Perez v. D and L Tractor Trailer School

Citation981 A.2d 497,117 Conn.App. 680
Decision Date27 October 2009
Docket NumberNo. 29172.,29172.
CourtAppellate Court of Connecticut
PartiesDebra PEREZ v. D AND L TRACTOR TRAILER SCHOOL.

Bruce Matzkin, Branford, for the appellant-appellee (plaintiff).

Stuart Hawkins, with whom, on the brief, was Daniel Shepro, Stratford, for the appellee-appellant (defendant).

Charles Krich, principal attorney, and Darcy Jones, law student intern, filed a brief for the commission on human rights and opportunities as amicus curiae.

HARPER, LAVINE and HENNESSY, Js.

LAVINE, J.

The appeal and cross appeal in this matter concern claims of a hostile work environment, vexatious litigation, intentional infliction of emotional distress and attorney's fees. The plaintiff, Debra Perez appeals from the judgment of the trial court, rendered after a jury trial, in her favor on her claim of a hostile work environment and in favor of the defendant, C. Donald Lane, Jr., doing business as D & L Tractor Trailer School,1 on the remaining counts of her complaint. The parties also appeal from the court's award of attorney's fees to the plaintiff. The plaintiff claims that the court (1) abused its discretion with respect to several evidentiary rulings, (2) improperly permitted the defendant's counterclaim to go to the jury and (3) improperly calculated the attorney's fees it awarded her. In his cross appeal, the defendant claims that the court improperly (1) denied his motion for judgment notwithstanding the verdict and (2) awarded the plaintiff attorney's fees.2 We affirm the judgment of the trial court.

The briefs and record reveal the following relevant procedural history.3 The plaintiff commenced the underlying action on February 11, 2005, and during trial filed an amended, four count complaint (amended complaint),4 dated March 22, 2007, in which she alleged that she had been employed by the defendant from October, 2001, until March 23, 2004, when the defendant terminated her employment. In count one of the amended complaint, the plaintiff alleged that throughout her employment the defendant subjected her to sexual harassment and to harassment on the basis of her ethnicity. The defendant's conduct, it was alleged, had the effect of creating an intimidating, hostile and offensive work environment that interfered with the plaintiff's ability to perform her employment duties. As a result of the defendant's harassment, the plaintiff alleged, she suffered extreme emotional distress. Moreover, she alleged, the defendant's harassment and termination of her employment created an intimidating, hostile and offensive working environment in violation of General Statutes § 46a-60 et seq.5 She also alleged that on June 10, 2004, she filed a complaint with the commission on human rights and opportunities (commission). On January 25, 2005, the commission issued a release of jurisdiction, enabling her to bring the present action against the defendant.

In count two, the plaintiff alleged that the defendant terminated her employment on March 23, 2004, and that she subsequently was awarded unemployment benefits, which the defendant initially did not oppose. On August 6, 2004, the defendant, it was alleged, filed a late appeal from the decision awarding the plaintiff unemployment benefits, in which he falsely asserted that he had never received written notice of the award. The plaintiff also alleged that the appeal was filed after she had filed her complaint with the commission. Following a two day hearing, the plaintiff's award was affirmed. The defendant appealed to the unemployment board of review, which dismissed the appeal. The plaintiff alleged that the defendant's appeal was frivolous, without probable cause and was filed with malicious intent to harass her in retaliation for her having filed a complaint with the commission. The plaintiff alleged that the defendant's appeal from the unemployment benefits award constituted vexatious litigation in violation of General Statutes § 52-568. In count four, the plaintiff alleged that the defendant's appeal from her unemployment benefits award violated the provision of the Connecticut Fair Employment Practices Act (act) prohibiting retaliation. See General Statutes § 46a-60(a)(4). In count five, the plaintiff alleged that by filing an appeal from the unemployment benefits award, the defendant intended to inflict emotional distress on her, knew or should have known the appeal would cause her emotional distress and that she suffered severe emotional distress.

On September 25, 2006, the defendant filed an answer, special defenses and a three count counterclaim in response to the amended complaint dated July 18, 2006. The plaintiff filed a motion to strike the counterclaim, which the court denied on December 6, 2006. On December 20, 2006, the defendant filed an amended answer, special defense and a single counterclaim. In substance, the defendant's answer denied any allegations of wrongdoing. In his counterclaim, the defendant alleged intentional infliction of emotional distress in that on or about October, 2001, and at relevant times thereafter, the plaintiff made false statements that he had sexually harassed her. He further alleged that the plaintiff intended to inflict emotional distress or she knew or should have known that emotional distress was likely to result from her making false statements about his conduct. The plaintiff inflicted severe emotional distress on him, the defendant alleged, and her false allegations against him were extreme, outrageous and made without basis.

The matter was tried to the jury from March 27 to April 3, 2007. On March 29, 2007, the plaintiff filed a motion to dismiss the defendant's counterclaim.6 The court did not rule on the motion to dismiss. The jury found in favor of the plaintiff on count one of her amended complaint, but in favor of the defendant on the remaining counts. The jury also found in favor of the plaintiff on the defendant's counterclaim.7 On April 5, 2007, the defendant filed a motion for judgment notwithstanding the verdict as to count one of the plaintiff's amended complaint and a motion to set aside the verdict. The court denied the defendant's motions. Thereafter, on May 15 and June 20, 2007, the court held a hearing on the matter of attorney's fees. On August 7, 2007, the court issued a memorandum of decision awarding the plaintiff $11,500 in attorney's fees. The plaintiff filed a motion to reargue the court's award, which was denied. The plaintiff appealed and the defendant cross appealed.

I PLAINTIFF'S APPEAL

On appeal, the plaintiff claims that the court (1) committed reversible error with respect to certain evidentiary rulings, (2) improperly permitted the defendant's counterclaim to go to the jury and (3) omitted a lodestar finding when awarding her attorney's fees. We disagree with the plaintiff's reviewable claims but are unable to review most of her claims because the record is inadequate for review.8

A

The plaintiff claims that the court abused its discretion by improperly (1) excluding the prior testimony of an unavailable witness, (2) admitting evidence of the defendant's character, (3) admitting testimony that was irrelevant and prejudicial and (4) permitting the defendant to impeach her on a collateral matter, and she claims that those improper rulings constitute reversible error entitling her to a new trial on the vexatious litigation, retaliation and intentional infliction of emotional distress claims. The plaintiff cannot prevail.

"The applicable standard of review for evidentiary challenges is well established. Unless an evidentiary ruling involves a clear misconception of the law, the [t]rial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling. . . ." (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 158, 962 A.2d 81 (2009).

The plaintiff's first evidentiary claim is that the court improperly refused to admit into evidence the prior testimony of the defendant's son, Donald Lane III, given at the unemployment hearing. We disagree.

The following facts are relevant to the plaintiff's claim. Among the individuals the plaintiff's counsel identified as witnesses was the defendant's son. During trial, however, the plaintiff's counsel informed the court that the defendant's son had changed his mind about testifying at trial. In lieu of his testimony, counsel asked that he be permitted to put into evidence the testimony that the defendant's son gave at the fall 2004 unemployment hearing pursuant to § 8-6(1) of the Connecticut Code of Evidence.9 The court refused to admit the testimony, citing General Statutes § 52-160 and Churchill v. Allessio, 51 Conn.App. 24, 36, 719 A.2d 913 (trial on second, subsequent will was not same action as trial on first will), cert. denied, 247 Conn. 951, 723 A.2d 324 (1998). The court explained that the prior testimony was hearsay given in an unemployment hearing, in which the issues were not the same as those in the present action. Moreover, given the representation of counsel, the defendant's son was not an unavailable witness but an unwilling one. The court, however, offered to appoint a commission to take the deposition of the defendant's son in New Hampshire on Saturday. The plaintiff declined to accept the offer of a commission. On March 29, 2007, the plaintiff asked the court to reconsider its ruling. The court denied the plaintiff's request.

General Statutes § 52-160 provides: "If any witness in a civil action is beyond the reach of the process of the courts of this state, or cannot be found, and his testimony has been taken by the court stenographer or reported upon a former trial of the action, a transcript of the record of the...

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36 cases
  • Tomick v. United Parcel Serv., Inc.
    • United States
    • Connecticut Court of Appeals
    • May 19, 2015
    ...absence of clear abuse, we shall not disturb." (Citation omitted; internal quotation marks omitted.) Perez v. D & L Tractor Trailer School, 117 Conn. App. 680, 709, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). However, we employ a plenary standard of review in dec......
  • Tomick v. United Parcel Serv., Inc.
    • United States
    • Connecticut Court of Appeals
    • May 19, 2015
    ...absence of clear abuse, we shall not disturb.” (Citation omitted; internal quotation marks omitted.) Perez v. D & L Tractor Trailer School, 117 Conn.App. 680, 709, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). However, we employ a plenary standard of review in deci......
  • State v. Fernando A.
    • United States
    • Connecticut Supreme Court
    • November 3, 2009
  • Tomick v. United Parcel Serv., Inc., 32797.
    • United States
    • Connecticut Court of Appeals
    • May 22, 2012
    ...The plaintiff argues that the court's reading of Schoonmaker is directly at odds with our recent decision in Perez v. D & L Tractor Trailer School, 117 Conn.App. 680, 981 A.2d 497, cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). We disagree. In Perez, the trial court did not state how it......
  • Request a trial to view additional results
1 books & journal articles
  • Evidence
    • United States
    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...the Fifth and Fourteenth Amendments to the federal Constitution, U.S. Const. amends. v. and XIV. Perez v. D & L Tractor Trailer Sch. , 117 Conn. App. 680, 690-91 (Conn. Ct. App. 2009). Exclusion of prior testimony of witness who refused to testify from unemployment hearing was proper, becau......

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