Lappostato v. Terk

Citation71 A.3d 552,143 Conn.App. 384
Decision Date18 June 2013
Docket NumberNo. 34733.,34733.
CourtAppellate Court of Connecticut
PartiesRosario LAPPOSTATO v. Glenn TERK.

OPINION TEXT STARTS HERE

Salvatore Bonanno, Hartford, with whom was Glenn T. Terk, Wethersfield, for the appellant (defendant).

Brennen C. Maki, West Hartford, for the appellee (plaintiff).

DiPENTIMA, C.J., and KELLER and BISHOP, Js.

KELLER, J.

In this negligent misrepresentation action, the defendant, Glenn Terk, appeals from the judgment of the trial court awarding damages to the plaintiff, Rosario Lappostato, and denying the defendant's postverdict motions. The defendant claims that the court improperly (1) denied his motion for a mistrial, (2) admitted into evidence certain exhibits over his objections, (3) denied his motion for remittitur, (4) denied his motions to set aside the verdict and for judgment notwithstanding the verdict, and (5) failed to conclude that the plaintiff's claims were barred by the applicable statute of limitations. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On April 9, 2010, the plaintiff initiated the action underlying this appeal by filing a complaint in which he alleged negligent misrepresentation by the defendant.1 The matter was tried to a jury on May 24, 25, 30 and 31, 2012. On the basis of the evidence and testimony presented at trial, the jury reasonably could have found the following facts. The defendant is an attorney in Wethersfield who has been in practice for more than thirty years. In 2007 and 2008, he represented Anthony Quintiliani in matters that involved Quintiliani's attempts to obtain millions of dollars purportedly owed to him through international transactions. Before November, 2007, the plaintiff had loaned some money to Quintiliani, expecting to receive a return.

In November, 2007, after the plaintiff expressed reluctance to give Quintiliani more money, Quintiliani had the defendant call the plaintiff. The defendant reassured the plaintiff about the legitimacy of the transaction in which Quintiliani was involved but refused to give the plaintiff details about the transaction, claiming they were confidential. The plaintiff relied on these representations and began investing more of his money with Quintiliani. Following his conversation with the defendant, the plaintiff gave Quintiliani between $15,000 to $25,000 and continued to invest substantial sums of money with him over the course of the next year.

Starting in March, 2008, the defendant authored a series of letters relating to his representation of Quintiliani in connection with his efforts to obtain money through international transactions. The defendant gave the first letter, dated March 12, 2008, to the plaintiff in person. The letter indicated that the defendant represented Quintiliani in connection with his receipt of a sum of money in excess of $5 million and stated that the defendant was in possession of certificates for the release of those funds, that the funds would be released upon the plaintiff's payment of a nonresident tax in the amount of $22,500 and that the funds would be wired to the defendant's trustee account. The defendant did not investigate whether the certificates referenced in the letter were legitimate. Although the plaintiff did not wire $22,500 to the defendant's trustee account, he ultimately did wire that amount to another account on April 16, 2008, in order to have the funds released. The plaintiff also wired $20,815 from his bank account on March 20, 2008, as payment for a nonresident tax so that a large sum of money could be released. In a letter to the plaintiff dated May 2, 2008, the defendant stated that he received confirmation that the funds would be wired to his trustee account within three to four days and that the plaintiff would receive a check from his office upon receipt of the funds.

In a May 15, 2008 letter to the plaintiff, the defendant described another transaction in which more than $9 million was to be wired to the defendant's trustee account from an account in Quintiliani's name at the Canadian Imperial Bank of Commerce. The defendant stated that the plaintiff would receive a check from his office upon the receipt of those funds. The defendant wrote to the plaintiff again on July 9, July 24 and August 4, 2008, in order to keep him updated regarding the status of the Canadian funds.

In a September 25, 2008 letter to the plaintiff, the defendant stated that Quintiliani informed him that a sum of money had arrived and that the plaintiff would be “repaid for [his] loans” the following day. Following his receipt of this letter and a conversation with the defendant in which he was told that $2200 was necessary to secure the release of $2 million, the plaintiff left $2200 in cash for Quintiliani at the defendant's office.

The defendant also had in his file a fax addressed to a third party that referred to his representation of Quintiliani in connection with a transaction in which Quintiliani agreed to pay the third party $2 million in exchange for the third party's payment of $225,000 that would be used to secure the release of $30 million from a private investor in Asia. Attached to the fax were several certificates that supposedly were required for the release of the funds. The certificates contained numerous spelling and typographical errors. The defendant did not determine whether the certificates were legitimate.

Approximately one year prior to the plaintiff's investment of any money, the defendant had conversations with Guilio Cessario—another individual who invested with Quintiliani—in which they discussed Quintiliani's transactions and expressed concerns that Cessario's investments were not legitimate and that Quintiliani was not being forthright. During one conversation, the defendant and Cessario “kind of laugh[ed] about the fact that Cessario's investment with Quintiliani was not going to come to fruition. Cessario told the defendant that he believed that his whole investment was a scam. The defendant never told the plaintiff about the content of this conversation. The defendant did not understand some of the transactions in which he represented Quintiliani, and he did not tell the plaintiff about this lack of understanding or that he had serious concerns about the transactions.

When the plaintiff inquired as to the status of his investments, the defendant told the plaintiff that he would take care of him and that he would be paid when the money came into the defendant's trustee account. The defendant told the plaintiff that the things happening in his investment with Quintiliani were “true,” that he had nothing to worry about and that everything was “good.” In one conversation regarding the plaintiff's investment with Quintiliani, the defendant told the plaintiff that $100 million would be produced from his investment.

The plaintiff relied on the letters from the defendant and his discussions with the defendant in deciding to contribute money to the various investments with Quintiliani. The funds that were supposed to be transferred to the defendant's account never arrived. The plaintiff never received a return payment for his investments. The defendant acknowledged that the Canadian bank transaction in which the plaintiff invested turned out to be a scam. The plaintiff did not discover that any of his investments with Quintiliani were a scam until sometime after Quintiliani died on October 11, 2008.

On May 31, 2012, the jury returned a verdict in favor of the plaintiff in the amount of $53,315.2 On June 7, [143 Conn.App. 391]2012, the defendant filed a motion for remittitur, a motion to set aside the verdict and a motion for judgment notwithstanding the verdict. On June 19, 2012, the court denied the defendant's three postverdict motions and rendered judgment in favor of the plaintiff in accordance with the jury's verdict. On the same day, the defendant appealed from the judgment of the court in which it accepted the jury's verdict. On July 31, 2012, the defendant amended his appeal to include a challenge to the judgment of the court denying his three June 7, 2012 postverdict motions. The amended appeal is presently before us. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred by denying his motion for a mistrial after the plaintiff's counsel violated the court's order precluding any testimony or evidence referring to Nigeria or the phrase “Nigerian bank scam.” Specifically, the defendant claims that he was deprived of a fair trial when the court improperly allowed the plaintiff to publish to the jury and question a witness regarding an exhibit which contained references to Nigeria and a Nigerian bank in violation of the court's order. We are not persuaded.

The following additional facts are relevant to our resolution of this claim. On May 23, 2012, the defendant filed a motion in limine requesting that the court prohibit the plaintiff from “referring to or entering into evidence any information, testimony or documents [referring] to the term ‘Nigerian Bank Scam’ or similar.” In his motion, the defendant stated that [i]n all letters the defendant wrote to the plaintiff, reference was only made to the Canadian Imperial Bank of Commerce ... never was any reference made to any other bank.” He claimed that any reference to “Nigerian Bank Scam” or “similar” would cause the jury to be unduly prejudiced against him, would confuse the jury as to what the letters written from the defendant to the plaintiff truly purported and would inordinately inflame the passions of the jury against the defendant. Further, the defendant claimed that [b]y limiting [the] evidence to the claims relating to the letters the defendant wrote to the plaintiff that reference only the [Canadian Imperial Bank of Commerce], [the trial court] will assure the defendant is afforded a fair trial....” 3

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