Chester v. Manis

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FRANCES CHESTER v. KEVIN MANIS ET AL.
(AC 34914)
DiPentima, C. J., and Alvord and Flynn, Js.
Argued January 13—officially released May 6, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Trombley, J.)
Terence D. Mariani, for the appellant (plaintiff).
Jeffrey C. Nagle, with whom, on the brief, was Rodd
J. Mantell, for the appellee (named defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Frances Chester,
appeals from the judgment of the trial court rendered
following a jury verdict in favor of the defendant Kevin
Manis.1 On appeal, the plaintiff argues that the court
erred in granting the defendant’s motion in limine,
thereby precluding the plaintiff from introducing cer-
tain evidence at trial. We affirm the judgment of the
trial court.
The following facts are relevant to this appeal. The
plaintiff filed an amended complaint alleging that on
the morning of July 9, 2008, she was involved in a motor
vehicle accident in which the vehicle she was operating
was hit by a vehicle operated by the defendant. The
complaint alleged that the accident was caused by the
negligence or recklessness of the defendant and that
the plaintiff sustained personal injuries and damage to
her vehicle as a result of the accident. Prior to trial,
the defendant filed a motion in limine seeking to pre-
clude the introduction of evidence on certain topics,
including, inter alia, motor vehicle speed as calculated
by skid marks, the replacement cost of the plaintiff’s
vehicle, and an increase in the plaintiff’s insurance pre-
mium. With regard to the skid marks, the defendant
argued, citing Thomas v. Commerford, 168 Conn. 64,
69, 357 A.2d 476 (1975) and Toomey v. Danaher, 161
Conn. 204, 210, 286 A.2d 293 (1971), that expert testi-
mony was required on the issue of speed of a motor
vehicle based on the length of skid marks. In her objec-
tion to the defendant’s motion in limine, the plaintiff
cited Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318,
240 A.2d 881 (1968), for the proposition that speed
ordinarily may be established by circumstantial evi-
dence, without the need for expert testimony. The court
granted the motion in limine, and the jury returned a
verdict in favor of the defendant. After the court ren-
dered judgment, the plaintiff filed the present appeal.
On appeal, the plaintiff argues that the court abused
its discretion in granting the motion in limine. The plain-
tiff first argues that the motion procedurally was defec-
tive in that it did not cite to any prejudice arising from
the cited evidence. The plaintiff next argues, with
respect to the skid marks, that the present case is analo-
gous to Terminal Taxi Co., and, therefore, the speed of
the vehicle may be determined through circumstantial
evidence. The plaintiff contends that by precluding evi-
dence that the defendant left skid marks seventy-five
feet long, the court improperly decided a fact that
should have been decided by the jury and, further, pre-
vented the jury from drawing inferences based on the
evidence of skid marks. The plaintiff additionally con-
tends that because the skid mark evidence was pre-
cluded, she was denied her right to fully and fairly cross-
examine the defendant. Finally, the plaintiff argues that
the court improperly precluded the plaintiff’s evidence
concerning the cost of a replacement vehicle and the
increase in her automobile insurance premiums. We
decline to reach the merits of these claims because the
plaintiff failed to provide an adequate record for review.
‘‘[T]he motion in limine . . . has generally been used
in Connecticut courts to invoke a trial judge’s inherent
discretionary powers to control proceedings, exclude
evidence, and prevent occurrences that might unneces-
sarily prejudice the right of any party to a fair trial.
. . . The trial court’s ruling on evidentiary matters will
be overturned only upon a showing of a clear abuse of
the court’s discretion. . . . We will make every reason-
able presumption in favor of upholding the trial court’s
ruling, and only upset it for a manifest abuse of discre-
tion.’’ (Internal quotation marks omitted.) Connecticut
Light & Power Co. v. Gilmore, 289 Conn. 88, 128, 956
A.2d 1145 (2008). ‘‘Furthermore, [b]efore a party is enti-
tled to a new trial because of an erroneous evidentiary
ruling, he or she has the burden of demonstrating that
the error was harmful. . . . The harmless error stan-
dard in a civil case is whether the improper ruling would
likely affect the result. . . . When judging the likely
effect of such a trial court ruling, the reviewing court
is constrained to make its determination on the basis
of the printed record before it. . . . In the absence of
a showing that the [excluded] evidence would have
affected the final result, its exclusion is harmless.’’
(Internal quotation marks omitted.) Desrosiers v.
Henne, 283 Conn. 361, 366, 926 A.2d 1024 (2007).
We also note that the plaintiff, as the appellant, bears
the burden of providing this court with an adequate
record for review. See Practice Book § 61-10. ‘‘[I]t is
incumbent upon the appellant to take the necessary
steps to sustain [her] burden of providing an adequate
record for appellate review. . . . [A]n appellate tribu-
nal cannot render a decision without first fully under-
standing the disposition being appealed. . . . Our role
is not to second guess at possibilities, but to review
claims based on a complete factual record developed
by a trial court.’’ (Internal quotation marks omitted.)
Stutz v. Shepard, 279 Conn. 115, 125–26, 901 A.2d 33(2006). For the reasons that follow, we conclude that
the record is inadequate to review the plaintiff’s claims.
In support of her appeal, the plaintiff has provided
this court with only three excerpts from the trial tran-
script. The ruling of the trial court on the motion in
limine is not included in any of these excerpts.2 When
questioned by this court about the adequacy of the
record on appeal, counsel for the plaintiff relied on an
excerpt from the testimony of the defendant. In that
excerpt, counsel for the plaintiff sought to question the
defendant regarding whether the defendant spoke to
the police at the scene of the accident about skid marks.
Counsel for the defendant objected to the inquiry, and
the court sustained the objection on the basis of its
earlier ruling on the motion in limine.3 Although the
excerpt contains several references to the court’s ear-
lier ruling on the motion in limine, the ruling itself is
not included.4
Even if we assume, however, that the court improp-
erly precluded the plaintiff from introducing the evi-
dence concerning motor vehicle speed as calculated
by skid marks, the replacement cost of the plaintiff’s
vehicle, and an increase in the plaintiff’s insurance pre-
mium, it is impossible to determine, on the limited
record before us, whether this alleged impropriety
would likely have affected the result of the trial. See
Desrosiers v. Henne, supra, 283 Conn. 367–69, (declin-
ing to review claim that trial court improperly precluded
evidence where defendant failed to provide reviewing
court with oral testimony provided to jury and there
was no indication of which witnesses testified at trial,
making it impossible for court to determine whether
alleged impropriety was harmful); Ryan Transporta-
tion, Inc. v. M & G Associates, 266 Conn. 520, 531, 832
A.2d 1180 (2003) (declining to review claim of eviden-
tiary error where plaintiff did not provide transcript of
witness testimony, stating, ‘‘even if we assume,
arguendo, that the challenged evidentiary ruling was
improper, we have no way of discerning whether any
such impropriety was harmful in the broader context
of the entire trial’’); Quaranta v. King, 133 Conn. App.
565, 569–70, 36 A.3d 264 (2012) (declining to review
plaintiff’s evidentiary claim where plaintiff provided
only partial transcript of proceedings). Inasmuch as the
plaintiff has failed to provide a record on appeal that
is sufficient for us to determine whether the allegedly
improper evidentiary ruling was harmful, we decline to
review the plaintiff’s claims.5
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff brought this action against the defendants, Kevin Manis
and Walter Manis. While the action was pending, counsel for the defendants
filed a ‘‘Suggestion of Death’’ indicating that Walter Manis had died. The
action proceeded to trial, and the jury returned a verdict in favor of Kevin
Manis. We, therefore, refer in this opinion to Kevin Manis as the defendant.
2
Although it is undisputed that the court granted the motion in limine,
we note that the Superior Court case detail sheet does not reflect a ruling
on the motion. At oral argument before this court, counsel for the plaintiff
indicated that the trial court ruled on the motion in chambers, while counsel
for the defendant recalled that the trial court ruled on the motion in open
court. There is nothing in the record from which we can determine when
or where the trial court ruled on the motion.
3
The excerpt from the defendant’s testimony provides in relevant part
as follows:
‘‘[The Defendant]: Somebody came up to the door, it was a police officer,
and they asked me exactly what happened. And I told them as to what
happened. And then they went and did whatever else they were having to
do that day in that accident.
‘‘[The Plaintiff’s Counsel]: Did you—did you talk to them at all about
skid marks?
‘‘[The Defendant’s Counsel]: Objection, Your Honor.
‘‘The Court: Sustained.
‘‘[The Plaintiff’s Counsel]: What’s the objection, Your Honor? What’s
the basis?
‘‘The Court: The court’s made a ruling on the issue so move on, please.
***
‘‘The Court: [W]e discussed the skid marks in conjunction with the defen-
dant’s motion in limine, which I granted. And the one exception was I would
allow the officer to testify about skid marks. You didn’t even ask the officer
about skid marks. And I wouldn’t allow her to testify about the length if
she mentioned skid marks. So to ask him about skid marks, the defendant,
is totally inappropriate in light of my earlier ruling—
‘‘[The Plaintiff’s Counsel]: Your Honor—
‘‘The Court: —and the case that I cited decided by the Supreme Court.
***
‘‘The Court: Look, I made a ruling about—
‘‘[The Defendant’s Counsel]: Right.
‘‘The Court: —skid marks. You did not ask the officer about skid marks,
which I would have allowed in my ruling. You’re certainly not going to ask
any lay witness about skid marks. Skid marks are out of the case based
upon my earlier ruling and the Supreme Court case that I cited.
‘‘[The Plaintiff’s Counsel]: Your Honor, his testimony is that he—at his
deposition he said he asked about speed.
‘‘The Court: I didn’t see his deposition. I don’t care what he said at his
deposition about skid marks. He’s not going to testify about skid marks in
this case based on my earlier ruling. We’re done. See you at 2:00.’’
4
In support of her argument that the record is adequate for review, the
plaintiff also cites to a statement in the defendant’s appellate brief indicating
that the trial court granted the motion in limine.
5
Pursuant to Practice Book § 61-10 (b), as amended to take effect on
January 1, 2013, ‘‘[t]he failure of any party on appeal to seek articulation
pursuant to Section 66-5 shall not be the sole ground upon which the court
declines to review any issue or claim on appeal.’’ As stated in the commentary
to that rule, however, ‘‘[t]he adoption of subsection (b) is not intended to
preclude the court from declining to review an issue where the record is
inadequate for reasons other than solely the failure to seek an articulation,
such as, for example, the failure to procure the trial court’s decision pursuant
to Section 64-1 (b) or the failure to provide a transcript, exhibits or other
documents necessary for appellate review.’’ Practice Book § 61-10, com-
mentary.