonably clear that the effect has not been eliminated, reversal is required.” (Internal quotation marks omitted.) We disagree. It was not the plaintiff‘s counsel, but, rather, defense counsel, who initially referred to the reports when he stated during closing argument that the defendant had received no reports. Moreover, the plaintiff‘s counsel did not refer to the conclusions in the reports or to any material facts. Finally, the trial court instructed the jury that it was not to consider arguments as evidence or any documents that had not been introduced into evidence during their deliberations. Accordingly, the defendant‘s claim has no merit.
II
The defendant next claims that the judgment should be reversed and a new trial ordered because the jury improperly considered the excluded evidence and defense counsel‘s objections thereto as a direct result
Following the trial, one of the jurors, Joseph Yuhas, wrote a letter to the court suggesting that there had been “a miscarriage of justice in the jury room deliberation[s].” Yuhas recalled that the jury had been asked to leave the courtroom after defense counsel objected to admission of the department‘s report, that the court had decided not to admit the report and that the court later had instructed the jury not to allow the report or its exclusion to affect the deliberations. Yuhas then stated: “This is where I feel the miscarriage of justice begins.” Yuhas explained that, in violation of the court‘s instructions, the foreman and some of the jurors had discussed why defense counsel had objected to admission of the evidence and ultimately concluded that defense counsel was “hiding something . . . .” Yuhas thus declared his belief that “some of the jurors were influenced by this discussion and . . . did not make a fair and proper decision based on the directions given by the court. . . . I feel assumptions were made.” Yuhas did not state, however, that any of the juror‘s votes, including his own, had been affected by the discussion. He also made no reference to the rebuttal argument.
The defendant subsequently raised the issue of juror misconduct in her June 1, 2006 motion for a new trial. On June 2, the court held a hearing on the matter. The court initially noted the attempt by the plaintiff‘s counsel to introduce the report, defense counsel‘s objections to admission of the report and the curative instructions that it had given the jury on objections, documentary evidence, the role of lawyers and the distinction between argument and evidence. The court
On June 12, 2006, the defendant filed a supplemental motion in arrest of judgment for extrinsic causes claiming, in part, that the jurors improperly had considered extrinsic evidence. On June 20, 2006, the court continued the hearing on the issue of juror misconduct. The court denied the motion for a new trial, concluding that, given the unanimity of the verdict, it did not believe that the jurors’ discussion of whether defense counsel was “hiding something” satisfied the probable prejudice standard or indicated that the verdict had been affected by juror partiality, prejudice, corruption or mistake. The court explained that the proffered evidence was an exhibit marked for identification only and was not before the jury. It also observed that the Yuhas letter did not suggest that the verdict had been influenced by probable prejudice. Yuhas did not refer to any comments by the plaintiff‘s counsel and did not appear to
As previously stated, “[a] motion for a new trial is addressed to the sound discretion of the trial court and will never be granted except on substantial grounds.” (Internal quotation marks omitted.) Bernier v. National Fence Co., supra, 176 Conn. 628. Although juror misconduct may provide the substantial grounds necessary to grant such a motion, “not every instance of juror misconduct requires a new trial.” Speed v. DeLibero, 215 Conn. 308, 313, 575 A.2d 1021 (1990). “The rule, long ago enunciated by this court, is that if it does not appear that [the juror misconduct in question] was occasioned by the prevailing party, or any one in his behalf; if it do[es] not indicate any improper bias upon the juror‘s mind, and [if] the court cannot see, that it either had, or might have had, an effect unfavorable to the party moving for a new trial; the verdict ought not to be set aside. Bernier v. National Fence Co., [supra, 628], quoting Pettibone v. Phelps, 13 Conn. 445, 450 (1840).” (Internal quotation marks omitted.) Williams v. Salamone, 192 Conn. 116, 119, 470 A.2d 694 (1984). “[T]he burden is on the moving party in a civil proceeding to establish that juror misconduct denied him a fair trial. . . . That burden requires the moving party to demonstrate that the juror misconduct complained of resulted in probable prejudice to the moving party.” (Citations omitted; internal quotation marks omitted.) Speed v. DeLibero, supra, 313–14. In sum, the test is “whether the misbehavior is such to make it probable that the juror‘s mind was influenced by it so as to render him or her an unfair and prejudicial juror.” (Internal
We conclude that the trial court did not abuse its discretion in denying the defendant‘s motion for a new trial on grounds of juror misconduct. The defendant‘s claim that the jurors improperly considered the excluded evidence and defense counsel‘s objections thereto because of remarks made during the rebuttal argument is unsupported by the record. The letter did not refer to the rebuttal argument but alluded to events connected with exclusion of the evidence at the time the evidence was offered. We therefore conclude that the jurors’ discussion was more than likely prompted by their own recollections of the proceeding, and not by anything that might have been said during the rebuttal argument.
Moreover, there is nothing in the letter or the record suggesting that the verdict was influenced by improper considerations. Although some jurors may have concluded that defense counsel was “hiding something,” the “[m]ere expression of opinion, as opposed to positive expression of facts, does not warrant a mistrial.” (Internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 438, 773 A.2d 287 (2001). Yuhas did not suggest that any juror had voted in favor of the plaintiff because he or she considered facts not in evidence or that the jurors had been improperly influenced by the rebuttal argument, nor did Yuhas himself express second thoughts about his vote in favor of the plaintiff. It is the defendant‘s burden to establish that the juror misconduct complained of caused her to suffer probable prejudice. Speed v. DeLibero, supra, 215 Conn. 313–14. This she has not done.
The defendant further claims that the jurors improperly speculated that the reports were unfavorable because of the disputed remarks made during the rebut-
III
The defendant‘s third claim is that the judgment should be reversed and a new trial ordered because at least three jurors failed to disclose their prior business relationships with the law firm of the plaintiff‘s counsel in violation of article first, § 19, of the Connecticut constitution, as amended by article four of the amendments,12 a fact that came to light during the hearings on the defendant‘s posttrial motions. The defendant specifically claims that the trial court improperly denied her motion for disclosure to develop further informa-
The disclosure issue was raised for the first time at the hearing on June 2, 2006, when counsel for the plaintiff told the court that she had learned after the verdict was rendered that her law firm had been involved in prior litigation against Yuhas and two other jurors. She added that none of the jurors had mentioned this to the court when counsel introduced themselves to the jury pool during voir dire.14 Later in the hearing, defense counsel asked the court‘s permission to question the jurors about their relationships with the plaintiff‘s law firm. The court responded that it did not believe that the defendant had been disadvantaged by the situation that had come to light, given that the jurors had found in favor of the plaintiff.
On June 12, 2006, the defendant raised the issue again when she filed a supplemental motion in arrest of judgment alleging attorney misconduct based on the prior undisclosed business relationships of the plaintiff‘s law firm with an undetermined number of jurors. On that date, the defendant also filed a motion seeking disclosure by the plaintiff‘s law firm of all prior communications with the jurors. On June 20, 2006, the trial court discussed the matter at a hearing intended to address all of the defendant‘s posttrial motions.
The court then denied the motion for disclosure on the grounds that the voir dire questioning had been open and robust and that law firms normally do not have a business relationship with the debtors they are suing, but with the parties they represent who are suing to collect on the debt. The court further noted that, insofar as defendants in such actions have a business relationship with attorneys in a lawsuit, their relationship is with the attorneys who represent them. Accordingly, it was not to be expected that the jurors would believe that they had ever had a business relationship
A
We begin with the defendant‘s motion for disclosure. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court.” (Internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000). The trial court‘s decision denying the motion for disclosure precluded the admission of evidence regarding prior communications between the law firm of the plaintiff‘s counsel and the jurors. A “trial court‘s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility . . . of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court‘s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court‘s ruling. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was . . . a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 365-66, 926 A.2d 1024 (2007).
We conclude that the trial court did not abuse its discretion in denying the motion for disclosure. The defendant‘s claim that Yuhas and the other jurors had
Moreover, when the court gave the jurors opportunities to inform the court that they recognized the name of the law firm representing the plaintiff, the names of its partners and the name of the plaintiff‘s counsel, none of the jurors responded. It is therefore unlikely that any of the jurors recognized that the law firm of the plaintiff‘s counsel had represented their opponents in prior unrelated litigation.
Finally, even if the jurors had recognized the name of the law firm representing the plaintiff because of the prior litigation, any resulting prejudice most likely would have been directed to the plaintiff, rather than to the defendant, because the plaintiff‘s law firm had represented their opponents. As we stated in Morgan v. St. Francis Hospital & Medical Center, 216 Conn. 621, 626, 583 A.2d 630 (1990), “[t]o succeed on a claim of bias, the [complaining party] must raise his contention of bias from the realm of speculation to the realm of fact.” (Internal quotation marks omitted.) The defendant provided no evidence that the jurors were influenced by, much less aware of, the fact that the law firm of the plaintiff‘s counsel had represented the plaintiffs in prior actions in which the jurors had been defendants. We therefore conclude that the trial court did not abuse its discretion in denying the defendant‘s motion for disclosure.
Insofar as the defendant argues that the trial court should have conducted a more comprehensive investi
B
The defendant also claims that the trial court improperly denied the motion for a new trial and the supplemental motion in arrest of judgment on the ground of juror misconduct because the plaintiff‘s law firm had a prior undisclosed business relationship with the jurors. This claim is virtually identical to the claim raised by the defendant in her motion for disclosure. Accordingly, for all of the reasons described in part III A of this opinion, we conclude that the claim lacks merit.
IV
The defendant‘s fourth claim is that the trial court improperly admitted into evidence two documents offered by the plaintiff under the business records exception to the hearsay rule. The first document was a letter from the plaintiff to the defendant stating that the plaintiff had conducted a meter test at the defendant‘s residence on September 29, 1999, indicating that
The plaintiff responds that the trial court properly admitted the documents under the business records exception to the hearsay rule because the witness was a longtime employee of the plaintiff with a thorough understanding of the plaintiff‘s record keeping procedures. We agree with the plaintiff.
In a letter dated October 7, 1999,16 the plaintiff‘s customer service representative assigned to the case informed the defendant that the plaintiff had tested electric meter number 87550314, located at her residence, on September 29, 1999, and that the test had indicated a meter accuracy of 99.88 percent. The letter also informed the defendant that the test result was “well within the parameters established by the [department] for meter accuracy” and that the defendant should contact the plaintiff if she had any further questions. Thereafter, the plaintiff generated a computer printout for in-house use, entitled “order detail,” containing all of the foregoing information plus certain
At trial, Murphy testified that he was a supervisor in the plaintiff‘s credit and collection department and was responsible for a staff of approximately eighty-six persons. Murphy also testified that he had been employed by the plaintiff for eighteen years and was familiar with the plaintiff‘s customer service and billing procedures. After Murphy testified generally about customer service, the credit and collection department and the history of the billing dispute, the plaintiff‘s counsel attempted to offer the September 29 letter into evidence as a business record pursuant to
During the voir dire, Murphy testified regarding customer complaint procedures, explaining that, after the plaintiff issues an order to conduct a meter test, a tech-
Murphy testified that neither he nor the customer service representative had firsthand knowledge of the meter test in the present case because they had not tested the meter themselves and were not normally present when such tests were performed. He further testified that he did not have personal knowledge as to how the customer service representative had obtained the test result, although, on the basis of his personal knowledge of company operating procedures, he assumed that she had obtained it from the computer generated report. Murphy also testified that it was the plaintiff‘s customary practice, in the ordinary course of business, to send customers a letter informing them of the test results. He stated that a hard copy of such letters is retained in the plaintiff‘s files and that an electronic version and a general display of the test results is stored in the computerized database.
Murphy also testified that the computer printout was merely a copy of the order archived in the computerized system, which replicates the order received by the technician who performed the test and includes the test results. Murphy explained that he normally dealt with such documents in the regular course of his duties.
The trial court admitted the letter under the business records exception to the hearsay rule and under
After the jury returned to the courtroom, the plaintiff‘s counsel continued her direct examination of Murphy, who repeated his prior testimony at the hearing. The court ultimately admitted both documents, over defense counsel‘s objections, under the business records exception to the hearsay rule. The defendant subsequently cited improper admission of the letter as one of several grounds for granting the motion for a new trial. The motion made no claim with regard to the computer printout.
“It is axiomatic that [t]he trial court‘s ruling on the admissibility of evidence is entitled to great deference. . . . We will make every reasonable presumption in favor of upholding the trial court‘s ruling, and only upset it for a manifest abuse of discretion. . . . [General Statutes §] 52-18019 sets forth an exception to the evidentiary rule otherwise barring admission of hearsay evidence20
Notes
“(b) The writing or record shall not be rendered inadmissible by (1) a party‘s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party‘s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. . . .”
“To be admissible under the business record exception to the hearsay rule, a trial court judge must find that the record satisfies each of the three conditions set forth in . . .
In American Oil Co. v. Valenti, 179 Conn. 349, 350-55, 426 A.2d 305 (1979), the defendant, the principal debtor on a promissory note and contract of guarantee, contested the admissibility of computer printouts summarizing the state of his accounts. In admitting the printouts, the trial court relied on the testimony of the plaintiff‘s sales manager, who supervised the defendant‘s account and whose knowledge of computer processing was derived from his monthly receipt of computer printouts and from working with other employees directly responsible for credit and computer procedures. Id., 357. The sales manager did not participate personally in preparing the statements or use a computer himself. Id.
We concluded in American Oil Co. that the plaintiff had provided an adequate foundation for admitting the
Guided by the foregoing principles, we conclude that the trial court properly determined that Murphy was competent to testify that the computer printout and the letter, which included information transferred electronically from the technician in the field to the plaintiff‘s in-house database, had been made in the ordinary course of the plaintiff‘s business, that similar documents were generated in the course of the plaintiff‘s business and that the documents had been created within a reasonable time following the inspection of the defendant‘s residence. Murphy‘s testimony provided an adequate foundation for admission of the documents because, as an eighteen year employee of the plaintiff and a supervisor of credit and collection, he had demonstrated extensive personal knowledge of the plaintiff‘s billing procedures, the procedures established to collect on past due accounts and the electronic and computerized systems used to maintain and update information regarding such matters. Moreover,
V
The defendant‘s fifth claim is that the trial court improperly instructed the jury that it could not consider the fact that, for a period of several years, the plaintiff had charged the defendant the incorrect rate for her electric service and that the bills were not illegal or inaccurate. The defendant claims that the instruction was improper because, when considered in the context of the jury charge as a whole, the instruction, in effect, directed a verdict for the plaintiff. The plaintiff responds that the incorrect rate to which the court referred was the rate charged for electric heat, which is lower than the standard rate charged to customers with nonelectric heat. Accordingly, because the defendant‘s residence was heated by oil, the defendant benefited from the lower rate and the trial court‘s instructions were not improper. We agree with the plaintiff.
Defense counsel first referred to the rate charged for the defendant‘s electric service in his opening statement, when he declared that the defendant‘s electric utility bills, which approached $1000 per month during the 1990s, had been unreasonable. In his statement, he also asserted that consumers have a right to adequate service at a reasonable rate, that the defendant had complained for years that her electric bills were too
Murphy later testified that the plaintiff incorrectly had charged the defendant the electric rate between 1992 and 1996, even though the primary source of heating for her home was oil. He also testified that the electric rate charged had been lower than the standard rate, but that the plaintiff had not imposed any retroactive charges on the defendant after the mistake was discovered to compensate for the benefit that she had received during those years.
Thereafter, the court instructed the jury that the plaintiff‘s contract with the defendant required the plaintiff to provide electric power to the defendant at a rate applicable to residential customers and approved by the department. The court continued: “[H]ere the evidence establishes that the rate charged per kilowatt was that established by the [department]. While the evidence established that at one time 11 Harding Lane was charged at a rate reflecting a house with electric heat rather than oil heat, the uncontradicted testimony is that the rate applicable to a home with electric heat was lower than that . . . for the home or a residence heated with oil and, therefore, you would not consider that . . . on any issue in this case. The plaintiff claims that electric services were provided to 11 Harding Lane and that the defendant . . . has not paid for those services. The plaintiff, therefore, claims . . . that it is enti-
Following the jury charge, defense counsel objected to the instruction regarding the rate charged to the defendant, arguing that testimony on the lower rate had been given by the plaintiff‘s witness and was not necessarily true. Accordingly, the jury might reject it. The court replied that it merely had instructed that the testimony was uncontradicted, not that it was true. Defense counsel countered that the instruction prevented the jury from inferring that, if the rate charged to the defendant had been wrong, the meter test could have been wrong. Defense counsel repeated its argument at the June 20 hearing on the motion for a new trial, stating that it was important for the jury to consider that the improper rate had been charged because it demonstrated that the plaintiff was capable of making mistakes not only with respect to rates, but also with respect to meter tests. The defendant reiterated the claim in her motion for a new trial.
“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court‘s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Failure to charge precisely as proposed by a defendant is not error where the point is fairly covered in the charge. . . . Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in
We conclude that the trial court‘s instructions to the jury were not improper. In instructing that the jury must not consider the electric rate charged to the defendant in relation to other issues, the court was not stating that the defendant‘s utility bills were not illegal or inaccurate but simply was pointing out that Murphy‘s testimony that the rate charged for electric heat is lower than the standard rate was uncontradicted and that the actual rate charged to the defendant should not affect the jury‘s consideration of other issues relating to the defendant‘s utility bill. Accordingly, we conclude that the instruction was not incorrect in the law, was adapted to the issues and was sufficient for the guidance of the jury.
VI
The defendant‘s sixth claim is that the trial court improperly awarded the plaintiff offer of judgment interest pursuant to
“This offer is open for sixty (60) days from the date of this offer. Should the defendant fail to accept this offer within such sixty (60) day period, and the plaintiff subsequently recovers after trial an amount equal to or greater than the above sum, then the plaintiff shall be awarded by the [c]ourt twelve percent (12%) interest per annum and may award the plaintiff $350 for attorney‘s fees.” All four defendants were named in the caption. Counsel for the plaintiff certified that the offer was mailed to Douglas Gilmore, the “attorney for defendants.”
None of the defendants accepted the offer within sixty days. On April 27, 2006, the plaintiff filed a postjudgment motion for offer of judgment interest and attorney‘s fees pursuant to
Following a hearing on June 20, 2006, the trial court granted the motion. The court noted that in Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 687 A.2d 506 (1997), and Willow Springs
“We repeatedly have stated that [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. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) State v. T.R.D., 286 Conn. 191, 213-14 n.18, 942 A.2d 1000 (2008).
In the present case, the defendant devotes little more than a page of her original and reply briefs combined to the discussion of her claim, limiting her argument to the bare assertion that she should not be held legally liable for offer of judgment interest because she was not specifically named in the offer and no unified offer was made to all four defendants.24 The only case on
which she relies is Butts v. Francis, 4 Conn. 424 (1822),25 in which the court concluded that, where two or more persons are sued on a joint contract, service must be made, if not by personal summons, then by leaving an attested copy with each of the defendants or at the usual place of abode. Id., 426. As it is patently obvious that the issue in Butts is entirely unrelated to the issue on appeal, we deem the defendant‘s claim abandoned and decline to review it.26 See State v. Greene, 274 Conn.
134, 173-74 n.28, 874 A.2d 750 (2005) (where parties cite no law and provide no analysis of claims, we do not review them), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006); State v. Colon, 272 Conn. 106, 153 n.19, 864 A.2d 666 (2004) (claim deemed abandoned for failure to brief properly), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).
VII
The defendant‘s final claim is that the trial court improperly denied her motion in limine to exclude from evidence all references to department proceedings. The defendant specifically claims that the denial of her motion resulted in a violation of her constitutional rights to due process, to a trial by jury, to access to the courts and to present a defense27 because, even though the court ultimately deemed the department‘s decision inadmissible, the jury could have concluded from numerous other references to department proceedings throughout the trial that the department had ruled against her. We disagree.28
On April 17, 2006, the defendant filed a motion in limine seeking to preclude all references to, or admission of, evidence regarding department proceedings. The defendant claimed that, if the jurors heard testimony that the department had considered her com-
Our standard of review is well established. “A trial court may entertain a motion in limine made by either party regarding the admission or exclusion of anticipated evidence. . . . The judicial authority may grant the relief sought in the motion or other relief as it may deem appropriate, may deny the motion with or without
We conclude that the trial court‘s ruling was not improper. The court denied the motion in limine without prejudice because it could not determine, without additional context, whether evidence regarding department proceedings would be prejudicial to the defendant. The defendant thus was permitted to raise objections at a more appropriate time during the proceedings when the record was further developed and the court would be in a better position to evaluate the relevance and probative value of the proffered evidence.
We also conclude that the trial court‘s subsequent rulings admitting evidence of the underlying department investigation, but excluding the department report, were not improper. The gravamen of the defendant‘s claim was that evidence concerning the investigation and the report, and defense counsel‘s repeated objections thereto, indirectly communicated to the jurors that the department had ruled against her. We disagree. The testimony regarding the underlying proceedings was necessary to explain the history of the case, and the court did not allow testimony regarding the conclusions reached by the review officer or the department. To the extent that defense counsel‘s objections may have suggested that the department had ruled against the defendant, the trial court instructed the jury that counsel was entitled to object to evidence it believed to be improper under the rules of evidence and that objections should not influence the jurors or be held against the attorney or the client. See part I of this opinion. The court also instructed that the jury could consider only those documents entered into evidence. “It is reasonable to presume that jurors will adhere to the court‘s instructions.” State v. McCall, 187
The judgment is affirmed.
In this opinion NORCOTT, KATZ and PALMER, Js., concurred.
BLUE, J., concurring and dissenting. I fully agree with parts I, II, III, IV, V and VII of the very thorough opinion of the majority. It is my misfortune that I cannot agree with part VI.
The dispositive facts are set forth in the record. The plaintiff, Connecticut Light and Power Company, brought this action against four defendants—Bess P. Gilmore, Douglas G. Gilmore, Keith P. Gilmore and Community Club Awards, Inc. On July 8, 2004, the plaintiff filed a document infelicitously entitled “Offer To Judgment.”1 The caption of the offer names all four defendants. The text of the offer is as follows:
“Pursuant to [General Statutes]
§ 52-192a . . . andPractice Book § 17-14 . . . [the] plaintiff hereby offers to take judgment of the defendant in the above-captioned matter in the amount of [t]wenty-eight [t]housand [d]ollars ($28,000), and to stipulate to judgment for that sum.“This offer is open for sixty (60) days from the date of this offer. Should the defendant fail to accept this offer within such sixty (60) day period, and the plaintiff subsequently recovers after trial an amount equal to or
No defendant accepted the offer. The plaintiff subsequently withdrew its action against the defendants Douglas G. Gilmore, Keith P. Gilmore and Community Club Awards, Inc. On April 26, 2006, the jury returned a verdict for the plaintiff against the remaining defendant, Bess Gilmore (Gilmore), in the amount of $45,072.94.
The plaintiff filed a postjudgment motion for offer of judgment interest and attorney‘s fees. Gilmore filed a timely objection, arguing that the plaintiff had “failed to address its offer of judgment to any specific ‘defendant. . . .‘” The trial court squarely considered the issue presented, stating that the offer of judgment referred “only to an individual defendant in this case rather than to all defendants.” It concluded that, although “[i]t would have been easier and would have clearly indicated the global nature of the offer had the [word] been defendants,” the court was “constrained” by law to grant the plaintiff‘s motion.
The majority deems Gilmore‘s claim to have been abandoned on appeal and declines to review it. I respectfully disagree. Although neither party has distinguished itself in the art of legal drafting, the issue is fairly presented by the record. The issue was presented to the trial court in the form of a timely objection. The trial court squarely considered and decided the issue. However clumsily, Gilmore has brought this issue to our attention on appeal.2
Gilmore‘s brief contains an inapt citation and falls short of professional standards. The issue nevertheless
This is analogous to our practice in reviewing statutory claims falling under the plain error doctrine.
A consideration of the merits must begin with this court‘s seminal decision in Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 687 A.2d 506 (1997) (Blakeslee). Blakeslee holds that, in a case involving multiple defendants, “it is within the plaintiff‘s discretion whether to file a unified offer of judgment against multiple defendants or to file a separate offer of judgment against each defendant.” Id., 743. Blakeslee establishes that a plaintiff wishing to make an offer of judgment in a case involving multiple defendants must proceed down one of two specified procedural avenues: (1) file a unified offer of judgment against all of the defendants; or (2) file a separate offer of judgment against each defendant. Id. The plaintiff here did neither.
There are four defendants listed in the caption of the offer of judgment. The offer is made to “the defendant.” Under these circumstances, the trial court could not determine, pursuant to
To decide whether there has been a valid offer of judgment, courts apply the principles of contract law. See Radecki v. Amoco Oil Co., 858 F.2d 397, 400 (8th Cir. 1988), and authorities cited therein. “The law governing the construction of contracts is well settled. . . . Where the language is ambiguous . . . we must construe those ambiguities against the drafter.” (Citation omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13-14, 938 A.2d 576 (2008). Because the plaintiff drafted the
Substantive contract law is instructive on the issue presented. The analogy that comes to mind is the famous case of Raffles v. Wichelhaus, 159 Eng. Rep. 375 (Ex. 1864). The defendant in Raffles offered to buy 125 bales of cotton “to arrive ex ‘Peerless’ from Bombay.” Unhappily for the parties, but happily for future generations of law professors, there were two ships called the “Peerless” sailing from Bombay at different times. Because the contract failed to show which particular ship called the “Peerless” was meant, it had a latent ambiguity, and under the circumstances, the ambiguity was fatal to the validity of the contract. Similarly, in the present case, there were four parties called “the defendant.” The ambiguity as to which particular party called “the defendant” was designated by the offer is fatal to the validity of the offer.
The difficulty here is, if anything, greater than in the somewhat more conventional contract problem considered in Raffles. In Raffles, the offeree would have been free to reject the offer without running the risk of incurring liability as a result. A party who receives an offer of judgment, however, is in a different position because the offer has a binding effect when declined as well as when accepted. This results from the penalty provision of
In contract cases involving agreement, courts try to effectuate the agreement of the parties. Thus, in the Raffles scenario (which involved an acceptance as well
The offer of judgment here was patently ambiguous with respect to “the defendant” designated in the offer. In the absence of a “clear baseline“; Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1076 (7th Cir. 1999); there was no valid offer for the trial court to enforce pursuant to
I would reverse on this issue.
ELIZABETH KERRIGAN ET AL. v. COMMISSIONER OF PUBLIC HEALTH ET AL. (SC 17716)
Borden, Norcott, Katz, Palmer, Vertefeuille, Zarella and Harper, Js.*
the document are hearsay.” (Citation omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 757, 680 A.2d 301 (1996).“(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiff‘s ‘offer of judgment‘, the court shall add to the amount so recovered twelve per cent annual interest on said amount . . . In those actions commenced
on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney‘s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. . . .”The motion stated in relevant part: “Plaintiff served an offer of judgment on the defendants by date of July 8, 2004—within eighteen months following the commencement of this action—offering to resolve this dispute by the payment of $28,000, and stipulate to judgment in said amount. Defendants rejected this offer by failing to accept it. Now a verdict has entered in favor of the plaintiff in an amount greater than the offer of judgment amount.
“[General Statutes]
“WHEREFORE, [the] plaintiff prays that this [c]ourt award [the] plaintiff 12 [percent] annual interest and attorney‘s fees of $350 [in] favor [of the] plaintiff.”
We disagree with Judge Blue that, despite the defendant‘s inartful drafting of the claim, the issue should be reviewed for the same reasons that we review statutory claims falling under the plain error doctrine. “[T]he plain error doctrine, which is now codified at
Moreover, it is well established that this court will not apply the plain error doctrine when it has not been requested affirmatively by a party, as in this case. Johnson v. Commissioner of Correction, 288 Conn. 53, 60, 951 A.2d 520 (2008) (declining to consider unpreserved claim under plain error doctrine because petitioner failed to request that court undertake such review); State v. Britton, 283 Conn. 598, 617, 929 A.2d 312 (2007) (declining