Esposito v. Presnick, 5849

• Decision Date: 23 August 1988
• Docket Number: No. 5849,5849
• Citation: 546 A.2d 899,15 Conn.App. 654
• Court: Connecticut Court of Appeals
• Parties: Ralph H. ESPOSITO, Sr., et al. v. Daniel PRESNICK.

Page 899

546 A.2d 899

15 Conn.App. 654

Ralph H. ESPOSITO, Sr., et al. v. Daniel PRESNICK.

No. 5849.

Appellate Court of Connecticut.

Argued Feb. 18, 1988.

Decided Aug. 23, 1988.

John R. Williams, New Haven, for appellants (plaintiffs).

Daniel V. Presnick, pro se.

Before DALY, BIELUCH and FOTI, JJ.

BIELUCH, Judge.

This appeal concerns events subsequent to this court's remand in Esposito v. Presnick, 8 Conn.App. 364, 513 A.2d 165 (1986). At the close of the plaintiffs' case on retrial before a jury, the court granted the defendant's motion for a directed verdict. The plaintiffs have appealed from the judgment on that verdict. The plaintiffs claim that the trial court erred in (1) denying their request for leave to amend the complaint prior to trial, (2) disallowing evidence of tape recordings containing admissions by the defendant, and (3) directing a verdict for the defendant at the close of their case. We find error.

The following facts are relevant to an understanding of Presnick v. Esposito, supra, and this appeal from the retrial of that case. In January, 1982, the plaintiffs, Ralph H. Esposito, Sr., and Rita Esposito, husband and wife, retained the defendant, an attorney, to represent them as intervening parties in a marriage dissolution action pending between their son and his wife for the purpose of obtaining visitation rights or custody of their two minor grandchildren. Pursuant to this retainer, the defendant appeared for the plaintiffs throughout the dissolution action, but to their ultimate dissatisfaction with his advocacy of their interests.

On November 9, 1982, the plaintiffs, acting pro se, brought an action against the defendant alleging breach of contract, gross negligence, malpractice, excessive fees and harassment. On March 18, 1983, counsel appeared in their behalf. By stipulation of the parties on April 18, 1983, the plaintiffs were allowed to amend their complaint, alleging negligence, dishonesty and untruthfulness, for which they sought the return of their retainer in the first count, and damages for extreme mental and emotional distress in the second and third counts.

The defendant served a request for disclosure and production on the plaintiffs' counsel on August 10, 1983. The plaintiffs objected to two interrogatories and to the production request for "[c]opies of any and all documents which the plaintiffs intend to introduce into evidence." Although the defendant responded to these objections, the trial court failed to rule on them. The plaintiffs, however, on October 14, 1983, filed a notice of compliance with the request for interrogatories and production. Their answer to the defendant expressed continued objection to the interrogatories, and did not respond to the production request for documents.

The second and third counts of the plaintiffs' amended complaint were stricken by the court on May 11, 1984, on motion of the defendant. In its memorandum of decision, the court ruled that "[w]hile the court is satisfied that the substantive law of this jurisdiction supports a claim for emotional distress in the premises, the allegations of the second and third counts do not definitively set forth the basis for same and should be amended." Pursuant to the court's suggestion, the plaintiffs filed a further amended complaint. The defendant again moved to strike the second and third counts. This motion was also granted, the court repeating in its memorandum that the plaintiffs "must allege the factual basis upon which the claim for emotional distress is predicated." The plaintiffs thereafter filed a third amended complaint on August 31, 1984, alleging only the outstanding first count seeking the return of their retainer fee. The defendant's answer on September 5, 1984, admitted that the plaintiffs had paid the retainer fee, for which he had represented them in the dissolution action, but denied all other allegations. Upon closing of the pleadings, the plaintiffs on September 14, 1984, claimed the case for trial by jury.

On July 18, 1985, the court rendered judgment for the plaintiffs on default of the defendant for failure to obtain independent counsel as ordered by the court, subject to the defendant's right of appeal. On appeal to this court; Presnick v. Esposito, supra; the judgment was set aside and the case remanded for further proceedings. Before retrial, counsel for the plaintiffs was allowed to withdraw, and the plaintiffs again appeared pro se. On December 31, 1986, the plaintiffs moved for leave to amend their complaint by adding two additional counts alleging intentional and negligent conduct and wrongdoing, resulting in emotional, mental and physical harm. The parties appeared in court for jury selection on January 2, 1987. Prior to the proceedings, the court refused to act on the pending motion for amendment, stating: "I am not going to act on it. Let the judge who will try this case decide whether or not he will allow it." On the first day of trial, January 5, 1987, the request to amend the complaint was denied for this reason: "Now, if that were allowed, we would have to start the pleadings all over again, we wouldn't have a jury trial today." The plaintiffs duly excepted to the court's ruling.

The plaintiffs thereafter proceeded with the trial of their case, with all parties representing themselves. After the plaintiffs finished presenting their evidence, they did not formally "rest" their case. When the court made inquiry about further evidence, Esposito replied: "No, not at this time, your Honor, but I said we'll wait and see before the end of the trial, we have other evidence to present." The court then directed: "You've got to go forward now, sir, you got to put on some evidence now." When it was disclosed that the further evidence consisted of tape recordings of conversations between the plaintiffs and the defendant, the defendant objected to their introduction because of the plaintiffs' failure to produce them pursuant to his production request for "[c]opies of any and all documents which the plaintiffs intend to introduce into evidence." The court denied the admission of the tape recordings into evidence for two reasons. First, for the plaintiffs' failure to "state in your response for production that you were going to introduce any documents." Second, a ground raised by the court and not by the defendant, that the plaintiffs' "testimony is the best evidence." The plaintiffs excepted to this evidentiary ruling, but they and the court failed to have the tapes marked for identification. They did, however, make an offer of proof on the record. Thereafter on further inquiry of the court, the plaintiffs rested.

Before presenting his case, the defendant moved, in the alternative, for a directed verdict or dismissal for the plaintiffs' failure to make out a prima facie case. Considering the plaintiffs' claim to be one of malpractice, the court granted the motion for a directed verdict for their failure to present expert testimony as to the standard of care required of others engaged in the same profession in the area. After the jury returned a verdict for the defendant as directed, the plaintiffs moved to set aside the verdict and for a new trial, both of which motions were denied. The plaintiffs have appealed from the judgment rendered on the jury's verdict.

The plaintiffs claim first that the trial court abused its discretion in denying the request for leave to amend their complaint prior to trial. On December 31, 1986, the plaintiffs filed a request for leave to amend their complaint by adding counts two and three, both of which initially incorporated the first ten paragraphs of the first count. Count two was predicated on the substantive allegation that the extreme and outrageous conduct and the intentional wrongdoing of the defendant intentionally subjected the plaintiffs to severe emotional distress which resulted in bodily harm and illness to them. Count three alleged that such results were also due to the negligent conduct of the defendant. Before jury selection began on January 2, 1987, the court refused to rule on the request to amend the complaint, but postponed its consideration to a later hearing before the trial judge. The defendant did not object orally or in writing to the plaintiffs' motion on either January 2, 1987, or January 5, 1987, at the hearing on the plaintiffs' proposed amendment. Practice Book § 176. After this hearing, the trial court denied the plaintiffs' request. The reason given by the court for its disallowance of the plaintiffs' request to amend their complaint was not one of substance, merit or prejudice to the defendant, but one of convenience to the court and its calendar: "Now, if that were allowed, we would have to start the pleadings all over again, we wouldn't have a jury trial today." We find that under the circumstances of this case the trial court abused its discretion in this ruling.

" 'The grant or denial of a motion to amend the pleadings is a matter within the discretion of the trial court.' Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341, 438 A.2d 95 (1980); Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983). 'In the interest of justice courts are liberal in permitting amendments; unless there is a sound reason, refusal to allow an amendment is an abuse of discretion.' Tedesco v. Julius C. Pagano, Inc., supra. 'The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. "The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." ' (Citations omitted.) Wallingford v. Glen Valley Associates, Inc., supra, 161-62, 459 A.2d 525; quoting Tedesco v. Julius C. Pagano, Inc., supra, [182 Conn.App. at] 341-42 ." Wassell v. Hamblin, 196 Conn....