Schnabel v. Tyler

Decision Date15 October 1993
Docket Number10937,Nos. 10936,s. 10936
Citation630 A.2d 1361,32 Conn.App. 704
CourtConnecticut Court of Appeals
PartiesPhilip H. SCHNABEL v. Clyde R. TYLER.

M. Donald Cardwell, Hartford, and Elliot B. Spector, West Hartford, for appellant (plaintiff).

Kathleen Eldergill, Manchester, for appellee (defendant).


LANDAU, Judge.

The plaintiff, Philip H. Schnabel, appeals from the judgment rendered in favor of the defendant, Clyde Tyler, on the complaint and the counterclaim after a trial to a jury. On appeal, the plaintiff claims that, on the complaint, the trial court improperly (1) charged the jury on the defamation claim, (2) denied his motion to set aside the verdict, (3) denied his motion for mistrial, (4) admitted allegedly hearsay evidence, and (5) denied him a fair trial by showing partiality and bias toward the defendant. On the counterclaim, 1 the plaintiff claims that the trial court improperly (1) refused to set aside the jury's award of damages as excessive and unsupported by the evidence, (2) failed to apply federal law, specifically the qualified immunity defense to the defendant's claims under 42 U.S.C. 1983, 2 and (3) excluded relevant testimony.

The jury could have reasonably found the following facts. On February 8, 1988, a Rocky Hill Texaco station owned by Isabelle Teed was the site of an armed robbery. Ten days later, at a meeting of the Rocky Hill town council, Teed criticized the plaintiff, the police chief of the town of Rocky Hill. Thereafter, Teed was questioned by two police officers. She informed them that, on the day of the town council meeting, she had spoken with an unidentified police officer who encouraged her to speak out at the meeting.

The plaintiff initiated an internal investigation to identify the officer who spoke with Teed on the day of the town council meeting. The defendant, a Rocky Hill police officer, became the focus of that inquiry. On March 9, 1988, the plaintiff ordered the defendant into the plaintiff's office and told him that he was the subject of an investigation. The defendant was detained and interrogated by the plaintiff. At the time of this interrogation, the office door was locked and the plaintiff denied the defendant's request to have his attorney present during the questioning. As a result of the interrogation, the defendant was held beyond his shift and his requests to leave were ignored. The defendant refused to answer the plaintiff's questions. After approximately one hour, the defendant was released and suspended from the police force. 3

The following day, the defendant returned to the police station with his attorney. In response to further questioning, he told the plaintiff that he did not reveal confidential information to anyone regarding the Teed armed robbery and denied speaking with Teed on the day of the council meeting. 4

As a result of the interrogation and detention, the defendant filed a notice of intent to sue the plaintiff and the town of Rocky Hill. In a television broadcast, the defendant stated that the plaintiff's conduct at the March 9, 1988 interrogation may have been an illegal act. The defendant also gave a statement to the Hartford Courant and wrote a letter to the editor that appeared in a local newspaper.

On August 10, 1988, the plaintiff filed a complaint against the defendant for defamation. The defendant filed an answer and a counterclaim alleging false imprisonment, intentional infliction of emotional distress, abuse of process and § 1983 violations of his rights under the first and fourteenth amendments 5 to the United States constitution. The jury returned a verdict in favor of the defendant on the complaint and on the counterclaim. This appeal ensued.




The plaintiff first claims that the trial court improperly instructed the jury on his defamation claim by omitting the word "not" at a specific point in the charge. We disagree.

" '[T]o preserve full appellate review of a jury charge assigned as error, an appellant must not only move to set aside the verdict ... but must also set forth, either in the motion itself, in supporting briefs, or in oral argument at a hearing held on the motion, each claim of error with sufficient specificity to enable the trial court to consider the claimed errors.' " (Citations omitted.) Budlong v. Nadeau, 30 Conn.App. 61, 65, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290 (1993), quoting Cuartas v. Greenwich, 14 Conn.App. 370, 374, 540 A.2d 1071, cert. denied, 209 Conn. 803, 548 A.2d 436 (1988). The plaintiff filed a motion to set aside the verdict on the counterclaim, but that motion did not address any errors in the jury charge. Neither the transcript nor the parties' supporting briefs present a claim of error in the instructions. Therefore, the trial court did not have notice of the claimed errors and could not consider the plaintiff's claim. See Jacobs v. Thomas, 26 Conn.App. 305, 310-11, 600 A.2d 1378 (1991), cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). The plaintiff's failure to raise the claimed error specifically in the motion, brief, or argument in support of the motion limits our review to a determination of whether the trial court committed "plain error." Practice Book § 4185; Knock v. Knock, 224 Conn. 776, 793, 621 A.2d 267 (1993); Budlong v. Nadeau, supra, 30 Conn.App. at 65-66, 619 A.2d 4. Plain error review "is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) Budlong v. Nadeau, at supra, 66, 619 A.2d 4.

The trial court's charge began with a recitation of the elements of a defamation cause of action. 6 The plaintiff objected to that portion of the charge in which the court stated: "For example, if you believe that the gist of Mr. Tyler's words was a flat statement that has eliminated any significant doubt in your minds that the statement was false; or if you determine that the words as spoken are true; or that the plaintiff has established, by clear and convincing evidence, that the words as spoken are false, then you will stop at that point and bring in a defendant's verdict, the verdict for Mr. Tyler." The trial court omitted the word "not" in the phrase, "the plaintiff has 'not' established...." Our independent review of the entire charge indicates that the court's instructions on the law of defamation were not misleading to the jury. The jury instruction indicates no plain error on the part of the trial court nor does it indicate the existence of an error so apparent as to affect the fairness and integrity of the proceedings. Therefore, the plaintiff's first claim fails.


In his second claim, the plaintiff asserts that the trial court improperly failed to set aside the verdict on the defamation claim. 7 We disagree.

Again, a party's failure to raise a claim of error at trial limits our review to "plain error." Practice Book § 4185; Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986). " '[I]n the interests of justice [this court will] notice plain error not brought to the attention of the trial court.' " Dunham v. Dunham, 204 Conn. 303, 311-12, 528 A.2d 1123 (1987). The plaintiff's assertion that the jury could not have found as it did on the basis of the evidence presented at trial does not establish plain error on the part of the trial court.


The plaintiff's third claim is that the trial court improperly denied his motion for a mistrial based on the defendant's incomplete question 8 to the Rocky Hill town manager regarding whether the town would indemnify the plaintiff if damages were awarded to the defendant on the counterclaim. The plaintiff argues that the large jury award signifies that the jury considered the question, even though never completed, as evidence. We disagree.

"The general rule is that a mistrial is granted only where it is apparent to the court that, as a result of some occurrence during trial, a party has been deprived of the opportunity for a fair trial." Holbrook v. Casazza, 204 Conn. 336, 356, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 699, 98 L.Ed.2d 651 (1988). At trial, the plaintiff objected on the basis that the question had the effect of influencing the jury to award a disproportionate monetary figure in favor of the defendant. The defendant contended that such evidence was appropriate to show bias and that the witness was not an impartial or neutral observer. The court denied the motion for mistrial, sustained the plaintiff's objection, and instructed the jury to disregard the question.

Our review of the record indicates that this incomplete indemnification inquiry did not deprive the plaintiff of a fair trial. The trial court did not abuse its broad discretion in denying the plaintiff's motion for a mistrial.


The plaintiff next claims that the trial court improperly admitted hearsay evidence that was prejudicial to the plaintiff.

The plaintiff objected to the admission of a portion of a report 9 (hereinafter Weinstein report) written by an arbitrator during a review of the circumstances surrounding the plaintiff's attempt to terminate the defendant's employment with the police force. The defendant contends that the evidence does not constitute hearsay. Whether or not the admitted evidence is hearsay, we conclude that its introduction was not prejudicial to the plaintiff because all of the evidence in the Weinstein report came before the jury in other forms.

Evidence that is merely cumulative cannot constitute reversible error. State v. Randolph, 190 Conn. 576, 590, 462 A.2d 1011 (1983). Evidence that "was simply cumulative and supplementary" to the other evidence admitted during the course of the trial is unlikely to have effect on the jury. Bell Food...

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    • New Jersey Supreme Court
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    ...Poole v. Copland, Inc., 125 N.C.App. 235, 481 S.E.2d 88, 93 (1997) (internal quotations omitted); accord Schnabel v. Tyler, 32 Conn.App. 704, 630 A.2d 1361, 1368-69 (1993) (upholding intentional infliction of emotional distress award for plaintiff with post-traumatic stress disorder), aff'd......
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    ...650 A.2d 602 (1994) (no prejudice to petitioner when jury presented with evidence that was substantially same); Schnabel v. Tyler, 32 Conn.App. 704, 712, 630 A.2d 1361 (1993) ("[e]vidence that 'was simply cumulative and supplementary' to the other evidence admitted during the course of the ......
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1 books & journal articles
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    • Connecticut Bar Association Connecticut Bar Journal No. 68, 1993
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