Dep't of Soc. Servs. v. Freeman

197 Conn.App. 281

232 A.3d 27

DEPARTMENT OF SOCIAL SERVICES

v.Justin FREEMAN

AC 41561

Appellate Court of Connecticut.

Argued November 13, 2019

Officially released May 12, 2020

Jade Baldwin, with whom, on the brief, was Gerald M. Beaudoin, for the appellant (defendant).

Joan M. Andrews, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellee (plaintiff).

Keller, Bright and Sheldon, Js.

SHELDON, J.

The defendant, Justin Freeman, a Hartford attorney, appeals from the judgment of the trial court rendered against him, after a jury trial, finding him liable for conversion and awarding damages to the plaintiff, the Department of Social Services. The judgment was based on the defendant's failure to comply with a child support lien against the settlement proceeds of a client's personal injury action, of which he allegedly had been given due notice, before distributing such proceeds to himself, his client's other creditors, and his client. The defendant, who claimed at trial that he had never been served with the notice of lien that the plaintiff alleged it had sent to him, asserts that the trial court erred by (1) allowing the plaintiff to disclose an expert witness immediately before the start of trial to support its claim that the notice of lien had likely been delivered to him because it had been mailed to the correct address, albeit not to the correct zip code, (2) allowing the plaintiff's counsel to question him before the jury as to a prior conversion action that had been brought against him by an unrelated third party, and (3) allowing the biological mothers of his client's two minor children to testify that his client owed them child support. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On May 8, 2010, Pedro Rivera was involved in a motor vehicle accident in which he sustained serious physical injuries. Rivera retained the defendant to represent him in a civil action against the driver of the motor vehicle that was involved in the accident. During the pendency of the action, Rivera was under a court order to pay child support for his two minor children.¹ As of May 12, 2012, Rivera had a combined child support delinquency of $12,500.70. Because Rivera owed child support arrearages for his two minor children, the plaintiff's Bureau of Child Support Enforcement sent notice to the defendant of a child support lien, directing him not to distribute any proceeds from the civil action without first complying with the lien.² The lien notice was addressed to the defendant's correct street address but listed an incorrect zip code. The notice was not returned to the sender.

In September, 2013, the defendant settled Rivera's civil action for $82,500. Upon receiving the proceeds of that settlement, the defendant paid $27,500 in attorney's fees, $2569.58 in litigation expenses, $5825.40 in insurance provider costs, and $12,700 in repayments to creditors for loans that Rivera had taken out while the action was pending. The defendant then paid the remaining $33,905.02 in settlement proceeds to Rivera, without paying anything to the plaintiff toward Rivera's child support arrearages.

As a result, the Support Enforcement Services Unit of the Judicial Branch, working in cooperation with the plaintiff to enforce delinquent parents’ child support obligations, filed a motion in the Superior Court requesting that Rivera be held in contempt for failure to pay child support for his minor children. At the conclusion of the contempt proceeding, Rivera was found in contempt for failure to pay child support, and the state collected $3000 from him toward his arrearages, leaving him with a combined balance of $9500.70 in outstanding child support.³ Thereafter, the plaintiff issued a demand to the defendant that he pay the balance of Rivera's combined child support arrearage, which the defendant refused.

Pursuant to General Statutes § 52-362d,⁴ the plaintiff commenced the present action against the defendant to recover the remaining $9500.70 in child support still owed by Rivera because the defendant had failed to withhold that sum from the settlement proceeds of Rivera's civil action to satisfy the lien. In his amended answer and special defenses, the defendant denied, inter alia, that he ever received notice of the child support lien from the plaintiff.

On May 18, 2016, after the pleadings were closed, the defendant demanded a jury trial. On December 6, 2017, the plaintiff submitted its trial management report. The trial management report listed, as a fact witness, Michael Chiaro, whom it described as follows: "United States Postal Service, Supervisor, Customer Service Support, Hartford, CT." In the report, the plaintiff further explained that Chiaro, "[t]he United States Post Office Supervisor for Customer Service Support, Hartford, CT, will testify that a letter mailed to the correct street address but the wrong zip code within Hartford would still be delivered, it would just take longer."

On March 12, 2018, the defendant filed a motion in limine to preclude Chiaro's proposed testimony. The defendant argued that such testimony was inadmissible because it was "of an expert nature, offering technical and opinion testimony as an employee of the United States post office as to how he believes the mail would have been processed." The defendant argued that because no expert disclosure had been filed, he had not had an "opportunity to depose [the] expert and obtain a rebuttal expert ...." (Emphasis added.) On that basis, he argued that the testimony of Chiaro should be excluded as improper expert testimony. On March 20, 2018, the day before the start of evidence at trial, the court, Hon. A. Susan Peck , judge trial referee, heard oral argument on the defendant's motion to preclude Chiaro's testimony. The court ruled that Chiaro must be considered an expert witness based on the testimony that the plaintiff intended to elicit from him. It ruled, however, that the plaintiff could file a late disclosure of expert witness, naming Chiaro as its expert. The court reasoned that disclosure of Chiaro had already been accomplished through the trial management report submitted December 6, 2017, and, therefore, there was no prejudice to the defendant. The court further noted that, if the defendant were able to find a rebuttal expert, it would also permit him to file a late disclosure of that expert. Ultimately, the defendant found a rebuttal expert—Joan Coleman, a retired employee of the United States Postal Service—whom the court permitted the defendant to name as his expert in a late disclosure.

At trial, Chiaro testified that he had spent thirty-three years working as an employee of the United States Postal Service in Hartford, twenty-three years of which he had spent working as a supervisor of customer service support. He testified that, in his role as supervisor of customer service support, he oversaw delivery operations and retail operations for the post office in Hartford. He further testified that he was "[v]ery familiar" with the operations of the Hartford post office, and then explained the process by which mail in that post office is processed, sorted, and delivered. During Chiaro's testimony, he explained that permission is required from the United States Postal Inspection Service before a postal employee can testify in court. Chiaro stated that he had received such permission to testify in this case. Ultimately, Chiaro opined that a piece of mail like the notice of lien letter at issue here, which listed the correct street address of the addressee but the incorrect zip code, ultimately would be delivered to the desired address.

At trial, the defendant's expert, Coleman, testified that she had spent twenty-six years working for the United States Postal Service, both in Bloomfield and in Hartford. She explained that she had begun her career as a carrier in Hartford; then she had transitioned to Bloomfield, where she worked as a clerk for six years; finally, she had returned to Hartford, where she worked as a mail processor for the remainder of her career. As a mail processor, the role in which she had worked for most of her career, Coleman's duties included placing mail into a stamp cancelling machine to cancel stamps or to cancel mail and running a mail separating program that separated the mail by destination of delivery. Coleman testified that the most important entry on any piece of mail is the zip code because that is how mail is processed and moved about when the post office is preparing to deliver it. Coleman testified that, in her expert opinion, a letter addressed to an individual at a business with the wrong zip code listed on it would not reach its intended destination.

On her cross-examination of Coleman, the plaintiff's counsel sought to challenge her testimony in three basic ways. First, she elicited evidence that Coleman's granddaughter was a friend of the defendant. Second, she established that Coleman, unlike Chiaro, did not have permission from the United States Postal Service to testify in this case. Third, she sought to demonstrate that Coleman had lesser credentials than Chiaro because her expertise was in the processing of mail, not in its delivery.

Ultimately, on March 28, 2018, the jury returned a verdict in favor of the plaintiff, awarding it $9500.70, the exact amount of Rivera's combined child support arrearage for his two children. This appeal followed.

I

The defendant first claims that the trial court abused its discretion by allowing the plaintiff to disclose an expert witness immediately before the start of trial. Specifically, he claims that the court ignored the requirements for expert disclosure set forth in Practice Book § 13-4 by allowing the expert to testify despite the late disclosure, and, thus, he was prejudiced because he was neither afforded an opportunity to depose the...