Drew v. K-Mart Corp.

• Decision Date: 14 March 1995
• Docket Number: No. 12726,K-MART,12726
• Parties: Mildred DREW et al. v.CORPORATION.
• Court: Connecticut Court of Appeals

Page 806

655 A.2d 806

37 Conn.App. 239

Mildred DREW et al. v. K-MART CORPORATION.

No. 12726.

Appellate Court of Connecticut.

Argued Dec. 6, 1994.

Decided March 14, 1995.

W. Martyn Philpot, Jr., New Haven, for appellant (named plaintiff).

Frederick J. Trotta, with whom, on the brief, were Eileen M. Condon and Joseph F. Trotta, New Haven, for appellee (defendant).

Before DUPONT, C.J., and LANDAU and HENNESSY, JJ.

HENNESSY, Judge.

The plaintiff Mildred Drew ¹ appeals from the judgment of the trial court, following a jury trial, in favor of the defendant, K-Mart Corporation, on all counts of her complaint. The plaintiff claims that the trial court improperly (1) denied her motion to amend the revised complaint, (2) instructed the jury to disregard the defendant's regulations relative to the apprehension of shoplifters, (3) prevented plaintiff's counsel from mentioning the issue of humiliation during closing argument, (4) failed to grant a mistrial when the plaintiff's son was questioned about a previous misdemeanor conviction, (5) refused to allow the defendant's responses to requests for admission into evidence, and (6) directed a verdict in favor of the defendant on the fourth count of the revised complaint, alleging intentional infliction of emotional distress.

The jury could reasonably have found the following facts. On November 21, 1987, the plaintiff and her son were at a K-Mart store in Orange. The plaintiff's son was wearing one new Timberland boot and one casual walking shoe. Upon leaving the store, the plaintiff's son was approached by a K-Mart loss prevention manager who identified himself, inquired about the boot and asked the plaintiff's son if he had a receipt. This confrontation escalated into a physical altercation between K-Mart's security personnel and the plaintiff's son. At one point, the plaintiff was involved in the melee, and she was subsequently arrested by the police.

The plaintiff and her son brought suit against K-Mart for injuries and damages resulting from the altercation outside the store. The action was tried on the third, fourth and fifth counts of a revised complaint containing five counts. The first two counts, which became inoperative when the plaintiff's son withdrew from the lawsuit, alleged causes of action for false imprisonment and intentional infliction of emotional distress on behalf of the plaintiff's son. The third count alleged that the plaintiff sustained injury as a result of the negligence of K-Mart's personnel in the confrontation of her son following the suspected shoplifting incident. The fourth count alleged a cause of action for intentional infliction of emotional distress on behalf of the plaintiff. The fifth count alleged a cause of action for assault and battery on behalf of the plaintiff.

At the close of the evidence, the trial court granted the defendant's motion for a directed verdict on the fourth count of the complaint alleging intentional infliction of emotional distress. Following deliberations, the jury returned a verdict in favor of the defendant on both the third and fifth counts of the complaint. The trial court thereafter denied the plaintiff's motion to set aside the verdict, and rendered judgment for the defendant on these counts.

I

The plaintiff first claims that the trial court improperly denied two motions to amend the revised complaint. The plaintiff argues that the trial court's refusal to allow the filing of at least one of two substitute complaints she offered was an abuse of discretion because amended pleadings may be allowed at any time and the proposed substitute complaints would not have inconvenienced the defendant or delayed the trial. We disagree.

The following additional facts are necessary for resolution of this issue. The revised complaint was filed on January 6, 1989. The defendant filed an answer and special defenses on November 16, 1989. The plaintiff filed a reply to the special defenses on November 20, 1989. On April 26, 1993, on the first day of trial, after the plaintiff's son had withdrawn his claims, the plaintiff made two oral motions to file substitute complaints. The first proposed substitute complaint added a count for the false imprisonment of the plaintiff, and an additional count for intentional infliction of emotional distress. The second proposed substitute complaint included only the three counts from the revised complaint, but contained allegations of detainment of the plaintiff that had not appeared in the revised complaint. The trial court denied both motions to file the substitute complaints.

It is within the discretion of the trial court to allow an amendment to pleadings at any time. Capitol Restorations Corp. v. Construction Services of Bristol, Inc., 25 Conn.App. 681, 685, 596 A.2d 927 (1991). "Factors to be considered in determining whether leave to amend should be granted are the length of the delay, the fairness to the opposing party, and the negligence, if any, of the party offering the amendment." Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 360, 525 A.2d 57 (1987). The trial court's ruling on a motion to amend a pleading can be reversed only upon a clear showing of an abuse of discretion. Falby v. Zarembski, 221 Conn. 14, 24, 602 A.2d 1 (1992); Capitol Restorations Corp. v. Construction Services of Bristol, Inc., supra, 25 Conn.App. at 681, 596 A.2d 927.

In denying the plaintiff's first motion to file a substitute complaint, the trial court considered that no amendments had been proposed since the filing of the revised complaint more than four years earlier, and that the false imprisonment claim was an entirely new cause of action raised for the first time on the day of trial. Later that same day, the plaintiff introduced the second proposed substitute complaint, telling the trial court that its three counts mirrored the counts involving the plaintiff that appeared in the revised complaint. The trial court denied this motion to file a substitute complaint because the third, fourth and fifth counts of the revised complaint formed the operative complaint, and a substitute complaint was not necessary. ² We further note that the second proposed substitute complaint did not mirror the revised complaint and, upon inspection by the trial court, the motion to amend could have been denied for this reason as well. We conclude that the trial court was acting well within the bounds of its discretion in denying each of these motions.

II

The plaintiff next claims that the trial court improperly instructed the jury to disregard the defendant's in-house regulations relative to the apprehension of shoplifters. The plaintiff argues that the instruction given by the trial court on the issue of negligence was, as a result of the challenged portion, unduly narrow. It is unnecessary for us to review this issue because it has not been properly preserved.

Practice Book § 315 provides that a claimed error in giving a charge to the jury will be reviewed on appeal only if the party submitted a written request to charge or took an exception to the charge and clearly stated the reasons for the exception. ³ See also Rossi v. Stanback, 36 Conn.App. 328, 335, 650 A.2d 920 (1994). "The purpose of the rule is to alert the court to claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials." (Internal quotation marks omitted.) Id., quoting Berry v. Loiseau, 223 Conn. 786, 814, 614 A.2d 414 (1992).

A review of the record indicates that the plaintiff did request a general charge on negligence but did not request a specific charge on negligence and its relationship to the defendant's in-house regulations relative to the apprehension of shoplifters. At the conclusion of the trial court's charge to the jury, the plaintiff's counsel made a general objection to the charge given on the negligence count, but did not specify what his objection was or offer argument in support of his objection. ⁴ Our Supreme Court has held that an "imprecise reference" does not reasonably alert the trial court to possible deficiencies in the charge. Berry v. Loiseau, supra, 223 Conn. at 816, 614 A.2d 414. "Counsel thus failed to 'state distinctly the matter objected to and the ground of objection' as required by Practice Book § 315 for appellate review." Id. Accordingly, we do not reach the merits of this claim.

III

The plaintiff next claims that the court improperly admonished her attorney not to mention the issue of humiliation during closing argument. The plaintiff argues that the judge's "surprisingly vigorous reprimand of counsel ... created an unexpected and prejudicial chill over the trial court proceedings" and thereby deprived the plaintiff of "a fair and balanced atmosphere" for the resolution of her claim. ⁵ The plaintiff claims, essentially, that the trial judge should have disqualified herself or declared a mistrial.

"We [do] not ordinarily review on appeal a claim that a trial judge should have disqualified himself or declared a mistrial at a certain stage of the proceedings when no such request was made during the trial." Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982) (citing what is now Practice Book § 4185); ⁶ see also State v. Burnhannan, 34 Conn.App. 537, 541, 642 A.2d 59 (1994).

The facts of this case are clearly distinguishable from cases where judicial improprieties have been reviewed as plain error. In Cameron v. Cameron, supra, 187 Conn. at 163, 444 A.2d 915, for example, there were numerous incidents in which the comments of the trial judge evinced profound bias against both the defendant and defendant's attorney. Here, the plaintiff's appellate argument of prejudicial bias on the part of the trial judge revolves around a single incident, outside the presence of the jury, in which the trial judge's comments are not blatantly objectionable. ⁷ Although a...