Hoffkins v. Hart-D'Amato , 187 Conn. App. 227 ( 2019 )

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KEVIN L. HOFFKINS v. DIANNE HART-D’AMATO
(AC 39910)
Alvord, Moll and Eveleigh, Js.
Syllabus
The plaintiff brought this action against the defendant to collect unpaid
legal fees in connection with his representation of the defendant in
her previous marital dissolution proceeding. During trial, the defendant
sought to introduce as evidence a transcript from a hearing on a motion
to strike that contained statements made by the plaintiff that were
allegedly relevant to the defendant’s theory of defense. The trial court
did not admit the transcript as a full exhibit and required the defendant
to redact those portions of the transcript comprising legal argument.
Thereafter, the trial court denied the defendant’s motion to disqualify
the trial judge, in which she alleged, inter alia, that the trial judge was
hiding facts from the jury by excluding the transcript and by excessively
sequestering the jury during the presentation of evidence. Subsequently,
the jury found in favor of the plaintiff on the complaint and a counter-
claim filed by the defendant. From the judgment rendered thereon, the
defendant appealed to this court. Held:
1. The trial court did not abuse its discretion when it denied the defendant’s
motion for disqualification of the trial judge, the defendant having failed
to meet her burden of showing the reasonable appearance of impropri-
ety: the portions of the record cited by the defendant suggested that
her claim was based simply on the fact that the court ruled against her,
which did not demonstrate personal bias, and the trial court was well
within its discretion to deny the motion for disqualification for the
reasons stated in its written order, including that excusing the jury during
argument over evidentiary objections was reasonable, as argument and
comments by the hearing judge were not admissible evidence; moreover,
this court was unable to ascertain any instances of impropriety or bias
from the record as a whole, which showed that the trial court consis-
tently labored to assist the defendant throughout the trial process.
2. The trial court did not abuse its discretion in refusing to admit the
unredacted transcript as a full exhibit; that court properly restricted the
evidence to its proper scope, as the transcript at issue did not contain
sworn testimony but, rather, contained legal argument between the
parties and statements of law made by the presiding judge, and, thus,
the court was well within its discretion to require the redaction of the
transcript to preclude those excerpts that reflected legal argument.
Argued September 13, 2018—officially released January 15, 2019
Procedural History
Action to collect unpaid legal fees, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, where the defendant filed a counter-
claim; thereafter, the court, Radcliffe, J., granted the
plaintiff’s motion for summary judgment as to the defen-
dant’s counterclaim; subsequently, the defendant filed
an amended counterclaim; thereafter, the matter was
tried to the jury before Krumeich, J.; subsequently, the
court, Krumeich, J., denied the defendant’s motion for
disqualification; verdict and judgment for the plaintiff
on the complaint and counterclaim, from which the
defendant appealed to this court. Affirmed.
Dianne Hart, self-represented, the appellant
(defendant).
Anthony B. Corleto, with whom, on the brief, was
James E. C. Siewert, for the appellee (plaintiff).
Opinion
EVELEIGH, J. In this action for the collection of
unpaid legal fees, the named defendant, Dianne Hart-
D’Amato, appeals from the judgment of the trial court,
rendered after a jury trial, in favor of the plaintiff, Kevin
L. Hoffkins. On appeal, the defendant claims that the
trial court abused its discretion when it (1) denied her
motion for disqualification of the trial judge, and (2)
precluded relevant evidence offered by the defendant.1
We disagree and, accordingly, affirm the judgment of
the trial court.
The jury reasonably could have found the following
facts. The defendant was a party to a marital dissolution
action filed in 2011. During the summer of 2012, the
defendant retained the plaintiff to represent her. The
plaintiff served as the defendant’s counsel for more
than one year; the defendant, however, failed to make
any payments to the plaintiff beyond the initial retainer.
Over the course of the representation, the attorney-
client relationship broke down, and the plaintiff filed
a motion to withdraw his appearance, which the court
granted on September 14, 2013.
On October 30, 2013, the plaintiff commenced the
underlying action against the defendant. In the opera-
tive one count complaint, filed on December 4, 2013,
the plaintiff alleged that the defendant failed to pay
approximately $60,000 in legal fees stemming from his
representation of the defendant in the dissolution pro-
ceeding. In the defendant’s amended answer, she
asserted a number of special defenses, along with a
six count counterclaim alleging, inter alia, professional
negligence and negligent infliction of emotional
distress.
During an eleven day jury trial, the defendant sought
to introduce as evidence a transcript from an August
25, 2014 hearing on a motion to strike that contained
statements made by the plaintiff that were relevant to
her theory of defense. For the reasons discussed in
part I of this opinion, the trial court did not admit the
transcript as a full trial exhibit. Throughout trial, the
defendant continued to argue that the entire transcript
should be admitted as a full exhibit because it contained
relevant facts. When the court refused to admit the
transcript as a full trial exhibit, the defendant filed a
written motion to disqualify the trial judge, alleging,
inter alia, that he was hiding facts from the jury by
excluding the August 25, 2014 transcript and by exces-
sively sequestering the jury during the presentation of
evidence. The court issued a written order denying the
motion, stating in part that legal argument between
parties is not evidence and, therefore, excusing the jury
during evidentiary colloquies regarding admissibility
was reasonable. The jury found for the plaintiff with
respect to his breach of contract claim and the defen-
dant’s counterclaims. The court accepted the verdict
and rendered judgment in accordance therewith. This
appeal followed. Additional facts will be provided as
necessary.
I
The defendant’s first claim on appeal is that the trial
court erred when it denied her motion for disqualifica-
tion of a judicial authority.2 Specifically, the defendant
argues that the court demonstrated openly biased
behavior when it excessively sequestered the jury, made
adverse evidentiary rulings against her, and coached
the plaintiff with respect to his testimony.3 We disagree.
We first set forth the relevant standard of review.
‘‘Pursuant to our rules of practice; see Practice Book
§ 1-22; a judge should disqualify himself from acting in
a matter if it is required by rule 2.11 of the Code of
Judicial Conduct, which provides in relevant part that
[a] judge shall disqualify himself . . . in any proceed-
ing in which the judge’s impartiality might reasonably
be questioned . . . . In applying this rule, [t]he reason-
ableness standard is an objective one. Thus, the ques-
tion is not only whether the particular judge is, in fact,
impartial but whether a reasonable person would ques-
tion the judge’s impartiality on the basis of all the cir-
cumstances. . . . Moreover, it is well established that
[e]ven in the absence of actual bias, a judge must dis-
qualify himself in any proceeding in which his impartial-
ity might reasonably be questioned, because the
appearance and the existence of impartiality are both
essential elements of a fair exercise of judicial author-
ity. . . . Nevertheless, because the law presumes that
duly elected or appointed judges, consistent with their
oaths of office, will perform their duties impartially
. . . and that they are able to put aside personal impres-
sions regarding a party . . . the burden rests with the
party urging disqualification to show that it is war-
ranted.’’ (Internal quotation marks omitted.) Doe v. West
Hartford, 168 Conn. App. 354, 382–83, 147 A.3d 1083(2016), aff’d, 328 Conn. 172, 177 A.3d 1128 (2018). ‘‘A
trial court’s ruling on a motion for disqualification is
reviewed for abuse of discretion. . . . In determining
whether there has been an abuse of discretion, every
reasonable presumption should be given in favor of the
correctness of the court’s ruling. . . . Reversal is
required only where an abuse of discretion is manifest
or where injustice appears to have been done.’’ (Internal
quotation marks omitted.) D’Amato v. Hart-D’Amato,
169 Conn. App. 669, 686, 152 A.3d 546 (2016).
The following facts are relevant to our analysis. At
trial, the defendant sought to introduce two transcripts
claiming that they contained sworn testimony from the
plaintiff: a prejudgment remedy hearing transcript from
April 3, 2014, which did, in fact, contain sworn testi-
mony from the plaintiff; and a transcript from an August
25, 2014 hearing on a motion to strike filed by the
defendant, which contained legal argument relating to
the pleadings. The defendant argued that the contents
of these transcripts would be sufficient to impeach the
plaintiff. After excusing the jury, the court canvassed
the defendant with respect to the exhibit and asked
the defendant whether the August 25, 2014 transcript
contained sworn testimony of the plaintiff. The defen-
dant answered in the affirmative.4 On that basis, the
court, without objection from the plaintiff, admitted the
August 25, 2014 transcript as a full trial exhibit. Some
moments later, while the court was still reviewing the
exhibit, the court attempted to clarify whether the
August 25, 2014 transcript, in fact, contained sworn
testimony.5 The court examined the exhibit and
observed that the transcript did not contain party state-
ments exclusively, but also, legal argument with respect
to the pleadings. The court, sua sponte, revised its initial
ruling and admitted the August 25, 2014 transcript for
identification purposes only. The court stated that if
the defendant wanted to offer certain statements made
by the plaintiff, she could do so, but explained that the
entire transcript would not be admitted as a full trial
exhibit because it contained legal argument. On Octo-
ber 20, 2016, after numerous colloquies relating to the
August 25, 2014 transcript, the court allowed a redacted
version to be entered into evidence as an admission of
a party opponent. Despite this ruling, the defendant
continued to claim that the court was hiding facts from
the jury, which she argued constituted overt judicial
bias.
In her motion for disqualification, the defendant’s
primary claim was that the trial judge excessively
sequestered the jury during the evidentiary colloquies
regarding the August 25, 2014 transcript and, therefore,
prevented the jury from hearing all material facts relat-
ing to her claim that the plaintiff perjured himself.6 The
court denied the motion in a written order, stating in
relevant part: ‘‘Excusing the jury when the parties are
arguing evidentiary objections was reasonable. Argu-
ment is not evidence. The transcript of the [motion
to strike] hearing offered by [the] defendant included
extensive comments by [the hearing judge] during argu-
ment . . . that was inadmissible at trial.’’
Here, the portions of the record cited by the defen-
dant suggest that her claim is based simply on the fact
that the court ruled against her with respect to the
August 25, 2014 transcript. ‘‘[T]he fact that a trial court
rules adversely to a litigant . . . does not demonstrate
personal bias.’’ (Internal quotation marks omitted.)
Burns v. Quinnipiac University, 120 Conn. App. 311,
317, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d
634 (2010).
After a careful review of the record, including the
court’s order and the portions of the record to which
the defendant has directed our attention, we conclude
that the defendant has failed to meet her burden of
showing the reasonable appearance of impropriety.
Moreover, we are unable to ascertain any instances of
impropriety or bias from the record as a whole. Rather,
our review of the record indicates that the trial court
consistently labored to assist the defendant throughout
the trial process. The court was well within its discre-
tion to deny the motion for disqualification for the rea-
sons stated in its written order. Accordingly, we
conclude that the trial court did not abuse its discretion
when it denied the defendant’s motion.
II
The defendant next argues that the court erred by
precluding relevant evidence. Specifically, the defen-
dant claims that the court erred by refusing to admit
the unredacted August 25, 2014 transcript as a full trial
exhibit. The defendant further argues that the court’s
decision to vacate its initial ruling, admitting the unre-
dacted transcript to be admitted as a full exhibit, was
an abuse of discretion because this subsequent ruling
prevented the jury from considering relevant facts,
resulting in a violation of her right to due process.7
We disagree.
We first set forth the relevant standard of review. ‘‘To
the extent [that] a trial court’s admission of evidence
is based on an interpretation of [our law of evidence],
our standard of review is plenary. . . . We review the
trial court’s decision to admit [or exclude] evidence, if
premised on a correct view of the law, however, for an
abuse of discretion. . . . The trial court has wide dis-
cretion to determine the relevancy of evidence and the
scope of cross-examination. . . . Thus, [w]e will make
every reasonable presumption in favor of upholding the
trial court’s ruling[s] [on these bases] . . . . In
determining whether there has been an abuse of discre-
tion, the ultimate issue is whether the court . . . rea-
sonably [could have] conclude[d] as it did.’’ (Internal
quotation marks omitted.) Weaver v. McKnight, 313
Conn. 393, 426, 97 A.3d 920 (2014).
We acknowledge that the defendant claims that the
trial court violated her right to due process by vacating
its initial ruling, allowing the unredacted transcript as
a full exhibit, but ‘‘the defendant . . . cannot clothe
an ordinary evidentiary issue in constitutional garb to
obtain [a more favorable standard of] review.’’ (Internal
quotation marks omitted.) State v. Warren, 83 Conn.
App. 446, 452, 850 A.2d 1086, cert. denied, 271 Conn. 907,
859 A.2d 567 (2004). ‘‘[R]obing garden variety claims
[of an evidentiary nature] in the majestic garb of consti-
tutional claims does not make such claims constitu-
tional in nature. . . . Putting a constitutional tag on a
nonconstitutional claim will no more change its essen-
tial character than calling a bull a cow will change its
gender.’’ (Internal quotation marks omitted.) State v.
Rosario, 99 Conn. App. 92, 99 n.6, 912 A.2d 1064, cert.
denied, 281 Conn. 925, 918 A.2d 276 (2007). Accordingly,
we conclude that the defendant’s evidentiary claim does
not implicate due process concerns and is, instead,
strictly evidentiary in nature; therefore, we review the
defendant’s claim under an abuse of discretion
standard.
The issue of whether the court abused its discretion
by admitting a redacted version of the August 25, 2014
transcript hinges on whether the court correctly
restricted the evidence to its proper scope. With that
in mind, the following legal principles are relevant to
the disposition of the defendant’s claim. When ‘‘[a]n
exhibit [is] offered and received as a full exhibit [it] is
in the case for all purposes . . . and is usable as proof
to the extent of the rational persuasive power it may
have.’’ (Citation omitted; internal quotation marks omit-
ted.) Gagliano v. Advanced Specialty Care, P.C., 329
Conn. 745, 759, 189 A.3d 587 (2018). Furthermore, § 1-
4 of the Connecticut Code of Evidence provides in rele-
vant part: ‘‘The court may, and upon request shall,
restrict . . . evidence to its proper scope.’’
Here, the August 25, 2014 transcript did not contain
sworn testimony as the court initially was led to believe
by the defendant; rather, as discussed in part I of this
opinion, it contained legal argument between the par-
ties and statements of law made by the presiding judge
at the motion to strike hearing. The court was well
within its discretion to require the redaction of the
August 25, 2014 transcript, precluding those excerpts
reflecting legal argument. We conclude, therefore, that
the court did not abuse its discretion in refusing to
admit the unredacted August 25, 2014 transcript as a
full exhibit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also claims that the court improperly allowed evidence
that was beyond the relevant time frame established by the court. With
respect to this claim, we note that the defendant has not articulated any
discernable time frame to assist our analysis or directed our attention to
any portion of the record where the court firmly established a time frame.
Although the defendant is a self-represented litigant, ‘‘the [General] [S]tatutes
and rules of practice cannot be ignored completely. . . . We are not required
to review issues that have been improperly presented to this court through
an inadequate brief. . . . Analysis, rather than abstract assertion, is required
in order to avoid abandoning an issue by failure to brief the issue properly.
. . . Where a claim is asserted in the statement of issues but thereafter
receives only cursory attention in the brief without substantive discussion
or citation of [relevant] authorities, it is deemed to be abandoned.’’ (Citations
omitted; internal quotation marks omitted.) Lareau v. Burrows, 90 Conn.
App. 779, 780, 881 A.2d 411 (2005). Accordingly, we deem this claim aban-
doned and decline to review it.
2
The defendant also claims that the trial court erred by failing to conduct
an evidentiary hearing prior to ruling on the motion for disqualification.
Because the defendant failed to provide any analysis as to why a hearing
was required in connection with her motion for disqualification, we limit
our analysis to her claim that the court erred when it denied the motion.
See Lareau v. Burrows, 90 Conn. App. 779, 780, 881 A.2d 411 (2005).
3
The defendant also argues that, subsequent to her filing the motion for
disqualification, the court ignored certain pretrial court orders and refused
to clarify its rulings in retaliation against her for filing the motion. Because
our review of the defendant’s claim is restricted to whether the court abused
its discretion when it denied her motion for disqualification, we limit our
analysis to the conduct that was alleged in the motion. See Lareau v.
Burrows, 90 Conn. App. 779, 780, 881 A.2d 411 (2005).
4
The following exchange occurred on the record:
‘‘[The Defendant]: Along with a transcript from August 25, 2014 . . . .
The two go together. . . . [T]hat’s the impeachment.
‘‘The Court: Okay. And [the transcript from August 25, 2014], that was
also testimony by [the plaintiff]?
‘‘[The Defendant]: Yes.’’
5
The following exchange occurred on the record:
‘‘The Court: Wait a minute, ma’am. Ma’am, I
just—just timeout.
‘‘[The Defendant]: Why?
‘‘The Court: This is not a transcript of testimony—
‘‘[The Defendant]: Yes, it is.
‘‘The Court: It sounds to me like it’s an argument—
‘‘[The defendant]: No, it is not.
‘‘The Court: —on a motion . . . to strike—
‘‘[The Defendant]: No, it is not. . . .
‘‘[The Plaintiff]: It was oral argument.
‘‘[The Defendant]: No, it is not. ‘Cause—‘cause
the—the last line—
‘‘The Court: Timeout. . . . Timeout. This is oral argument. It’s not a tran-
script. It’s just— . . . It’s just the judge discussing a motion to strike . . . .’’
6
The defendant also claims that the court provided ‘‘legal advice’’ and
‘‘coached’’ the plaintiff with respect to his testimony. In support of this
claim she refers to the following exchange:
‘‘The Court: I will—I will allow you to ask a question based on lines
twenty-five through twenty-seven, and line one on page three. Is that the
information you wanted to get out of this transcript?
‘‘[The Defendant]: Yes. . . .
‘‘The Court: So the question I will allow is . . . [a]t . . . an argument
before the court on August 25, 2014, did you say—you were asked—did
you say—and then you can read lines twenty-five, twenty-six, twenty-seven
and the first line on page three. . . . And then he can say yes or no. . . .
‘‘[The Plaintiff]: Excuse [me], Your Honor, may I ask, this document is
not being admitted still, is that right?
‘‘The Court: That document is not in evidence. And if you have no recollec-
tion of saying that than that—you answer however you will. I don’t dictate
how people answer. However that is—that’s what she’s going to ask you
about. All right.’’
The defendant’s claim, however, mischaracterizes the exchange between
the court and the plaintiff and fails to take into account that the court was
attempting to assist her by providing her with a permissible form of the
question to conduct her direct examination of the plaintiff. Accordingly,
this claim is without merit.
7
Neither during the trial nor on appeal has the defendant identified the
relevant facts that she claims were excluded in the redacted version of the
August 25, 2014 transcript.