Opinion
CV126049792S
11-13-2015
Luiz Rivera v. Vincent Nuzzo et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE OBJECTION TO MOTION FOR PROTECTIVE ORDER AND MOTION TO QUASH (#119)
Robin L. Wilson, J.
FACTS
The plaintiff, Luis Rivera (plaintiff) commenced this action by service of writ, summons and complaint on the defendants, Vincent Nuzzo and Cut Rite Tree Removal, LLC with a return date of January 31, 2012. The complaint which was filed on January 24, 2012, and which is the operative complaint alleges the following facts. On November 22, 2011, the plaintiff was the owner/operator of a 2008 scooter and was traveling east, in the bike lane, on Main Street, in the Town of East Haven at its intersection with Lenox Street, in the state of Connecticut.
On the same date, the defendant, Vincent Nuzzo, was the operator of a 2005 dump truck with the knowledge, consent, permission and acting as agent, servant and/or employee of the defendant owner, Cut Rite Tree Removal, LLC and was traveling east on Main Street at its intersection with Lenox Street. As the defendant was traveling east on Main Street, he took a wide right turn onto Lenox Street, without signaling, and struck the plaintiff. The plaintiff has alleged a number of ways in which the defendant, Vincent Nuzzo was negligent, and claims that the defendant Cut Right Tree Removal was negligent based on a theory of vicarious liability. The plaintiff claims that as a result of the defendants' negligence he sustained severe and permanent injuries and seeks damages as a result thereof.
The defendants issued a subpoena for the deposition of the investigating officer, Vincent Ferrara who works for the Town of East Haven Police Department, and who was the officer who investigated the accident which gives rise to the instant lawsuit. Pursuant to Practice Book § § 13-28(d) and (e), and 13-5, counsel for Officer Vincent Ferrara and the Town of East Haven filed a motion for protective order, motion to quash and motion for fees. Officer Ferrara and the town argue that Officer Ferrara pursuant to § 13-28(e)(2) is entitled to " the reasonable cost of producing the materials being sought." Practice Book § 13-28(e)(2). Counsel for Officer Ferrara claims that " [t]he Town of East Haven is obligated to pay Officer Ferrara a five hour minimum at an extra duty rate which is $338 plus furnish a vehicle for his travel to and from the police station which is customarily billed at the rate of $100.00 per day." Mot. For Prot. Order, July 13, 2015, P5. He further claims that the " Town of East Haven usually and customarily bills any outside contractor such as United Illuminating Company, tree trimmers, gas company and any other contractor at the same rates for officers and automobiles." Id. Counsel for Officer Ferrara is claiming that the Town should be reimbursed for the amount the town is obligated to pay Officer Ferrara, pursuant to the collective bargaining agreement for " extra duty jobs." According to counsel, he equates Officer Ferrara's summoning to testify at a deposition with " extra duty jobs" as that term is used in the collective bargaining agreement, and therefore the town should be reimbursed for fees it pays its officers for extra duty jobs in accordance with the amounts that are usually and customarily paid by the town pursuant to the collective bargaining agreement.
The defendant has objected to the motion for protective order and argues that Connecticut General Statutes § 52-260(c) specifically governs witness fees of firemen and policemen and that, pursuant to that statute, the town is not entitled to reimbursement as contemplated by the collective bargaining agreement relative to extra duty jobs. The defendants further argue that they are not contracting with the Town of East Haven for any services of the police department and that they are not contractors such as the United Illuminating Company working on the street and needing extra safety patrol or traffic control. The defendants cite to a regulation which governs state employees and the state retirement commission in further support of their argument that they are not required to reimburse the Town for amounts it pays for extra duty officers. The defendants argue that under Connecticut State Agencies Regulations section 5-273-54--Witness Fees, Officer Ferrara, whose deposition will be taken, and the person taking said deposition shall severally be entitled to the same fees as are paid for like services in the courts of the state.
The defendant's objection was scheduled on this court's August 3, 2015 non-arguable short calendar.
DISCUSSION
" Our Supreme Court has noted: '[The] rules of discovery are designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent . . .' (Internal quotation marks omitted.) Wexler v. DeMaio, 280 Conn. 168, 188-89, 905 A.2d 1196 (2006) quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958)." Travelers Property & Casualty Co. v. Christie, 99 Conn.App. 747, 759, 916 A.2d 114 (2007). Our Supreme Court has also long recognized that the granting or denial of a discovery request rests in the sound discretion of the trial court. See Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16-17, 905 A.2d 55 (2006). " The court's discretion applies to decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party's knowledge, possession or power . . . A complete denial of discovery, however, is seldom within the court's discretion unless the court finds that one or more of the limitations on discovery expressed above applies." (Citations omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 59-60, 459 A.2d 503 (1983).
Practice Book § 13-5 states in relevant part: " Upon motion by a party from whom discovery is sought and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specific terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into or that the scope of discovery be limited to certain matters . . ."
Under Practice Book § 13-5 the party seeking the protective order is required to show good cause. The courts have defined good cause as " a sound basis or legitimate need to take judicial action." Welch v. Welch, 48 Conn.Supp. 19, 20, 828 A.2d 707 (2003). " Good cause must be based upon a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Id. " Whether or not 'good cause' exists for entry of a protective order must depend on the facts and circumstances of a particular case." Carrier Corp. v. Home Insurance Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 88352383 S (February 11, 1992, Schaller, J.) . " To determine whether good cause exists, courts balance 'the need for information against the injury that might result if uncontrolled disclosure is compelled.'" In re Zyprexa Injunction, 474 F.Supp.2d 385, 413-16 (E.D.N.Y. 2007) (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994)).
The defendants argue that General Statutes § 52-260(c) governs witness fees for police and firefighter testimony and is applicable in this case. Counsel for Officer Ferrara argues that General Statutes § 52-260(c) applies to the police officer or firefighter testifying in court and not at a deposition.
" It is a settled principle of our common law that parties are required to bear their own litigation expenses, except as otherwise provided by statute . . . Furthermore, because [c]osts are the creatures of statute . . . unless the statute clearly provides for them courts cannot tax them. Accordingly, the [party] can prevail only if the statutory provisions upon which it relies clearly empower the trial court to tax [such costs]." (Citations omitted; internal quotation marks omitted.) M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 715-16, 674 A.2d 845 (1996); see Lurie & Associates, Inc. v. Tomik Corp., 37 Conn.App. 865, 869, 658 A.2d 146 (1995) (finding " [a] prevailing party is entitled only to those costs that are expressly authorized by statute"); see also Rolfe v. New Britain General Hospital, 47 Conn.Supp. 296, 307-08, 790 A.2d 1194 (2001) (finding rule that requires party deposing opponent's expert witnesses to pay for cost of deposition is consistent with principle behind common-law rule that parties pay their own litigation costs because deponent controls entire process from decision to depose expert, to scope of material subpoenaed, and scope of matters into which inquiry will be made as to length and detail of questioning).
For purposes of the present action, the applicable statutes that are relevant to the court's inquiry, and which concern witness fees, are General Statutes § 52-257 and General Statutes § 52-260. Subsections (a) and (b) of 52-257 set forth the costs available to the prevailing party in a civil action in which the matter in demand is not less than $15,000. Section 52-257(b) provides in relevant part: " Parties shall . . . receive: (1) For each witness attending court, the witness' legal fee and mileage . . ." (Emphasis added.) This section expressly provides that a court can tax costs for witnesses who attend court, but it is silent regarding witnesses who do not attend court, such as those attending a deposition. Ludington v. Sayers, 64 Conn.App. 768, 780, 778 A.2d 262 (2001). Thus, a court cannot tax costs for a witness who does not attend court because neither subsection of § 52-257 clearly provides that the costs for witnesses who do not attend court are taxable. Id.
" (b) Parties shall also receive: (1) For each witness attending court, the witness' legal fee and mileage; (2) for each deposition taken . . . within the state, thirty dollars; . . . and (12) for the recording, videotaping, transcribing and presentation of the deposition of a practitioner of the healing arts, as defined in section 20-1, dentist, registered nurse, advanced practice registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser that is used in lieu of live testimony in the civil action, the reasonable expenses incurred." (Emphasis added.) General Statutes § 52-257 provides in relevant part: " (a) The fees of parties in civil actions in which the matter in demand is not less than fifteen thousand dollars shall be: For each complaint, exclusive of signing and bond, five dollars for the first page and, for each succeeding page, two dollars; for each judgment file, two dollars for the first page and, for each additional page, one dollar and fifty cents. The prevailing party in any such civil action shall receive, by way of indemnity, the following sums: (1) For all proceedings before trial, fifty dollars; (2) for the trial of an issue of law or fact, seventy-five dollars, but if more than one issue of fact is tried at one time, only one trial fee shall be allowed; and (3) in difficult or extraordinary cases in the Superior Court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars.
Section 52-260 provides further instruction for the recovery of witness fees. Section 52-260(c) provides in relevant part: " When any . . . police officer . . . is summoned to testify in his capacity as a police officer . . . in any court in a civil action and the police officer . . . receives no compensation from the municipality by which he is employed for the time he is in attendance at court, there shall be allowed and paid to the police officer . . . a witness fee of one hundred dollars, together with the mileage allowed by law to witnesses in criminal cases, for each day he is required to attend court. If the police officer . . . testifies in any such proceeding or civil action on a vacation day or compensatory day off, he shall be paid the sum of one hundred dollars, together with the mileage allowed by law, notwithstanding the fact that he is receiving compensation for such day from the town, city or borough by which he is employed." (Emphasis added.) These fees will be taxed as costs, in lieu of all other witness fees payable to such police officer, and such fees of any witness summoned by a party to testify in any action or proceeding shall be paid to the witness on the day of attendance of such witness. General Statutes § 52-260(d) & (h). Moreover, § 52-260(f) specifically allows the court to determine a reasonable fee to be paid to an expert witness testifying in court or by way of a deposition, in lieu of all other witness fees, but said fee will not include an expert witness' preparation time, mileage, and transportation costs. See Smith v. Andrews, 289 Conn. 61, 87, 959 A.2d 597 (2008).
" The process of statutory interpretation involves a reasoned search for the intention of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case . . . In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended." (Citation omitted; internal quotation marks omitted.) Cox Cable Advisory Council v. Dept. of Public Utility Control, 259 Conn. 56, 63, 788 A.2d 29, cert. denied, 537 U.S. 819, 123 S.Ct. 95, 154 L.Ed.2d 25 (2002). " [S]trict construction does not require giving the words of a statute the narrowest meaning of which they are susceptible . . . and [the principle of] strict construction is in no way violated if the words of [the] statute are given their full meaning." (Internal quotation marks omitted.) Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 262, 943 A.2d 430 (2008).
It is a " basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous . . . Put differently, [t]he use of the different terms . . . within the same statute suggests that the legislature acted with complete awareness of their different meanings . . . and that it intended the terms to have different meanings . . . Moreover, it is well settled that the legislature is always presumed to have created a harmonious and consistent body of law . . . [T]his tenet of statutory construction . . . requires [this court] to read statutes together when they relate to the same subject matter . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Citation omitted; footnote omitted; internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 849-50, 937 A.2d 39 (2008).
The plain meaning § 52-260(c) provides that a police officer will receive as compensation $100 and mileage provisions for each day he or she is required to attend court because he was summoned to testify in his or her capacity as a police officer in a civil action. See § 52-260(c). Nonetheless, the police officer will only receive this compensation if the municipality by which he is employed will not compensate him for the time he is in attendance at court. See § 52-260(c); see Louis v. Houndris, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6016695-S, (January 12, 2015, Karazin, J.T.R.) (whereby court awarded taxation of costs of $100 for police officer because officer testified under oath by subpoena and party presented affidavit that municipality had not compensated officer). In a similar case, Pajor v. Wallingford, the plaintiff sought to collect costs representing subpoena fees for Police Officer Donald Comstock. Pajor v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV-94-0366807-S (July 19, 1996, Hodgson, J.) (17 Conn. L. Rptr. 353, 354), rev'd on other grounds, 47 Conn.App. 365, 704 A.2d 247 (1997), cert. denied, 244 Conn. 917, 714 A.2d 7 (1998). The first subpoena was issued in connection with a discovery deposition. Id. The court acknowledged that § 52-257(b)(1) provided costs for the legal fees and mileage for witnesses attending court, but not for those attending discovery depositions. Id. The second subpoena was issued to secure his testimony and presence at trial and subject to § 52-260(b), (c), and (d). Id. " The defendant [took] the position that where a police officer [was] paid by the employer while testifying, the officer receive[d] only his or her mileage. It [was] not claimed that Officer Comstock was not paid by his employer on the date he testified. Since § 52-260 does not therefore provide for payment to him of a fee in addition to his mileage, and since the plaintiff has not identified any other 'legal fee' that was required to be paid to this witness, only his mileage fees for his court appearance are recoverable as costs." Id. " Subpoenas to attend discovery depositions are not recoverable as costs . . ." Id.
The Town of East Haven (town) concedes in their motion for protective order and to quash that the town " is obligated to pay the officer and hence seeks reimbursement . . . from the issuing authority" for equitable reasons. (Emphasis added). Therefore, on the basis of the actual language of § 52-260(c), the defendants would not be required to compensate the police officer in this action because the town will be compensating Officer Ferrara, and Officer Ferrara was not summoned to testify at court but, rather, at a deposition. In light of the Appellate Court's strict interpretation of the phrase " attending court" pursuant to § 52-257(b); see Ludington v. Sayers, supra, 64 Conn.App. 780; the phrase " in attendance at court" should not be interpreted differently pursuant to § 52-260(c). See also Keans v. Bottiarelli, 35 Conn.App. 239, 245, 645 A.2d 1029, cert. denied, 231 Conn. 934, 650 A.2d 172 (1994) (finding that costs for a videotaped deposition were improper because party did not " attend court"). Therefore, pursuant to § § 52-257 and 52-260, the defendant is not required to compensate Officer Ferrara for attendance at his deposition nor is he entitled to collect mileage costs.
As for the remaining language in § 52-260(c), that a police officer that testifies " in any proceeding or civil action" on a vacation day or a compensatory day off will receive compensation of $100 and mileage for that day, notwithstanding the fact that he or she will also receive compensation from the municipality by which he or she is employed, such language may be interpreted to include deposition testimony, if the deposition is scheduled to take place on a day the officer is scheduled for vacation or on the officer's compensatory day off. See § 52-260(c). The plain language of § 52-260(c) does not specifically contemplate, however, that fees should be given to a police officer for his attendance at a deposition, even though other subsections of § 52-260 do specifically allow for costs to be assessed for depositions of expert witnesses. See § 52-260(c) & (f).
If the police officer is scheduled to testify at a deposition on a vacation day or a compensatory day off, § 52-260(c) would only be applicable if " any proceeding or civil action" includes depositions. The legislative history of § 52-260(c) does not provide any insight regarding the term " any proceeding or civil action." The legislative history of § 52-260(f), however, provides some clarification. The legislative history of § 52-260(f) illustrates that it was enacted to facilitate the obtaining of physician and real estate appraisers testimonies and to impose judicial control over the amount of fees necessary to pay such witnesses for their expert testimony. See Flores v. Jenison, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-01-0278648-S (June 23, 2004, Frazzini, J.) (37 Conn. L. Rptr. 328, 331). The public act " covers 2 problems: the real estate appraiser and the physician. The practical [sic] trial lawyer has a problem in getting a physician to court. I've had to pay $350 to a physician to appear in court for a half day. I think there has come a time when the courts should have the ability to determine the fee that should be payable to a physician." Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 1, 1967 Sess., p. 254 (Harold Yudkin, New Haven County Bar Association testifying). " [T]here has been some difficulty with respect to the testimony gotten from Physicians and Real Estate Appraisers, each one [sic] has a different fee. It has caused some difficulty to the litigants. The purpose of this bill is to allow the court to set what it believes to be a reasonable fee to be paid to those Physicians and Real Estate Appraisers." 12 H.R. Proc., Pt. 5, 1967 Sess., p. 2162 (remarks of Representative John Carrozzella). Thereafter, § 52-260(f) was amended " to include costs incurred in connection with an expert's testimony by means of a deposition." (Citation omitted.) Levesque v. Bristol Hospital, Inc., supra, 286 Conn. 263; see also Public Acts 2001, No. 01-32, § 1.
Moreover, § 52-260(f) " sets forth the court's authority to award expert witness fees in civil litigation. Within the statute, there is an enumeration of the categories of experts entitled to a discretionary award of expert witness fees." Miller v. Guimaraes, 78 Conn.App. 760, 783, 829 A.2d 422 (2003). Only those experts specifically mentioned in the statute can receive a reasonable fee for their testimony, at court or by way of a deposition. See id. (finding § 52-260 does not apply to legal experts); see also Taylor v. King, 121 Conn.App. 105, 133, 994 A.2d 330 (2010) (finding § 52-260 does not apply to construction experts); Arnone v. Enfield, 79 Conn.App. 501, 531, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003) (finding economists are not experts pursuant to § 52-260); Lurie & Associates, Inc. v. Tomik Corp., supra, 37 Conn.App. 868-69 (finding hand writing expert not an expert pursuant to § 52-260). This subsection does not extend to fact witnesses. See Mayette v. Froeb, Superior Court, judicial district of New Britain, Docket No. CV-05-4006433-S, (February 16, 2007, Shapiro, J.) (finding costs sought by defendant doctor who testified at trial were not authorized because, although disclosed as expert witness, doctor testified as fact witness and § 52-260(f) only concerns expert testimony). " [W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute." (Internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, supra, 284 Conn. 851. Therefore, if the legislature intended for police officers to receive compensation and/or a " reasonable fee" for their testimony at a deposition, the legislature could have amended § 52-260(c) to include such language that would allow for police officers to receive such compensation and/or a reasonable fee for their deposition testimony, or expanded § 52-260(f) to apply to fact witnesses.
Thus, on the basis of statutory language alone, even if § 52-260(c) could be read to include deposition testimony as " any proceeding or civil action, " § 52-260(c), again, would not be applicable to the present action because there is no claim that the deposition is scheduled to take place on a vacation day or a compensatory day off. Because neither § § 52-257 nor 52-260 clearly provide that the costs for witnesses who do not attend court, particularly if their employer will compensate them for their time, are taxable, a court cannot tax costs for a witness who does not attend court. See M. DeMatteo Construction Co. v. New London, supra, 236 Conn. 715-16; see Ludington v. Sayers, supra, 64 Conn.App. 780. Furthermore, the town has failed to provide any law, statutory or case law, that supports its position that for equitable reasons, it should be reimbursed for police officer for his attendance at the deposition. In light of the arguments above, unless the town is expressly authorized by statute to seek reimbursement for its collective bargaining obligations, the town is not entitled to the same. See Lurie & Associates, Inc. v. Tomik Corp., supra, 37 Conn.App. 869.
The defendants cite to Section 5-273-54 of the Regulations of Connecticut State Agencies, which concerns witness fees, that provides: " Witnesses summoned before the Board or its Agent shall be paid the same fees and mileage that are paid witnesses in the courts of the state, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the state. Witness fees and mileage shall be paid by the party at whose instance the witnesses appear and shall be paid by the Board when they appear by the Board's instance, and the person taking the deposition shall be paid by the party at whose instance the deposition is taken or by the Board if the deposition is taken at its instance." This specific regulation concerns the collective bargaining for state employees pursuant to General Statutes § § 5-270 to 5-280 inclusive, and the " Board" means the Connecticut State Board of Labor Relations. See Section 5-273-6 of the Regulations of Connecticut State Agencies. The defendant did not cite to, and the court could not find, any legal authority concerning how this regulation interacts with the applicable statutes previously provided and, clearly, the Board is not involved in the present action. Therefore, this regulation is inapplicable to the present case.
The Town cites to § 13-28(e)(2) to support its position that it should be reimbursed for fees and compensation it will have to reimburse to Officer Ferrara for his attendance at the deposition. Practice Book § 13-28(e)(2) provides: " The court in which the cause is pending, or, if the cause is pending in a foreign court, the court in the judicial district wherein the subpoenaed person resides, may, upon motion made promptly and, in any event, at or before the time for compliance specified in a subpoena authorized by subsection (b) of this section, (1) quash or modify the subpoena if it is unreasonable and oppressive or if it seeks the production of materials not subject to production under the provisions of subsection (c) of this section, or (2) condition denial of the motion upon the advancement by the party who requested the subpoena of the reasonable cost of producing the materials being sought." The Town argues that the language " reasonable cost of producing the materials being sought" allows for it to be reimbursed for compensation and fees it will have to pay Officer Ferrara for his attendance at the deposition. The court is not persuaded by this argument and the Town cites to no commentary in the Practice Book or other legal authority and/or statute, that would support such an interpretation of that language.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to quash and for a protective order is denied. The defendant's objection thereto is sustained.