Federal Deposit Insurance v. Carabetta

739 A.2d 311, 55 Conn. App. 384, 1999 Conn. App. LEXIS 403
Connecticut Appellate Court·Decided October 19, 1999·No. AC 17923·Published·Cited by 6 cases

Opinion

Opinion

LANDAU, J.

This is a joint appeal from four judgments of the trial court rendered after a hearing in damages [386]*386awarding damages to the plaintiff Federal Deposit Insurance Corporation (FDIC) as receiver of National Industrial Bank of Connecticut (bank) against the four individual defendants.1 On appeal, the defendants raise evidentiary challenges, within the parameters of General Statutes § 52-180,2 maintaining that the trial court improperly admitted testimonial and documentary evidence to establish the amount of their debts. We affirm the judgments of the trial court.

The facts are not in dispute. Each of the defendants executed separate promissory notes in favor of the bank and failed to make payment. After the bank was declared insolvent, the FDIC, as receiver, commenced actions against each of the defendants. Although each defendant filed an answer, special defenses and a counterclaim, the trial court granted summary judgment as to liability in favor of the plaintiff against eách defendant. A consolidated hearing in damages resulted in judgments for the plaintiff against each defendant. At [387]*387the hearing in damages, the court admitted evidence of the amount of the debt over the defendants’ objections that the evidence was not a business record under the business records exception to the hearsay rule in § 52-180. On appeal, the defendants claim that the court inappropriately determined the amount of principal and interest due on the promissory notes because it improperly admitted (1) testimonial evidence regarding the outstanding balances on the promissory notes at the time the bank failed and the amount of interest due and (2) documentary evidence as proof of (a) the principal balance on the promissory notes at the time of the bank’s failure because the document was not a business record of the FDIC and (b) interest because the document was created during and for trial. Additional facts will be discussed where relevant to the defendants’ claims.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 92, 709 A.2d 14 (1998). “We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the [388]*388erroneous ruling would likely affect the result.” (Internal quotation marks omitted.) Poulos v. Pfizer, Inc., 244 Conn. 598, 614, 711 A.2d 688 (1998).

I

The defendants’ first claim is that the trial court improperly admitted testimonial evidence from (1) Joyce Ragozzino of the outstanding balances on the promissory notes at the time the bank was declared insolvent and (2) Teresa Thurston as to the interest due. We disagree.

A

Ragozzino, who was senior vice president of the bank at the time it went into receivership, testified from her recollection about a portfolio she kept at the bank that showed that the defendants’ loans had not been repaid. The defendants objected because Ragozzino testified from memory as to the information contained in the portfolio, which could not be put into evidence because it was not available. Citing the best evidence rule,3 the [389]*389defendants, therefore, claim they could not cross-examine the witness about the contents of the portfolio. The court permitted Ragozzino to testify from personal knowledge and denied the defendants’ motion to strike her testimony, ruling that the best evidence rule was not applicable because the portfolio could not be found. See Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 9-12, 513 A.2d 1218 (1986).

The plaintiff argues that this claim is immaterial because documents that provided the same evidence concerning the status of the defendants’ loans at the time the bank went into receivership were subsequently admitted into evidence.4 “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the err or was harmful. . . . One factor to be considered in determining whether an improper ruling on evidence is a harmless error is whether the testimony was cumulative . . . .” (Citation omitted; internal quotation marks omitted.) State v. Rolli, 53 Conn. App. 269, 276, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999). Because the evidence was cumulative, we agree with the plaintiff and need not determine whether the court’s ruling was improper.

B

The defendants also objected to the testimony of Thurston, a technician in the FDIC’s accounting department, as to the principal balance and accrued interest on each loan. The witness acknowledged that her testimony was based on computer records of the FDIC that incorporated information from the records of the bank. Thurston is a person familiar with the FDIC’s computer-hardware and software, including the “LAM1S System.” She testified that the computer printouts consisted of [390]*390a “POFF” (payoff screen), containing the account numbers of the loans, the outstanding principal balance and accrued interest on each loan; the “LGEN” (loan general history screen), containing general information about the loan, including the per diem, current rate, and loan “paid to” date; and the “HRAP” (history recap screen), containing rate change information. Thurston had received ongoing computer training, had the ability to access all computer screens and found the FDIC computer system to be generally rehable. The defendants objected to Thurston’s testimony because it relied on information that purportedly came from the records of the bank and that it was, therefore, hearsay within hearsay.

In this age of electronics, evidence is not inadmissible just because the information was provided by means of a computer. In American Oil Co. v. Valenti, 179 Conn. 349, 360-61, 426 A.2d 305

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Federal Deposit Insurance v. Carabetta, 739 A.2d 311, 55 Conn. App. 384, 1999 Conn. App. LEXIS 403 (Colo. Ct. App. 1999).

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