Barclays Bank Delaware v. Bamford ( 2022 )

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BARCLAYS BANK DELAWARE v.
DIANA L. BAMFORD
(AC 44056)
Moll, Clark and DiPentima, Js.
Syllabus
The plaintiff bank sought to recover damages for the defendant’s breach of
a credit card agreement, claiming that the defendant had defaulted on
a credit card account. The trial court granted the plaintiff’s motion for
default for failure to disclose a defense, pursuant to the relevant rule
of practice (§ 13-19), and rendered judgment thereon following a hearing
in damages. During the proceedings, the defendant filed a motion to
disqualify the trial judge, F, from further participation in the proceedings
on the ground of impropriety, which the trial court denied. On appeal
to this court, the defendant claimed, inter alia, that the trial court improp-
erly denied the motion to disqualify. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion to disqualify F, the defendant having failed to establish that a
reasonable person presented with the facts would doubt F’s impartiality;
the record demonstrated that the defendant’s counsel failed to provide
any evidence of bias or impropriety sufficient to meet the required
threshold, as counsel’s history of past litigation involving F’s former
law firm and a single conversation with F, both occurring nearly twenty
years ago, simply did not put F’s impartiality in question.
2. The trial court properly granted the plaintiff’s motion for default for failure
to disclose a defense; contrary to the defendant’s claim that she had no
obligation to disclose a defense because the action did not fit into
any of the categories specified under Practice Book § 13-19, this court
determined that, for the purposes of § 13-19, the complaint, which
sounded in default on a credit account, constituted an action ‘‘upon [a]
written contract’’ within the meaning of § 13-19, as each credit card
transaction was a unilateral promise to repay the debt being incurred,
in accordance with the terms set forth in the credit card agreement, in
exchange for the issuing bank’s performance.
3. The trial court did not abuse its discretion in admitting the plaintiff’s
business records of the defendant’s monthly account billing statements
into evidence; although the defendant claimed that such admission was
improper under the business records exception to the hearsay rule
pursuant to statute (§ 52-180) and the applicable provision (§ 8-4) of the
Connecticut Code of Evidence because the producing witness was not
a bookkeeper who kept or maintained the records of the defendant’s
account, the witness’ testimony provided an adequate foundation for
admission, as he testified as to his current role as a recovery support
lead for the plaintiff, which involved the management of collection
agencies and maintaining records for collection efforts to ensure they
are accurate and complete, and that he had reviewed the defendant’s
account history and monthly billing statements and that they were accu-
rate in all respects and had been mailed to the defendant.
Argued December 7, 2021—officially released June 7, 2022
Procedural History
Action to recover damages for, inter alia, breach of
a credit card agreement, and for other relief, brought to
the Superior Court in the judicial district of Middlesex,
where the court, Frechette, J., granted the plaintiff’s
motion for default for failure to disclose a defense;
thereafter, the court, Suarez, J., denied the defendant’s
motion to disqualify judicial authority; subsequently,
following a hearing in damages, the court, Suarez, J.,
rendered judgment for the plaintiff, from which the
defendant appealed to this court. Affirmed.
Pat Labbadia III, for the appellant (defendant).
Jeanine M. Dumont, for the appellee (plaintiff).
Opinion
DiPENTIMA, J. In this debt collection action, the
defendant, Diana L. Bamford, appeals from the judg-
ment of the trial court, Suarez, J., following a hearing
in damages, awarding the plaintiff, Barclays Bank Dela-
ware, monetary relief in the amount of $5661.81 plus
costs of $436.20. On appeal, the defendant claims that
the court: (1) abused its discretion in denying her motion
to disqualify the Honorable Matthew E. Frechette, a
judge of the Superior Court, and in ruling on her motions
to reargue and reconsider that denial; (2) improperly
granted the plaintiff’s motion for default for failure to
disclose a defense; and (3) improperly admitted certain
documents containing hearsay statements into evi-
dence at the hearing in damages. We disagree and,
accordingly, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the resolution of this appeal. On May 7, 2018,
the plaintiff filed a two count complaint against the
defendant, sounding in breach of contract and account
stated. The complaint generally alleges that the defen-
dant was indebted to the plaintiff in the sum of $5661.81
arising out of the use of a credit account issued by the
plaintiff.
On June 25, 2018, the defendant filed a request to
revise the complaint to allege whether ‘‘the alleged debt
arose orally or as a result of a written document.’’ On
September 11, 2018, the plaintiff filed a motion for
extension of time to object thereto, alleging that the
defendant never had served her request to revise on
the plaintiff. On the same date, the plaintiff also filed
an objection to the defendant’s request to revise. On
September 20, 2018, the defendant moved for a judg-
ment of nonsuit on the ground that the plaintiff failed
to comply with the defendant’s request to revise; the
plaintiff filed an objection to the motion for judgment
of nonsuit. On September 24, 2018, the court, Frechette,
J., sustained the plaintiff’s objection to the defendant’s
request to revise.
On October 9, 2018, the defendant filed a motion for
order seeking to disallow nunc pro tunc the plaintiff’s
filings relating to the defendant’s request to revise and
the motion for judgment of nonsuit, contending that
the plaintiff never served those filings on her electroni-
cally. On that same date, the defendant’s counsel filed
a motion to reargue and/or reconsider the court’s Sep-
tember 24, 2018 order, outlining for the first time that
he had had prior dealings with Judge Frechette and his
father. The defendant also requested oral argument on
the plaintiff’s objection to her motion for a judgment
of nonsuit. In the request for argument, the defendant’s
counsel suggested that, ‘‘[d]ue to past dealings, the pro-
priety of Judge Frechette’s involvement in the under-
signed’s cases needs to be addressed.’’
On October 15 and 22, 2018, Judge Frechette denied
the defendant’s motion to reargue and the defendant’s
motion for order, respectively. In denying the motion
to reargue, Judge Frechette referred to an earlier unre-
lated case in which the defendant’s counsel filed a
motion to ‘‘disqualify [Judge Frechette] based on the
identical grounds referenced in [multiple paragraphs]
of this motion.’’ See Value Health Care Services, LLC
v. PARCC Health Care, Inc., Superior Court, judicial
district of New Haven, Docket No. CV-XX-XXXXXXX-S
(July 9, 2012). Judge Frechette noted ‘‘that the Presiding
Judge Jonathan Silbert denied said motion, finding it
to be ‘utterly without merit,’ ’’ and that the motion to
reargue had also been denied. Judge Frechette attached
a copy of both decisions to his ruling and concluded
that ‘‘[t]he issue concerning the disqualification of the
undersigned has already been raised and litigated by
defense counsel and found to be without merit.’’ In
denying the motion for order, Judge Frechette incorpo-
rated his order denying the motion to reargue. On
November 5, 2018, the defendant moved for an exten-
sion of time to file a motion to reargue the court’s
order denying her prior motion to reargue regarding
her request to revise. The plaintiff objected to the
November 5, 2018 motion, and it was ultimately denied
by the court, Suarez, J., on February 28, 2019.
Meanwhile, on September 12, 2018, the plaintiff had
filed a demand for disclosure of defense, pursuant to
Practice Book § 13-19.1 On October 18, 2018, the plaintiff
filed a motion for default for failure to disclose a
defense. On October 30, 2018, the defendant objected
to the plaintiff’s motion for default and moved for an
extension of time to plead in response to the plaintiff’s
demand for disclosure of defense. On November 13,
2018, the defendant filed an objection to the plaintiff’s
motion for default, contending that the plaintiff’s
demand for disclosure of defense was improperly filed
in the present case on the ground that it is not a case
to which § 13-19 applies because it is not an action
‘‘upon [a] written contract.’’ On November 14, 2018, the
plaintiff replied to the defendant’s objection and argued
that § 13-19 applied because ‘‘[t]his was a revolving
credit card account. Each time the defendant used the
account, she signed for the charges or otherwise
acknowledged the charges to the account. Therefore,
each time she charged to this account, there was a
writing which memorialized her agreement to pay for
the charges she made to the account. To claim that this
is not an action upon a written contract is unfounded
and frivolous.’’ On November 15, 2018, Judge Frechette
granted the plaintiff’s motion for default.
On November 19, 2018, the defendant filed a ‘‘notice
that no action can be taken,’’ indicating that she
intended to file a motion to recuse Judge Frechette
‘‘from further proceedings in this matter, or in any other
matters in which the [defendant’s counsel] is involved
in any capacity in order to avoid the appearance of
impropriety.’’ In response to the defendant’s filing, the
court, Suarez, J., held a hearing on December 12, 2018,
at which the defendant’s counsel reiterated that he
intended to file a motion to disqualify Judge Frechette.
Judge Suarez stated that, with respect to the require-
ments to timely file a motion in accordance with Prac-
tice Book § 1-23, ‘‘if [the defendant’s counsel takes] the
position that Judge Frechette should be disqualified
because he may have some kind of bias . . . we have
to address that issue immediately. Certainly [the defen-
dant’s counsel is] past ten days with . . . respect to this
case.’’ Judge Suarez, then sitting as presiding judge for
civil matters and administrative judge for the judicial
district of Middlesex, and citing ‘‘an obligation to . . .
address any potential claim of bias against any judge that
sits [in the judicial district of Middlesex],’’ ordered that,
‘‘if [the defendant] wish[ed] to have Judge Frechette
recuse himself, [the court would] give [her] one week
. . . to file that motion.’’
On December 19, 2018, the defendant filed a verified
motion to disqualify Judge Frechette on the ground of
apparent impropriety. The claim of impropriety cen-
tered on a conversation between the defendant’s coun-
sel and Judge Frechette at an unspecified time between
1997 and 2007, while Judge Frechette (before he was
appointed to the bench) was an attorney working with
his father. Further, the defendant’s counsel claimed that
a lawsuit filed against him by Judge Frechette’s father
should bar Judge Frechette from being involved in any
future proceedings with him.2 The defendant’s counsel
also challenged the propriety of Judge Frechette’s
orders disposing of the defendant’s request to revise in
the present case.
Judge Suarez held a hearing on the defendant’s
motion to disqualify on January 2, 2019, and issued a
memorandum of decision denying the motion on Febru-
ary 22, 2019. The memorandum of decision set forth
three principal grounds for the denial. First, Judge
Suarez reasoned that the motion to disqualify Judge
Frechette was barred by collateral estoppel because
Judge Silbert previously denied ‘‘the same motion,
encompassing the same issues,’’ filed by the defendant’s
counsel in Value Health Care Services, LLC v. PARCC
Health Care, Inc., supra, Superior Court, Docket No.
CV-XX-XXXXXXX-S. Second, Judge Suarez determined that
the defendant’s counsel ‘‘constructively waived’’ his right
to file his motion to disqualify because ‘‘he failed to file
his motion to disqualify within ten days of the case
being called for trial or hearing,’’ pursuant to Practice
Book § 1-23, and, instead, waited ‘‘almost three months
after Judge Frechette issued his first ruling.’’ Third,
Judge Suarez concluded that the motion failed ‘‘on the
merits’’ because the defendant’s counsel failed to pro-
vide any evidence from which one could reasonably
question Judge Frechette’s impartiality. The defendant
then filed two subsequent motions to reargue and/or
reconsider; the court denied the first motion and granted
the second motion, but denied the relief requested
therein.3
On February 19, 2020, the plaintiff filed a motion for
judgment requesting that the court enter judgment in
its favor in the amount of $5661.81 in damages, plus
$436.20 in costs, on the basis of the court’s prior default
of the defendant for her failure to disclose a defense.4
On that same day, the court, Suarez, J., held a hearing
in damages at which the plaintiff called one of its
employees, Michael Noonan, to testify as to the account
statements involved in this matter. During the hearing,
after the plaintiff’s counsel inquired of Noonan, the
account statements were offered as a full exhibit. The
defendant objected thereto, on the basis of a lack of
proper foundation to qualify as a business record pursu-
ant to General Statutes § 52-180 and § 8-4 of the Con-
necticut Code of Evidence. This objection was over-
ruled by the court. On March 2, 2020, the court granted
the plaintiff’s motion for judgment and rendered judg-
ment for the plaintiff in the amounts it had requested.
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant first claims that the court abused its
discretion in denying her motion to disqualify Judge
Frechette. We find no abuse of discretion.5
We begin with the applicable standard of review.
‘‘Our review of the trial court’s denial of a motion for
disqualification is governed by an abuse of discretion
standard.’’ State v. Milner, 325 Conn. 1, 12, 155 A.3d
730 (2017). Practice Book § 1-23 provides: ‘‘A motion
to disqualify a judicial authority shall be in writing and
shall be accompanied by an affidavit setting forth the
facts relied upon to show the grounds for disqualifica-
tion and a certificate of the counsel of record that the
motion is made in good faith. The motion shall be filed
no less than ten days before the time the case is called
for trial or hearing, unless good cause is shown for
failure to file within such time.’’
‘‘Of all the charges that might be leveled against one
sworn to administer justice and to faithfully and impar-
tially discharge and perform all the duties incumbent
upon [them] . . . a charge of bias must be deemed at
or near the very top in seriousness, for bias kills the very
soul of judging—fairness.’’ (Internal quotation marks
omitted.) Wendt v. Wendt, 59 Conn. App. 656, 693, 757
A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044(2000). Pursuant to rule 2.11 (a) of the Code of Judicial
Conduct, ‘‘[a] judge shall disqualify himself . . . in any
proceeding in which the judge’s impartiality might rea-
sonably be questioned . . . . In applying this rule, [t]he
reasonableness standard is an objective one. Thus, the
question is not only whether the particular judge is, in
fact, impartial but whether a reasonable person would
question the judge’s impartiality on the basis of all the
circumstances. . . . Moreover, it is well established
that [e]ven in the absence of actual bias, a judge must
disqualify himself in any proceeding in which his impar-
tiality 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
. . . the burden rests with the party urging disqualifica-
tion to show that it is warranted.’’ (Internal quotation
marks omitted.) State v. Milner, supra, 325 Conn. 12.
The defendant argues that Judge Frechette ‘‘is the son
of the longtime enemy’’ of the defendant’s counsel. Spe-
cifically, the defendant contends that Judge Frechette
and his father belonged to a law firm that sued the defen-
dant’s counsel in his individual capacity, and, according
to the defendant’s counsel, ‘‘there was substantial ani-
mosity and discord between the law firm of Frechette &
Frechette and its members (including now [Judge]
Frechette), and the [defendant’s] counsel as an individ-
ual defendant in that matter, and also in its related
matters. The [defendant’s] counsel believes this animos-
ity is still present.’’ Because of this tumultuous history,
the defendant argues that the situation clearly involves
the appearance of impropriety.
In addressing the defendant’s motion to disqualify,
the court held that ‘‘[t]here is nothing in the record
indicating that Judge Frechette has provided even a
minute appearance of impropriety, nor would a reason-
able person question his impartiality. This motion is
completely lacking factual support and is instead rid-
dled with unsubstantiated, opinionated accusations
aimed at achieving some personally motivated goal.’’
The court went on to state that ‘‘[t]here is nothing to
show that Judge Frechette has demonstrated animosity
toward [the defendant’s counsel] but, rather, it is appar-
ent that [the defendant’s counsel] still holds resentment
toward Judge Frechette. . . . The allegedly inflamma-
tory conversation between Judge Frechette and [the
defendant’s counsel] occurred sometime in 1997, over
twenty years ago. . . . An adverse or hostile conversa-
tion between attorneys, without more, does not provide
an adequate basis for a motion to disqualify judicial
authority and fails to fall within rule 2.11 of the Code
of Judicial Conduct.’’
We iterate that ‘‘[v]ague and unverified assertions of
opinion, speculation and conjecture cannot support a
motion to recuse nor are they sufficient to warrant an
evidentiary hearing on the same.’’ DeMatteo v. DeMat-
teo, 21 Conn. App. 582, 591, 575 A.2d 243, cert. denied,
216 Conn. 802, 577 A.2d 715 (1990). Moreover, adverse
rulings, even if later determined to be erroneous, do
not demonstrate judicial bias or partiality. See Bieluch
v. Bieluch, 199 Conn. 550, 553, 509 A.2d 8 (1986) (‘‘[t]he
fact that a trial court rules adversely to a litigant, even
if some of these rulings were to be determined on appeal
to have been erroneous, does not demonstrate personal
bias’’); Emerick v. Glastonbury, 177 Conn. App. 701,
739, 173 A.3d 28 (2017) (‘‘[A]dverse rulings do not them-
selves constitute evidence of bias. . . . The fact that
[a party] strongly disagrees with the substance of the
court’s rulings does not make those rulings evidence
of bias.’’ (Internal quotation marks omitted.)), cert.
denied, 327 Conn. 994, 175 A.3d 1245 (2018); Traystman
v. Traystman, 141 Conn. App. 789, 803, 62 A.3d 1149(2013) (‘‘an adverse or unfavorable ruling is not, in itself,
evidence of judicial bias against a litigant’’).
Having reviewed the record, we conclude that the
defendant has not met her burden to show that the court
abused its discretion in determining that the defendant
failed to establish that a reasonable person presented
with the facts would doubt Judge Frechette’s impartial-
ity. See State v. Milner, supra, 325 Conn. 12. As the
court aptly concluded, the defendant’s counsel failed
to provide any evidence of bias or impropriety sufficient
to meet the required threshold. A history of past litiga-
tion involving Judge Frechette’s former law firm and a
single conversation, both occurring nearly twenty years
ago, simply do not put Judge Frechette’s impartiality
in question. Thus, we conclude that the court did not
abuse its discretion in denying the defendant’s motion
to disqualify Judge Frechette.
II
The defendant next claims that the court erred in
granting the plaintiff’s motion for default for failure to
disclose a defense. Specifically, the defendant argues
that the plaintiff did not base its allegations in the com-
plaint ‘‘upon [a] written agreement,’’ as required by
Practice Book § 13-19. We disagree with the defendant.
The defendant’s claim concerns the interpretation of
a rule of practice, as well as our interpretation of the
plaintiff’s complaint; thus, our review is plenary. See
Compass Bank v. Dunn, 196 Conn. App. 43, 46, 228
A.3d 663 (2020). ‘‘The interpretive construction of the
rules of practice is to be governed by the same princi-
ples as those regulating statutory interpretation. . . .
The interpretation and application of a statute, and thus
a Practice Book provision, involves a question of law
over which our review is plenary.’’ (Internal quotation
marks omitted.) Meadowbrook Center, Inc. v. Buch-
man, 328 Conn. 586, 594, 181 A.3d 550 (2018); see also
Caron v. Connecticut Pathology Group, P.C., 187 Conn.
App. 555, 564, 202 A.3d 1024 (interpretation of pleadings
is subject to plenary review and this court is not bound
by labels attached to complaint), cert. denied, 331 Conn.
922, 206 A.3d 187 (2019).
‘‘In seeking to determine [the] meaning [of a statute
or a rule of practice, we] . . . first . . . consider the
text of the statute [or rule] itself and its relationship to
other statutes [or rules]. . . . If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence
. . . shall not be considered. . . . We recognize that
terms [used] are to be assigned their ordinary meaning,
unless context dictates otherwise.’’ (Citations omitted;
internal quotation marks omitted.) Meadowbrook Cen-
ter, Inc. v. Buchman, supra, 328 Conn. 594. ‘‘[W]e follow
the clear meaning of unambiguous rules, because
[a]lthough we are directed to interpret liberally the rules
of practice, that liberal construction applies only to
situations in which a strict adherence to them [will]
work surprise or injustice.’’ (Internal quotation marks
omitted.) Id., 595.
We turn to the relevant rule of practice at issue in this
case, Practice Book § 13-19, which provides in relevant
part: ‘‘In any action to foreclose or to discharge any
mortgage or lien or to quiet title, or in any action upon
any written contract, in which there is an appearance
by an attorney for any defendant, the plaintiff may at
any time file and serve . . . a written demand that such
attorney present to the court, to become part of the
file in such case, a writing signed by the attorney stating
whether or not he or she has reason to believe and
does believe that there exists a bona fide defense to
the plaintiff’s action and whether such defense will be
made, together with a general statement of the nature
or substance of such defense. If the defendant fails to
disclose a defense within ten days of the filing of such
demand in any action to foreclose a mortgage or lien
or to quiet title, or in any action upon any written con-
tract, the plaintiff may file a written motion that a
default be entered against the defendant by reason of
the failure of the defendant to disclose a defense.’’
As recently restated in Compass Bank v. Dunn,
supra, 196 Conn. App. 49, ‘‘[o]ne of the purposes of the
rule is to enable the plaintiff, at an early stage of the
proceedings, to ascertain whether a defense is claimed
in good faith to exist, and is honestly intended to be
made, or whether it is a mere sham defense to be inter-
posed merely for delay.’’ (Internal quotation marks
omitted.) To this end, Practice Book § 13-19 clearly
states: ‘‘If no disclosure of defense has been filed, the
judicial authority may order judgment upon default to
be entered for the plaintiff at the time the motion is
heard or thereafter, provided that in either event a sepa-
rate motion for such judgment has been filed.’’
In the present case, the defendant never disclosed
a defense and instead argues that she was under no
obligation to do so because the demand to disclose a
defense was improper in this case. Specifically, the
defendant argues that Practice Book § 13-19 allows a
demand to be filed in only three types of cases: (1) an
‘‘action to foreclose or to discharge any mortgage or
lien’’; (2) an action ‘‘to quiet title’’; and (3) an ‘‘action
upon any written contract.’’ See Practice Book § 13-19.
The defendant argues that the plaintiff’s complaint fails
to fit within any of the three categories of cases. The
plaintiff’s two count complaint alleges that the defen-
dant became indebted to the plaintiff in the sum of
$5661.81 for use of a credit account issued by the plain-
tiff. The complaint further alleges that the defendant
had a credit account with the plaintiff, and in connec-
tion with that account, the plaintiff sent periodic
account statements to the defendant setting forth all
of the charges and credits applicable to the account,
as well as the balance due.
Because the plain language of Practice Book § 13-19
is unequivocal with respect to the permissible type of
actions in which a plaintiff may file a demand for disclo-
sure of defense, the relevant inquiry in the instant
appeal is whether the plaintiff stated a cause of action
predicated upon a ‘‘written contract.’’ In resolving this
question, we construe count one of the complaint, titled
‘‘Default on Credit Account,’’ to allege a credit card
account relationship between the plaintiff and the
defendant, noting that the first paragraph includes a
sixteen digit credit account number.6 Thus, in applying
§ 13-19 to the present case, we note that a majority of
courts have adopted a theory of contract that ‘‘draws
upon common law principles of contract law and inter-
prets each credit card transaction as a unilateral con-
tract7 in which the cardholder unilaterally promises to
repay the debt being incurred, in accordance with the
terms set forth in the credit card agreement, in
exchange for the issuing bank’s performance (i.e. reim-
bursing the merchant for the goods).’’ (Footnote
added.) Bank of America v. Jarczyk, 268 B.R. 17, 21–22
(Bankr. W.D.N.Y. 2001); see also 1 T. Murray, Corbin
on Contracts (Rev. Ed. 1998) § 2.33, p. 376 (describing
‘‘typical credit card’’ transaction as ‘‘offer by the issuer
to a series of unilateral contracts’’). More particularly,
when applying this theory, courts have determined that
‘‘each time a cardholder uses his credit card, he
impliedly represents to the issuing bank that he intends
to repay the debt incurred.’’ In re Thanh v. Truong, 271
B.R. 738, 745 (Bankr. D. Conn. 2002); see also American
Express Bank, FSB v. Bennett, Superior Court, judicial
district of Middlesex, Docket No. CV-XX-XXXXXXX-S (Sep-
tember 11, 2015) (61 Conn. L. Rptr. 15, 17) (‘‘[i]n addition
to signatures on applications and/or credit card charge
slips, each use of a credit card constitutes a representa-
tion by the cardholder of his or her intention to pay
for the charges to the account’’).
In the present case, we apply this theory to determine
that, for the purposes of Practice Book § 13-19, the
complaint, which sounds in default on a credit account,
constitutes an action ‘‘upon [a] written contract.’’ See
Practice Book § 13-19. The defendant neither has dis-
closed any defense nor cited any authority in her appel-
late brief that stands for the proposition that this was
not an action subject to § 13-19. Accordingly, we con-
clude that the court properly granted the plaintiff’s
motion for default for failure to disclose a defense.
III
The defendant finally claims that the trial court
improperly admitted certain documents into evidence
at the hearing on damages. Specifically, the defendant
argues that the court improperly allowed her monthly
account billing statements from February, 2016,
through September, 2017, into evidence, over her objec-
tion. The defendant argues that the statements were
admitted without a proper foundation as required by
the business records exception to the hearsay rule
under § 52-180 and § 8-4 of the Connecticut Code of
Evidence.
The following additional procedural history is rele-
vant to our analysis. Following the entry of default
against the defendant and the filing of the plaintiff’s
motion for judgment, on February 19, 2020, the court,
Suarez, J., held a hearing in damages. The plaintiff’s
counsel called Noonan and inquired as to his seventeen
years of employment with the plaintiff, including: his
current title as a recovery support lead, which involves
the management of collection agencies; all of his prior
roles with the plaintiff; and his review of the account
statements prior to testifying. The plaintiff’s counsel
then asked Noonan to identify plaintiff’s exhibit one,
which included the account billing statements relative
to the defendant’s account. The defendant’s counsel
objected and stated: ‘‘I don’t believe the witness has—
they’ve laid a foundation for the witness to testify to
that. He’s indicated that after they were prepared, he
reviewed them. So, how would he know what was sent
out or not sent out? So, I object to the question; there’s
no proper foundation for it.’’ The court overruled the
objection.
The plaintiff’s counsel later offered the account bill-
ing statements as a full exhibit, to which the defendant’s
counsel again objected and stated: ‘‘Your Honor, there’s
not a proper foundation for the admission of these . . .
documents. . . . [T]hey have to prove certain things
under the business records exception to the hearsay
rule . . . . There’s not a proper foundation for—for
the—the admission of these documents . . . .’’ The
plaintiff’s counsel responded by stating that: ‘‘Mr.
Noonan has worked for this bank for seventeen years
handling account records. . . . [H]e testified that these
are the account records relating to [the defendant’s]
account . . . and that they were sent to her on this
account. And I am not sure what further foundation I
can give [the defendant’s counsel] that would satisfy
it.’’ The court then overruled the objection.
Ultimately, the court stated that, on the basis of the
testimony from Noonan, it was satisfied that the defen-
dant owed the plaintiff $5661.81.
On appeal, the defendant claims that the court erred
when it allowed the account statements into evidence
over the defendant’s objections that the statements
failed to meet the requirements of § 52-180 and § 8-4
of the Connecticut Code of Evidence. Specifically, the
defendant argues that, although Noonan may maintain
possession of the books and records after they have
been charged off, he is not a bookkeeper who kept or
maintained the records of the defendant’s account. The
defendant also argues that the plaintiff failed to elicit
testimony that the account statements were kept in the
ordinary course of business.
We begin by setting forth our standard of review. ‘‘To
the extent [that] a trial court’s admission of evidence
is based on an interpretation of the Code of Evidence,
our standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. . . . We review the trial court’s decision to
admit [or exclude] evidence, if premised on a correct
view of the law . . . for an abuse of discretion.’’ (Inter-
nal quotation marks omitted.) LM Ins. Corp. v. Connect-
icut Dismanteling, LLC, 172 Conn. App. 622, 627–28,
161 A.3d 562 (2017).
Next, we identify the relevant legal principles regard-
ing the defendant’s evidentiary claim. ‘‘Hearsay is an
out-of-court statement offered to establish the truth of
the matter asserted. Conn. Code Evid. § 8-1 (3). Hearsay
evidence is inadmissible, subject to certain exceptions.
Conn. Code Evid. § 8-2. . . . One such exception is the
business records exception. See General Statutes § 52-
180; Conn. Code Evid. § 8-4. In order to establish that
a document falls within the business records exception
to the rule against hearsay, codified at § 52-180, three
requirements must be met. . . . The proponent need
not produce as a witness the person who made the
record or show that such person is unavailable but must
establish that [1] the record was made in the regular
course of any business, and [2] that it was the regular
course of such business to make such writing or record
[3] at the time of such act, transaction, occurrence or
event or within a reasonable time thereafter.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Id., 628–29.
‘‘The rationale for the exception derives from the
inherent trustworthiness of records on which busi-
nesses rely to conduct their daily affairs.’’ (Internal quo-
tation marks omitted.) Connecticut Light & Power Co.
v. Gilmore, 289 Conn. 88, 116, 956 A.2d 1145 (2008).
Furthermore, ‘‘[i]n applying the business records excep-
tion . . . [§ 52-180] should be liberally interpreted.’’
(Internal quotation marks omitted.) Id.
In Connecticut Light & Power Co., our Supreme
Court concluded ‘‘that the trial court properly deter-
mined that [the witness] was competent to testify that
the computer printout and the letter, which included
information transferred electronically from the techni-
cian in the field to the plaintiff’s in-house database,
had been made in the ordinary course of the plaintiff’s
business, that similar documents were generated in the
course of the plaintiff’s business and that the documents
had been created within a reasonable time following the
inspection of the defendant’s residence. [The witness’]
testimony provided an adequate foundation for admis-
sion of the documents because, as an eighteen year
employee of the plaintiff and a supervisor of credit
and collection, he had demonstrated extensive personal
knowledge of the plaintiff’s billing procedures, the pro-
cedures established to collect on past due accounts
and the electronic and computerized systems used to
maintain and update information regarding such mat-
ters.’’ Id., 117. Additionally, although the witness was
not present when the technician performed any work,
the witness had gone to the defendant’s home pre-
viously to gather information and investigate the meters
and ‘‘thus was acquainted with the actual meters that
had produced the information recorded by the techni-
cian.’’ Id., 118. Accordingly, the court concluded that
‘‘the trial court did not abuse its discretion in admitting
the letter and the computer printout into evidence under
the business records exception to the hearsay rule.’’ Id.
Similarly, in State v. Bermudez, 95 Conn. App. 577,
589, 897 A.2d 661 (2006), this court concluded that a
defendant’s argument that portions of medical records
that were admitted into evidence ‘‘should have been
excluded because [the witness] was not the treating
physician is wholly without merit.’’ In so concluding,
the court iterated that ‘‘[t]he statute expressly provides
that the person making the record is not required to
testify. . . . [T]he fact that the . . . sole witness as to
the creation of the records . . . personally did not cre-
ate each entry in the . . . narrative and [did] not have
personal knowledge of the particular events recorded
in the entry does not impact the admissibility of the
records under § 52-180.’’ (Internal quotation marks
omitted.) Id.
In the present case, Noonan testified as to his current
role as recovery support lead for the plaintiff, as well
as his previous experience with the company. Similar
to the witness in Connecticut Light & Power Co. v.
Gilmore, supra, 289 Conn. 117–18, he also testified that
his current position involved the management of collec-
tion agencies, managing the back office processing of
fraud and dispute claims, and maintaining the records
for collection efforts to ensure that they are accurate
and complete. Additionally, similar to State v. Bermu-
dez, supra, 95 Conn. App. 589, although Noonan was
not the individual who created the record, he testified
that in preparation for his testimony, he reviewed the
defendant’s account history and monthly billing state-
ments, and then testified that those statements, which
he reviewed, dated February 25, 2016, through Septem-
ber 24, 2017, were accurate in all respects and were
mailed to the defendant.8
The defendant’s argument that, although Noonan
‘‘may maintain possession of the books and records
after they have been charged off,’’ he is not a ‘‘book-
keeper’’ is the same as that rejected by the courts in
both Connecticut Light & Power Co. v. Gilmore, supra,289 Conn. 117–18, and State v. Bermudez, supra, 95
Conn. App. 589. Upon a review of the record and the
applicable law, we determine that the defendant has
failed to meet her burden to show that the court abused
its discretion in admitting the plaintiff’s business
records into evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 13-19 provides in relevant part: ‘‘In any action to fore-
close or to discharge any mortgage or lien or to quiet title, or in any action
upon any written contract, in which there is an appearance by an attorney
for any defendant, the plaintiff may at any time file and serve in accordance
with Sections 10-12 through 10-17 a written demand that such attorney
present to the court, to become a part of the file in such case, a writing
signed by the attorney stating whether he or she has reason to believe and
does believe that there exists a bona fide defense to the plaintiff’s action
and whether such defense will be made, together with a general statement
of the nature or substance of such defense. If the defendant fails to disclose
a defense within ten days of the filing of such demand in any action to
foreclose a mortgage or lien or to quiet title, or in any action upon any
written contract, the plaintiff may file a written motion that a default be
entered against the defendant by reason of the failure of the defendant to
disclose a defense. If no disclosure of defense has been filed, the judicial
authority may order judgment upon default to be entered for the plaintiff
at the time the motion is heard or thereafter, provided that in either event
a separate motion for such judgment has been filed . . . .’’
2
Although then attorney Frechette worked in the same law firm with his
father, he was not the attorney handling the matter involving the defen-
dant’s counsel.
3
The defendant initially appealed from the court’s decision to deny the
verified motion to disqualify and the first motion to reargue and/or recon-
sider. The appeal was dismissed for lack of a final judgment.
4
On March 20, 2019, prior to the defendant’s filing of the previously
mentioned appeal, the plaintiff filed a motion for judgment. See footnote 2
of this opinion. The court did not rule on the motion and instead stated that
‘‘[t]he matter may be claimed for a hearing in damages upon the expiration
of the Appellate Court stay . . . .’’
5
The defendant also argues that the court erred in concluding that the
prior disqualification decision by Judge Silbert was subject to collateral
estoppel sufficient to deny his motion to disqualify and/or in concluding
that the motion to disqualify was untimely filed. We need not address these
claims because we conclude that the court did not abuse its discretion in
determining that the defendant’s motion to disqualify failed on the merits.
See generally Seder v. Errato, 211 Conn. App. 167, 183, 272 A.3d 252 (2022)
(we need not reach appellant’s additional claims when court’s decision is
supported by other proper grounds).
In addition, our conclusion that the court did not abuse its discretion in
denying the defendant’s motion to disqualify Judge Frechette is dispositive
of the claims raised in the defendant’s motions to reargue and/or reconsider,
and, accordingly, we need not address the defendant’s argument as to the
court’s denials of those motions. See, e.g., Kling v. Hartford Casualty Ins.
Co., 211 Conn. App. 708, 723 n.7, A.3d (2022) (‘‘The plaintiff also claims
on appeal that the court erred when it denied his motion to reargue/recon-
sider. Because our conclusion that the defendant did not have a duty to
defend is dispositive of the claims raised in the motion to reargue/reconsider,
we need not address this argument.’’).
6
The first paragraph of count one of the complaint alleges that ‘‘[o]n or
before September 28, 2017, the defendant became indebted to the plaintiff in
the sum of $5,661.81 for use of credit account number XXXXXXXXXXXX9832
issued by the plaintiff.’’
7
‘‘[T]he mere issuance of a credit card does not create a binding contract
between the card issuer and the cardholder. Instead, the issuance of a credit
card is simply an offer to a series of unilateral contracts. Until that offer is
accepted by the cardholder, by using his credit card, no contract has been
formed.’’ (Emphasis omitted.) Bank of America v. Jarczyk, 268 B.R. 17, 22
(Bankr. W.D.N.Y. 2001).
8
Additionally, the following colloquy took place between the plaintiff’s
counsel and Noonan:
‘‘Q. Okay. Now, could you tell us, sir, does [the plaintiff] have records
relating to each one of the charges that appear on this account?
‘‘A. Yes.
‘‘Q. Okay. What kind of records does the bank have?
‘‘A. We have electronic records, which are encapsulated in this—in the
billing statements, so that it mirrors.
‘‘Q. Okay. Do you have signed or authorized receipts for each one of these
charges by [the defendant]?
‘‘A. No.
‘‘Q. And can you explain to the court why that is?
‘‘A. We do—we do not—those would be in [the defendant’s] possession.
‘‘Q. Okay.
‘‘A. We do not have access to any of the signed receipts that she—when
she made these purchases.
‘‘Q. Are signed receipts ever provided to [the plaintiff] on an account with
activity like this?
‘‘A. No, not unless—not unless there is a fraud investigation or—of that
nature, yeah.
‘‘Q. Or a dispute on the charges?
‘‘A. Or a dispute, correct.
‘‘Q. Okay. So, they would not be recorded or maintained by the bank in
the ordinary course of its business?
‘‘A. Correct, they would not.’’