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Hammer v. Posta

Court of Appeals of Connecticut

February 14, 2017

EDWARD HAMMER
v.
DOMINIC POSTA ET AL.

          Argued November 28, 2016

         (Appeal from Superior Court, judicial district of Fairfield, Hon. Edward F. Stodolink, judge trial referee.)

          Nicholas Stanisci, for the appellants (defendants).

          James E. Butler, for the appellee (plaintiff).

          Lavine, Alvord and Harper, Js.

          OPINION

          ALVORD, J.

         The defendants, Dominic Posta and Leticia Posta, appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Edward Hammer. After rendering a default judgment against Leticia Posta for her failure to appear, the court found Dominic Posta liable to the plaintiff under General Statutes § 22-357[1] for injuries caused by the defendants' dog and awarded the plaintiff $30, 910.30 in damages and court costs.[2] On appeal, the defendants claim that the court improperly (1) denied the defendant's request for a jury trial, and (2) relied on the arguments of counsel rather than reviewing the medical records that had been admitted as evidence.[3] We affirm the judgment of the trial court.

         The court reasonably could have found the following facts.[4] On May 19, 2012, the plaintiff was walking his leashed dog, Odie, a twenty-one pound miniature schnauzer, when the defendants' dog, Sarge, a seventy-pound pit bull, came across the street and charged at the plaintiff's dog. The plaintiff grabbed Odie and placed him on his shoulder in an attempt to keep Sarge from harming him. Sarge jumped up and latched his teeth onto Odie's left hind leg, at the base of his tail and back. Although the plaintiff tried to pry Sarge off Odie, he was unsuccessful and was supporting the full weight of both dogs during the attack. Hearing the commotion, a neighbor came over to assist the plaintiff and opened the gate to allow the plaintiff and Odie to enter, thereby separating them from Sarge.

         The plaintiff took Odie to the VCA Shoreline Veterinary Referral and Emergency Center, where he was treated for his injuries. The veterinary bill totaled $643. The plaintiff, although not bitten by the defendants' dog, suffered injuries to his thumb and back. His medical expenses totaled $3637.45. Additionally, the plaintiff was unable to work for a short period of time. On October 18, 2012, the plaintiff commenced this action against the defendants seeking monetary damages. Although the plaintiff initially claimed his case for a jury trial, he withdrew his jury claim on October 6, 2014.

         The defendant was a self-represented party until February 17, 2015, at which time counsel filed an appearance on his behalf. That same day, the defendant's counsel filed a motion to continue the date of the scheduled trial from February 18 to April 16, 2015. The court, Bellis, J., denied the defendant's motion for a continuance. Although there is nothing in the record regarding a further request for a continuance, both parties agree that the defendant's counsel made a verbal request for a continuance of the trial date on February 18, 2015, which the court granted until February 19, 2015. Again, although unsupported by the record, the parties agree that the defendant also verbally requested a jury trial on February 18, 2015, which was denied by the court.

         The trial proceeded on February 19, 2015. The court, Hon. Edward F. Stodolink, judge trial referee, heard testimony from the plaintiff, the defendant, the Stratford animal control officer, the police officer who responded to the plaintiff's 911 call on the day of the incident, and two neighbors. Additionally, fourteen exhibits were submitted into evidence by the plaintiff, which included the police incident report, the plaintiff's medical records and bills, the veterinary report and bill for Odie's treatment, and photographs of Odie's injuries. At the beginning of the trial, the plaintiff's counsel requested that the court take judicial notice of the plaintiff's life expectancy of 40.4 years. The court did so, after confirming that the defendant's counsel had no objection. After the evidence had concluded, the court heard brief closing arguments by both counsel and then rendered its judgment from the bench.

         The court's oral decision was as follows: ‘‘Having heard the-the testimony of the various witnesses, I've-and through counsel the various exhibits and reports. I did not read them, but I'm sure that they were recited properly by the counsel. Based on that and the evidence I've heard or-or the arguments, I will enter a judgment in favor of the plaintiff and against the defendant.'' The court then awarded economic damages covering the plaintiff's medical bills, the veterinary bills and the plaintiff's lost wages in the amount of $5080.45.

         With respect to noneconomic damages, the court stated: ‘‘According to the testimony of the plaintiff and the-the recital of the injuries, as the hospital records show, and-and the fact that the [plaintiff] has a life expectancy of forty years and it's indicated that he has continuing chronic pain to the thumb and also to his back, I will award him $25, 000 . . . . So, the total is $30, 080.45 plus costs.'' The defendant filed postjudgment motions for a new trial and for remittitur, which were denied by the court after a hearingon May 28, 2015.

         On July 23, 2015, the defendants' appellate counsel filed separate appearances on behalf of Dominic Posta and Leticia Posta. On July 30, 2015, the defendants filed this appeal. The defendants filed a motion for articulation on November 2, 2015, requesting that the trial court articulate, inter alia, the evidence it relied on in determining that the plaintiff suffered permanent injuries. The court, in its response to the motion, stated: ‘‘The injuries to the plaintiff's left thumb and low back that occurred on May 19, ...


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