Swindell v. Codella

Full title: Jesse SWINDELL v. Catherine CODELLA.

Court: Superior Court of Connecticut

Date published: Nov 9, 2012

CV085007906 (Conn. Super. Ct. Nov. 9, 2012)

Opinion

CV085007906.

11-09-2012

Jesse SWINDELL v. Catherine CODELLA.

DEVINE, J.

UNPUBLISHED OPINION

DEVINE, J.

The above-captioned case was tried before a jury with a verdict rendered in favor of the plaintiff on September 20, 2012. The defendant filed the above-entitled motions, pursuant to Connecticut Practice Book § 16-35, for a mistrial, for an order for a new trial, or an order to set aside the verdict or in the alternative a remittitur.

By way of background, the parties filed numerous motions in limine regarding the preclusion of and/or limitation of testimony of expert and lay witnesses, admission of the plaintiff's motor vehicle arrests and suspension records, criminal misdemeanor and arrest records, speedometer readings, motorcycle license endorsement, SSD benefits, the plaintiff's wage and employment records and the parties' use of intoxicating substances around the time of the collision in question.

The court held a hearing on said motions in limine (# 141, 143, 145, 147, 149, 151, 153, 155, 161, 163 and 165) on August 28, 2012, at 10:00 am. At said hearing, counsel for the parties discussed the motions in advance and the court heard argument thereon. The court was required to render a decision on the motions pertaining to witness preclusion and/or testimony limitations pertaining to witnesses Bryant and Parker. The parties, through counsel agreed as to the resolution of all of the other motions except the defendant's motion to preclude the plaintiff from offering any evidence and/or testimony concerning his claim of lost wages and earning capacity (# 163). Counsel for the parties represented to the court at the August 28, 2012 hearing that they thought they had worked out an agreement concerning the lost wages. However, plaintiff's counsel could not contact his client for approval. Counsel were expected to contact the court's trial clerk the next day with an agreement concerning motion # 163.

Counsel for the parties failed to contact the clerk with any agreement prior to the first day of evidence. The court, prior to the commencement of evidence on September 5, 2012, inquired whether the parties had come to an agreement as to the issues raised in the defendant's motion to preclude the plaintiff's claims of lost wages and earning capacity. After a brief discussion in response to the court's inquiry, plaintiff's counsel represented that,

Yes your Honor, pursuant to the agreement of the parties, Plaintiff will have the ability to offer evidence and testimony concerning any lost wages that he incurred from the period of time from the accident up until the present date. The Plaintiff will not be making a claim for future loss of earning capacity.

(Transcript 9/5/12, pp. 1-2.)

Said agreement was confirmed by defense counsel with an explanation,

That what he has done in furtherance of his lost wage claim is submitted three different exhibits which consist of a wage statement, some tax returns and I think a printout that shows that he didn't file taxes in the years afterwards. And that he was just going to submit those to the ladies and gentlemen of the jury with the numbers that they represent and say he obviously lost some income and let the ladies and gentlemen of the jury make a determination.

(Transcript, p. 2.)

As a result of the agreement, the court rendered Order # 417595 which reads as follows: " By agreement of counsel, plaintiff will offer evidence and testimony concerning lost wages/income from the date of the accident until the present day. There will be no claim for future lost wages."

The defendant's counsel made no request for modification of the above order entered on September 5, 2012. After the plaintiff completed his final argument, the defendant objected to the plaintiff counsel's use of an hourly rate calculated over the period of time from the date of injury to the present in his claim for lost wages. The defendant claimed that said argument was " in violation of the motion in limine."

The court determined that the defendant would have the ability to argue that the plaintiff did not have a reported work history for that period of time claimed by the defendant and, further, that the defendant was not entitled to the amount of money claimed. The court made no curative instruction as to the plaintiff's lost wage argument because counsel did not violate any order. Defendant's counsel saw fit to use his entire hour of final argument over the issue of liability with no argument made concerning past lost wages.

Based upon the court's order # 417595 on motion # 163, the court hereby denies the relief sought by the defendant in her present motion # 178. The motion for a mistrial should be made during trial. Timm v. Timm, 195 Conn. 202, 205 (1985); Kane v. Kane, 43 Conn.App. 508 (1996). At no time was any motion for a mistrial, oral or written prior to the acceptance of the verdict by the court. The court further concludes that the defendant was not deprived of an opportunity of a fair trial. Magnott v. Mecchum, 22 Conn.App. 609, 679-80 (1990).

The court further denies the defendant's motion to set aside the verdict. The court further concludes that the present verdict is not contrary to law and is supported by the evidence. State v. Arcollie, 178 Conn. 450, 455; Palomba v. Fray, 208 Conn. 21, 23-24 (1988). As argued by the plaintiff, there was ample evidence of the wage loss claim and testimony from Tess Smallridge and the plaintiff concerning his job and wage history prior to the collision in question. The court further concludes that there is no justification for a new trial. The defendant has failed to claim any newly discovered evidence, jury bias or any other substantial grounds.

As to the defendant's claim for a remittitur, this court concludes that the defendant is not entitled to a remittitur based on the specific order of the court concerning the defendant's motion # 163 entered after discussion with counsel on September 5, 2012. The evidence submitted by the parties and the jury's verdict do not include items of damages which are contrary to law, not supported by proof or contrary to the court's instructions as to law. Soccie v.. Pasiak, 137 Conn.App. 562, 575-76 (2012). The arguments and strategies to argue liability and/or damages were consistent with the evidence presented and not contrary to any order re motions in limine or the charge of the law given to the jury.

ORDER

The defendant's motion for mistrial, for an order for a new trial or an order to set aside the verdict or in the alternative a remittitur is hereby denied.