Cafro v. Brophy, (AC 18478)

• Court: Appellate Court of Connecticut
• Writing for the Court: SPEAR, J.
• Citation: 774 A.2d 206,62 Conn. App. 113
• Parties: RICHARD N. CAFRO ET AL. v. LAWRENCE P. BROPHY ET AL.
• Docket Number: (AC 18478)
• Decision Date: 06 March 2001

62 Conn. App. 113
774 A.2d 206

RICHARD N. CAFRO ET AL.
v.
LAWRENCE P. BROPHY ET AL

(AC 18478)

Appellate Court of Connecticut.

Argued April 4, 2000.

Officially released March 6, 2001.

Lavery, C. J., and Spear and Mihalakos, Js.

62 Conn. App. 114

Hugh F. Keefe, for the appellants (defendants)

Matthew J. Collins, for the appellees (plaintiffs).

Opinion

SPEAR, J.

The defendants¹ appeal from the judgment, rendered after a trial to the court, in favor of the plaintiffs, Richard N. Cafro and Janey L. Cafro, on their claim that the defendants breached certain warranties when they sold a house to the plaintiffs. The defendants' reviewable claims are that the court improperly (1) allowed rebuttal evidence through an expert witness whom the plaintiffs had not timely disclosed and limited surrebuttal, (2) ruled that the alleged defects were discovered prior to the expiration of the warranties, (3) ruled that a disclaimer of warranties in the sales contract was ineffective and (4) based its award of attorney's fees under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., on conduct that was not alleged in the complaint.² We

62 Conn. App. 115

agree with the defendants' claim pertaining to improper rebuttal testimony and reverse the judgment of the trial court

62 Conn. App. 116

The court found the following facts. The plaintiffs brought this action against the defendants in connection with the construction and sale of a single family home. On October 20, 1993, the plaintiffs and the named defendant, Lawrence P. Brophy, signed a sales agreement for the sale of real property at 263 High Street in Coventry for $218,000. Paragraph five of their agreement stated that the "buyer accepts home without any warranty express or implied except for the following: seller shall warranty for a period of one year, the structural integrity of [the] residence and that the major mechanical systems are operational." When Brophy signed the agreement, he substituted the word "frame" for the word "integrity," and the change was initialed by all parties so that the express warranty was limited to the "structural frame" of the dwelling rather than to its "structural integrity." Title was transferred on November 30, 1993

The parties engaged in a contentious closing because Brophy insisted that the property was being sold in an

62 Conn. App. 117

"as is" condition subject only to the limited express warranty. The plaintiffs believed that the contractual warranty was an additional benefit that merely supplemented the defendants' obligations that the buyers assumed were naturally implicit in the sale of any new home by a builder to its new owners. Eventually, the closing was completed.

The court found that the defendants had breached the express and implied new home warranties found in General Statutes §§ 47-116 through 47-121. The court ruled that the disclaimer of warranty in paragraph five of the sales agreement was defective in that it did not set out in detail "the warranty to be excluded," as required pursuant to § 47-118 (d). The court concluded that the plaintiffs were therefore entitled to the protection of the statutory warranties of workmanlike construction and habitability. The court found the testimony of the plaintiffs' expert, Michael Culmo, to be very credible and discounted that of the defendants' expert, Barry Steinberg, because he had done so much work for the defendants.

The court found that the house had to be demolished from the second floor upward and replaced with a properly constructed superstructure that meets the requirements of the building code. The court awarded the plaintiffs $180,000 in damages for breach of the warranty and $25,231.50 on the CUTPA claim based on the attorney's fees that they incurred in prosecuting their claims to judgment. This appeal followed.

I

The defendants claim that the court improperly allowed Culmo, an engineer who was retained by the plaintiffs and disclosed for the first time near the conclusion of the defendants' case, to testify as an expert witness in the plaintiffs' rebuttal case. Culmo's testimony was that the structure was defective, not compliant

62 Conn. App. 118

with the building code, and that it would have to be demolished from the second floor framing upward and rebuilt at a cost of $180,000.³

Practice Book § 13-4 (4) provides in relevant part: "[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all parties within a reasonable time prior to trial.... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection ... such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party...."

Near the conclusion of the defendants' case, the plaintiffs disclosed that they intended to call Culmo to testify in their rebuttal case. The defendants objected to that disclosure after the plaintiffs had rested their case-inchief. The defendants claimed that the allowance of such testimony would be prejudicial to them. The court allowed Culmo to testify in rebuttal to the defendants' evidence. We agree with the defendants that such testimony should have been precluded.

Whether to admit rebuttal evidence rests within the sound discretion of the trial court. Mezes v. Mead, 48 Conn. App. 323, 331, 709 A.2d 597 (1998). Our standard of review of the defendants' claim is that of whether the court abused its discretion in allowing this expert testimony. Id., 332. "Discretion means a legal discretion,

62 Conn. App. 119

to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... It goes without saying that the term abuse of discretion ... means that the ruling appears to have been made on untenable grounds.... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action." (Internal quotation marks omitted.) Whalen v. Ives, 37 Conn. App. 7, 21, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995).

Whether the house was structurally sound was a hotly contested issue in the trial. It was Culmo's testimony that the court apparently found persuasive in concluding that the structure would have to be demolished from the second floor upward at a cost of approximately $180,000. That was the exact estimate that Culmo gave in his testimony. That testimony, for which the defendants could not have been properly prepared, literally destroyed their case.

This case is almost on all fours with the facts of Pie Plate, Inc. v. Texaco, Inc., 35 Conn. App. 305, 645 A.2d 1044, cert. denied, 231 Conn. 935, 650 A.2d 172 (1994). In Pie Plate, Inc., the trial court precluded the testimony of the plaintiffs' expert, Dan Buzea, in the plaintiffs' case-in-chief because of a late disclosure of Buzea as an expert. "During the defendant's case-in-chief, one of the defendant['s] experts, Dennis Waslenchuk, relied on a report prepared by Buzea. On rebuttal, the plaintiffs offered Buzea's testimony regarding his report and his opinion regarding the source of the contamination on the basis of the report. The trial court again refused to permit Buzea to testify as an expert. The trial court did, however, grant permission for him to testify to the facts underlying his report.... The plaintiffs chose not to present Buzea at all." Id., 310.

62 Conn. App. 120

Here, during the defendants' case-in-chief, the defendants' expert testified about a report prepared by Culmo. The court then allowed Culmo to testify in rebuttal. In Pie Plate, Inc., we stated that "[t]he policy behind restrictions on the presentation of rebuttal testimony is that a plaintiff is not entitled to a second opportunity to present evidence that should reasonably have been presented in [its] case-in-chief.... We conclude that the trial court did not abuse its discretion by preventing Buzea from testifying as an expert on rebuttal. The plaintiffs had not disclosed him as a potential expert witness prior to trial. Thus, absent adequate time in which to prepare, the defendant would have been prejudiced." (Internal quotation marks omitted.) Id., 310-11.

The plaintiffs' argument that the court did not abuse its discretion is unpersuasive. The plaintiffs assert that the defendants failed to depose another expert whom the plaintiffs had disclosed and that the defendants' made a late disclosure of their own expert. Their argument that the defendants' failure to depose the other expert probably meant that they would not have deposed Culmo is unavailing. It is up to a party to determine whom to depose. The plaintiffs offer no authority in support of their assertion that simply because a defendant makes a late disclosure, the plaintiffs should be allowed a late disclosure for rebuttal. They also point to the fact that the defendants' expert testified at length regarding Culmo's report. As in Pie Plate, Inc., that factor is unavailing. The plaintiffs alleged that the structure of the building was defective and had the opportunity to present Culmo's testimony in support of that claim in their case-in-chief.

We conclude that the court abused its discretion in allowing an expert who was first disclosed near the end of the defense case to testify in rebuttal in support of a claim that was part of the plaintiffs' case-in-chief. Although we reverse the judgment and order a new

62 Conn. App. 121

trial, we will discuss certain other claims made by the defendants because they are likely to arise in the new trial.

II

The defendants...