Tadros v. Tripodi

• Decision Date: 08 February 2005
• Citation: 866 A.2d 610,87 Conn. App. 321
• Court: Connecticut Court of Appeals
• Parties: RAAFAT R. TADROS v. GIUSEPPE TRIPODI ET AL. RAAFAT R. TADROS v. CONCETTA TRIPODI ET AL. RAAFAT R. TADROS, GIUSEPPE TRIPODI AND THOMAS ALOSCO, M.D., P.C. v. GIUSEPPE TRIPODI ET AL.

87 Conn. App. 321

866 A.2d 610

RAAFAT R. TADROS v. GIUSEPPE TRIPODI ET AL.

RAAFAT R. TADROS v. CONCETTA TRIPODI ET AL.

RAAFAT R. TADROS, GIUSEPPE TRIPODI AND THOMAS ALOSCO, M.D., P.C. v. GIUSEPPE TRIPODI ET AL.

(AC 24622), (AC 24623), (AC 24944), (AC 24624), (AC 24945).

Appellate Court of Connecticut.

Argued October 14, 2004.

Officially released February 8, 2005.

Lavery, C. J., and McLachlan and Peters, Js.

Thomas J. Sansone, with whom, on the brief, was John F. Papandrea, Jr., for the appellants (defendants).

Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellees (plaintiffs).

Opinion

McLACHLAN, J.

These appeals arise from the acrimonious dissolution of the medical practice of the plaintiff Raafat R. Tadros and the defendant Giuseppe Tripodi, both of whom are surgeons. Of the eight lawsuits filed between the parties and their various entities,¹ six were consolidated and tried to the court, the seventh remains open following a foreclosure sale² and the eighth was withdrawn. In short summary, after trial, the court concluded that the defendants, Tripodi and his wife, Concetta Tripodi, secretly had stolen $876,985.27 from the medical practice over the course of several years. The court ordered them to pay the plaintiff Raafat R. Tadros, Giuseppe Tripodi and Thomas Alosco, M.D., P.C. (professional corporation) treble damages totaling $2,630,955.81, plus interest in the amount of $537,418.50. In addition, the court concluded that Giuseppe Tripodi was liable to Tadros for unpaid rent in the amount of $211,875, plus interest. Finally, as a prejudgment remedy, the court garnished the proceeds of the foreclosure sale of a building owned by Tadros' and Guiseppe Tripodi's real estate corporation held by the clerk of the Superior Court after Giuseppe Tripodi purchased the property at a foreclosure auction. The defendants claim that the court improperly (1) admitted hearsay evidence for a limited nonhearsay purpose and then improperly considered the evidence for its truth as proof of the amount stolen, (2) concluded that Giuseppe Tripodi was liable for unpaid rent, (3) awarded the plaintiffs prejudgment interest pursuant to General Statutes § 37-3a and (4) concluded that it had the authority to garnish funds held by the clerk of the Superior Court. We affirm the judgments of the trial court.

The following background facts essentially are undisputed. Tadros hired Giuseppe Tripodi in 1985, and the two later formed a professional corporation, Raafat R. Tadros and Giuseppe Tripodi, M.D., P.C. In 1990, Tadros and Giuseppe Tripodi purchased real estate and conveyed it to their newly formed real estate corporation, Middlebury Medical Center, Inc. (real estate corporation). The practice occupied the second floor of the building while the first floor was leased to other medical professionals. In 1996, Thomas Alosco, also a surgeon, joined the professional corporation and later became an equal shareholder with Tadros and Giuseppe Tripodi.³ Alosco did not at any relevant time own an interest in the real estate corporation.

By the end of 2000, both the personal and professional relationship between Tadros and Giuseppe Tripodi soured, and they terminated their practice effective January 1, 2001. Giuseppe Tripodi formed a new entity, the defendant Middlebury Surgical, LLC, and Tadros and Alosco formed a new professional corporation, Raafat R. Tadros and Thomas Alosco, M.D., P.C. The two new entities continued to share the same office space until March 24, 2001, when Tadros and Alosco moved their practice to a different location. By agreement of the parties, Giuseppe Tripodi remained in the practice's original offices in the building owned by the real estate corporation.

The court in its memorandum of decision made the following findings of fact specifically related to the Tripodis' theft of funds from the plaintiff professional corporation. "Between 1991 and 2001, $876,985.27 of the corporation's revenues were `discounted' in the corporation's records. The effect of the discount was to offset the accounts receivable of the corporation so that the corporate records would not show the revenue that it had earned. Although the evidence was circumstantial, the evidence points unequivocally to the conclusion that the Tripodi[s] misappropriated and committed the theft of this money. . . . [T]he items entered in the corporation's computer records under `discount' were accompanied by computer codes used exclusively by Concetta Tripodi.⁴ These codes were not used by Joyce Benoit, an administrative assistant in the office who was supervised by Concetta Tripodi in handling the office's financial records and who was the only other person in the office with substantial computer expertise.

"Second, between February 13 and 20, 2001, while the professional corporation was in the throes of an acrimonious breakup, corporation counsel Mark Neikrie and his agents seized the corporation's computer. They returned the computer to the office on February 21 and then seized it again on March 9, [2001]. During the period between February [21] and March [9], 2001, when the computer was back in the office, Concetta Tripodi made over 200 deletions of prior computer entries, some of which involved patient balances. Almost half of the matters deleted had been originally entered prior to 2000, and some had been entered as far back as 1993.⁵ Although the exact economic effect of all of the deletions is not clear, they nonetheless reveal unauthorized tampering with the computer records at a particularly suspect time.

"Third, numerous canceled patient or insurance payment checks bore an endorsement of Guiseppe Tripodi alone or, less frequently, some other endorsement different from that usually used by the professional corporation. These checks were deposited into bank accounts other than the one used by the corporation for deposits. The amount in these checks was then entered under `discount' in the corporation's records. This money was, thus, plainly diverted from the corporation by the Tripodis.

"Fourth, Guiseppe Tripodi requested and received cash for certain varicose vein procedures performed on Saturdays. Occasionally, the cash would be missing on Monday morning and, thus, would not be available for the daily deposit into the corporate bank account. Guiseppe Tripodi told Benoit that he took cash from patients and used the cash for the medication for the varicose vein procedure. Concetta Tripodi told Benoit that the former would take care of the related computer entries.

"Fifth, Guiseppe Tripodi sought to end his medical practice with Tadros because Guiseppe Tripodi felt that he was not receiving adequate compensation for the work that he was doing. Tadros preferred to adhere to the original agreement whereby each partner would receive equal shares of the earnings. Guiseppe Tripodi's dissatisfaction with the compensation scheme forms a strong motive for the theft.

"Sixth, at his deposition, Guiseppe Tripodi invoked the fifth amendment privilege against self-incrimination in response to questions concerning whether he was stealing from the business, depositing corporate revenues into noncorporate bank accounts and failing to pay income taxes on these moneys. At her deposition, Concetta Tripodi invoked the fifth amendment in response to questions concerning the deposit of corporate revenues to noncorporate accounts, her use of the office computer to discount these deposits and her use of the computer in late February or early March, 2001, to make changes to conceal the misappropriation of funds. The court can and does draw an adverse inference from the breathtaking scope of the Tripodis' invocation of the fifth amendment."

Further facts will be provided as necessary to address the defendants' specific claims.

I

The defendants first claim that the court improperly admitted into evidence two exhibits that constituted inadmissible hearsay, and then, despite having admitted the exhibits for limited nonhearsay purposes, relied on the exhibits for their truth as proof of damages. The defendants argue that without those improperly admitted exhibits, there was an inadequate evidentiary basis to calculate damages related to the theft. We disagree.

"[T]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . Additionally, before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result." (Citation omitted; internal quotation marks omitted.) Urich v. Fish, 261 Conn. 575, 580-81, 804 A.2d 795 (2002). Furthermore, "[i]t is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony." (Internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn. App. 447, 466-67, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002).

A

Exhibit forty-seven, introduced through the plaintiffs' expert, forensic accountant Alan Mandell, contained documents prepared by Mandell and by Mark Austin, a computer consultant, as well as supporting documentation. Following voir dire of Mandell regarding the exhibit, the defendants' counsel objected only to those portions of the document that were not actually prepared by Mandell.⁶ The court admitted those portions of exhibit forty-seven to which counsel objected for the limited purpose of demonstrating the basis for Mandell's expert opinion. The remainder of exhibit fortyseven, which includes Mandell's analysis and his determination of the total amount of money the...