Connecticut Bank and Trust Co., N.A. v. Reckert, 11897

• Decision Date: 08 March 1994
• Docket Number: No. 11897,11897
• Citation: 33 Conn.App. 702,638 A.2d 44
• Court: Connecticut Court of Appeals
• Parties: CONNECTICUT BANK AND TRUST COMPANY, N.A. v. Carol RECKERT, et al

Page 44

638 A.2d 44

33 Conn.App. 702

CONNECTICUT BANK AND TRUST COMPANY, N.A. v. Carol RECKERT, et al.

No. 11897.

Appellate Court of Connecticut,

Argued Nov. 8, 1993.

Decided March 8, 1994.

Susan Webb, Bridgeport, with whom, on the brief, was Bernard Green, for appellant (named defendant, third party plaintiff).

Michael P. Foley, Jr., Hartford, for appellee (substitute plaintiff).

Jeffrey A. Blueweiss, Bridgeport, for appellee (third party defendant).

Before FOTI, LAVERY and CRETELLA, JJ.

LAVERY, Judge.

Carol Reckert, the defendant and third party plaintiff, appeals from the judgment of the trial court granting strict foreclosure for the substitute plaintiff, Fleet Bank, N.A. (Fleet), ¹ and from the summary judgment for the third party defendant, John Lackland, on the third party complaint. On appeal, Reckert claims that the trial court improperly (1) rendered judgment of strict foreclosure absent evidence that Fleet in fact held the mortgage being foreclosed, (2) permitted an expert witness to testify in violation of the parties' agreement, and (3) admitted inadmissible hearsay evidence on the value of the mortgage debt. Reckert also claims that the trial court improperly rendered summary judgment in favor of the third party defendant. We reverse the judgment of strict foreclosure, but affirm the summary judgment in part and reverse it in part.

This appeal arises from an action brought by Fleet to foreclose a mortgage securing a home equity loan of $80,000 executed in 1986 between Reckert and the Connecticut Bank and Trust Company (CBT). As security, Reckert mortgaged her property at 1404 Round Hill Road in Fairfield. ² Reckert executed the note through Lackland, who purported to act under a power of attorney. Reckert impleaded Lackland as a third party defendant, claiming that he had negligently exceeded his authority, breached an oral contract and violated fair trade practices. Lackland counterclaimed that Reckert had defrauded him.

After trial, the court rendered judgment of strict foreclosure. The trial court also granted Lackland's motion for summary judgment on the third party complaint. The counterclaim was not adjudicated. This appeal resulted.

I

A

Reckert first argues that the judgment of strict foreclosure was based on evidence insufficient to establish Fleet's ownership of the mortgage. When considering a sufficiency of the evidence claim, our role is clear. "The function of an appellate court is to review, and not to retry, the proceedings of the trial court.... Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law...." (Citations omitted; internal quotation marks omitted.) Naughton v. Hager, 29 Conn.App. 181, 184-85, 614 A.2d 852, cert. denied, 224 Conn. 920, 618 A.2d 527 (1992). "In a civil case, proof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact...." (Citations omitted; internal quotation marks omitted). Milano v. Sayers 6 Conn.App. 491, 497, 506 A.2d 162, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986).

Reckert's mortgage deed listed CBT as the mortgagee. Debora Mitkivicious, a Fleet assistant branch manager, testified that the Federal Deposit Insurance Corporation was CBT's receiver and had sold CBT and all of its assets to Fleet. She also stated that she obtained Reckert's mortgage documents and information from Fleet's office in Hartford. Although Fleet did not submit evidence of an assignment and thereby eliminate every other possibility, the evidence presented permitted the court reasonably to believe in the probability that Fleet owned the mortgage. Therefore, the evidence was sufficient and Reckert's first claim must fail.

B

Reckert also claims that the trial court abused its discretion by admitting testimony of Fleet's appraiser, Terrence W. Keegan. This testimony was offered despite the parties' stipulation that they would rely solely on an appraisal prepared by Morris Lefsetz. Keegan's testimony, and the court's refusal to grant Reckert a continuance in order to obtain a new expert, severely and unfairly prejudiced Reckert's case.

Both parties admitted to the trial court that they had previously stipulated that they would establish the value of the mortgaged property through the appraisal prepared by Lefsetz, who had recently died. Lefsetz had appraised the property at $450,000. On October 21, 1992, however, Fleet notified Reckert that it was hiring another appraiser to look at the property. On October 22, the night before the trial began, Fleet disclosed to Reckert that it intended to offer Keegan's testimony that the property was worth $330,000.

When the trial began on October 23, Reckert objected to Keegan's testimony on the grounds that it violated the parties' stipulation and Practice Book § 220(D) ³ regarding disclosure of expert witnesses. The trial court overruled the objection and refused to grant Reckert a continuance in order to hire another appraiser.

"A stipulation is a contract, and, as such, the construction of that contract is controlled by the parties' intent." Connecticut National Bank v. N.E. Owen II, Inc., 22 Conn.App. 468, 473-74, 578 A.2d 655 (1990), citing Albert Mendel & Son, Inc. v. Krogh, 4 Conn.App. 117, 122-23, 492 A.2d 536 (1985). Fleet admits that it agreed with Reckert to establish the value of the property being foreclosed using Lefsetz' appraisal. Reckert relied on that stipulation and did not hire another expert after Lefsetz died.

Fleet's actions coupled with the trial court's denial of Reckert's request for a continuance left Reckert with only a written appraisal to counter Keegan's extensive live testimony. Further, under the parties' stipulation, the sole evidence on the value of the property would have established a value of $450,000; Keegan's testimony resulted in the court's valuation of the property at $390,000.

Moreover, Fleet failed to satisfy Practice Book § 220(D). That rule requires plaintiffs to disclose the names of experts expected to testify within sixty days of the claim for trial. Experts not disclosed within that time "shall not testify except in the discretion of the court for good cause shown." (Emphasis added.) Practice Book § 220(D). "Neither § 220(D) nor the cases interpreting it define what constitutes 'good cause.' ..." Knock v. Knock, 224 Conn. 776, 782-83, 621 A.2d 267 (1993). "In determining whether the trial court has abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court's decision." Id., at 783, 621 A.2d 267.

Fleet claimed this action to the trial list on September 4, 1991. Fleet first disclosed Keegan's expected testimony on October 21, 1992. Thus, in light of the prior understanding, Keegan should not have been permitted to testify absent good cause. Fleet's counsel explained to the court at trial that Keegan was retained because counsel became dissatisfied with the stipulation of the property's value. Despite our duty to entertain every reasonable presumption in favor of the trial court's decision, we cannot agree that changing one's mind is sufficient good cause to violate a rule of practice. See, e.g., id. (new expert necessary to rebut plaintiff's new expert; plaintiff sought no continuance); Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992) (new experts testifying on same topic and defendant granted continuance to prepare cross-examination). "The discovery rules ... are designed to make a trial less a game of blindman's buff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent." (Internal quotation marks omitted.) Knock v. Knock, supra, 224 Conn. at 782, 621 A.2d 267.

Further, "when a party is prejudiced by a failure to disclose in a timely manner, a continuance is ordinarily the proper method to alleviate any prejudice." Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 52, 634 A.2d 870 (1993). Here, Reckert learned that Fleet was abandoning its stipulation only two days before trial. Reckert was deprived of an opportunity to obtain a new appraisal and prepare to cross-examine Keegan. A continuance would have been proper under the circumstances. See id.

Thus, it is clear that Fleet's breach of the stipulation and the trial court's denial of Reckert's request for a continuance unfairly prejudiced Reckert. Keegan should have been excluded, or Reckert should have been permitted time to prepare a new appraisal and to cross-examine Keegan properly.

C

Reckert next claims that a portion of Mitkivicious' testimony was inadmissible hearsay. Fleet attempted to prove the amount still outstanding on the mortgage through her testimony. She testified that she had called the home equity department of her bank and had been told the balance due by a person whose name she did not remember. Reckert's hearsay objection was overruled.

On review, we will set aside evidentiary rulings only upon a showing of a clear abuse of discretion. Gemme v. Goldberg, 31 Conn.App. 527, 539, 626 A.2d 318 (1993). An out-of-court statement offered to prove the truth of the matter asserted in the statement is hearsay. State v. Crafts, 226 Conn. 237, 253, 627 A.2d 877 (1993). Unless subject to an exception, hearsay is inadmissible. State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993). Mitkivicious' testimony consisted of a repetition of her telephone conversation with an unidentified person. The statement was made out-of-court and offered to prove the remaining balance. Thus, the statement was hearsay.

Fleet claims that this hearsay was admissible under the business...