Dubreuil v. Witt

781 A.2d 503, 65 Conn. App. 35, 2001 Conn. App. LEXIS 410
CourtConnecticut Appellate Court
DecidedAugust 14, 2001
DocketAC 18526
StatusPublished
Cited by15 cases

This text of 781 A.2d 503 (Dubreuil v. Witt) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dubreuil v. Witt, 781 A.2d 503, 65 Conn. App. 35, 2001 Conn. App. LEXIS 410 (Colo. Ct. App. 2001).

Opinion

[36]*36 Opinion

DALY, J.

In this legal malpractice case, the defendants, Otto P. Witt and Witt and Associates, P.C.,1 appeal from the judgment, rendered after a trial to the court, awarding damages to the plaintiffs, Alphonse T. Dubreuil and Marilyn Dubreuil. On appeal, Witt claims that (1) the trial court improperly denied his motion for a default in which he alleged that the plaintiffs had failed to comply with requests for production and to answer interrogatories, (2) the court abused its discretion in that it violated his due process rights by precluding him from presenting a defense and by limiting his cross-examination of Alphonse T. Dubreuil, (3) there was insufficient evidence to support the court’s rendering of judgment against Witt and Associates, P.C., (4) the court improperly found that legal malpractice had occurred even though the plaintiffs did not present expert testimony to that effect and (5) the court improperly awarded damages. We agree with Witt’s second claim and, on that basis, reverse the judgment of the trial court and remand the case for a new trial.

The following facts and procedural history are relevant to the resolution of the defendants’ appeal. In 1992, the plaintiffs, on behalf of A. Dubreuil and Sons, Inc. (corporation),2 retained Witt to represent the corporation, in a chapter 11 bankruptcy matter. During the course of Witt’s representation, the plaintiff informed Witt that Deedy Construction Company (Deedy), a subcontractor, had brought an action against both the cor[37]*37poration and the plaintiffs individually to recover payments allegedly due and owing for demolition work that Deedy had performed on behalf of the corporation.

On June 22, 1994, Witt failed to appear, or did not timely appear, at a pretrial conference regarding Deedy’s action against the plaintiffs. As a result, a default was entered against the plaintiffs. The pretrial conference was rescheduled for August 22, 1994. Witt failed to attend, or did not appear timely at, the rescheduled conference, and a judgment of default was rendered against the plaintiffs. Witt filed a motion to open the judgment of nonsuit that subsequently was rendered against the plaintiffs. The court denied the motion on February 6, 1995. The plaintiffs claim that they then paid $32,500 in damages to Deedy in exchange for a full release.

The plaintiffs then brought an action against Witt, claiming that Witt had committed negligence and violated the Rules of Professional Conduct. In their amended complaint, the plaintiffs did not allege that they had paid any money to Deedy. The court rendered judgment against both defendants. The court requested that the plaintiffs submit an affidavit of debt and, on the basis of the plaintiffs’ affidavits, awarded damages in the amount of $53,130. Additional facts will be discussed where pertinent to the issues raised.

I

We first turn to Witt’s claim that the court abused its discretion in denying his motion for a default in which he alleged that the plaintiffs had failed to answer interrogatories and to comply with requests for production. We disagree.

The following additional facts are relevant to our resolution of the defendants’ claim. In April, 1997, Witt served the plaintiffs with interrogatories and requests [38]*38for production. After the plaintiffs failed to respond to the requests, in September, 1997, Witt filed a motion for an order of compliance pursuant to Practice Book § 231, now § 13-14,3 requesting that a nonsuit enter against the plaintiffs, and that the court order compliance and award attorney’s fees. When Witt still had not received answers to either the interrogatories or the requests for production, he filed another motion for an order of compliance. On April 3, 1998, the corut awarded attorney’s fees to Witt for the cost of filing the motion and ruled that a nonsuit would enter against the plaintiffs unless there was compliance within two weeks.

During the first day of trial, the court ordered the plaintiffs to comply fully with Witt’s discovery requests by the end of the next day. On the second day of trial, Witt made a motion for a default, claiming that the plaintiffs still had failed to comply with the prior day’s order. The court concluded that the plaintiffs had complied with the discovery order and denied Witt’s motion for a default.

On appeal, we review a court’s decision whether to issue sanctions pursuant to Practice Book § 231, now § 13-14, under an abuse of discretion standard. Nelson v. Housing Authority, 63 Conn. App. 113, 117, 774 A.2d 1025 (2001). “In reviewing a claim that this discretion has been abused the unquestioned rule is that great [39]*39weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [T]he ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Connecticut National Bank v. Investors Capital Corp., 29 Conn. App. 48, 54-55, cert, denied, 224 Conn. 902, 615 A.2d 1044 (1992).

In denying Witt’s motion for a default, the court had the benefit of having before it Witt’s interrogatories and requests for production, and the plaintiffs’ responses. After reviewing the plaintiffs’ responses, the court found that there had been compliance with the discovery requests. On the basis of the record before us, and giving every reasonable presumption in favor of the court’s decision, as we must, we conclude that the court did not abuse its discretion in denying Witt’s motion for a default.

II

As our resolution of the following issue effectively decides this appeal, we now address the claim that the court abused its discretion in limiting the extent of Witt’s cross-examination of the plaintiff and thereby violated Witt’s due process rights to present witnesses and to offer evidence.

The following additional facts are relevant to our resolution of Witt’s claim. On the second day of trial, the plaintiff testified. It is the cross-examination of the plaintiff that forms the basis of Witt’s claim.4

[40]*40“In the context of a civil case, our Supreme Court, in accepting a common law right to cross-examination, stated [t]he right of cross-examination is not a privilege [41]*41but [is] an absolute right . . . .” (Internal quotation marks omitted.) Close, Jensen & Miller, P.C. v. Lomangino, 51 Conn. App. 576, 580-81, 722 A.2d 1224, cert, denied, 248 Conn. 905, 731 A.2d 306 (1999), quoting Gordon v. Indusco Management Corp., 164 Conn. 262, 271, 320 A.2d 811 (1973). “It is only after the right of cross-examination has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary with the trial court.” Gordon v. Indusco Management Corp., supra, 271.

Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. Robert M. Elliott, P.C. v. Stuart, 53 Conn. App.

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Bluebook (online)
781 A.2d 503, 65 Conn. App. 35, 2001 Conn. App. LEXIS 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dubreuil-v-witt-connappct-2001.