Booker v. Stern

• Decision Date: 08 August 1989
• Docket Number: No. 7170,7170
• Citation: 563 A.2d 305,19 Conn.App. 322
• Parties: Rhonda BOOKER v. Michael K. STERN.
• Court: Connecticut Court of Appeals

Page 305

563 A.2d 305

19 Conn.App. 322

Rhonda BOOKER v. Michael K. STERN.

No. 7170.

Appellate Court of Connecticut.

Argued May 11, 1989.

Decided Aug. 8, 1989.

Gary F. Gottesman, Hartford, for appellant (defendant).

Gilbert Shasha, with whom, on the brief, was Barry J. Ward, New London, for appellee (plaintiff).

Before DUPONT, C.J., and DALY and STOUGHTON, JJ.

STOUGHTON, Judge.

A jury found in favor of the plaintiff on the first and fifth counts of a five count amended revised complaint. From the judgment rendered on each of those two counts, the defendant has appealed.

The defendant claims that the trial court erred (1) in admitting into evidence a photocopy of a check, (2) in excluding certain evidence concerning the plaintiff's conduct, (3) in refusing to submit interrogatories to the jury, and (4) in admitting certain photographs into evidence.

Some discussion of the facts is necessary to understand the claims made and our resolution of those claims. From the evidence presented, the jury reasonably could have found the following facts. The plaintiff met the defendant in 1984. The defendant was a builder and developer and had many business interests, including his interests in a real estate brokerage company, a mortgage company and a beauty salon. A close personal relationship developed between the plaintiff and the defendant, and she obtained a job at his beauty salon.

The plaintiff owned a house in North Stonington. In addition, she was executrix and sole heir of her father's estate which included a house at Lord's Point in Stonington. The plaintiff mortgaged both properties to obtain money to pay off various debts. When she was unable to meet the mortgage payments, the plaintiff was faced with the likelihood of foreclosure and decided to sell the Lord's Point property. The defendant suggested that the Lord's Point property needed repairs before it would sell. He suggested that the plaintiff would solve her financial problems by renovating the Lord's Point property for sale and an upstairs apartment in the North Stonington house for rental.

On October 31, 1984, the plaintiff, as executrix of her father's estate, conveyed the Lord's Point property to the defendant for $60,000. The deed falsely recited the consideration as $85,000. A housing and urban development closing statement also gave the sales price as $85,000, and falsely showed $25,000 as having been paid by the defendant for repairs. The mortgage was paid off out of the proceeds of the sale. On January 30, 1985, the defendant sold the Lord's Point property for $79,000. No repair work had been done on the property. The defendant retained the proceeds of sale, despite his earlier representation that the property could be renovated and sold at a profit that the plaintiff would receive.

Also, on October 31, 1984, the defendant arranged for the plaintiff to borrow $29,600 from his mortgage company, secured by a mortgage on the North Stonington property. The plaintiff turned over $22,000 to the defendant who promised to use it to pay for renovations and to pay the mortgage payments. The defendant hired workmen who began renovations on the apartment in the house in North Stonington. They stopped work the week before Christmas, leaving the work unfinished. The work done was of poor workmanship and there were a number of code violations. The defendant told the plaintiff that the $22,000 fund had been exhausted.

The plaintiff claimed in the first count of her complaint, that the defendant had fraudulently deprived her of approximately $25,000 in the purchase of the Lord's Point property. In the second count, she claimed that the defendant had converted to his own use certain personal property stored at Lord's Point. In the third count, she claimed that the defendant had been unjustly enriched by approximately $25,000. In the fourth count, she claimed that the defendant had fraudulently deprived her of approximately $25,000 in failing to complete renovations and to pay mortgage instalments on the North Stonington property, and, in the fifth count, she claimed that the defendant had breached his agreement to renovate the North Stonington property.

The first claim of error arises out of the introduction into evidence of a photocopy of a check. The defendant responded to interrogatories propounded by the plaintiff by stating, among other things, that he had spent over $5000 on repairs to the Lord's Point property. He showed, as one of the expenditures, a payment to PRO Cleaners for interior and exterior cleaning and maintenance. He also produced a bill from PRO Cleaners for $500 and a photocopy of check number 775 drawn on Realty Management Associates for $500 payable to PRO Cleaners, signed by Michael K. Stern, and marked "Lord's Pt.--Ston." Stern was called as a witness by the plaintiff and testified that the signature on the check was his but that he had did not know what had been produced by his lawyers. He also said that his secretary had signed his name on the check. He testified that his secretary was authorized to sign his name on checks to pay bills, that the bills produced for work at Lord's Point might have been for work done at the other house and that he did not think the work referred to was done at Lord's Point. The defendant had signed an affidavit stating that the answers to the interrogatories and request for production were true and correct. The documents that had been produced, including the check for $500 payable to PRO Cleaners, were offered and marked exhibit nine. The defendant specifically denied having prepared altered copies of the actual checks, and testified that many original records had since disappeared from his office.

Against this background, the plaintiff called Mary Lou Ferguson, the defendant's secretary, as a rebuttal witness. Ferguson testified that the defendant had directed her on many occasions to prepare false invoices. She testified that PRO Cleaners did not exist at the time of this transaction and suggested that a copy of the check as it passed through the bank would show a different payee.

After the plaintiff had rested, she was permitted to open her case to offer a photostatic copy of check number 775 which had been obtained by subpoena from the Norwich Savings Society. This check was payable to Michael K. Stern and signed and endorsed by him. The defendant objected, claiming that the copy was hearsay and that the original had not been requested or produced. The court overruled the objection.

The plaintiff recalled Ferguson who testified that she wrote check number 775, that it was made out to the defendant and that exhibit nine was an altered copy of the check.

The copy of the check produced by the bank was direct evidence of the fraud alleged by the plaintiff. It contradicted testimony by the defendant and corroborated testimony by the witness Ferguson. It was not hearsay but documentary evidence of a fraud. No objection was made that it was not the best evidence. In any case, it may have been the only evidence available in light of the defendant's testimony that many records had disappeared from his office.

The defendant argues in his brief that the copy of the check was not admissible under the business entry rule. No such objection was made in the trial court and we refuse to consider it now. Practice Book § 4185.

The defendant's next claim arises out of the exclusion by the court of certain questions propounded to the plaintiff. During the cross-examination of the plaintiff, the defendant's counsel asked if she had had sex with any member of the construction crew that the defendant sent to work on the upstairs apartment of her house. The trial judge excluded this question on the ground that it was overly prejudicial. Later, during direct examination of a defendant's witness, the defendant asked if the witness had ever known the plaintiff to be in love with anyone other than the defendant. The trial court excluded this question on the grounds of relevance. The defendant claims that exclusion of these questions was error because the plaintiff's responses would be relevant to the issue of her credibility.

The trial court has broad discretion in ruling on the admissibility of evidence. State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985). Absent a clear showing of abuse of discretion, we will not disturb the trial court's ruling that evidence is too remote from the fact it is offered to prove to be admissible. Id. In the present case, we agree with the trial court that the plaintiff's sexual conduct is remote from the issues of whether a fiduciary relationship was formed and whether the defendant had committed a fraud, and from the issue of the plaintiff's credibility.

The defendant's third claim of error is that the trial court refused to submit interrogatories to the jury. The defendant originally proposed seventy-one interrogatories. According to the defendant, each interrogatory was a paraphrase of an allegation in the plaintiff's amended revised complaint. This set of interrogatories was rejected by the trial court and the defendant agreed to reduce the number of questions. At oral argument, the defendant requested twenty-two interrogatories selected from the original seventy-one. The trial court agreed to consider this new set of interrogatories and suggested that counsel offer their arguments for or against the interrogatories as each was read aloud. In this manner, the defendant's proposed set of twenty-two interrogatories was reduced to three. Dissatisfied with this result, the defendant withdrew his request for interrogatories and objected to the procedure employed by the trial court to examine each proposed interrogatory. He also objected to the trial court's refusal to submit all twenty-two interrogatories to the jury. Thereafter, the trial court prepared five separate verdict forms, each coinciding with a different count in the plaintiff's complaint. In its...