Close, Jensen & Miller, PC v. Lomangino, (AC 17201)

• Decision Date: 26 January 1999
• Docket Number: (AC 17201)
• Citation: 722 A.2d 1224,51 Conn. App. 576
• Court: Connecticut Court of Appeals
• Parties: CLOSE, JENSEN AND MILLER, P.C. v. FRANK LOMANGINO ET AL.

51 Conn. App. 576

722 A.2d 1224

CLOSE, JENSEN AND MILLER, P.C. v. FRANK LOMANGINO ET AL.

(AC 17201)

Appellate Court of Connecticut.

Argued November 2, 1998.

Officially released January 26, 1999.

Landau, Sullivan and Dupont, Js. Neil F. Murphy, Jr., with whom, on the brief, was P. Jo Anne Burgh, for the appellants (named defendant et al.).

Karen K. Clark, with whom, on the brief, were Donald W. Doeg and Richard M. Dighello, for the appellee (plaintiff).

Opinion

LANDAU, J.

The defendants Frank Lomangino and Adrienne Lomangino¹ appeal from the judgment rendered in favor of the plaintiff, Close, Jensen and Miller, P.C. The jury rendered verdicts in favor of the plaintiff on both its complaint and on the defendants' counterclaim. On appeal, the defendants claim that the trial court improperly (1) prohibited them from using the deposition of one of the plaintiff's former employees to impeach the testimony of the plaintiffs project manager, (2) refused to charge the jury in accordance with Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), and (3) failed to set aside the verdicts on the ground that the law and evidence required the jury to find that the plaintiff was negligent per se. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In August, 1987, the parties entered into an oral agreement whereby the plaintiff was to provide the engineering services necessary for the defendants to obtain approval to subdivide a parcel of real property they owned in the town of Somers. The Somers planning commission approved a twenty-six lot subdivision in November, 1989. As of that date, the plaintiff had billed the defendants $133,184.20 for services rendered; the defendants paid only $60,230 of that fee.

The plaintiff thereafter commenced suit against the defendants to foreclose a mechanic's lien or, in the alternative, in quantum meruit to collect the fees it alleged were due. The defendants asserted a three count counterclaim against the plaintiff alleging negligence, breach of contract and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In sum, the defendants claimed that the plaintiff failed to complete the subdivision plans in a timely and competent manner. The case was tried to a jury, which rendered verdicts in favor of the plaintiff on its complaint and on counts one and two of the defendants' counterclaim.² The trial court denied the defendants' motions to set aside the respective verdicts and a motion for remittitur. This appeal followed.

I

The defendants first claim that the trial court improperly refused to permit them to use the deposition of one of the plaintiffs former employees, John McAvoy, to impeach the credibility of the plaintiffs project manager on cross-examination. We do not agree.

The following additional facts are necessary for our resolution of this issue. McAvoy was graduated from the University of Connecticut with a degree in engineering in May, 1987, and immediately began to work for the plaintiff. At the plaintiffs direction, he worked on the development of the defendants' subdivision plan. The defendants took McAvoy's deposition prior to trial. The plaintiff's president, John Miller, and Douglas Shanley, project manager for the subdivision plan, both attended McAvoy's deposition. Shanley testified at trial on behalf of the plaintiff. On cross-examination, the defendants asked Shanley about the amount of experience McAvoy had preparing subdivision plans. According to the defendants, Shanley's response was inconsistent with McAvoy's deposition. Because Shanley was present at McAvoy's deposition, the defendants wanted to use McAvoy's deposition to impeach Shanley's veracity and ability to recall. The plaintiff objected to such use of the deposition claiming that McAvoy's testimony was mere hearsay. Neither party called McAvoy to testify.

On appeal, the defendants argue that the trial court improperly refused to let them use McAvoy's deposition, claiming that the deposition was not hearsay because it was a statement used to impeach credibility, rather than for the truth of its contents, citing State v. Rochette, 25 Conn. App. 298, 302-303, 594 A.2d 1006, cert. denied, 220 Conn. 912, 597 A.2d 337 (1991), cert. denied, 502 U.S. 1045, 112 S. Ct. 905, 116 L. Ed. 2d 806 (1992). Although we agree with the rule of law cited by the defendants, we disagree that the rule applies to the facts of this case. Contrary to their assertion, the defendants did offer McAvoy's deposition for the truth of its contents.³ "In the context of a civil case, our Supreme Court, in accepting a common law right to cross-examination, stated `[t]he right of cross-examination is not a privilege but [is] an absolute right and if one is deprived of a complete cross-examination he has a right to have the direct testimony stricken.' Gordon v. Indusco Management Corporation, 164 Conn. 262, 271, 320 A.2d 811 (1973); see also Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 140 n.10, 439 A.2d 282 (1981). This right does not, however, permit the defendant to present evidence that is irrelevant or otherwise inadmissible." Jacobs v. Thomas, 26 Conn. App. 305, 317, 600 A.2d 1378 (1991), cert. denied, 221 Conn. 914, 603 A.2d 404 (1992).

"`[I]n ... matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. Murphy v. Murphy, 74 Conn. 198, 50 A. 394 (1901); State v. McGowan, 66 Conn. 392, 34 Atl. 99 [1895].' Finch v. Weiner, 109 Conn. 616, 620, 145 A. 31 (1929)." Murphy v. Wakelee, 46 Conn. App. 425, 431, 699 A.2d 301, cert. granted on other grounds, 243 Conn. 956, 704 A.2d 805 (1997). "The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. State v. Carmon, 47 Conn. App. 813, 817, 709 A.2d 7, cert. denied, 244 Conn. 918, 714 A.2d 7 (1998). Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion.... State v. Bova, 240 Conn. 210, 219, 690 A.2d 1370 (1997)." (Internal quotation marks omitted.) Wright v. Hutt, 50 Conn. App. 439, 455, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998).

"Hearsay is an out-of-court statement offered to establish the truth of the matters contained therein. State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981)." State v. Rochette, supra, 25 Conn. App. 303. In Rochette, the defendant testified that she did not make a telephone call to a particular person on a certain day. During rebuttal, the state offered a telephone message under the business records exception to the hearsay rule to contradict the defendant's testimony. "The telephone message was not offered to establish the truth of the [defendant's statements concerning her] child's medical condition but rather, was offered to contradict the defendant's statement that she had not [made the call] on October 3 and referred to chemotherapy. Testimony that refutes evidence or impeaches a witness' credibility is proper during rebuttal, and the message, therefore, was properly admissible for this purpose. State v. Peary, 176 Conn. 170, 174-75, 405 A.2d 626 (1978) [cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979)]; Vazzano v. Slater, 6 Conn. App. 1, 5, 502 A.2d 440 (1986)." State v. Rochette, supra, 303.

Here, the defendants claim that McAvoy's deposition was not being offered for the truth of the matter. In reality, however, the purpose of the defendants' offering the deposition was to illustrate a discrepancy between Shanley's and McAvoy's testimony. See footnote 3; see also State v. Vinal, 205 Conn. 507, 512, 534 A.2d 613 (1987). The issues are ones of fact, i.e, how much experience McAvoy had prior to working on the defendants' subdivision plan, and of credibility, i.e., who is telling the truth or had the better memory. The jury is the arbiter of those issues. See State v. Aponte, 50 Conn. App. 114, 124, 718 A.2d 36, cert. granted on other grounds, 247 Conn. 926, 719 A.2d 1169 (1998); State v. Sanchez, 50 Conn. App. 145, 159, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). If the defendants wanted to contradict Shanley's testimony, they could have called McAvoy as a witness.⁴ The trial court, therefore, properly refused to permit the defendants to use McAvoy's deposition to impeach Shanley on cross-examination by illustrating a contradiction in their testimony, which goes to the truth of the matter.

II

The defendants' second claim is that the trial court improperly refused to give the jury an instruction that it could draw a negative inference from the plaintiff's failure to call McAvoy as a witness in accordance with Secondino v. New Haven Gas Co., supra, 147 Conn. 672. The trial court refused to give the Secondino charge, stating that McAvoy's testimony was only cumulative. The essence of the defendants' claim is that because they assumed that McAvoy was the plaintiffs employee who devoted the most time to the project, he was the individual whom the plaintiff would most likely call as a witness.⁵ We do not agree.

To analyze the defendants' claim, we look to the allegations of the complaint. Very simply, it is a collection action. The plaintiff was required to allege and prove that it was engaged to provide services for the defendants, that the services were provided, the amount of time it took to provide the services, and the amount and reasonableness of its fees and other expenses it incurred on behalf of the defendants. The plaintiff called Miller, its president, and Shanley, the project manager for the subdivision plan, to testify during its case-inchief; it did not call McAvoy, a technician who worked on ...