Patrowicz v. Peloquin

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RICHARD M. PATROWICZ ET AL. v.
BARRY PELOQUIN
(AC 40662)
Keller, Elgo and Moll, Js.
Syllabus
The plaintiffs, R and D, sought to recover damages from the defendant for,
inter alia, breach of contract in connection with a series of eighteen
loans that they had made to the defendant, who allegedly failed to pay
on the loans. The defendant, who was self-represented throughout trial
and on appeal, filed an answer and five special defenses, including that
the action was barred by the statute of frauds (§ 52-550 [a] [6]), which
requires any agreement for a loan in an amount exceeding $50,000 to
be in writing and signed by the party to be charged. At trial, early on
during the plaintiffs’ case-in-chief, D had exited the courtroom after
exchanging words with the defendant and did not return. After the
plaintiffs rested their case, the defendant attempted to call D as a witness
but she was not present in the courtroom and he had not subpoenaed her
to testify. The defendant requested a continuance in order to subpoena
D, which the trial court denied. Thereafter, the trial court rendered
judgment in favor of the plaintiffs in the amount of $48,168.66 and denied
the defendants’ special defenses, from which the defendant appealed
to this court. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
request for a continuance in order to subpoena D; in denying the defen-
dant’s continuance request, that court was mindful of its duty to effec-
tively manage its caseflow and enforce the expectation that the trial,
which was scheduled for only one day, would go forward as assigned,
and given that the defendant had failed to subpoena D in the time leading
up to trial despite having previously filed an application for the issuance
of a subpoena for another witness in this case, that he did not request
the continuance to subpoena D until the day of trial and after the
plaintiffs had concluded their case-in-chief, and that he admitted that
he did not have any other witnesses available to testify because he
had not anticipated that the plaintiffs’ case-in-chief would conclude as
quickly as it did, the court reasonably could have concluded that the
defendant’s request for a continuance was a dilatory tactic intended to
delay the trial, and its denial of the defendant’s continuance request,
therefore, was neither arbitrary nor unreasonable.
2. The defendant could not prevail on his claim that the trial court committed
reversible error by permitting a material variance between the amount
of damages alleged in the complaint and the amount pursued at trial,
without requiring the plaintiffs to file an amended complaint, which, he
claimed, wrongly allowed the plaintiffs to evade the application of the
statute of frauds by reducing the claimed contractual damages to an
amount below the $50,000 threshold contained in § 52-550 (a) (6); that
court properly found, on the basis of the eighteen loans that the plaintiffs
had made to the defendant and the plaintiffs’ reliance on the defendant’s
promise to repay those loans, that the plaintiffs had fully performed their
contractual obligations, and because the doctrine of part performance
precluded the application of the statute of frauds in this case, regardless
of whether the loan in question exceeded the statutory threshold of
$50,000, any variance in the claimed amount of damages was immaterial,
and the defendant could not demonstrate reversible error on the part
of the trial court in failing to compel the plaintiffs to file an amended com-
plaint.
Argued January 23–officially released May 21, 2019
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Windham and tried to
the court, Boland, J.; judgment for the plaintiffs, from
which the defendant appealed to this court. Affirmed.
Barry L. Peloquin, self-represented, the appellant
(defendant).
Ernest J. Cotnoir, for the appellees (plaintiffs).
Opinion
ELGO, J. In this breach of contract action, the self-
represented defendant, Barry Peloquin, appeals from
the judgment of the trial court rendered in favor of the
plaintiffs, Richard M. Patrowicz and Deborah Patrow-
icz.1 On appeal, the defendant challenges the court’s
(1) denial of his request for a continuance following
the close of the plaintiffs’ case-in-chief and (2) determi-
nations with respect to his statute of frauds defense.
We affirm the judgment of the trial court.
In its memorandum of decision, the court found the
following relevant facts. The plaintiffs are husband and
wife, who jointly own a twenty-six acre parcel of land in
Thompson. After retiring from a career as a millwright,
Richard began operating a small forestry business on
the property.
In 2012 or 2013, a mutual friend introduced the plain-
tiffs to the defendant. At that time, the defendant
resided in the town of Pomfret, where zoning regula-
tions prohibited the defendant from parking log trucks
and other equipment on his residential property. The
plaintiffs met with the defendant, and the parties subse-
quently reached an agreement, under which the defen-
dant was permitted to store his commercial logging
equipment on the plaintiffs’ property.
As the court found, the plaintiffs learned ‘‘[i]n short
order . . . that zoning compliance was not the defen-
dant’s only problem. His equipment was in need of
repairs or replacement, and at times his cash flow was
insufficient to afford payment of his monthly home
mortgage and other bills. [The defendant] turned to the
plaintiffs for assistance.’’ The court further found that
the plaintiffs subsequently made a series of loans to
the defendant, all with the expectation of repayment.2
As Richard testified at trial, the plaintiffs entered into
a ‘‘verbal agreement’’ with the defendant on the basis
of his ‘‘guarantee’’ that he would fully repay those loans.
When the defendant failed to repay those loans, the
plaintiffs commenced this breach of contract action in
December, 2015.3 In his answer, the defendant denied
the material allegations of the plaintiffs’ complaint,
including the allegation that he had promised to repay
the loans in question. The defendant also asserted five
special defenses, only one of which is relevant to this
appeal. In his second special defense, the defendant
alleged that the breach of contract count was barred
by the statute of frauds set forth in General Statutes
§ 52-550.4 The defendant filed numerous motions with
the trial court over the next thirteen months, including
a motion to dismiss, a motion for summary judgment,
a motion for a default judgment, an ‘‘emergency motion
for discovery,’’ a motion to remove the plaintiffs’ legal
counsel, and a motion in limine, all of which were
denied by the court.
A court trial was held on March 10, 2017. In their case-
in-chief, the plaintiffs offered the testimony of Richard,
who was subject to lengthy cross and recross-examina-
tion by the self-represented defendant.5 In addition, the
plaintiffs introduced, and the court admitted, into evi-
dence various financial documents, including purchase
receipts, credit card statements, and copies of cancelled
checks from the plaintiffs made payable to and signed
by the defendant. Also admitted into evidence was a
promissory note executed on October 7, 2013, regarding
the defendant’s purchase of a log truck for $8000.6
The defendant’s case-in-chief consisted of additional
testimony from Richard and six documents that were
admitted into evidence as full exhibits. In his cross-
examination of Richard during the plaintiffs’ case-in-
chief and his direct examination of Richard as part of
his defense, the defendant repeatedly attempted to offer
contrasting statements of fact in response to Richard’s
testimony. Each time, the court advised the defendant
that such statements were improper and clarified that
the defendant was free to offer such evidence during his
own testimony.7 The defendant nonetheless declined to
testify as a witness at trial. For that reason, when the
defendant attempted to introduce his own affidavit into
evidence during his case-in-chief, the court denied that
request. As the court stated, ‘‘I’m not [going to] allow
. . . your affidavit when you don’t want to testify and
be subject to cross-examination.’’
In its subsequent memorandum of decision, the court
found the defendant in breach of contract, stating:
‘‘Although the defendant, who represented himself,
denied virtually all the essential allegations of the com-
plaint, he declined to testify. When he attempted (fre-
quently) to offer evidence in his role as counsel, and
not under oath, the court directed him to hold that
information until he was sworn. At that time he could
have expounded at length upon his version of the facts.
He expressly declined to take advantage of that oppor-
tunity. Even to the extent that his arguments and objec-
tions could be credited, however, they did not undercut
[Richard’s] narrative of steady cash transfers to [the
defendant] in varying amounts over a considerable
period, without repayment. At best, they reflect a hazy
suggestion on their recipient’s part that all these trans-
fers were a gift. In support of this contention [the defen-
dant] offered no evidence whatsoever.
‘‘This court had the opportunity to observe [Richard]
throughout approximately five hours of testimony and
cross-examination. While he cannot be described as
razor-sharp in his recollection, he is generally credible
and, in the details to which he testified, there was sub-
stantial correspondence between his testimony and the
[documents that the plaintiffs] submitted [into evi-
dence]. The court finds that the plaintiffs have proven
by a preponderance of the evidence that they made
loans to the defendant totaling $48,518.66, of which he
has repaid a mere $350. That leaves $48,168.66 due and
owing.’’ The court also rejected all five special defenses
raised by the defendant. The court rendered judgment
in favor of the plaintiffs in the amount of $48,168.66,
and this appeal followed.
I
The defendant first claims that the court abused its
discretion in denying his request for a continuance fol-
lowing the close of the plaintiffs’ case-in-chief.8 We
disagree.
The following additional facts are relevant to the
defendant’s claim. Trial commenced on March 10, 2017,
with the presentation of the plaintiffs’ case-in-chief.
Early in Richard’s testimony on direct examination, the
defendant objected; in so doing, he sought to offer evi-
dence to rebut Richard’s testimony.9 As the court over-
ruled that objection, a brief colloquy ensued:
‘‘The Defendant: Excuse me? Did you just say—swear
at me?
‘‘[Deborah]: Yeah, I did.
‘‘The Court: All right.
‘‘[Deborah]: I’m sorry.
‘‘The Court: I’m going to—okay. [Deborah] is leaving
the courtroom. That’s probably going to solve the prob-
lem. I’ll put on the record [that] there was an exchange
of words between her and the defendant, but I think
her leaving has resolved it.’’
The plaintiffs’ counsel then continued his direct
examination of Richard, followed by cross-examination
by the defendant. There is no indication in the record
before us that Deborah ever reentered the courtroom.
When Richard’s testimony concluded, the plaintiffs
rested their case-in-chief. The court at that time
informed the defendant that ‘‘now it’s your opportunity
to testify or to call any other witnesses on your behalf.’’
The defendant then stated that he wanted to call Debo-
rah as his first witness. Noting that Deborah was not
present in the courtroom, the court asked the defendant
if he had served a subpoena on her. The defendant did
not answer that query and instead argued that he was
not required to do so under Connecticut law because
Deborah was a party to the proceeding.10 In response,
the court explained that ‘‘she’s a plaintiff, but she’s not
present so she’s not required to be here unless you’ve
subpoenaed her. . . . [Y]ou have the right . . . to
have her under subpoena. But if you haven’t issued a
subpoena to her, she’s not required to be here.’’
The defendant then requested a continuance to sub-
poena Deborah, which the court denied. The defendant
nonetheless proceeded to argue that her testimony was
‘‘key to [his] case,’’ without making any detailed proffer
as to the nature of Deborah’s expected testimony.11
Contra State v. Gauthier, 140 Conn. App. 69, 73, 57 A.3d
849, cert. denied, 308 Conn. 907, 61 A.3d 1097 (2013).
The court again reminded the defendant that ‘‘[Deborah
is] not here and you don’t have any . . . way of compel-
ling her to be here yet and I’m not recessing the trial
to allow a subpoena to be sent out. . . . [M]aybe you’ve
been taken by surprise, but it’s not an unfair or illegal
surprise. It’s the kind of thing that attorneys would
anticipate that if they want to have a person here who’s
a hostile witness, that they might have them under
subpoena.’’
Undaunted, the defendant asked the court to explain
why it would not permit him to seek a trial subpoena at
that time. The court at that time reminded the defendant
that the case had been scheduled for one day. When
the defendant asked why the court was insistent on
‘‘holding [him] to one day,’’ the court explained that it
had ‘‘other business [that is] scheduled. Courts always
have other business [that is] scheduled. . . . You don’t
make the schedule up at your convenience.’’
The court asked the defendant if any of the other
witnesses named in his trial management report were
present and ready to testify. When the defendant con-
ceded that they were not, the court asked why they were
not present, noting that ‘‘[i]t’s trial day.’’ The defendant
responded: ‘‘Because I knew that [the plaintiffs’ coun-
sel] was going to put his trial on first—his case on first.
. . . And I didn’t think that we would get that far at
this point to be honest with you.’’ The court then asked
the defendant if he could procure any of those witnesses
in the next twenty minutes, and the following collo-
quy transpired:
‘‘The Defendant: They weren’t asked to answer to
the complaint, Your Honor.
‘‘The Court: So you’re—you’re trifling with me. You’ve
listed them as witnesses, today is the trial date, it’s 2
o’clock in the afternoon, and you’re telling me none—
‘‘The Defendant: Is there a point of law that I’m—
‘‘The Court: —of them are available?
‘‘The Defendant: —missing tremendously here?
‘‘The Court: Pardon me?
‘‘The Defendant: Is there a point of law that I’m
just missing?
‘‘The Court: [Yes.] The point of law is that when you
have a trial, you come to court prepared to put the
case on.
‘‘The Defendant: I am.
‘‘The Court: Oh, no, you’re not. You’ve listed nine
witnesses. One of them is present; the other eight are
not. Are you ready to proceed? Can you get any of these
people here in the next twenty minutes?
‘‘The Defendant: I don’t think so.
‘‘The Court: Then I don’t think you’re ready to
proceed.’’
The defendant then opined that it was unfair that the
court was ‘‘prohibiting [him] from examining somebody
that showed up earlier today . . . .’’ In response, the
court stated: ‘‘I’m not prohibiting you. I’m telling . . .
you [that] you haven’t done what it takes to get that
person here’’ by way of subpoena. To that, the defendant
replied: ‘‘That’s none of the court’s business. That’s not
my problem.’’ The court then stated: ‘‘It absolutely is
my business when [she is] not present and you want
to call her. [There is] no subpoena. I cannot force her
to be here absent a subpoena that you’ve served on her.’’
The court again reminded the defendant that he was
free to testify on his own behalf to contradict Richard’s
testimony, to which the defendant replied, ‘‘I’m not
going to take the witness stand . . . if that’s what
you’re asking.’’ The defendant then called Richard as a
witness, who was questioned for an additional two
hours. When Richard’s testimony concluded, the defen-
dant rested his case. The plaintiffs’ counsel then indi-
cated that he had no rebuttal to present, and the
evidence was closed.
On appeal, the defendant claims that the court
improperly denied his request for a continuance of the
trial in order to subpoena Deborah. ‘‘[T]he determina-
tion of whether to grant a request for a continuance is
within the discretion of the trial court, and will not be
disturbed on appeal absent an abuse of discretion. . . .
A reviewing court is bound by the principle that [e]very
reasonable presumption in favor of the proper exercise
of the trial court’s discretion will be made. . . . To
prove an abuse of discretion, an appellant must show
that the trial court’s denial of a request for a continuance
was arbitrary. . . . There are no mechanical tests for
deciding when a denial of a continuance is so arbitrary
as to violate due process. The answer must be found
in the circumstances present in every case, particularly
in the reasons presented to the trial judge at the time
the request is denied. . . . In addition, we consistently
have acknowledged that [o]ur role as an appellate court
is not to substitute our judgment for that of a trial court
that has chosen one of many reasonable alternatives.’’
(Citation omitted; internal quotation marks omitted.)
State v. Rivera, 268 Conn. 351, 378, 844 A.2d 191 (2004);
accord State v. Campbell, 328 Conn. 444, 473, 180 A.3d
882 (2018) (reviewing court must determine whether
trial court’s denial of continuance request was arbitrary
or unreasonable).
In the present case, the defendant did not raise his
request for a continuance of the trial in order to sub-
poena Deborah until after the plaintiffs had concluded
their case-in-chief. It is well established that ‘‘[o]nce a
trial has begun . . . a defendant’s right to due process
[does not entitle] him to a continuance upon demand.’’
State v. Hamilton, 228 Conn. 234, 239, 636 A.2d 760
(1994). Rather, the appellate courts of this state are
‘‘especially hesitant to find an abuse of discretion where
the court has denied a motion for continuance made
on the day of trial’’; Thode v. Thode, 190 Conn. 694, 697,
462 A.2d 4 (1983); and ‘‘where the request for continu-
ance comes after the plaintiff has rested his case.’’
Burke v. Ruggerio, 24 Conn. App. 700, 706, 591 A.2d
453, cert. denied, 220 Conn. 903, 593 A.2d 967 (1991).
The belated nature of the defendant’s continuance
request militates against a conclusion that the court
abused its discretion in denying that request.
Furthermore, the aforementioned colloquy indicates
that the court was mindful of its obligation to manage
its caseflow when it denied the defendant’s midtrial
continuance request. As our Supreme Court has empha-
sized, ‘‘[i]n order to fulfill our responsibility of dispens-
ing justice we in the judiciary must adopt an effective
system of caseflow management. . . . [I]t is the
responsibility of the court . . . when necessary, to
enforce compliance with such standards. Our judicial
system cannot be controlled by the litigants . . . .’’
(Internal quotation marks omitted.) Miller v. Appellate
Court, 320 Conn. 759, 773, 136 A.3d 1198 (2016). For
that reason, ‘‘[j]udges must be firm and create the expec-
tation that a case will go forward on the specific day
that it is assigned.’’ (Internal quotation marks omitted.)
Kervick v. Silver Hill Hospital, 309 Conn. 688, 709 n.9,
72 A.3d 1044 (2013). The court expressly adhered to that
maxim in denying the defendant’s continuance request.
It also is significant that the case had been scheduled
for one day of trial. At the outset of his case-in-chief,
the defendant nonetheless acknowledged that he had
no other witnesses available to testify and candidly
confessed that he ‘‘didn’t think that we would get that
far at this point to be honest with you.’’ On that basis, the
court reasonably could have construed the defendant’s
continuance request as dilatory in nature. See, e.g.,
Great Country Bank v. Pastore, 241 Conn. 423, 437,
696 A.2d 1254 (1997) (because ‘‘the motion for a contin-
uance was merely a dilatory tactic . . . the trial court
acted well within its discretionary authority to deny
the motion’’).
In this regard, we note that the defendant, although
self-represented, previously had filed an application for
the issuance of a subpoena in this very case,12 yet did
not do so with respect to Deborah despite listing her
as a witness on his trial management report.13 The defen-
dant’s failure to subpoena Deborah in a timely manner
further informs our consideration of whether the court
abused its discretion in denying his continuance
request. See State v. Cecil J., 99 Conn. App. 274, 293,
913 A.2d 505 (2007) (‘‘[i]n light of the defendant’s oppor-
tunity to subpoena [a potential witness] in the months
before trial, the trial court properly denied the motion
for a continuance as untimely’’), aff’d, 291 Conn. 813,
970 A.2d 710 (2009).
In reviewing the propriety of the denial of a continu-
ance request, this court must indulge every reasonable
presumption in favor of that exercise of discretion. See
State v. Rivera, supra, 268 Conn. 378. On the particular
circumstances of this case, we cannot say that the
court’s denial of the defendant’s midtrial request for a
continuance in order to subpoena Deborah was either
arbitrary or unreasonable. The court, therefore, did not
abuse its discretion in denying that request.
II
The defendant also challenges the court’s determina-
tions with respect to his statute of frauds defense. More
specifically, he contends that the court improperly per-
mitted a material variance between the amount of con-
tractual damages alleged in the plaintiffs’ complaint and
the amount pursued at trial and claimed by the plaintiffs
in their posttrial brief.14 That variance, the defendant
argues, reflects a deliberate attempt by the plaintiffs to
avoid the application of the statute of frauds by reducing
the claimed contractual damages to an amount below
the $50,000 threshold contained in § 52-550 (a) (6).15
The defendant thus submits that the court’s failure to
require the plaintiffs to file an amended complaint con-
stitutes reversible error. We do not agree.
‘‘Under Connecticut law, the statute of frauds oper-
ates as a special defense to a civil action.’’ Grovenburg
v. Rustle Meadow Associates, LLC, 174 Conn. App. 18,
69, 165 A.3d 193 (2017). Its function ‘‘is evidentiary,
to prevent enforcement through fraud or perjury of
contracts never in fact made.’’ Lynch v. Davis, 181
Conn. 434, 440–41, 435 A.2d 977 (1980); see also Hey-
man v. CBS, Inc., 178 Conn. 215, 221, 423 A.2d 887
(1979) (‘‘the primary purpose of the statute [of frauds]
is to provide reliable evidence of the existence and the
terms of the contract’’).
At the same time, that special defense generally does
not apply when a plaintiff demonstrates partial perfor-
mance with contractual obligations. As this court has
explained, ‘‘[t]he doctrine of part performance . . . is
an exception to the statute of frauds. . . . This doc-
trine originated to prevent the statute of frauds from
becoming an engine of fraud.’’ (Citation omitted; inter-
nal quotation marks omitted.) Red Buff Rita, Inc. v.
Moutinho, 151 Conn. App. 549, 554–55, 96 A.3d 581
(2014). ‘‘[T]he elements required for part performance
are: (1) statements, acts or omissions that lead a party
to act to his detriment in reliance on the contract; (2)
knowledge or assent to the party’s actions in reliance
on the contract; and (3) acts that unmistakably point
to the contract. . . . Under this test, two separate but
related criteria are met that warrant precluding a party
from asserting the statute of frauds. . . . First, part
performance satisfies the evidentiary function of the
statute of frauds by providing proof of the contract
itself. . . . Second, the inducement of reliance on the
oral agreement implicates the equitable principle under-
lying estoppel because repudiation of the contract by
the other party would amount to the perpetration of a
fraud.’’ (Internal quotation marks omitted.) SS-II, LLC
v. Bridge Street Associates, 293 Conn. 287, 295–96, 977
A.2d 189 (2009). Our review of a court’s determination
that a party has demonstrated part performance of a
contract is governed by the clearly erroneous standard
of review. See Harley v. Indian Spring Land Co., 123
Conn. App. 800, 826–30, 3 A.3d 992 (2010).
In its memorandum of decision, the court found that
the plaintiffs had made eighteen distinct loans to the
defendant in accordance with the parties’ agreement
and in reliance on the defendant’s promise of repay-
ment. See footnote 2 of this opinion. Accordingly, the
court found that the plaintiffs had demonstrated ‘‘full
performance of the agreements benefitting the defen-
dant, knowingly on his part, to the extent of $48,518.66
. . . .’’ The court thus held that ‘‘there is neither a
factual nor a legal basis for holding that [the statute
of frauds] defeats the plaintiffs’ claims.’’ The evidence
adduced at trial by the plaintiffs substantiates that
determination. For that reason, the court properly con-
cluded that the doctrine of part performance precludes
application of the statute of frauds in the present case.
Because the statute of frauds does not apply in the
present case, the purported variance regarding the
claimed amount of contractual damages is immaterial.
See Tedesco v. Stamford, 215 Conn. 450, 461, 576 A.2d
1273 (1990) (‘‘[o]nly material variances, those which
disclose a departure from the allegations in some matter
essential to the charge or claim, warrant the reversal
of a judgment’’ [internal quotation marks omitted]). The
defendant, therefore, cannot demonstrate reversible
error on the part of the trial court in failing to compel
the plaintiffs to file an amended complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For purposes of clarity, we refer to Richard M. Patrowicz and Deborah
Patrowicz collectively as the plaintiffs and individually by first name.
2
In its memorandum of decision, the court detailed eighteen ‘‘advances’’
that the plaintiffs made to the defendant as follows:
Advance Date Amount Purpose
Number
1. Oct. 7, 2013 $8000 Purchase of Ford F600 log truck
2. Oct. 13, 2013 $8500 Purchase of stump grinder
3. Nov. 18, 2013 $3315.69 Tires, etc.
4. Dec. 5, 2013 $1500 Truck repair
5. Dec. 12, 2013 $1740 Cash advance
6. Dec. 30, 2013 $637.63 Repairs to log truck
7. Dec. 31, 2013 $8500 Purchase of boom truck
8. Mar. 13, 2014 $1740 Cash advance
9. April 7, 2014 $612.50 Towing of truck
10. June 24, 2014 $1710.22 Radiator repair
11. July 15, 2014 $701.25 Repair of boom truck
12. July 25, 2014 $3000 Cash advance
13. July 26, 2014 $696.97 Repair manifold in truck
14. Aug. 4, 2014 $4423.14 Truck repairs
15. Oct. 3, 2014 $763.55 Brake repair on pickup truck
16. July 13, 2015 $318.75 Tires for pickup truck
17. July 16, 2015 $2058.96 Transmission repair to automobile
18. Aug. 7, 2015 $300 Repair manifold leak in pickup truck
TOTAL $48,518.66
Those factual findings are substantiated by documentary and testimonial
evidence in the record before us and, thus, are not clearly erroneous. See
Solairaj v. Mannarino Builders, Inc., 168 Conn. App. 1, 8–9, 143 A.3d 666
(2016). The defendant has not claimed otherwise in this appeal.
3
The plaintiffs’ complaint also contained counts alleging fraudulent mis-
representation and a violation of the Connecticut Unfair Trade Practices
Act, General Statutes § 42-110a et seq. In their posttrial brief, the plaintiffs
acknowledged that those two counts ‘‘may be deemed abandoned or with-
drawn,’’ and the court thereafter did not permit the plaintiffs to recover on
either basis.
4
General Statutes § 52-550 (a) provides: ‘‘No civil action may be main-
tained in the following cases unless the agreement, or a memorandum of
the agreement, is made in writing and signed by the party, or the agent of
the party, to be charged: (1) Upon any agreement to charge any executor
or administrator, upon a special promise to answer damages out of his own
property; (2) against any person upon any special promise to answer for
the debt, default or miscarriage of another; (3) upon any agreement made
upon consideration of marriage; (4) upon any agreement for the sale of
real property or any interest in or concerning real property; (5) upon any
agreement that is not to be performed within one year from the making
thereof; or (6) upon any agreement for a loan in an amount which exceeds
fifty thousand dollars.’’
5
As the court noted following the close of the plaintiffs’ case-in-chief,
Richard had ‘‘just testified for three hours.’’ The defendant nonetheless called
Richard to testify for approximately two more hours as part of his defense.
6
That promissory note was signed by the parties and states: ‘‘I, [the
defendant] am purchasing a 1983 Ford F600 log truck with a grappler boom
(log loader) from [Richard] for $8000 as a private sale on [October 7, 2013]
as is, in good condition. The following payment agreement is as follows:
[The defendant] agrees to pay Richard $350 a month until said balance is
satisfied. Per their agreement, if at any time [the defendant] should default
on any given monthly payment, then it is up to Richard’s discretion, he can
discuss an option to cure. This agreement is now agreed upon now [and]
herein between [the defendant] and Richard. Should something happen to
Richard, then his wife [Deborah] will assume the responsibility of any unpaid
balance from that time on.’’ The last page of that document contains a
notation indicating that the plaintiffs had received an initial payment of
$350 on October 7, 2013.
7
For example, the court explained to the defendant that cross-examination
was ‘‘not the time for you to get into an argument with [Richard] about the
content of his testimony,’’ and clarified that the defendant ‘‘can testify to
the contrary’’ during his own case-in-chief. Later in the defendant’s ques-
tioning of Richard, the court reminded the defendant that he was ‘‘again
trying to testify’’ through his questions and stated that it would ‘‘welcome
[the defendant’s] testimony’’ as a witness and that the defendant would be
permitted to ‘‘testify at length.’’
8
Although the defendant couches his claim in terms of his constitutional
right to due process, ‘‘we will review the trial court’s refusal to grant a
continuance for an abuse of discretion.’’ State v. Godbolt, 161 Conn. App.
367, 374 n.4, 127 A.3d 1139 (2015), cert. denied, 320 Conn. 931, 134 A.3d
621 (2016).
9
Richard had testified that the defendant made one payment of $350 on
the promissory note admitted into evidence. In response, the defendant
stated in relevant part: ‘‘I’m sorry. I would just like to object to that on
behalf of the fact that I never made a payment on this agreement . . . .’’
10
The defendant renews that novel contention in this appeal, claiming
that General Statutes § 52-178 ‘‘mandate[s] that a trial court must allow [the
defendant] to take the vital testimony of the plaintiff [Deborah]’’ without a
subpoena. He is mistaken. By its plain language, § 52-178 provides that ‘‘[a]
party to a civil action . . . [m]ay compel any adverse party . . . to testify
as a witness in his behalf, in the same manner and subject to the same
rules as other witnesses . . . .’’ (Emphasis added.) That statute thus places
‘‘the adverse party in the same position as any other witness.’’ Mendez v.
Dorman, 151 Conn. 193, 196, 195 A.2d 561 (1963). Accordingly, while the
defendant retained the right to subpoena Deborah like any other witness,
§ 52-178 does not obviate the requirement that he do so to compel her
testimony at trial. The defendant has not provided any legal authority indicat-
ing otherwise.
11
At one point in the colloquy, the court asked the defendant if he had
any knowledge that Deborah would offer any testimony that differed from
that already provided by ‘‘her husband’’ earlier that day; the defendant
conceded that he did not, stating that he was ‘‘not a mind reader . . . .’’
12
The record indicates that the defendant, on April 12, 2016, filed an
application for the issuance of a subpoena by a self-represented party,
regarding the testimony of Attorney Brian S. Mead. In addition, the defendant
appended to his appellate reply brief copies of two applications for the
issuance of a subpoena by a self-represented party that he had filed years
earlier in an unrelated action. See National Truck Emergency Road Service,
Inc. v. Peloquin, Superior Court, judicial district of Windham, Docket No.
CV-XX-XXXXXXX-S (July 6, 2011).
13
Although our courts are solicitous of self-represented parties, such par-
ties nevertheless are ‘‘bound by the same rules of evidence and procedure
as those qualified to practice law.’’ Cersosimo v. Cersosimo, 188 Conn. 385,
394, 449 A.2d 1026 (1982).
14
In paragraph nine of their complaint, the plaintiffs alleged that the
defendant ‘‘has refused to pay $61,357 that he promised to pay the plaintiffs
. . . .’’ In their posttrial brief, the plaintiffs alleged that the credible evidence
presented at trial entitled them to a judgment on the breach of contract
count in the amount of $48,168.66.
15
The plaintiffs, by contrast, attribute that difference to their acknowledge-
ment that although Richard had testified that there were additional loans
made to the defendant beyond the eighteen found by the court, either
‘‘no documentary evidence was available or . . . [Richard] could not recall
sufficient information to corroborate’’ those additional loans at trial.