Sutcliffe v. Fleetboston Financial Corp., No. 27644.

• Decision Date: 01 July 2008
• Docket Number: No. 27644.
• Court: Connecticut Court of Appeals
• Parties: Becky SUTCLIFFE v. FLEETBOSTON FINANCIAL CORPORATION et al.

950 A.2d 544

108 Conn.App. 799

Becky SUTCLIFFE v. FLEETBOSTON FINANCIAL CORPORATION et al.

No. 27644.

Appellate Court of Connecticut.

Argued March 14, 2008.

Decided July 1, 2008.

Zbigniew S. Rozbicki, Torrington, for the appellant (plaintiff).

Thomas J. Sansone, with whom, on the brief, was Sherwin M. Yoder, New Haven, for the appellee (named defendant).

BISHOP, LAVINE and ROBINSON, Js.

ROBINSON, J.

The plaintiff, Becky Sutcliffe, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant FleetBoston Financial Corporation.¹ On appeal, the plaintiff claims that the court improperly (1) admitted into evidence certain testimony and documents, (2) instructed the jury and (3) denied her motion for a directed verdict. We disagree and, accordingly, affirm the judgment of the trial court.²

The following procedural history and facts reasonably found by the jury are necessary for our discussion. Attorney Edmund Hare represented the plaintiff in connection with a workers' compensation claim. Hare obtained a "full and final" settlement on behalf of the plaintiff in the amount of $30,000. The plaintiff was to receive $20,000 and Hare was to receive $5000 as the fee for his legal services. The remaining $5000 was to be paid to the plaintiff's treating physician, Mark Jay.

Hare received the $30,000 check, made payable only to the plaintiff, shortly after February 2, 1999. The plaintiff's signature on the check was forged, and Hare appropriated all of the proceeds from that check for his use. The plaintiff had not granted Hare any permission or authorization to sign the check or to deposit the money for his use. The plaintiff contacted Hare's office on several occasions to inquire as to when she would receive her settlement funds but had a difficult time speaking directly with Hare.

In response to the plaintiff's repeated inquiries, Hare eventually made four payments to the plaintiff, totaling $15,500, from March 25 through June 18, 1999. On March 3, 2000, the plaintiff executed an affidavit, as a part of her criminal complaint against Hare, indicating that Hare had failed to remit to her the outstanding balance of $4500 and to pay the $5000 owed to Jay. By way of a check dated March 6, 2000, Hare paid the plaintiff $4500 and on the "description" line of the check he wrote "W. Comp." This notation was his shorthand for "workers' compensation." During the time period from March 25, 1999, to March 6, 2000, Hare paid the plaintiff a total of $20,000, the amount of her interest in the settlement check.

The plaintiff commenced an action against Hare after receiving the $20,000. In her amended complaint, dated April 5, 2000, she alleged theft, intentional infliction of emotional distress, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and forgery. Hare informed the plaintiff that he was judgment proof and that he would declare bankruptcy. Hare then agreed to pay the plaintiff $5000 in exchange for a release by the plaintiff of all her claims against him.³

On February 13, 2001, the plaintiff commenced the present action against the defendant. In her amended complaint, dated September 14, 2001, the plaintiff alleged that the defendant negligently paid the settlement check on a forged signature and alleged conversion of the check pursuant to General Statutes § 42a-3-420. The defendant answered the complaint and pleaded the special defense that the "plaintiff has received payment, in whole or in part, of the sums to which she was entitled under the instrument in question."

The case was tried before the jury. The court, Trombley, J., declared a mistrial on the basis of juror misconduct. Prior to the start of evidence in the second trial, the plaintiff renewed her prior motion in limine to preclude evidence of Hare's payments to her. The court, Bozzuto, J., denied the motion and permitted the defendant to present evidence of Hare's payments. The jury returned a verdict in favor of the defendant. The court rendered judgment accordingly and denied the plaintiff's postverdict motion to set aside the verdict and for a new trial. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly admitted into evidence certain testimony and documents. Specifically, she argues that the evidence of Hare's payments to her was presented to the jury improperly. We are not persuaded.

The following additional factual and procedural history is relevant to our discussion. During the first trial, the plaintiff filed a motion in limine to preclude any evidence regarding the payments made by Hare to the plaintiff. The court, Trombley, J., granted the motion, stating, "I have instructed counsel, and I so instruct them now, and instruct all of the witnesses who might be in the courtroom, not to mention any issue of payment by attorney Hare, any recovery from any other source that [the] plaintiff might have received.... Again, I instruct everybody to stay away from the issue of payment."

A few days later, the court reconsidered its ruling. "So, payment is clearly central to this case, and, as a result, the court is going to allow testimony that it heard outside of the jury's presence to be given both by the plaintiff and attorney Hare. And anybody else counsel wants to call before the jury." The plaintiff objected to this ruling.

Following the mistrial, and prior to the start of the second trial, the plaintiff renewed her motion in limine, which the parties argued before the court, Bozzuto, J., on February 23, 2006. The court denied this motion. It first concluded that the defendant's argument pertaining to the law of the case doctrine was persuasive.⁴ The court then identified a second basis for denying the motion. "But even putting that aside, the law of the case aside, I think payment is absolutely relevant with respect to the issue of — fundamental issue in this case, if the plaintiff is to prevail, that is, with respect to damages, and I also find the Hartford-Connecticut Trust Co. v. Riverside Trust Co., 123 Conn. 616, 197 A. 766 (1938), case very persuasive and on point, and I am going to deny the motion in limine and I am going to allow that evidence before the jury in this case." The court noted the plaintiff's objection on the record.

As a preliminary matter, we set forth the applicable standard of review with respect to evidentiary claims. "The trial court's ruling on the admissibility of evidence is entitled to great deference.... [T]he trial court has broad discretion in ruling on the admissibility ... of evidence ... [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 365-66, 926 A.2d 1024 (2007); Porter v. Thrane, 98 Conn. App. 336, 339-40, 908 A.2d 1137 (2006).

Both parties agree that a determination of the applicability of our Supreme Court's decision in Hartford-Connecticut Trust Co. v. Riverside Trust Co., supra, 123 Conn. at 616, 197 A. 766, controls the outcome of the issues in the present case. Our analysis begins, therefore, with a discussion of that case. In October, 1929, the plaintiff, at the instruction of the Hartford Accident and Indemnity Company, made a draft in the amount of $2952, payable to the Chicago Live Stock Exchange. Id., at 619, 197 A. 766. An individual, John Schmidt, Jr., forged the endorsement of the payee and deposited the draft to his credit with the defendant. Id. The plaintiff paid the draft to the defendant and commenced an action to recover the amount. Id. The defendant alleged that Schmidt, prior to the commencement of the action, had made restitution for any loss sustained by reason of his theft or embezzlement. Id., at 621, 197 A. 766.

As part of its analysis, our Supreme Court considered the defendant's defense that "Schmidt paid and conveyed to the Hartford Accident and Indemnity Company moneys and property sufficient in amount and value to make full restitution for any loss sustained by reason of the alleged embezzlement or theft by him of the proceeds of the check or draft." Id., at 627, 197 A. 766. The plaintiff had demurred to his defense on two grounds: first, that there was no privity between the Hartford Accident and Indemnity Company and the defendant; second, the Hartford Accident and Indemnity Company had not received full restitution. Id. The trial court sustained the plaintiff's demurrer on the first ground. Id. Our Supreme Court concluded that the trial court acted improperly and that if the Hartford Accident and Indemnity Company had received restitution from Schmidt, the forger, then the defense of restitution would be available to the defendant. Id. "Such restitution would be satisfaction of the underlying obligation by the party primarily responsible and ultimately liable for the loss. The principle is the same that has been applied in an action by a drawer-depositor against a depositary-drawee bank for the amount paid by the latter upon a check upon which endorsement had been forged — that the depositor, having been reimbursed, though indirectly, had suffered no damage." (Emphasis added.) Id., at 627-28, 197 A. 766. As a result of this conclusion, our Supreme Court determined that the "demurrer to [this defense] was not sustainable because of lack of privity or other discernible ground, and the ruling sustaining it deprived the defendant of an opportunity to show, if it could, that restitution was made and at a time which would render it available as...