Shaham v. John Capparelli

591 A.2d 1269, 219 Conn. 133, 1991 Conn. LEXIS 270

• Court: Supreme Court of Connecticut
• Decided: June 4, 1991
• Docket: 14165
• Status: Published

Opinions

Per Curiam.

In this personal injury action, we granted the plaintiffs petition for certification in order to consider whether the Appellate Court correctly sustained a ruling of the trial court precluding the plaintiff from offering certain rebuttal evidence.¹ Shaham v. Capparelli, 23 Conn. App. 468, 470-73, 581 A.2d 1065 (1990). The Appellate Court, considering this issue among others, affirmed the judgment of the trial court that the plaintiff, Basma Shaham, was not entitled to set aside or to have an additur to enhance a jury verdict that had awarded her $11,300 in damages for injuries allegedly sustained as a result of a fall on premises owned by the defendants, John Capparelli and Robert Mendola.

After examining the record on appeal and after considering the briefs and the arguments of the parties, we conclude that the appeal in this case should be dismissed on the ground that certification was improvidently granted. As the Appellate Court correctly noted, the admission of rebuttal evidence ordinarily rests within the sound discretion of the trial court. State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982); Toffolon v. Avon, 173 Conn. 525, 537, 378 A.2d 580 (1977); DiMaio v. Panico, 115 Conn. 295, 298-99, 161 A. 238 (1932); 1 B. Holden & J. Daly, Connecticut Evidence (1988) § 11, pp. 64-66; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.3.2, pp. 41-42. The issue on appeal is not whether any one of us, sitting as the trial court, would have permitted the disputed evidence to be introduced. The question is rather whether the trial court, in the absence of any claim of inadvertence, mistake or surprise, in a case in which the plaintiff had withdrawn any claim for loss of earnings, abused its discretion in not allowing rebuttal testimony to corroborate the plaintiffs version of the origins of a federal income tax statement nominally attributing certain contested earnings to the plaintiff.² Because the present proceeding does not afford us an opportunity to reexamine the standards governing the order of the presentation of evidence at trial, our grant of certification was improvident. See Lawler v. Lawler, 212 Conn. 117, 561 A.2d 128 (1989).

The appeal is dismissed.

1 The certified issues were: “1. Did the Appellate Court properly determine that the evidence offered in rebuttal was properly excluded by the trial court? 2. If not, did the ruling of the trial court constitute grounds for reversal?” Shaham v. Capparelli, 217 Conn. 801, 583 A.2d 132 (1990).

2 “At trial, the plaintiff was questioned about her 1987 federal income tax return and a 1988 W-2 form from an alleged employer, the American Steak House. She explained on three occasions during the trial that it was her children who had worked at the steak house, and that the tax documents were prepared in her name so she could gain control over her children’s income. After both parties rested, the plaintiff called the owner of the American Steak House as a rebuttal witness. The plaintiff sought to show through the owner’s testimony that she never had worked at his restaurant. The court disallowed this testimony, ruling that it was not proper rebuttal, and that it was cumulative.” Shaham v. Capparelli, 23 Conn. App. 468, 470, 581 A.2d 1065 (1990).