Dept. of Social Services v. Freeman ( 2020 )


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    DEPARTMENT OF SOCIAL SERVICES v.
    JUSTIN FREEMAN
    (AC 41561)
    Keller, Bright and Sheldon, Js.
    Syllabus
    The plaintiff, the Department of Social Services, sought to recover damages
    from the defendant attorney for conversion in connection with the defen-
    dant’s failure to comply with a child support lien against settlement
    proceeds of his client R’s personal injury action. Because R owed child
    support arrearages for the children, the plaintiff sent notice to the defen-
    dant of a child support lien, directing him not to distribute any proceeds
    from the personal injury action without first complying with the lien.
    The lien notice was addressed to the defendant’s correct street address
    but listed an incorrect zip code. Following the settlement of R’s personal
    injury action, the defendant distributed the proceeds to himself, R and
    R’s creditors, but did not pay any proceeds to the plaintiff toward R’s
    child support arrearages. The plaintiff commenced this statutory (§ 52-
    362d) conversion action against the defendant to recover $9500.70 in
    child support still owed by R as a result of the defendant’s failure to
    withhold that amount from the settlement proceeds to satisfy the lien.
    The defendant denied that he had received notice of the child support
    lien. In December, 2017, the plaintiff submitted its trial management
    report, which listed, as a fact witness, C, who was described as being
    the supervisor for customer service support with the United States
    Postal Service in Hartford. In the report, the plaintiff explained that C
    would testify that a letter mailed to the correct street address but the
    wrong zip code within Hartford would be delivered to the stated address
    but that it would take longer. In March, 2018, the defendant filed a
    motion in limine to preclude C’s proposed testimony as improper expert
    testimony because the plaintiff had not filed an expert witness disclo-
    sure. Following a hearing on the motion held the day before the start
    of evidence, the trial court determined that, although C must be consid-
    ered an expert witness, the plaintiff could file a late disclosure of expert
    witness, naming C as its expert. The court reasoned that the disclosure of
    C had been accomplished by the trial management report, and, therefore,
    there was no prejudice to the defendant. In addition, the court noted
    that, if the defendant were to find a rebuttal expert, it would permit
    him to file a late disclosure of that expert. The court thereafter permitted
    the defendant to name J as a rebuttal expert witness in a late disclosure.
    Following the trial, at which C and J testified, the jury returned a verdict
    in favor of the plaintiff, awarding it $9500.70, the amount of R’s child
    support arrearages. On the defendant’s appeal to this court, held:
    1. The trial court did not abuse its discretion in permitting the plaintiff to
    file a late disclosure of C as an expert witness: contrary to the defendant’s
    claim that that court ignored the requirements for expert witness disclo-
    sure set forth in the applicable rule of practice (§ 13-4) by allowing C
    to testify despite the late disclosure and that he was prejudiced thereby,
    the court, applying Practice Book § 13-4 (g) (4), considered the defen-
    dant’s substantive knowledge of C’s testimony, which had been conveyed
    to him three months before the trial in the plaintiff’s trial management
    report, and, on that basis, concluded that the defendant was not preju-
    diced by the late disclosure of C as an expert; moreover, the defendant,
    who never sought to depose C or move for a continuance for that
    purpose after the disclosure was filed, failed to identify any aspect of
    the plaintiff’s proof or his ability to meet it that was adversely affected
    by the late filing of the expert witness disclosure.
    2. This court declined to review the defendant’s claim that the trial court
    erred in allowing the plaintiff’s counsel to question him, in the presence
    of the jury, as to a prior withdrawn conversion action that had been
    brought against him by an unrelated third party, the defendant having
    failed to preserve this claim for appellate review.
    3. The trial court did not abuse its discretion in allowing the biological
    mothers of R’s two minor children to testify as to R’s child support
    arrearages, the record having indicated that both mothers’ testimony
    was relevant to an essential element of the plaintiff’s case, as their
    testimony bore directly on the contested issue of whether child support
    arrearages were actually owed to each of them.
    Argued November 13, 2019—officially released May 12, 2020
    Procedural History
    Action to recover damages for conversion, and for
    other relief, brought to the Superior Court in the judi-
    cial district of Hartford, where the court, Hon. A. Susan
    Peck, judge trial referee, denied the defendant’s motion
    to preclude certain testimony; thereafter, the matter
    was tried to the jury; verdict and judgment for the plain-
    tiff, from which the defendant appealed to this court.
    Affirmed.
    Jade Baldwin, with whom, on the brief, was Gerald
    M. Beaudoin, for the appellant (defendant).
    Joan M. Andrews, assistant attorney general, with
    whom, on the brief, was William Tong, attorney gen-
    eral, for the appellee (plaintiff).
    Opinion
    SHELDON, J. The defendant, Justin Freeman, a Hart-
    ford attorney, appeals from the judgment of the trial
    court rendered against him, after a jury trial, finding
    him liable for conversion and awarding damages to the
    plaintiff, the Department of Social Services. The judg-
    ment was based on the defendant’s failure to comply
    with a child support lien against the settlement pro-
    ceeds of a client’s personal injury action, of which he
    allegedly had been given due notice, before distributing
    such proceeds to himself, his client’s other creditors,
    and his client. The defendant, who claimed at trial that
    he had never been served with the notice of lien that
    the plaintiff alleged it had sent to him, asserts that the
    trial court erred by (1) allowing the plaintiff to disclose
    an expert witness immediately before the start of trial
    to support its claim that the notice of lien had likely
    been delivered to him because it had been mailed to the
    correct address, albeit not to the correct zip code, (2)
    allowing the plaintiff’s counsel to question him before
    the jury as to a prior conversion action that had been
    brought against him by an unrelated third party, and
    (3) allowing the biological mothers of his client’s two
    minor children to testify that his client owed them child
    support. We affirm the judgment of the trial court.
    The following facts and procedural history are rele-
    vant to our resolution of this appeal. On May 8, 2010,
    Pedro Rivera was involved in a motor vehicle acci-
    dent in which he sustained serious physical injuries.
    Rivera retained the defendant to represent him in a civil
    action against the driver of the motor vehicle that was
    involved in the accident. During the pendency of the
    action, Rivera was under a court order to pay child
    support for his two minor children.1 As of May 12, 2012,
    Rivera had a combined child support delinquency of
    $12,500.70. Because Rivera owed child support arrear-
    ages for his two minor children, the plaintiff’s Bureau of
    Child Support Enforcement sent notice to the defendant
    of a child support lien, directing him not to distribute
    any proceeds from the civil action without first com-
    plying with the lien.2 The lien notice was addressed
    to the defendant’s correct street address but listed an
    incorrect zip code. The notice was not returned to the
    sender.
    In September, 2013, the defendant settled Rivera’s
    civil action for $82,500. Upon receiving the proceeds
    of that settlement, the defendant paid $27,500 in attor-
    ney’s fees, $2569.58 in litigation expenses, $5825.40
    in insurance provider costs, and $12,700 in repayments
    to creditors for loans that Rivera had taken out while
    the action was pending. The defendant then paid the
    remaining $33,905.02 in settlement proceeds to Rivera,
    without paying anything to the plaintiff toward Rivera’s
    child support arrearages.
    As a result, the Support Enforcement Services Unit
    of the Judicial Branch, working in cooperation with
    the plaintiff to enforce delinquent parents’ child sup-
    port obligations, filed a motion in the Superior Court
    requesting that Rivera be held in contempt for failure
    to pay child support for his minor children. At the con-
    clusion of the contempt proceeding, Rivera was found
    in contempt for failure to pay child support, and the
    state collected $3000 from him toward his arrear-
    ages, leaving him with a combined balance of $9500.70
    in outstanding child support.3 Thereafter, the plaintiff
    issued a demand to the defendant that he pay the bal-
    ance of Rivera’s combined child support arrearage,
    which the defendant refused.
    Pursuant to General Statutes § 52-362d,4 the plain-
    tiff commenced the present action against the defen-
    dant to recover the remaining $9500.70 in child support
    still owed by Rivera because the defendant had failed
    to withhold that sum from the settlement proceeds of
    Rivera’s civil action to satisfy the lien. In his amended
    answer and special defenses, the defendant denied,
    inter alia, that he ever received notice of the child sup-
    port lien from the plaintiff.
    On May 18, 2016, after the pleadings were closed, the
    defendant demanded a jury trial. On December 6, 2017,
    the plaintiff submitted its trial management report.
    The trial management report listed, as a fact witness,
    Michael Chiaro, whom it described as follows: ‘‘United
    States Postal Service, Supervisor, Customer Service
    Support, Hartford, CT.’’ In the report, the plaintiff fur-
    ther explained that Chiaro, ‘‘[t]he United States Post
    Office Supervisor for Customer Service Support, Hart-
    ford, CT, will testify that a letter mailed to the correct
    street address but the wrong zip code within Hartford
    would still be delivered, it would just take longer.’’
    On March 12, 2018, the defendant filed a motion in
    limine to preclude Chiaro’s proposed testimony. The
    defendant argued that such testimony was inadmis-
    sible because it was ‘‘of an expert nature, offering tech-
    nical and opinion testimony as an employee of the
    United States post office as to how he believes the mail
    would have been processed.’’ The defendant argued
    that because no expert disclosure had been filed, he
    had not had an ‘‘opportunity to depose [the] expert and
    obtain a rebuttal expert . . . .’’ (Emphasis added.)
    On that basis, he argued that the testimony of Chiaro
    should be excluded as improper expert testimony. On
    March 20, 2018, the day before the start of evidence at
    trial, the court, Hon. A. Susan Peck, judge trial referee,
    heard oral argument on the defendant’s motion to pre-
    clude Chiaro’s testimony. The court ruled that Chiaro
    must be considered an expert witness based on the tes-
    timony that the plaintiff intended to elicit from him. It
    ruled, however, that the plaintiff could file a late dis-
    closure of expert witness, naming Chiaro as its expert.
    The court reasoned that disclosure of Chiaro had
    already been accomplished through the trial manage-
    ment report submitted December 6, 2017, and, there-
    fore, there was no prejudice to the defendant. The court
    further noted that, if the defendant were able to find
    a rebuttal expert, it would also permit him to file a
    late disclosure of that expert. Ultimately, the defen-
    dant found a rebuttal expert—Joan Coleman, a retired
    employee of the United States Postal Service—whom
    the court permitted the defendant to name as his expert
    in a late disclosure.
    At trial, Chiaro testified that he had spent thirty-three
    years working as an employee of the United States
    Postal Service in Hartford, twenty-three years of which
    he had spent working as a supervisor of customer
    service support. He testified that, in his role as super-
    visor of customer service support, he oversaw deliv-
    ery operations and retail operations for the post office
    in Hartford. He further testified that he was ‘‘[v]ery
    familiar’’ with the operations of the Hartford post
    office, and then explained the process by which mail
    in that post office is processed, sorted, and delivered.
    During Chiaro’s testimony, he explained that permis-
    sion is required from the United States Postal Inspection
    Service before a postal employee can testify in court.
    Chiaro stated that he had received such permission to
    testify in this case. Ultimately, Chiaro opined that a
    piece of mail like the notice of lien letter at issue here,
    which listed the correct street address of the addressee
    but the incorrect zip code, ultimately would be deliv-
    ered to the desired address.
    At trial, the defendant’s expert, Coleman, testified
    that she had spent twenty-six years working for the
    United States Postal Service, both in Bloomfield and in
    Hartford. She explained that she had begun her career
    as a carrier in Hartford; then she had transitioned to
    Bloomfield, where she worked as a clerk for six years;
    finally, she had returned to Hartford, where she worked
    as a mail processor for the remainder of her career. As
    a mail processor, the role in which she had worked for
    most of her career, Coleman’s duties included placing
    mail into a stamp cancelling machine to cancel stamps
    or to cancel mail and running a mail separating pro-
    gram that separated the mail by destination of delivery.
    Coleman testified that the most important entry on any
    piece of mail is the zip code because that is how mail
    is processed and moved about when the post office is
    preparing to deliver it. Coleman testified that, in her
    expert opinion, a letter addressed to an individual at a
    business with the wrong zip code listed on it would not
    reach its intended destination.
    On her cross-examination of Coleman, the plaintiff’s
    counsel sought to challenge her testimony in three basic
    ways. First, she elicited evidence that Coleman’s grand-
    daughter was a friend of the defendant. Second, she
    established that Coleman, unlike Chiaro, did not have
    permission from the United States Postal Service to tes-
    tify in this case. Third, she sought to demonstrate that
    Coleman had lesser credentials than Chiaro because
    her expertise was in the processing of mail, not in its
    delivery.
    Ultimately, on March 28, 2018, the jury returned a
    verdict in favor of the plaintiff, awarding it $9500.70,
    the exact amount of Rivera’s combined child support
    arrearage for his two children. This appeal followed.
    I
    The defendant first claims that the trial court abused
    its discretion by allowing the plaintiff to disclose an
    expert witness immediately before the start of trial. Spe-
    cifically, he claims that the court ignored the require-
    ments for expert disclosure set forth in Practice Book
    § 13-4 by allowing the expert to testify despite the late
    disclosure, and, thus, he was prejudiced because he
    was neither afforded an opportunity to depose the plain-
    tiff’s ‘‘newly identified expert,’’ nor given sufficient time
    to find a rebuttal expert of similar qualifications. The
    plaintiff disagrees, arguing principally that the defen-
    dant was not prejudiced by the trial court’s decision
    because the plaintiff had disclosed the witness and fully
    described his proposed testimony in its trial manage-
    ment report three months before the start of the trial.
    We agree with the plaintiff that the trial court did not
    abuse its discretion by permitting the late disclosure.
    The following additional facts are necessary to
    the resolution of this claim. On December 6, 2017, the
    plaintiff disclosed Chiaro as a fact witness in its trial
    management report. It was not until March 12, 2018,
    however, that the defendant filed a motion to preclude
    Chiaro’s testimony. On March 20, 2018, the trial court
    heard oral argument on the motion. There, the defen-
    dant’s counsel argued that the defendant had not had
    the opportunity to ‘‘develop his case from this expert
    testimony and what’s to be proffered.’’ The plaintiff’s
    counsel argued that Chiaro was not an expert but sim-
    ply a ‘‘customer service guy’’ who would testify from
    personal experience about the mailing process. Fur-
    ther, the plaintiff’s counsel asked that, if the court did
    consider Chiaro to be an expert, the plaintiff could be
    permitted to file a late expert disclosure, noting that
    the defendant had been aware of the substance of Chi-
    aro’s testimony since December. The court ruled on
    the motion to preclude as follows: ‘‘Well, I’m inclined
    to allow [the late disclosure of the expert witness].
    Because I don’t really see what the prejudice is, it’s
    not like it’s a surprise. This is an issue in the case. It
    apparently [has] been an issue in the case for some
    time. And the issues that have existed concerning, you
    know, the underlying issue that gave rise to this case.
    So, it can’t—it doesn’t come as any great surprise that
    mailing, and the difference between—there wouldn’t be
    some testimony concerning mailing or mail procedures.
    So, I don’t really see what the prejudice is. Plus this
    person was disclosed back in December.’’
    ‘‘We review a trial court’s decision [regarding the
    admission of] expert testimony for an abuse of discre-
    tion. . . . We afford our trial courts wide discretion in
    determining whether to admit expert testimony and,
    unless the trial court’s decision is unreasonable, made
    on untenable grounds . . . or involves a clear miscon-
    ception of the law, we will not disturb its decision.
    . . . To the extent the trial court makes factual find-
    ings to support its decision, we will accept those find-
    ings unless they are clearly improper. . . . If we deter-
    mine that a court acted improperly with respect to the
    admissibility of expert testimony, we will reverse the
    trial court’s judgment and grant a new trial only if the
    impropriety was harmful to the appealing party. . . .
    ‘‘Expert testimony should be admitted when: (1) the
    witness has a special skill or knowledge directly appli-
    cable to a matter in issue, (2) that skill or knowledge
    is not common to the average person, and (3) the testi-
    mony would be helpful to the court or jury in consider-
    ing the issues. . . . [T]o render an expert opinion the
    witness must be qualified to do so and there must be a
    factual basis for the opinion.’’ (Internal quotation marks
    omitted.) State v. Edwards, 
    325 Conn. 97
    , 123–24, 
    156 A.3d 506
    (2017).
    Practice Book § 13-4 provides in relevant part: ‘‘(a)
    A party shall disclose each person who may be called
    by that party to testify as an expert witness at trial
    . . . . (b) A party shall file with the court and serve
    upon counsel a disclosure of expert witnesses which
    identifies the name, address and employer of each
    person who may be called by that party to testify as
    an expert witness at trial . . . . (g) . . . (4) . . . A
    party who wishes to modify the approved Schedule for
    Expert Discovery or other time limitation under this
    section without agreement of the parties may file a
    motion for modification with the court stating the rea-
    sons therefor. Said motion shall be granted if: (A) the
    requested modification will not cause undue prejudice
    to any other party; (B) the requested modification will
    not cause undue interference with the trial schedule in
    the case; and (C) the need for the requested modifica-
    tion was not caused by bad faith delay of disclosure
    by the party seeking modification. . . . (h) A judicial
    authority may, after a hearing, impose sanctions on a
    party for failure to comply with the requirements of
    this section. An order precluding the testimony of an
    expert witness may be entered only upon a finding that:
    (1) the sanction of preclusion, including any conse-
    quence thereof on the sanctioned party’s ability to pros-
    ecute or to defend the case, is proportional to the non-
    compliance at issue, and (2) the noncompliance at issue
    cannot adequately be addressed by a less severe sanc-
    tion . . . .’’
    ‘‘Whether to allow a late disclosure is clearly within
    the discretion of the trial court.’’ Baxter v. Cardiol-
    ogy Associates of New Haven, P.C., 
    46 Conn. App. 377
    ,
    389, 
    699 A.2d 271
    , cert. denied, 
    243 Conn. 933
    , 
    702 A.2d 640
    (1997). An examination of the record in this case
    leads us to conclude that the trial court did not abuse
    its discretion in allowing the plaintiff to file an untimely
    expert disclosure.
    The central issue in this case was whether the defen-
    dant had received the child support lien notice. In this
    regard, we note that the defendant was aware of the
    substance of Chiaro’s testimony in December, 2017,
    three months before trial. From December, 2017 to
    March, 2018, however, the defendant’s counsel did
    nothing to prepare to meet that testimony. They did
    not depose Chiaro or seek out their own expert to rebut
    his expected testimony. It was not until days before trial
    that the defendant’s counsel finally moved to preclude
    Chiaro from testifying.
    During argument on the motion to preclude, the court
    clearly weighed the factors for determining whether
    Chiaro was an expert. The court stated: ‘‘I do think that
    his testimony does require some specialized knowledge.
    And for that reason, I think he—it’s pretty close, I have
    to say. But it does require some specialized knowledge
    of the processes employed by the United States Postal
    Service. Although, I mean, I have to say, it’s you know,
    March 20th and when was that trial management
    report filed?’’
    Thereafter, applying Practice Book § 13-4 (g) (4),
    the court explained that Chiaro’s testimony could not
    have come as a surprise to the defendant because of
    the disclosure in December, 2017. It explicitly stated,
    ‘‘I don’t really see what the prejudice is, it’s not like
    it’s a surprise,’’ and it noted that mailing procedures
    undoubtedly concerned the principal issue in the case.
    The court, indisputably, considered the defendant’s sub-
    stantive knowledge of Chiaro’s testi mony, which had
    been conveyed to him in the plaintiff’s trial manage-
    ment report, and decided that the defendant was not
    prejudiced by the late expert disclosure. The defendant,
    who never sought to depose Chiaro or move for a con-
    tinuance for that purpose after the expert disclosure
    was filed, has not pointed to any aspect of the plaintiff’s
    proof or the defendant’s ability to meet it that was
    adversely affected by the late filing of the expert wit-
    ness disclosure.
    Indulging every reasonable presumption in favor of
    upholding the court’s ruling, we cannot conclude that
    the court abused its discretion in permitting the plaintiff
    to make a late disclosure of Chiaro as an expert witness.
    II
    in allowing the plaintiff’s counsel to question him, in
    the presence of the jury, regarding a prior withdrawn
    action against him, which included a claim for con-
    version. Specifically, the defendant claims that all evi-
    dence relating to the prior action was inadmissible as
    evidence of bad character, propensity, or criminal ten-
    dency under § 4-5 of the Connecticut Code of Evidence.5
    He further contends that the evidence was not relevant
    and that its prejudicial effect outweighed its probative
    value, making it inadmissible under §§ 4-1 and 4-3 of the
    Connecticut Code of Evidence.6 The plaintiff disagrees,
    arguing that the defendant failed to preserve this claim
    for appeal. We agree with the plaintiff that the defendant
    failed to preserve this claim for appeal, and, thus, it is
    not reviewable.
    The following additional facts are necessary for the
    resolution of this claim. During the plaintiff’s direct
    examination of the defendant, the following colloquy
    occurred:
    ‘‘[The Plaintiff’s Counsel]: I understand now. This
    isn’t the only case where you’re currently being sued
    for conversion, is it?
    ‘‘[The Defendant]: Yes, it is.
    ‘‘[The Plaintiff’s Counsel]: Don’t you have a case
    pending with Brignole & Bush?
    ‘‘[The Defendant]: No, I do not.
    ‘‘[The Plaintiff’s Counsel]: Oh, that settled?
    ‘‘[The Defendant]: How is it relevant? I mean—
    ‘‘[The Defendant’s Counsel]: Objection. Relevance.’’
    Following the objection by the defendant’s counsel,
    a sidebar was held, and the jury was then excused. The
    defendant’s counsel then explained to the court as fol-
    lows: ‘‘Your Honor, if I may, as you’re going through
    [the complaint], I’m looking up the case right now, it
    was withdrawn by the plaintiff as to all defendants on
    March 20th of this year.’’ The court requested that the
    question at issue be read back. After hearing the ques-
    tion again, the following colloquy occurred:
    ‘‘The Court: Okay. Well, you want to answer the—
    the question . . . or do you want to—I mean—or do
    you want to have her rephrase the question?
    ‘‘[The Defendant]: No, I want to—
    ‘‘[The Defendant’s Counsel]: Yeah, he—he did answer
    that it was—
    ‘‘The Court: When this trial started on March 20th,
    you know, this—when the jury was selected in this
    case, this case was pending.
    ‘‘[The Defendant]: It’s no longer pending. You can’t—
    they’ve heard—
    ‘‘The Court: I mean, I’ll have her rephrase the ques-
    tion.
    ‘‘[The Defendant’s Counsel]: Oh, yeah. I want to get
    into it. They heard—they heard— they heard what they
    heard, so now it calls for an explanation. It was taken
    completely out of context.
    ‘‘The Court: I’m sorry?
    ‘‘[The Defendant’s Counsel]: It was—it’s—it was
    taken completely out of context.
    ‘‘The Court: Well—
    ‘‘[The Plaintiff’s Counsel]: You mean the case was
    actually, pending.
    ‘‘The Court: —that’s not the answer to the question,
    so let’s get—I’ll ask you to rephrase the question.
    ‘‘[The Plaintiff’s Counsel]: Okay.
    ‘‘The Court: And let’s see what happens.’’ (Empha-
    sis added).
    The jury then returned and the plaintiff’s counsel
    rephrased the question as follows:
    ‘‘[The Plaintiff’s Counsel]: Did you recently resolve
    another pending case you had for conversion?
    ‘‘[The Defendant]: Yes.
    ‘‘[The Plaintiff’s Counsel]: What happened in that
    case?’’
    The defendant then explained what had happened in
    the conversion case as follows: ‘‘That case involved a
    lawyer that I took on in 2014 . . . who left his former
    firm, Brignole, Bush & Lewis. Upon leaving that firm
    he took over, roughly, twenty-five files from that firm
    that were his personal files that—that clients who came
    in to see him, with permission, all the proper documen-
    tation in order, he brought those over to my firm, and
    then there was a fee dispute as to the [attorney’s] fees
    on those cases.
    ‘‘As the principal, meaning the owner of my law firm,
    and [the attorney] . . . now worked for me, I was sued
    in that capacity; so, really, I had no—no involvement
    whatsoever in any of the twenty-five files at all. . . .
    [W]e eventually came to an agreement as to the fee
    division of the [attorney’s fees] that were in escrow,
    and the case was withdrawn.’’ At no point after the
    question was rephrased did the defendant’s counsel put
    on the record that he was maintaining or renewing
    his objection. Further, he did not request a limiting
    instruction.
    We review evidentiary claims pursuant to an abuse
    of discretion standard. ‘‘Generally, [t]rial courts have
    wide discretion with regard to evidentiary issues and
    their rulings will be reversed only if there has been an
    abuse of discretion or a manifest injustice appears to
    have occurred. . . . Every reasonable presumption
    will be made in favor of upholding the trial court’s
    ruling, and it will be overturned only for a manifest
    abuse of discretion.’’ (Internal quotation marks omit-
    ted.) State v. O’Neil, 
    67 Conn. App. 827
    , 831, 
    789 A.2d 531
    (2002).
    At the outset, we must address the plaintiff’s claim
    that the defendant failed to preserve this claim for
    appellate review. ‘‘Assigning error to a court’s eviden-
    tiary rulings on the basis of objections never raised at
    trial unfairly subjects the court and the opposing party
    to trial by ambush.’’ (Internal quotation marks omit-
    ted.) State v. Gonzalez, 
    272 Conn. 515
    , 540, 
    846 A.2d 847
    (2005). The standard for the preservation of a claim
    alleging an improper evidentiary ruling at trial is well
    settled. ‘‘The court shall not be bound to consider a
    claim unless it was distinctly raised at the trial or arose
    subsequent to the trial.’’ Practice Book § 60-5. ‘‘In order
    to preserve an evidentiary ruling for review, trial coun-
    sel must object properly. . . . Our rules of practice
    make it clear that counsel must object to a ruling [on]
    evidence [and] state the grounds upon which objection
    is made . . . to preserve the grounds for appeal.’’
    (Internal quotation marks omitted.) State v. Sun, 92
    Conn. App 618, 630, 
    886 A.2d 1227
    (2005). ‘‘Once counsel
    states the authority and ground of his objection, any
    appeal will be limited to the ground asserted.’’ (Internal
    quotation marks omitted.) United Technologies Corp.
    v. East Windsor, 
    262 Conn. 11
    , 30, 
    807 A.2d 955
    (2002).
    Furthermore, ‘‘[a]n objection to a question on a specific
    ground is not an objection to a similar question later.
    Sears v. Curtis, 
    147 Conn. 311
    , 313, 
    10 A.2d 742
    (1960);
    State v. Rios, 
    171 Conn. App. 1
    , 38–39, 
    156 A.3d 18
    ,
    cert. denied, 
    325 Conn. 914
    [
    159 A.3d 914
    ] (2017).’’ E.
    Prescott, Tait’s Handbook of Connecticut Evidence (6th
    Ed. 2019) §1.25.2, p. 89.
    The defendant’s claim on appeal is unpreserved for
    two reasons. First, after the initial objection by the
    defendant’s counsel, the defendant insisted from the
    witness stand that he be allowed to answer the ques-
    tion by the plaintiff’s counsel about the other conver-
    sion action to explain what had led to the action and
    how it was resolved. In so doing, he expressly indicated
    his agreement with the court’s proposed course of
    action, which was to allow the plaintiff’s counsel to
    rephrase her question, correctly noting that the action
    was no longer pending. At no point after the question
    was rephrased did the defendant’s counsel object.
    Second, assuming, arguendo, that the defendant’s
    counsel did properly object to the initial question by
    the plaintiff’s counsel concerning the other conversion
    action, the defendant’s claim on appeal is, nonetheless,
    unpreserved. ‘‘Our review of evidentiary rulings made
    by the trial court is limited to the specific legal ground
    raised in the objection. . . . To permit a party to raise
    a different ground on appeal than was raised during
    trial would amount to ‘trial by ambuscade,’ unfair both
    to the trial court and to the opposing party.’’ (Citations
    omitted.) State v. Sinclair, 
    197 Conn. 574
    , 579, 
    500 A.2d 539
    (1985). Moreover, our Supreme Court has held that
    an objection to proffered evidence on the ground of
    relevance is insufficient to raise or to preserve a claim
    that it is inadmissible as improper evidence of prior
    misconduct. See
    id., 578–80. In
    the present case, the
    objection before the trial court was on the ground of
    relevance. On appeal, by contrast, the defendant claims
    that the question concerning the conversion action was
    inappropriate because ‘‘evidence of prior misconduct
    cannot be used to suggest that a defendant has a bad
    character or propensity for criminal behavior.’’
    The present claim is not the same claim that the
    defendant initially raised in the trial court concerning
    the plaintiff’s questioning of him as to the other conver-
    sion action. To consider that claim on appeal would be
    to allow a trial by ambuscade. For this reason as well,
    we decline to review this claim on appeal.
    III
    Finally, we turn to the defendant’s claim that the trial
    court erred in allowing the biological mothers of Riv-
    era’s two minor children to testify as to Rivera’s child
    support arrearages. Specifically, the defendant con-
    tends that the testimony of both mothers was ‘‘irrele-
    vant and immaterial to the factual issues surround-
    ing the case’’ and, thus, that it was admitted in violation
    of § 4-1 of the Connecticut Code of Evidence. He further
    contends that allowing both mothers to testify was
    ‘‘unfairly prejudicial, confusing, and constitut[ed] need-
    less presentation of cumulative evidence’’ and, thus,
    that it was admitted in violation of § 4-3 of the Connecti-
    cut Code of Evidence.7 The plaintiff disagrees, arguing
    that the challenged testimony was not only relevant
    but essential to proving the disputed allegations of the
    complaint. We agree with the plaintiff.
    Certain additional facts are necessary to the reso-
    lution of this claim. On March 15, 2018, the defendant
    filed motions in limine requesting that the trial court
    prohibit Maribel Diaz and Margo Rivera, the biological
    mothers of Rivera’s two minor children, from testifying
    as fact witnesses as to the arrearages owed to them by
    Rivera. The defendant claimed generally that the only
    contested issue at trial was whether the lien notice
    allegedly sent to him by the plaintiff in fact had been
    delivered to him, as the plaintiff had alleged. On that
    basis, the defendant argued that the mothers should be
    prohibited from testifying because their testimony was
    irrelevant to the issue of delivery and would only con-
    fuse the issues before the jury. On March 20, 2018, the
    court held a hearing on the motions in limine. There,
    the plaintiff argued that the mothers’ testimony was
    relevant because the defendant, in his amended answer
    and special defenses, had not admitted its allegation
    that Rivera owed child support for the two children
    but, instead, had left the plaintiff to its proof.8 Therefore,
    the plaintiff argued, the mothers’ testimony was neces-
    sary to establish that Rivera actually owed them child
    support, as it had alleged. Ultimately, the trial court
    denied the defendant’s motion to preclude the mothers’
    testimony, and the mothers testified at trial.
    During the plaintiff’s direct examination of Margo
    Rivera, the following colloquy took place:
    ‘‘[The Plaintiff’s Counsel]: And, [Margo] Rivera, did
    you end up with a child support order as part of your
    divorce [from Rivera]?
    ‘‘[Margo Rivera]: Yes. . . .
    ‘‘[The Plaintiff’s Counsel]: Are you receiving the
    court-ordered child support?
    ‘‘[Margo Rivera]: No. . . .
    ‘‘[The Plaintiff’s Counsel]: And do you recall what he
    owed you at the time the case settled, his personal
    injury case?
    ‘‘[Margo Rivera]: I think it was, like, $10,000 or 9000.
    I don’t really—I don’t recall the specific amount.
    ‘‘[The Plaintiff’s Counsel]: It’s a lot more than that
    now, though, isn’t it?
    ‘‘[Margo Rivera]: Yes.’’
    During the plaintiff’s direct examination of Diaz, the
    following colloquy occurred:
    ‘‘[The Plaintiff’s Counsel]: And do you have any chil-
    dren?
    ‘‘[Diaz]: Yes, I have one son. . . . Austin Rivera.
    ‘‘[The Plaintiff’s Counsel]: Who’s Austin’s father?
    ‘‘[Diaz]: Pedro Rivera. . . .
    ‘‘[The Plaintiff’s Counsel]: Had you been to court with
    . . . Rivera to get an initial order of child support?
    ‘‘[Diaz]: Yes.
    ‘‘[The Plaintiff’s Counsel]: Do you have a current
    order of child support?
    ‘‘[The Defendant’s Counsel]: Your Honor, I’m going to
    object to this line of questioning as to relevance . . . .
    ‘‘The Court: Yeah, I’m going to—I’m going to sustain
    the objection. . . .
    ***
    ‘‘[The Plaintiff’s Counsel]: Did you receive anything
    toward your past due child support from the personal
    injury settlement?
    ‘‘[Diaz]: No, I did not.
    ‘‘[The Plaintiff’s Counsel]: How much child support
    is currently owed to you by . . . Rivera? . . .
    ‘‘[Diaz]: Close to $8000.’’
    ‘‘The trial court’s ruling on the admissibility of evi-
    dence is entitled to great deference. . . . [T]he trial
    court has broad discretion in ruling on the admissi-
    bility . . . 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. . . .
    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.
    . . . When reviewing claims under an abuse of discre-
    tion standard, the unquestioned rule is that great weight
    is due to the action of the trial court and every reason-
    able presumption should be given in favor of its correct-
    ness . . . . In determining whether there has been an
    abuse of discretion, the ultimate issue is whether the
    court could reasonably conclude as it did.’’ (Citations
    omitted; internal quotation marks omitted.) PSE Con-
    sulting, Inc. v. Frank Mercede & Sons, Inc., 
    267 Conn. 279
    , 328–29, 
    838 A.2d 135
    (2004).
    ‘‘The law defining the relevance of evidence is well
    settled. Relevant evidence is evidence that has a logical
    tendency to aid the trier in the determination of an
    issue. . . . The trial court has wide discretion to deter-
    mine the relevancy of evidence . . . . Every reason-
    able presumption should be made in favor of the cor-
    rectness of the court’s ruling in determining whether
    there has been an abuse of discretion.’’ (Citation omit-
    ted; internal quotation marks omitted.)
    Id., 332; see
    also
    Conn. Code Evid. § 4-1.
    A review of the record shows that both mothers’
    testimony was relevant to an essential element of the
    case, specifically, whether Rivera owed child support
    for the children of Margo Rivera and Diaz. The defen-
    dant argued, both at trial and in his appellate brief,
    that he did not deny the allegation that child support
    arrearages were owed by Rivera. In his amended answer
    and special defenses, however, the defendant neither
    admitted nor denied the allegation, but left the plaintiff
    to its proof. On that basis, the mothers’ testimony bore
    directly on the contested issue of whether child support
    arrearages were actually owed to each of them, which
    was an essential element of the plaintiff’s case. Conse-
    quently, the court did not abuse its discretion when it
    allowed the mothers to testify as to the arrearages owed
    to them by Rivera.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    The court order to pay child support for his two minor children arose
    from two separate family court cases: (1) a dissolution action involving a
    custodial parent named Margo Rivera; and (2) a paternity petition involving
    a custodial parent named Maribel Diaz.
    2
    The lien notice stated: ‘‘Pursuant to § 52-362d (d) of the Connecticut
    General Statutes this is notification to immediately withhold any monies
    due to the obligor PEDRO JUAN RIVERA from the distribution of a lump
    sum settlement or award.
    ‘‘This notice certifies that the above referenced obligor is subject to a
    child support order of the Superior Court or Family Support Magistrate and
    the order is payable through this State of Connecticut IV-D Agency. The
    child support lien shall be paid to the full extent of the proceeds that are
    due PEDRO JUAN RIVERA.’’
    3
    The $3000 collected by Support Enforcement Services was split equally
    between the two mothers, $1500 each.
    4
    General Statutes § 52-362d provides in relevant part: ‘‘(a) Whenever an
    order of the Superior Court or a family support magistrate for support of
    a minor child or children is issued and such payments have been ordered
    to be made to the state acting by and through the IV-D agency and the
    person against whom such support order was issued owes past-due support
    in the amount of five hundred dollars or more, the state shall have a lien
    on any property, real or personal, in which such person has an interest to
    enforce payment of such past-due support. . . .
    ‘‘(d) Whenever an order of the Superior Court or a family support magis-
    trate of this state . . . for support of a minor child or children is issued
    and such payments have been ordered through the IV-D agency, and the
    obligor against whom such support order was issued owes overdue support
    under such order in the amount of five hundred dollars or more, the IV-D
    agency . . . or Support Enforcement Services of the Superior Court may
    notify . . . (2) any person having or expecting to have custody or control
    of or authority to distribute any amounts due such obligor under any judg-
    ment or settlement . . . . Upon receipt of such notice, such . . . person
    . . . shall withhold delivery or distribution of any such property, benefits,
    amounts, assets or funds until receipt of further notice from the IV-D
    agency. . . .’’
    5
    Section 4-5 of the Connecticut Code of Evidence provides in relevant
    part: ‘‘(a) General rule. Evidence of other crimes, wrongs or acts of a person
    is inadmissible to prove the bad character, propensity, or criminal tendencies
    of that person except as provided in subsection (b). . . .
    ‘‘(c) Evidence of other crimes, wrongs or acts of a person is admissible
    for purposes other than those specified in subsection (a), such as to prove
    intent, identity, malice, motive, common plan or scheme, absence of mistake
    or accident, knowledge, a system of criminal activity, or an element of the
    crime, or to corroborate crucial prosecution testimony. . . .’’
    6
    Section 4-1 of the Connecticut Code of Evidence provides: ‘‘Relevant
    evidence means evidence having any tendency to make the existence of any
    fact that is material to the determination of the proceeding more probable
    or less probable than it would be without the evidence.’’ (Internal quotation
    marks omitted.)
    Section 4-3 of the Connecticut Code of Evidence provides: ‘‘Relevant
    evidence may be excluded if its probative value is outweighed by the danger
    of unfair prejudice or surprise, confusion of the issues, or misleading the
    jury, or by considerations of undue delay, waste of time or needless presenta-
    tion of cumulative evidence.’’
    7
    At trial, however, the defendant failed to raise a claim or object on
    the basis that the probative value of the testimony of either mother was
    outweighed by the danger of unfair prejudice, and, thus, the defendant failed
    to preserve this claim on appeal.
    In order to preserve this claim for appeal, the defendant’s counsel should
    have argued that, even if the mothers’ testimony was relevant, it should,
    nonetheless, have been excluded because its probative value was out-
    weighed by the danger it posed of unfair prejudice; however, they did not.
    Moreover, the defendant’s motions in limine to preclude the testimony of
    Margo Rivera and Maribel Diaz argued that their testimony was irrelevant
    and should be excluded under § 4-1 of the Connecticut Code of Evidence,
    and, therefore, the motions in limine also did not preserve for appeal a
    claim pursuant to § 4-3 of the Connecticut Code of Evidence.
    We, therefore, decline to review that portion of the defendant’s claim in
    which he argues that the probative value of the testimony was outweighed
    by its danger of unfair prejudice.
    8
    Practice Book § 10-46 provides in relevant part: ‘‘The defendant in the
    answer shall specially deny such allegations of the complaint as the defen-
    dant intends to controvert, admitting the truth of the other allegations
    . . . .’’
    Practice Book §13-23 (a) provides in relevant part: ‘‘An answering party
    may not give lack of information or knowledge as a reason for failure to
    admit or deny unless such party states that he or she has made reasonable
    inquiry and that the information known or readily obtainable by him or her
    is insufficient to enable an admission or denial. . . .’’
    On this basis, the rules of practice provide three ways in which to respond
    to allegations in a complaint: to admit, to deny, or to allege lack of informa-
    tion. See generally Practice Book §§ 10-46 and 13-23 (a).
    In the defendant’s answer, he stated: ‘‘[T]he defendant . . . has insuffi-
    cient knowledge to form a belief as to the truth and, therefore, denies same
    and leaves the plaintiff to [its] proof.’’ This statement conveys both that he
    denies the allegation and that he has a lack of information to either admit or
    deny the allegation. Regardless of whether the defendant denied or asserted
    a lack of knowledge, the end result is the same: the defendant left the
    plaintiff to its proof.
    

Document Info

Docket Number: AC41561

Filed Date: 5/12/2020

Precedential Status: Precedential

Modified Date: 4/17/2021