Dubreuil v. Witt

• Decision Date: 14 August 2001
• Docket Number: (AC 18526)
• Citation: 65 Conn. App. 35,781 A.2d 503
• Court: Connecticut Court of Appeals
• Parties: ALPHONSE T. DUBREUIL ET AL. v. OTTO P. WITT ET AL.

65 Conn. App. 35

781 A.2d 503

ALPHONSE T. DUBREUIL ET AL. v. OTTO P. WITT ET AL.

(AC 18526)

Appellate Court of Connecticut.

Argued January 25, 2001.

Officially released August 14, 2001.

Landau, Mihalakos and Daly, JS.

Otto P. Witt, with whom, on the brief, was Duane Totten, for the appellants (defendants).

Robert G. Skelton filed a brief for the appellees (plaintiffs).

Opinion

DALY, J.

In this legal malpractice case, the defendants, Otto P. Witt and Witt and Associates, P.C.,¹ appeal from the judgment, rendered after a trial to the court, awarding damages to the plaintiffs, Alphonse T. Dubreuil and Marilyn Dubreuil. On appeal, Witt claims that (1) the trial court improperly denied his motion for a default in which he alleged that the plaintiffs had failed to comply with requests for production and to answer interrogatories, (2) the court abused its discretion in that it violated his due process rights by precluding him from presenting a defense and by limiting his cross-examination of Alphonse T. Dubreuil, (3) there was insufficient evidence to support the court's rendering of judgment against Witt and Associates, P.C., (4) the court improperly found that legal malpractice had occurred even though the plaintiffs did not present expert testimony to that effect and (5) the court improperly awarded damages. We agree with Witt's second claim and, on that basis, reverse the judgment of the trial court and remand the case for a new trial.

The following facts and procedural history are relevant to the resolution of the defendants' appeal. In 1992, the plaintiffs, on behalf of A. Dubreuil and Sons, Inc. (corporation),² retained Witt to represent the corporation, in a chapter 11 bankruptcy matter. During the course of Witt's representation, the plaintiff informed Witt that Deedy Construction Company (Deedy), a subcontractor, had brought an action against both the corporation and the plaintiffs individually to recover payments allegedly due and owing for demolition work that Deedy had performed on behalf of the corporation.

On June 22, 1994, Witt failed to appear, or did not timely appear, at a pretrial conference regarding Deedy's action against the plaintiffs. As a result, a default was entered against the plaintiffs. The pretrial conference was rescheduled for August 22, 1994. Witt failed to attend, or did not appear timely at, the rescheduled conference, and a judgment of default was rendered against the plaintiffs. Witt filed a motion to open the judgment of nonsuit that subsequently was rendered against the plaintiffs. The court denied the motion on February 6, 1995. The plaintiffs claim that they then paid $32,500 in damages to Deedy in exchange for a full release.

The plaintiffs then brought an action against Witt, claiming that Witt had committed negligence and violated the Rules of Professional Conduct. In their amended complaint, the plaintiffs did not allege that they had paid any money to Deedy. The court rendered judgment against both defendants. The court requested that the plaintiffs submit an affidavit of debt and, on the basis of the plaintiffs' affidavits, awarded damages in the amount of $53,130. Additional facts will be discussed where pertinent to the issues raised.

I

We first turn to Witt's claim that the court abused its discretion in denying his motion for a default in which he alleged that the plaintiffs had failed to answer interrogatories and to comply with requests for production. We disagree.

The following additional facts are relevant to our resolution of the defendants' claim. In April, 1997, Witt served the plaintiffs with interrogatories and requests for production. After the plaintiffs failed to respond to the requests, in September, 1997, Witt filed a motion for an order of compliance pursuant to Practice Book § 231, now § 13-14,³ requesting that a nonsuit enter against the plaintiffs, and that the court order compliance and award attorney's fees. When Witt still had not received answers to either the interrogatories or the requests for production, he filed another motion for an order of compliance. On April 3, 1998, the court awarded attorney's fees to Witt for the cost of filing the motion and ruled that a nonsuit would enter against the plaintiffs unless there was compliance within two weeks.

During the first day of trial, the court ordered the plaintiffs to comply fully with Witt's discovery requests by the end of the next day. On the second day of trial, Witt made a motion for a default, claiming that the plaintiffs still had failed to comply with the prior day's order. The court concluded that the plaintiffs had complied with the discovery order and denied Witt's motion for a default.

On appeal, we review a court's decision whether to issue sanctions pursuant to Practice Book § 231, now § 13-14, under an abuse of discretion standard. Nelson v. Housing Authority, 63 Conn. App. 113, 117, 774 A.2d 1025 (2001). "In reviewing a claim that this discretion has been abused the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.... [T]he ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) Connecticut National Bank v. Investors Capital Corp., 29 Conn. App. 48, 54-55, cert. denied, 224 Conn. 902, 615 A.2d 1044 (1992).

In denying Witt's motion for a default, the court had the benefit of having before it Witt's interrogatories and requests for production, and the plaintiffs' responses. After reviewing the plaintiffs' responses, the court found that there had been compliance with the discovery requests. On the basis of the record before us, and giving every reasonable presumption in favor of the court's decision, as we must, we conclude that the court did not abuse its discretion in denying Witt's motion for a default.

II

As our resolution of the following issue effectively decides this appeal, we now address the claim that the court abused its discretion in limiting the extent of Witt's cross-examination of the plaintiff and thereby violated Witt's due process rights to present witnesses and to offer evidence.

The following additional facts are relevant to our resolution of Witt's claim. On the second day of trial, the plaintiff testified. It is the cross-examination of the plaintiff that forms the basis of Witt's claim.⁴ "In the context of a civil case, our Supreme Court, in accepting a common law right to cross-examination, stated [t]he right of cross-examination is not a privilege but [is] an absolute right...." (Internal quotation marks omitted.) Close, Jensen & Miller, P.C. v. Lomangino, 51 Conn. App. 576, 580-81, 722 A.2d 1224, cert. denied, 248 Conn. 905, 731 A.2d 306 (1999), quoting Gordon v. Indusco Management Corp., 164 Conn. 262, 271, 320 A.2d 811 (1973). "It is only after the right of cross-examination has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary with the trial court." Gordon v. Indusco Management Corp., supra, 271.

Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. Robert M. Elliott, P.C. v. Stuart, 53 Conn. App. 333, 341, 730 A.2d 1176, cert. denied, 249 Conn. 928, 733 A.2d 848 (1999). "[I]n ... matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed.... The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court." (Citations omitted; internal quotation marks omitted.) Close, Jensen & Miller, P.C. v. Lomangino, supra, 51 Conn. App. 581. "Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Internal quotation marks omitted.) Id., 582.

"In determining whether a defendant's right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial." (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992). "Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate area of inquiry" constitutes an abuse of discretion. (Internal quotation marks omitted.) Id.

It is well settled that the scope of the cross-examination of a witness is limited by the scope of the direct examination unless there is an attack on the credibility of that witness. Grievance Committee v. Dacey, 154 Conn. 129, 150, 222 A.2d 339 (1966), appeal dismissed, 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed. 2d 404 (1967). The evidence elicited during direct examination delineates the scope of cross-examination. New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 94-95, 709 A.2d 14 (1998). Further, "[a] question [on cross-examination] is within the scope of the direct examination if it is intended to rebut, impeach, modify or explain any of the [witness'] direct testimony...." (Internal quotation marks omitted.) Wright v. Hutt, 50 Conn. App. 439, 455, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998). "A party who initiates discussion of an issue, whether on direct or cross-examination, is said to have `opened the door' to inquiry by the opposing party, and cannot later object when the opposing party so questions the witness." New London Federal Savings Bank v. Tucciarone, supra, 95. After thoroughly reviewing the record in this case, we conclude that the court abused its discretion by precluding Witt from...