Hammer v. Posta , 170 Conn. App. 701 ( 2017 )

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EDWARD HAMMER v. DOMINIC POSTA ET AL.
(AC 38194)
Lavine, Alvord and Harper, Js.
Argued November 28, 2016—officially released February 14, 2017
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Edward F. Stodolink, judge trial referee.)
Nicholas Stanisci, for the appellants (defendants).
James E. Butler, for the appellee (plaintiff).
Opinion
ALVORD, J. The defendants, Dominic Posta and Leti-
cia Posta, appeal from the judgment of the trial court,
rendered after a trial to the court, in favor of the plain-
tiff, Edward Hammer. After rendering a default judg-
ment against Leticia Posta for her failure to appear, the
court found Dominic Posta liable to the plaintiff under
General Statutes § 22-3571 for injuries caused by the
defendants’ dog and awarded the plaintiff $30,910.30 in
damages and court costs.2 On appeal, the defendants
claim that the court improperly (1) denied the defen-
dant’s request for a jury trial, and (2) relied on the
arguments of counsel rather than reviewing the medical
records that had been admitted as evidence.3 We affirm
the judgment of the trial court.
The court reasonably could have found the following
facts.4 On May 19, 2012, the plaintiff was walking his
leashed dog, Odie, a twenty-one pound miniature
schnauzer, when the defendants’ dog, Sarge, a seventy-
pound pit bull, came across the street and charged at
the plaintiff’s dog. The plaintiff grabbed Odie and placed
him on his shoulder in an attempt to keep Sarge from
harming him. Sarge jumped up and latched his teeth
onto Odie’s left hind leg, at the base of his tail and back.
Although the plaintiff tried to pry Sarge off Odie, he
was unsuccessful and was supporting the full weight
of both dogs during the attack. Hearing the commotion,
a neighbor came over to assist the plaintiff and opened
the gate to allow the plaintiff and Odie to enter, thereby
separating them from Sarge.
The plaintiff took Odie to the VCA Shoreline Veteri-
nary Referral and Emergency Center, where he was
treated for his injuries. The veterinary bill totaled $643.
The plaintiff, although not bitten by the defendants’ dog,
suffered injuries to his thumb and back. His medical
expenses totaled $3637.45. Additionally, the plaintiff
was unable to work for a short period of time. On
October 18, 2012, the plaintiff commenced this action
against the defendants seeking monetary damages.
Although the plaintiff initially claimed his case for a
jury trial, he withdrew his jury claim on October 6, 2014.
The defendant was a self-represented party until Feb-
ruary 17, 2015, at which time counsel filed an appear-
ance on his behalf. That same day, the defendant’s
counsel filed a motion to continue the date of the sched-
uled trial from February 18 to April 16, 2015. The court,
Bellis, J., denied the defendant’s motion for a continu-
ance. Although there is nothing in the record regarding
a further request for a continuance, both parties agree
that the defendant’s counsel made a verbal request for
a continuance of the trial date on February 18, 2015,
which the court granted until February 19, 2015. Again,
although unsupported by the record, the parties agree
that the defendant also verbally requested a jury trial
on February 18, 2015, which was denied by the court.
The trial proceeded on February 19, 2015. The court,
Hon. Edward F. Stodolink, judge trial referee, heard
testimony from the plaintiff, the defendant, the Strat-
ford animal control officer, the police officer who
responded to the plaintiff’s 911 call on the day of the
incident, and two neighbors. Additionally, fourteen
exhibits were submitted into evidence by the plaintiff,
which included the police incident report, the plaintiff’s
medical records and bills, the veterinary report and bill
for Odie’s treatment, and photographs of Odie’s injuries.
At the beginning of the trial, the plaintiff’s counsel
requested that the court take judicial notice of the plain-
tiff’s life expectancy of 40.4 years. The court did so,
after confirming that the defendant’s counsel had no
objection. After the evidence had concluded, the court
heard brief closing arguments by both counsel and then
rendered its judgment from the bench.
The court’s oral decision was as follows: ‘‘Having
heard the—the testimony of the various witnesses,
I’ve—and through counsel the various exhibits and
reports. I did not read them, but I’m sure that they were
recited properly by the counsel. Based on that and the
evidence I’ve heard or—or the arguments, I will enter
a judgment in favor of the plaintiff and against the
defendant.’’ The court then awarded economic damages
covering the plaintiff’s medical bills, the veterinary bills
and the plaintiff’s lost wages in the amount of $5080.45.
With respect to noneconomic damages, the court
stated: ‘‘According to the testimony of the plaintiff and
the—the recital of the injuries, as the hospital records
show, and—and the fact that the [plaintiff] has a life
expectancy of forty years and it’s indicated that he has
continuing chronic pain to the thumb and also to his
back, I will award him $25,000 . . . . So, the total is
$30,080.45 plus costs.’’ The defendant filed postjudg-
ment motions for a new trial and for remittitur, which
were denied by the court after a hearing on May 28, 2015.
On July 23, 2015, the defendants’ appellate counsel
filed separate appearances on behalf of Dominic Posta
and Leticia Posta. On July 30, 2015, the defendants
filed this appeal. The defendants filed a motion for
articulation on November 2, 2015, requesting that the
trial court articulate, inter alia, the evidence it relied
on in determining that the plaintiff suffered permanent
injuries. The court, in its response to the motion, stated:
‘‘The injuries to the plaintiff’s left thumb and low back
that occurred on May 19, 2012, continued to be symp-
tomatic on the date of the hearing in this matter on
February 19, 2015, and therefore were found to be per-
manent.’’
With this background in mind, we now turn to the
defendants’ specific claims.
I
The defendants claim that they were denied their
state constitutional right to a trial by jury.5 In support
of that claim, the defendants argue that the defendant
did not agree to the plaintiff’s withdrawal of the jury
claim, that the defendant was a self-represented party
when the plaintiff withdrew his jury claim, that the
defendant’s counsel asserted the defendant’s right to a
jury trial on February 18, 2015, and that the court ‘‘had
no discretion not to try the case to the jury.’’
The defendants concede that the record does not
contain a transcript of the proceeding at which the
defendant’s counsel verbally requested a jury trial and
the trial court denied that request. Accordingly, the
defendants seek review pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989),6 or to prevail
under the plain error doctrine.7 We conclude that the
defendants’ claim fails under the first and third prongs
of Golding.
General Statutes § 52-215 provides in relevant part:
‘‘The following-named classes of cases shall be entered
in the docket as jury cases upon the written request of
either party made to the clerk within thirty days after
the return day . . . civil actions involving such an issue
of fact as, prior to January 1, 1880, would not present
a question properly cognizable in equity . . . . When,
in any of the above-named cases an issue of fact is
joined, the case may, within ten days after such issue
of fact is joined, be entered in the docket as a jury case
upon the request of either party made to the clerk; and
any such case may at any time be entered in the docket
as a jury case by the clerk, upon written consent of all
parties or by order of court. . . .’’ General Statutes § 51-
239b provides: ‘‘In civil actions a jury shall be deemed
waived unless requested by either party in accordance
with the provisions of section 52-215.’’ Practice Book
§ 14-10 provides: ‘‘All claims of cases for the jury shall
be made in writing, served on all other parties and
filed with the clerk within the time allowed by General
Statutes § 52-215. The jury claim fee shall be paid at
the time the jury claim is filed.’’
Under our statutes, certain cases shall be entered in
the docket as jury cases upon the written request of
either party made to the clerk within thirty days of the
return date or within ten days after an issue is joined.
Thereafter, a case may be entered on the jury docket
by the consent of all of the parties or by an order of
the court. Falk v. Schuster, 171 Conn. 5, 7, 368 A.2d 40(1976). ‘‘A party may forfeit the right to a jury trial in
a civil case if the right is not asserted in a timely manner,
may abandon the right to a jury trial if he or she chooses
a forum that does not afford the right to a jury trial, or
may waive the right to a jury trial. L & R Realty v.
Connecticut National Bank, [246 Conn. 1, 10, 715 A.2d
748 (1998)]; see Anastasia v. Mitsock, Superior Court,
judicial district of New Haven, Docket No. CV-05-
4012156-S (December 1, 2006) (42 Conn. L. Rptr. 453,
454) (summary of law since 1899 that failure to claim
civil action to jury within thirty days of return date or
within ten days after an issue of fact has been joined
amounts to voluntary and intentional relinquishment of
right to jury trial); see also General Statutes §§ 51-239b
and 52-215.’’ Delahunty v. Targonski, 158 Conn. App.
741, 749, 121 A.3d 727 (2015).
In the present case, the return date on the complaint
is November 20, 2012. The defendants filed their answer
on November 23, 2012. Although the plaintiff initially
claimed the case to the jury list, he thereafter withdrew
the jury claim on October 6, 2014. The plaintiff filed a
certificate of closed pleadings and a claim for a court
trial on October 21, 2014. At no time did the defendant
file his own written claim for a jury trial. The defendants
now argue that the defendant had been a self-repre-
sented party during that period of time and that he had
not agreed to the plaintiff’s withdrawal of the jury claim.
Because the defendant’s counsel made a verbal request
for a jury trial on the day of the scheduled trial, the
defendants claim that the court ‘‘had no discretion not
to try the case to the jury.’’ Significantly, the defendants
cite no statutory or case law in support of the claim
that, under such circumstances, a court is required as
a matter of law to grant the request for a jury trial.
Moreover, we have no transcript to review that con-
tains the request made by the defendant’s counsel or the
reasons for the court’s denial of that request. Without a
transcript, it is not possible to determine whether the
defendant acquiesced in the court’s ruling or otherwise
waived his right to a jury trial. Although the defendants
claim the record is adequate for review under Golding,
we disagree and conclude that the claim fails under the
first prong of Golding.
Nevertheless, assuming arguendo that the record is
sufficient simply because a request for a jury trial was
made and was denied by the court, we conclude that
the defendants’ claim fails under the third prong of
Golding. It is not disputed that the defendant did not
claim the case for a jury trial within thirty days of the
return date or within ten days after an issue of fact had
been joined. We recognize that the plaintiff had claimed
the case to the jury list and that there was no reason
for the defendant to file a jury claim at that time. When
the plaintiff withdrew the jury claim on October 6, 2014,
however, the defendant did not object to that with-
drawal or file his own jury claim. Instead, the defendant
waited until the scheduled date of the trial to orally
request a trial by jury. By that time, the court reasonably
could have concluded that the defendant’s request was
untimely and that he had forfeited his right to a jury
trial. See Delahunty v. Targonski, supra, 158 Conn.
App. 749. We therefore conclude that the defendant’s
rights under the Connecticut constitution were not vio-
lated under the circumstances of the present case.
II
The defendants next claim is that the court improp-
erly relied on the arguments of counsel, rather than
reviewing the medical records that had been admitted
as evidence, in determining the extent of the plaintiff’s
injuries and the appropriate amount of damages to be
awarded. Specifically, they argue that the court found
that the plaintiff’s injuries were permanent and awarded
damages for the plaintiff’s life expectancy without look-
ing at the medical reports. The defendants further claim
that the court could not rely solely on the plaintiff’s
testimony to determine that he had sustained a perma-
nent injury. We disagree.
The trial court stated that various exhibits and reports
had been admitted into evidence, but that ‘‘I did not
read them, but I’m sure that they were recited properly
by the counsel. Based on that and the evidence I’ve
heard or—or the arguments, I will enter a judgment in
favor of the plaintiff . . . .’’ Those remarks are not
reflective of exemplary judicial behavior. It is well
established that ‘‘the trier [of fact] is bound to consider
all the evidence which has been admitted, as far as
admissible, for all the purposes for which it was offered
and claimed.’’ (Internal quotation marks omitted.) Moye
v. Commissioner of Correction, 168 Conn. App. 207,
229, 145 A.3d 362 (2016), quoting Giamattei v. DiCerbo,
135 Conn. 159, 162, 62 A.2d 519 (1948). Nevertheless,
although a court ‘‘is obligated to give careful consider-
ation to all the evidence . . . it does not have to read
the full text of every exhibit.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) Moye v. Commissioner
of Correction, supra, 231.
During the trial in the present case, the plaintiff was
questioned extensively by his counsel as to the extent
of his injuries, and the defendant’s counsel thoroughly
cross-examined the plaintiff about those claimed injur-
ies. Both counsel referred to the medical reports during
the plaintiff’s testimony, and portions of the reports
were read into the record. Although inartfully expressed
by the court, it is apparent that the court deemed that
all relevant information had been presented, and that
the court was satisfied that further review of those
reports would not have been of any additional benefit.8
With respect to the defendants’ claim that the court
could not rely on the plaintiff’s testimony alone to con-
clude that his injuries were permanent, Connecticut
case law has long held to the contrary. ‘‘Our state courts
have recognized that the permanency of an injury is a
finding that can be determined by jurors without expert
testimony. This principle is based on the recognition
by Connecticut courts that jurors are able to evaluate
for themselves the testimony of the plaintiff, as well as
the nature and duration of the injury, the likelihood of
its continuance into the future, and the lack of total
recovery by the time of trial. . . . If a jury has the
opportunity to appraise the condition of a plaintiff and
its probable future consequence, an award of damages
for permanent injury and for future pain and suffering
is proper.’’ (Internal quotation marks omitted.) Scand-
ariato v. Borrelli, 153 Conn. App. 819, 828–29 n.5, 105
A.3d 247 (2014). ‘‘A trier of facts can conclude, by infer-
ence, that an injury will be permanent even though
there is no medical testimony expressly substantiating
permanency.’’ (Internal quotation marks omitted.) Par-
ker v. Supermarkets General Corp., 36 Conn. App. 647,
650, 652 A.2d 1047 (1995). In Royston v. Factor, 1 Conn.
App. 576, 577, 474 A.2d 108, cert. denied, 194 Conn. 801,
477 A.2d 1021 (1984), this court concluded that the trier
in fact could conclude, by inference, that the plaintiff’s
injury was permanent on the basis that her disability
still existed two years after the accident.
Here, the trial court, in its articulation, noted that
‘‘[t]he injuries to the plaintiff’s left thumb and low back
that occurred on May 19, 2012, continued to be symp-
tomatic on the date of the hearing in this matter on
February 19, 2015, and therefore were found to be per-
manent.’’ The court, hearing all of the plaintiff’s testi-
mony about his injuries and continuing pain, had the
opportunity to evaluate the evidence and to determine
the credibility of the testimony. ‘‘We cannot retry the
facts or pass on the credibility of [a] witness.’’ (Internal
quotation marks omitted.) Noroton Properties, LLC v.
Lawendy, 154 Conn. App. 367, 372, 107 A.3d 980 (2014).
For all of the foregoing reasons, the defendants’ second
claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 22-357 provides in relevant part: ‘‘If any dog does any
damage to either the body or property of any person, the owner or keeper
. . . shall be liable for the amount of such damage, except when such
damage has been occasioned to the body or property of a person who, at
the time such damage was sustained, was committing a trespass or other
tort, or was teasing, tormenting or abusing such dog. . . . For the purposes
of this section, ‘property’ includes, but is not limited to, a companion animal,
as defined in section 22-351a, and ‘the amount of such damage’, with respect
to a companion animal, includes expenses of veterinary care . . . .’’
General Statutes § 22-351a (a) defines a companion animal as ‘‘a domesti-
cated dog or cat that is normally kept in or near the household of its owner
or keeper and is dependent on a person for food, shelter and veterinary
care, but does not include a dog or cat kept for farming or biomedical
research practices.’’
2
Dominic Posta was represented by counsel at trial. His counsel filed an
appearance on his behalf on February 17, 2015, which was one day prior
to the scheduled trial. The claims raised in this appeal are addressed to
issues that occurred immediately prior to and during the trial, when Leticia
Posta was unrepresented. For convenience, references in this opinion to
the defendant in the singular are to Dominic Posta, and references to the
defendants in the plural are to both Dominic Posta and Leticia Posta.
3
The plaintiff filed a motion for default against Leticia Posta for her failure
to appear on February 3, 2015, which was granted by the court clerk on
February 10, 2015. On February 19, 2015, the day of trial, the plaintiff’s
counsel moved the court to render a judgment of default against Leticia
Posta on the basis of that default. The court granted the motion. The default
judgment against Leticia Posta has never been opened or vacated.
4
The court did not issue a memorandum of decision but, rather, orally
rendered judgment from the bench following the closing arguments of coun-
sel. Notice of the court’s decision was sent to all parties of record.
5
Article first, § 19, of the Connecticut constitution provides: ‘‘The right
of trial by jury shall remain inviolate, the number of such jurors, which
shall not be less than six, to be established by law; but no persons shall,
for a capital offense, be tried by a jury of less than twelve jurors without
his consent. In all civil and criminal actions tried by a jury, the parties
shall have the right to challenge jurors peremptorily, the number of such
challenges to be established by law. The right to question each juror individu-
ally by counsel shall be inviolate.’’
6
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original.) State v.
Golding, supra, 213 Conn. 239–40, as modified in In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015).
Golding is applicable in civil cases as well as in criminal cases. Bruno
v. Bruno, 132 Conn. App. 339, 348–49, 31 A.3d 860 (2011); Lohnes v. Hospital
of Saint Raphael, 132 Conn. App. 68, 79–80, 31 A.3d 810 (2011), cert. denied,
303 Conn. 921, 34 A.3d 397 (2012).
7
‘‘[The plain error] doctrine, codified at Practice Book § 60-5, is an extraor-
dinary remedy used by appellate courts to rectify errors committed at trial
that, although unpreserved, are of such monumental proportion that they
threaten to erode our system of justice and work a serious and manifest
injustice on the aggrieved party.’’ (Internal quotation marks omitted.) Bristol
Board of Education v. State Board of Labor Relations, 166 Conn. App. 287,
296, 142 A.3d 304 (2016). We decline to apply this extraordinary remedy
under the circumstances of this case.
8
Our determination that the trial court did not commit reversible error
under the circumstances of the present case does not mean that we counte-
nance the failure of a trial court to consider all of the relevant evidence
submitted by the parties during a judicial proceeding. We reiterate the
cautionary instructions that this court provided in Moye v. Commissioner
of Correction, supra, 168 Conn. App. 235, wherein trial courts are advised:
‘‘If a . . . court concludes that it is not necessary to review certain exhibits
in light of the manner in which it has disposed of the claims, it should
endeavor to explain what it has not reviewed and why it is not necessary
to do so. A court should strive to avoid leaving litigants with the impression
that it has failed to discharge its duty or somehow acted unlawfully. Public
confidence in our justice system is undermined if parties perceive that a
court has not met its obligation to provide them with a full and fair review
of their claims. We caution courts not to abrogate their duty to review the
evidence admitted at trial or to give litigants the erroneous impression that
they have done so.’’