TRAVELERS PROPERTY AND CASUALTY COMPANY v. HEATHER CHRISTIE ET AL.
(AC 26080)
Appellate Court of Connecticut
Argued October 18, 2006—officially released March 6, 2007
99 Conn. App. 747
Jeremiah Donovan, for the appellant (named defendant).
Kevin A. Coles, with whom was Catherine L. Creager, for the appellee (defendant Robert F. D‘Amore).
Jeffrey F. Buebendorf, for the appellee (substitute defendant Washington Mutual Bank).
Opinion
DUPONT, J. The defendant Heather Christie,1 the sole appellant, who acted pro se during the
Christie had an insurance policy with Travelers when her residence was damaged by a storm. Christie and Travelers could not agree on the amount of loss, and so, pursuant to the insurance policy, each side hired an appraiser to assess the damage. Also pursuant to the policy, the parties requested that the court appoint an impartial umpire to evaluate the amount of the award proposed by the two appraisers. Eventually, the award was set at $106,806,4 and Travelers filed an application for confirmation of the appraisal award and for a judgment of interpleader regarding the distribution of the award, naming as defendants Christie; her appraiser, D‘Amore; the umpire, Theodore Olynciw; and Anchor Mortgage Services, Inc.5 The court ordered $13,812.50 to be paid to Olynciw, that cost to be divided by Travelers and Christie pursuant to their contract. The court also ordered D‘Amore to be paid $43,905.60, plus interest at the rate of 10 percent from February 27, 2004, the date he delivered his bill to Christie.6 In a
I
The defendant first claims that the court improperly refused to allow her to examine certain documents in D‘Amore‘s possession. As a preliminary matter, the parties disagree as to whether the court did not allow the defendant to examine the documents as a matter of law because she did not formally request to examine them before trial, or whether, on the facts before it, the court exercised discretion in failing to allow the examination.7 As the resolution of this question determines our standard of review, we address it first. The question of what standard of review applies relates solely to whether certain documents in this case were subject to examination during the course of the trial, when neither their production nor examination had been sought pursuant to the rules of practice governing discovery prior to trial. Our question is whether, in light of the transcript of this trial, the failure to allow examination should be reviewed by us as a discretionary ruling of the court or as a question of law. In determining this question, we first consider our Supreme Court‘s analysis of a similar inquiry conducted in New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 717 A.2d 713 (1998). In that case, the court was reviewing “whether, pursuant to
In this case, the following exchanges, as recorded in the transcript, are relevant to our determination of the basis for the court‘s ruling. We count at least eight times that the defendant made an unsuccessful request to view documents held by D‘Amore.8
The first such instance occurred during the direct examination of D‘Amore, when D‘Amore‘s counsel offered a “compilation” of records relating to the work D‘Amore claimed to have done for the defendant. The defendant asked to see the original documents in D‘Amore‘s file that he claimed supported the compilation document. The court stated to the defendant: “This isn‘t the time to ask for it. We‘re at the hearing now.” After a brief exchange, the defendant told the court that she had, in fact, requested to see the documents, and several others before the trial but that she had not received them. The court asked D‘Amore‘s counsel whether the defendant had made such a request. D‘Amore‘s counsel answered, “No, Your Honor. There has been no formal request made through the court process.” (Emphasis added.) The court then asked the defendant if she had documentation of her claimed
pretrial request, to which she replied that she had documentation of all her various requests, in the form of letters to D‘Amore. She could produce only one such letter immediately. The court then turned to D‘Amore and asked him whether the defendant had previously received the document. D‘Amore answered, “Yes. She has that and all enclosures.”9 Without further inquiry or evidence, the court stated, “That‘s enough. You may proceed with your examination,” and implicitly denied the defendant‘s request to examine the document. The defendant‘s subsequent requests to examine documents occurred during her cross-examination of D‘Amore. The defendant requested to see D‘Amore‘s Connecticut public adjustor license. D‘Amore‘s counsel objected, stating: “[The defendant] would have had an opportunity to ask for that [during] production.” The court agreed but did not state its grounds for sustaining the objection. Soon after this exchange, the defendant apparently located at least one of the other letters recording her pretrial requests for production, for which she had been searching during D‘Amore‘s direct examination. She asked the court: “[W]ould you like to see [the letter] at this time?” The court answered: “No. I want you to cross-examine this witness.” Later, the defendant questioned D‘Amore about the substance of several telephone calls
the witness is on the stand.” The defendant requested the key for the abbreviations appearing throughout D‘Amore‘s bill in order to discern to what the itemized charges referred. The defendant asked D‘Amore: “Can you now give me a code for these abbreviations?” D‘Amore answered: “Sure. I‘d be happy to.” D‘Amore‘s counsel objected, however, as follows: “This is really not the time to conduct discovery. I can understand an examination of what the witness did, but, on the other hand, if she wanted to know all the abbreviations, all the letters and all the e-mails, she should have filed a request for production, and I would have handed her these two cards. The court told the defendant that “this is a little late to be asking this.” The defendant attempted to explain to the court why she was requesting to examine the documents during trial. “Your Honor, I am only just finding out that I had to [try this case] in court . . . not through arbitration or mediation. . . . I was not clear on the rules of the discovery process. That‘s a severe disadvantage to me.” When the defendant finished, the court told her: “Well, then, you should have hired a lawyer to help you out. I can‘t help it if you‘re not legally trained, Ms. Christie.” The defendant later asked D‘Amore for notes substantiating his bill, which D‘Amore acknowledged having with him in the courtroom. D‘Amore‘s counsel again objected that “this is really not the time to conduct discovery.” The court sustained the objection, noting that “[w]e made that ruling several times.” The defendant asked D‘Amore to produce documents relating to his evaluation of molding on the defendant‘s house, which evaluation he included in his bill. The court stated: “That should have all been done before we started the questioning. And you didn‘t do it, so I can‘t allow you to do it now.” Finally, the defendant requested to see documentation justifying various telephone calls. D‘Amore‘s counsel objected, stating that “this is not the time for
the witness to go through chapter and verse of each one of these things. It could have been produced.” The court responded: “Yes, I agree. Objection sustained.”
Lacking from those exchanges is any indication that the court considered the defendant‘s various requests and balanced the importance of the evidence against the possibility of undue delay or any other consideration that would support a determination that the documents should not be examined. When the court did provide a reason for denying the defendant‘s request, it relied on a perceived lack of authority to exercise discretion to allow the defendant to examine the documents. Particularly illustrative is the court‘s statement that “you didn‘t do it [i.e., conduct pretrial discovery], so I can‘t allow you to do it now.” (Emphasis added.) The court also stated: ”You don‘t [conduct discovery] when the witness is on the stand.” (Emphasis added.) In addition, the court noted, after denying one of the defendant‘s several requests to view documents, that ”[w]e made that ruling several times already.” (Emphasis added.) Were the court using its discretion to balance the importance of allowing the defendant to view the requested document against undue delay or other factors, each request would require a new determination and
The presence of a lawyer, however, would not have increased the importance of allowing the examination of the documents or reduced the delay, if any, such an examination would cause. A lawyer would, however, have been familiar with pretrial requests to view documents in accordance with the rules of practice. The court‘s “advice,” then, was most reasonable if the court was basing its denials of the defendant‘s requests to examine documents on her failure to request pretrial discovery and not on a discretionary balancing to determine admissibility.
We also note the arguments of counsel raised at the time of the court‘s rulings. D‘Amore‘s counsel argued that “[the defendant] would have had an opportunity to ask for that [during] production,” and “this is really not the time to conduct discovery. . . . [S]he should have filed a request for production . . . .” (Emphasis added.) Again, he argued, “this is not the time for the witness to go through chapter and verse of each one of these things. It could have been produced.” (Emphasis added.) D‘Amore‘s counsel argued that the defendant should not be allowed to examine the documents because she had not requested them before trial; counsel did not put forth arguments that allowing the defendant to view the documents would unduly prolong the trial or unfairly burden his client.
Finally, and most importantly, had the court been conducting the customary balancing analysis to determine admissibility, rather than ruling as a matter of law, we can discern no reason why it did not allow the defendant to examine at least some of the requested documents. The transcript reveals that at least three of the requested documents were present in the courtroom. Counsel‘s response to the defendant‘s request to see D‘Amore‘s key code, which was, “I would have handed her these two cards“; (emphasis added); indicates that counsel may actually have had some of the
requested documents in his hand. Producing those documents would not have led to undue delay, nor did the court indicate that it was considering any other relevant factor when it denied this or any of the other requests that would support a conclusion that the court was exercising its discretion. We conclude, on the basis of the transcript, that the court made its various rulings as a matter of law. It impliedly based its rulings on an interpretation of the rules of practice governing pretrial production. An interpretation of a rule of practice requires plenary review. See, e.g., In re Samantha C., 268 Conn. 614, 638, 847 A.2d 883 (2004) (conducting plenary review of trial court‘s interpretation of rule of practice); New England Savings Bank v. Bedford Realty Corp., supra, 246 Conn. 599 n.7 (conducting plenary review of trial court‘s exclusion of evidence pursuant to business records exception to rule against hearsay). We conclude that plenary review is more appropriate in this case than review for
D‘Amore has not brought to our attention, and we have not found, any case or statutory law that absolutely prohibits the court from allowing a litigant to examine documents during trial merely because the litigant did not previously request the documents through the pretrial discovery procedures. Reviewing the relevant general rules governing the trial court‘s discretion over the presentation and use of evidence at trial, and the overall goal to seek truth during the trial,11 we conclude that the court‘s discretion is not rigidly bound by the rules of practice relating to pretrial discovery.
To begin, it is often repeated in our case law that a trial court has wide discretion to determine whether to admit evidence. See, e.g., United Technologies Corp. v. East Windsor, 262 Conn. 11, 28, 807 A.2d 955 (2002) (“trial court is given broad latitude in ruling on the admissibility of evidence” [internal quotation marks
omitted]). The relevant provisions of the rules of practice and the code of evidence support this proposition. Pretrial production procedures are governed generally by
It is true that in many, if not most, cases, a court properly could refuse a litigant‘s request to examine her adversaries’ documents midtrial because of undue delay or other reasons. See State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). This does not, however, mean that the court is powerless, as a matter of law, to grant such a request. Interpreting the discovery rules absolutely to prohibit a request to examine documents during trial merely because they were not formally requested through pretrial discovery would work against the goal of disclosing facts “to the fullest practicable extent . . . .” (Internal quotation marks omitted.) Wexler v. DeMaio, 280 Conn. 189. Because we find
no law or rule of practice prohibiting the trial court from allowing a party to examine documents in the hands of the other party at trial merely because the requesting party did not conduct pretrial discovery, and because such a blanket prohibition would contravene the general purpose of discovery, we do not recognize any such per se prohibition in Connecticut‘s procedural law. We conclude that the court should not have sustained the objections to the defendant‘s requests to review the appraiser‘s notes that related to his bill on the ground it did. It cannot be known what the effect on the court‘s conclusion as to the proper amount of the appraiser‘s fee would have been had the defendant been allowed to pursue these questions relating to his bill. The appraiser‘s fee was based in large part on the amount of time he spent in performing his services, but the defendant was precluded from reviewing, or having the court review, his notes that reflected this time spent, some of which were with him in the court. The rulings of the court were, therefore, harmful, and a new trial is required. See In re Samantha C., supra, 268 Conn. 674-75.
II
The defendant next claims that it was improper for the court to consider her conduct in the courtroom, when advocating her cause as evidence supporting the reasonableness of D‘Amore‘s award. Specifically, the defendant argues that the court based its finding of the reasonableness of his fee on her general uncooperative character and that this conclusion was improperly based on its observation of her advocacy style.
As an initial matter, D‘Amore does not agree with the defendant that the court based its finding that she was uncooperative on its observation of her advocacy
claim. The court stated that D‘Amore “worked under very difficult, frustrating circumstances. Apparently, he had a very uncooperative client that frustrated him on many occasions.” The court further stated that the defendant had “demonstrated in court during this several day hearing how difficult she can be, and her attitude and lack of cooperation may well have caused his bill to become higher than it would have been in an ordinary situation.”
The court specifically alluded to the defendant‘s conduct during the course of the “several day hearing” when explaining how it came to the conclusion that she was “uncooperative . . . .” Although the defendant did briefly take the witness stand during the course of the trial, her examination was on one day only, taking up only five pages in the entire three volume transcript. We believe that the court did rely on its observations of the manner in which the defendant conducted her self-representation when concluding that she was “uncooperative . . . .”
The question, then, is whether this reliance was proper. Although the question of relevancy, and thus admissibility, of evidence is subject to review for abuse of discretion, the question of whether an observation of the court properly can be subject to the relevancy analysis at all is a question of law, and therefore our review is plenary. See Martin v. Liberty Bank, 46 Conn. App. 559, 563, 699 A.2d 305 (1997). “Fairly stated, evidence legally is the means by which alleged matters of fact are properly submitted to the trier of fact for the purpose of proving a fact in issue. . . . It is well settled that representations of counsel are not, legally speaking, evidence.” (Internal quotation marks omitted.) Id., 562-63.
In Martin, the trial court enjoined the plaintiff in a foreclosure action from bringing any further actions
against the defendants and also from representing himself, pro se, in the pending litigation because the plaintiff was disruptive. Id., 561. In determining that the plaintiff was disruptive, the court heard no testimony but listened only to the arguments of counsel and the plaintiff. Id. This court reversed the injunction order and remanded the action because the unsworn statements and actions before the court could not properly be considered as evidence. Id., 561-63.
Here, the court relied on actions of the pro se litigant when acting as counsel to support its determination that she was uncooperative. For the present question, it makes no difference that in this case, “counsel” was the defendant herself. The defendant‘s actions as an advocate, in contrast to her demeanor when under oath as a witness, should not have been relied on by the court as evidence to support a key issue in this case, namely, the determination of the reasonableness of D‘Amore‘s fee. Were it otherwise, the pro se litigant would face the difficult question of whether to advocate her case zealously and risk the displeasure of the court, which might influence its decision in assessing the merits of the case itself.
In this interpleader action, the only question of the distribution of the funds held by the plaintiff was the amount to be distributed to the defendant‘s appraiser, D‘Amore. The attitude and personality of the defendant as an advocate for herself was not evidence from which the court could infer that the appraiser‘s bill was necessarily higher than in “an ordinary situation” due to the temperament of the defendant. Her particular abrasiveness in court, as a pro se litigant,
III
Next, we address the defendant‘s argument that, even if the court was correct in finding that D‘Amore‘s fee was reasonable, the court improperly awarded D‘Amore prejudgment interest pursuant to § 37-3a.12
The traditional rule applicable to this issue is that “[w]here articles are delivered or services performed, and charged on book, and no time of payment agreed on . . . interest would be chargeable on such accounts if unreasonably delayed . . . .” Selleck v. French, 1 Conn. 32, 34, (1814); see Paulus v. LaSala, 56 Conn. App. 139, 147-48, 742 A.2d 379 (1999) (tracing development of Connecticut prejudgment interest law), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). The modern rule has been codified as § 37-3a.
This court has recently stated that ”
Although whether to award prejudgment interest is, in the first instance, a decision within the discretion of the trial court, the discretion is not unbounded. As early as 1814, our Supreme Court stated that “interest ought to be allowed only, where there is a written contract for the payment of money on a day certain, as on bills of exchange, and promissory notes; or where there has been an express contract; or where a contract can be presumed from the usage of trade, or course of dealings between the parties; or where it can be proved that the money has been used, and interest actually made.” Selleck v. French, supra, 1 Conn. 34.
In Foley v. Huntington Co., 42 Conn. App. 712, 739, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 297 (1996), we noted that “section 37-3a provides a substantive right that applies only to certain claims.” The Foley court then extensively reviewed the cases in which § 37-3a interest was properly awarded and those in which it was not. On the one hand, the court noted: “Prejudgment interest pursuant to § 37-3a has been applied to breach of contract claims for liquidated damages, namely, where a party claims that a specified sum under the terms of a contract, or a sum to be determined by the terms of the contract, owed to that party has been
Subsequent to Foley, this court noted that “[p]rejudgment interest pursuant to § 37-3a . . . ordinarily does not apply to contract actions in which the plaintiff is not seeking the recovery of liquidated damages or the recovery of money advanced under a contract and wrongfully withheld after a breach of that contract. The prejudgment interest statute does not apply to such actions because they do not advance claims based on the wrongful withholding of money, but rather seek damages to compensate for losses incurred as a result of a defendant‘s negligence. Moreover, such damages are not considered due and payable until after a judgment in favor of the plaintiff has been rendered.” Tang v. Bou-Fakhreddine, supra, 75 Conn. App. 349.
The cases we have cited illustrate that the focus of the prejudgment interest award allowed by § 37-3a has been to provide interest, at the discretion of the court, when there is no dispute over the sum due and the liable party has, without justification, refused to pay.13
D‘Amore provided a service to the defendant, primarily an appraisal of the damage to her house. The contract between the parties did not specify a sum certain to be paid at completion, but rather the fee was to be reasonably based on the work that the appraiser actually completed. After D‘Amore sent his bill to the defendant, there arose a disagreement between the parties as to the fee amount. There was no evidence, and the court did not find, that this disagreement was in bad faith on the part of either party. At no time prior to judgment did the defendant have actual control of the
money, nor did she benefit by its use or any accrued interest. The court made no finding of other equitable considerations supporting its interest award, and D‘Amore offered none save the fact that he provided his services.
D‘Amore argues that the equities favor upholding the award of prejudgment interest against the defendant because the Travelers award would have been distributed, and thus his fee would have been paid had the defendant simply accepted his proposed fee. Were D‘Amore‘s argument correct, the defendant would have an equally valid claim for prejudgment interest against D‘Amore as she, too, could not secure her portion of the Travelers award because D‘Amore disputed her assessment of his fee.
The defendant did not agree contractually to pay a sum certain before D‘Amore began his work, she had a good faith disagreement with D‘Amore over the amount of his fee, and she did not actually control
IV
Finally, the defendant also asks us to remand the case with instruction to the trial court to order that the remaining balance of the funds, after payment of umpire and appraisal fees, be paid to her. She notes that the court‘s order of November 18, 2004, did not specify how the remaining funds should be distributed. Washington Mutual Bank, however, argues that the “corrected judgment” later issued by the court and filed on May 16, 2006, adequately addressed the omission by distributing the remaining funds to it. We agree with Washington Mutual Bank. At oral argument before this court, the defendant‘s counsel stated that the defendant does not dispute the contract she had with Washington Mutual
Bank under which Washington Mutual Bank would have actual possession and control of any proceeds until such time as the necessary repairs are made. Neither the defendant nor Washington Mutual Bank took exception to the “corrected judgment.”
“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction . . . .” (Internal quotation marks omitted.) Cammarota v. Planning & Zoning Commission, 97 Conn. App. 783, 796, 906 A.2d 741, cert. denied, 280 Conn. 941, 912 A.2d 475 (2006). As there is no actual controversy, at least at this time, between the defendant and Washington Mutual Bank as to the distribution of the proceeds between them, and there is no argument that the corrected judgment order is incorrect, we reject the defendant‘s claim.
The judgment is reversed only as to the determination of the amount due to the appraiser, Robert D‘Amore, and as to the award of interest thereon, and the case is remanded for a new trial on the appraisal fee. The judgment is affirmed in all other respects.
In this opinion GRUENDEL, J., concurred.
BISHOP, J., concurring. I agree with the result reached by my colleagues and with the opinion‘s well reasoned analyses of the claims regarding prejudgment interest and the distribution of excess funds. I write separately, however, because I do not believe the record supports a finding that the trial court based its evidentiary rulings on a misinterpretation of the law, thereby entitling us to exercise plenary review. I believe that repeated statements by the trial court that “I can‘t allow you to do it now” or language in a similar vein reflect no more than colloquial speech and that these statements do not suggest that the court believed itself
legally impotent to accede to the requests of the defendant Heather Christie. Having determined that the court did not rule as a matter of law, I would not accord plenary review to the defendant‘s evidentiary claims. Because I believe that the record fairly supports the conclusion that in refusing to balance the defendant‘s requests for the production of documents with the orderly conduct of the trial, the court failed to exercise its discretion properly, I concur with the result reached by my colleagues, although I take a different path.
Notes
We accord wide deference to the initial determinations of the trial court, although the appellate courts of this state will reverse the ruling of a trial court when they conclude that the court has abused its discretion. See, e.g., Burns v. Hanson, 249 Conn. 809, 825-28, 734 A.2d 964 (1999) (reversing evidentiary ruling as abuse of discretion); Esposito v. Presnick, 15 Conn. App. 654, 661-65, 546 A.2d 899 (holding that court abused discretion in sustaining objection to admission of tape recordings into evidence), cert. denied, 209 Conn. 819, 551 A.2d 755 (1988).
Here, there are several reasons that lead us to conclude that the court would have abused its discretion, were that the appropriate test, when it mechanically denied each of the defendant‘s requests to examine certain documents in D‘Amore‘s possession. First, the defendant was acting pro se, and although this does not excuse her from learning the relevant rules of
procedure, it is the court‘s long-standing policy to apply the rules of procedure liberally in favor of the pro se party, untrained in the law, when it does not interfere with the rights of other parties. Vanguard Engineering, Inc. v. Anderson, 83 Conn. App. 62, 65, 848 A.2d 545 (2004).Second, it appears that at least some of the requested material was in the courtroom, and perhaps even in the hand of D‘Amore or his counsel, at the time of the request. It is difficult to see how allowing the defendant to examine at least some of the documents would lead to undue delay. Nor is it apparent how allowing the defendant to examine at least some of the requested documents would unfairly prejudice D‘Amore, particularly when D‘Amore stated that he would be “happy” to give her at least one of the requested documents. The information contained in the documents the defendant wanted to examine was not collateral, but rather the documents were directly related to D‘Amore‘s calculation of his bill, the reasonableness of which was the ultimate issue between the defendant and D‘Amore.
Finally, and perhaps most importantly, the transcript reveals that the defendant may have, in fact, requested that at least some of the documents in question be disclosed prior to trial, but the court did not allow her to offer evidence of this even when she claimed to have had the evidence in her hand, instead implicitly ruling that she had made no such request.