Hoffkins v. Hart-D'Amato

          Argued September 13, 2018

         Procedural History

         Action to collect unpaid legal fees, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the defendant filed a counterclaim; thereafter, the court, Radcliffe, J., granted the plaintiff's motion for summary judgment as to the defendant's counterclaim; subsequently, the defendant filed an amended counterclaim; thereafter, the matter was tried to the jury before Krumeich, J.; subsequently, the court, Krumeich, J., denied the defendant's motion for disqualification; verdict and judgment for the plaintiff on the complaint and counterclaim, from which the defendant appealed to this court. Affirmed.

          Dianne Hart, self-represented, the appellant (defendant).

          Anthony B. Corleto, with whom, on the brief, was James E. C. Siewert, for the appellee (plaintiff).

          Alvord, Moll and Eveleigh, Js.

          OPINION

          EVELEIGH, J.

         In this action for the collection of unpaid legal fees, the named defendant, Dianne Hart-D'Amato, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Kevin L. Hoffkins. On appeal, the defendant claims that the trial court abused its discretion when it (1) denied her motion for disqualification of the trial judge, and (2) precluded relevant evidence offered by the defendant.^[1]We disagree and, accordingly, affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. The defendant was a party to a marital dissolution action filed in 2011. During the summer of 2012, the defendant retained the plaintiff to represent her. The plaintiff served as the defendant's counsel for more than one year; the defendant, however, failed to make any payments to the plaintiff beyond the initial retainer. Over the course of the representation, the attorney-client relationship broke down, and the plaintiff filed a motion to withdraw his appearance, which the court granted on September 14, 2013.

         On October 30, 2013, the plaintiff commenced the underlying action against the defendant. In the operative one count complaint, filed on December 4, 2013, the plaintiff alleged that the defendant failed to pay approximately $60, 000 in legal fees stemming from his representation of the defendant in the dissolution proceeding. In the defendant's amended answer, she asserted a number of special defenses, along with a six count counterclaim alleging, inter alia, professional negligence and negligent infliction of emotional distress.

         During an eleven day jury trial, the defendant sought to introduce as evidence a transcript from an August 25, 2014 hearing on a motion to strike that contained statements made by the plaintiff that were relevant to her theory of defense. For the reasons discussed in part I of this opinion, the trial court did not admit the transcript as a full trial exhibit. Throughout trial, the defendant continued to argue that the entire transcript should be admitted as a full exhibit because it contained relevant facts. When the court refused to admit the transcript as a full trial exhibit, the defendant filed a written motion to disqualify the trial judge, alleging, inter alia, that he was hiding facts from the jury by excluding the August 25, 2014 transcript and by excessively sequestering the jury during the presentation of evidence. The court issued a written order denying the motion, stating in part that legal argument between parties is not evidence and, therefore, excusing the jury during evidentiary colloquies regarding admissibility was reasonable. The jury found for the plaintiff with respect to his breach of contract claim and the defendant's counterclaims. The court accepted the verdict and rendered judgment in accordance therewith. This appeal followed. Additional facts will be provided as necessary.

         I

         The defendant's first claim on appeal is that the trial court erred when it denied her motion for disqualification of a judicial authority.^[2] Specifically, the defendant argues that the court demonstrated openly biased behavior when it excessively sequestered the jury, made adverse evidentiary rulings against her, and coached the plaintiff with respect to his testimony.^[3] We disagree.

         We first set forth the relevant standard of review. ‘‘Pursuant to our rules of practice; see Practice Book § 1-22; a judge should disqualify himself from acting in a matter if it is required by rule 2.11 of the Code of Judicial Conduct, which provides in relevant part that [a] judge shall disqualify himself . . . in any proceeding in which the judge's impartiality might reasonably 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 impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential elements of a fair exercise of judicial authority. . . . Nevertheless, because the law presumes that duly elected or appointed judges, consistent with their oaths of office, will perform their duties impartially . . . and that they are able to put aside personal impressions regarding a party . . . the burden rests with the party urging disqualification to show that it is warranted.'' (Internal quotation marks omitted.) Doe v. West Hartford, 168 Conn.App. 354, 382-83, 147 A.3d 1083 (2016), aff'd, 328 Conn. 172, 177 A.3d 1128 (2018). ‘‘A trial court's ruling on a motion for disqualification is reviewed for abuse of discretion. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.'' (Internal quotation marks omitted.) D'Amato v. Hart-D'Amato, 169 Conn.App. 669, 686, 152 A.3d 546 (2016).

         The following facts are relevant to our analysis. At trial, the defendant sought to introduce two transcripts claiming that they contained sworn testimony from the plaintiff: a prejudgment remedy hearing transcript from April 3, 2014, which did, in fact, contain sworn testimony from the plaintiff; and a transcript from an August 25, 2014 hearing on a motion to strike filed by the defendant, which contained legal argument relating to the pleadings. The defendant argued that the contents of these transcripts would be sufficient to impeach the plaintiff. After excusing the jury, the court canvassed the defendant with respect to the exhibit and asked the defendant whether the August 25, 2014 transcript contained sworn testimony of the plaintiff. The defendant answered in the affirmative.^[4] On that basis, the court, without objection from the plaintiff, admitted the August 25, 2014 transcript as a full trial exhibit. Some moments later, while the court was still reviewing the exhibit, the court attempted to clarify whether the August 25, 2014 transcript, in fact, contained sworn testimony.^[5] The court examined the exhibit and observed that the transcript did not contain party statements exclusively, but also, legal argument with respect to the pleadings. The court, sua sponte, revised its initial ruling and admitted the August 25, 2014 transcript for identification purposes only. The court stated that if the defendant wanted to offer certain statements made by the plaintiff, she could do so, but explained that the entire transcript would not be admitted as a full trial exhibit because it contained legal argument. On October 20, 2016, after numerous colloquies relating to the August 25, 2014 transcript, the court allowed a redacted version to be entered into evidence as an admission of a party opponent. Despite this ruling, the defendant continued to claim that the court was hiding facts from the jury, which she argued constituted overt judicial bias.

         In her motion for disqualification, the defendant's primary claim was that the trial judge excessively sequestered the jury during the evidentiary colloquies regarding the August 25, 2014 transcript and, therefore, prevented the jury from hearing all material facts relating to her claim that the plaintiff perjured himself.^[6] The court denied the motion in a written order, stating in relevant part: ‘‘Excusing the jury when the parties are arguing evidentiary objections was reasonable. Argument is not evidence. The transcript of the [motion to strike] ...