Connecticut Light and Power v. Gilmore

• Decision Date: 21 October 2008
• Docket Number: No. 18081.,18081.
• Citation: 956 A.2d 1145,289 Conn. 88
• Parties: CONNECTICUT LIGHT AND POWER COMPANY v. Bess P. GILMORE et al.
• Court: Connecticut Supreme Court

956 A.2d 1145

289 Conn. 88

CONNECTICUT LIGHT AND POWER COMPANY v. Bess P. GILMORE et al.

No. 18081.

Supreme Court of Connecticut.

Argued March 14, 2008.

Decided October 21, 2008.

Douglas Gilmore, Westport, for the appellant (named defendant).

Jeanine M. Dumont, East Hartford, with whom, on the brief, was Melissa A. Nesheim for the appellee (plaintiff).

NORCOTT, KATZ, PALMER, ZARELLA and BLUE, Js.

ZARELLA, J.

In this collection action by the plaintiff, Connecticut Light & Power Company, against the defendants, Bess P. Gilmore, Douglas G. Gilmore, Keith P. Gilmore and Community Club Awards, Inc., for unpaid electric bills, the defendant Bess Gilmore¹ appeals from the judgment of the trial court rendered in favor of the plaintiff. On appeal, the defendant claims that the judgment should be reversed and a new trial ordered because: the plaintiff's attorney referred during rebuttal argument to evidence excluded at trial; the jury improperly considered the excluded evidence in reaching a verdict for the plaintiff; and three jurors failed to disclose prior business relationships with the law firm of the plaintiff's attorney. The defendant also claims that reversal is required because the trial court improperly: denied her motion for disclosure by the plaintiff's law form of all prior communications with the jurors; admitted into evidence documents offered by the plaintiff under the business records exception to the hearsay rule; instructed the jury that it could not consider that the plaintiff had charged the defendant the incorrect billing rate for a period of several years; awarded the plaintiff offer of judgment interest; and denied the defendant's motion in limine to preclude the admission of prejudicial evidence regarding prior proceedings. We affirm the judgment of the trial court.

A jury reasonably could have found the following facts. The defendant resides at 11 Harding Lane in Westport with her two adult sons, Douglas Gilmore and Keith Gilmore. The residence, which is owned by the defendant, is also used by Douglas Gilmore's law practice and Community Club Awards, Inc., a Connecticut corporation owned and operated by the defendant and her sons, as their business address. At all relevant times, the plaintiff provided electric utility services to 11 Harding Lane at a rate approved by the department of public utility control (department).

Over the years, the defendant repeatedly complained to the plaintiff about her high electric bills. In an attempt to resolve her concerns, the plaintiff conducted an energy audit of her home on August 6, 1999, and a meter test on September 29, 1999. Thereafter, the plaintiff sent a letter to the defendant stating that the meter test indicated a meter accuracy of 99.88 percent, well within the parameters established by the department for meter accuracy.

In August, 2000, the defendant requested that an independent investigation be conducted by a review officer,² which the plaintiff agreed to provide. Following the investigation, which included another energy audit and meter test, the review officer sent the defendant a letter dated September 6, 2000 (report), in which she described her findings. Upon receiving the report, the defendant requested that the department investigate the review officer's findings. On December 6, 2001, several department employees visited the defendant's home and conducted additional tests. Six months later, the department sent a report containing its findings to the defendant. See footnote 9 of this opinion.

The plaintiff continued to provide 11 Harding Lane with electric utility services, even though the defendant withheld payments on her account in defiance of repeated demands by the plaintiff that she pay her bills in full. On May 28, 2003, the plaintiff filed an application for a prejudgment remedy and a complaint against the defendant and her sons seeking to attach to the value of $25,900, their respective interests in real and personal property because of their failure to pay the defendant's electric utility bills, which amounted to $21,375.38 for services rendered to that date. After a hearing, the trial court ruled that there was probable cause to sustain the validity of the plaintiff's claim. Connecticut Light & Power Co. v. Gilmore, 89 Conn.App. 164, 166-72, 875 A.2d 546, cert. denied, 275 Conn. 906, 882 A.2d 681 (2005). On September 29, 2003, the court issued a prejudgment remedy order authorizing an attachment in the amount of $22,933.18. Id., at 168, 171, 875 A.2d 546.

On October 6, 2003, the plaintiff amended the complaint to add Community Club Awards, Inc. as a fourth defendant.³ Thereafter, the defendant and her sons appealed to the Appellate Court from the prejudgment remedy order. Id., at 165-66, 875 A.2d 546. On May 24, 2005, the Appellate Court affirmed the order with respect to the attachment of real property owned by the defendant, but reversed the order insofar as it applied to the personal property of her sons. Id., at 180-83, 875 A.2d 546.

On December 15, 2005, the plaintiff filed a revised complaint.⁴ The defendants, collectively, filed an answer and special defenses, and the defendant filed a counterclaim, after which the matter was tried to a jury. On April 18, 2006, at the start of the trial, the plaintiff withdrew its claims of unjust enrichment against all defendants. On April 24, 2006, it withdrew all remaining claims against Keith Gilmore. On April 25, 2006, following presentation of the evidence, the court acknowledged that the plaintiff had withdrawn the complaint against Keith Gilmore and directed a verdict in favor of Keith Gilmore, Douglas Gilmore and Community Club Awards, Inc. The court also directed a verdict for the plaintiff on all claims raised by the defendant's counterclaim, except for the claim alleging breach of contract. The remaining claims against the defendant were sent to the jury, which returned a verdict for the plaintiff in the amount of $45,072.94. The jury also returned a verdict for the plaintiff on the breach of contract count of the counterclaim. Thereafter, the plaintiff filed a motion for offer of judgment interest and a bill of costs, and the defendant filed motions for judgment notwithstanding the verdict and for a new trial. The court granted the plaintiff's motion for offer of judgment interest and denied the defendant's motions. On June 20, 2006, the court rendered judgment for the plaintiff in the amount of $45,072.94, plus offer of judgment interest in the amount of $14,623.67 and costs of $756.20, for a total award of $60,452.81.⁵ This appeal followed.⁶

I

The defendant first claims that the judgment should be reversed and a new trial ordered because, during rebuttal argument, counsel for the plaintiff improperly referred to evidence excluded at trial and to the defendant's repeated objections to admission of the excluded evidence. The defendant further claims that the trial court improperly failed to give the jury a curative instruction to neutralize the prejudicial effect of the rebuttal argument. The evidence in question consisted of the reports by the review officer and the department confirming the accuracy of the electric meter at the defendant's residence and concluding that there had been no error in the defendant's electric utility bills. The defendant contends that the remarks were especially damaging because the reports related to the principal question before the jury and one of the reports was issued by the department, which was lauded throughout the trial as an impartial expert on utility operations and the ultimate arbiter of the parties' dispute.

The plaintiff responds that the rebuttal argument was not improper because counsel did not disclose the contents of the reports to the jury. Furthermore, the defense objected so many times to the admission of the reports that counsel's reference to the objections did not expose the jury to anything that they did not already know. The plaintiff finally argues that the defendant is estopped from complaining about the rebuttal argument because defense counsel himself initially brought the reports to the jury's attention when he declared during closing argument that the defendant had been given no reports following visits to her home by the plaintiff and the department to investigate her complaint. Thus, counsel for the plaintiff could not be silent and allow the jury to believe that the defendant had been given no reports. We agree with the plaintiff.

At trial, when the plaintiff's counsel attempted to enter a copy of the review officer's report into evidence, defense counsel objected on hearsay grounds. The court sustained the objection but allowed Thomas Murphy, a credit and collections supervisor employed by the plaintiff, to testify that the report did not satisfy the defendant or resolve her complaints. Murphy explained that he believed this to be the case because the defendant had appealed to the department and requested another investigation after she received the report.

Murphy then testified that the department had agreed to conduct the requested investigation, and he proceeded to explain the various steps involved. Defense counsel made numerous objections to Murphy's testimony, all of which were overruled. When counsel objected to a question regarding the department's ultimate conclusions, however, the court excused the jury and conducted a hearing on the matter. The court ultimately sustained defense counsel's objection on the ground that the introduction of expert testimony regarding the department's conclusions would invade the province of the jury.⁷

After the hearing, the court did not admit evidence regarding the test results, but allowed Murphy to testify that he believed that the defendant had not been satisfied with the results because she had failed to respond to the plaintiff's subsequent request to make payments on her account. Murphy also was allowed to testify that, following the...