Patrowicz v. Peloquin

190 Conn.App. 124

209 A.3d 1233

Richard M. PATROWICZ et al.

v.Barry PELOQUIN

AC 40662

Appellate Court of Connecticut.

Argued January 23, 2019

Officially released May 21, 2019

Barry L. Peloquin, self-represented, the appellant (defendant).

Ernest J. Cotnoir, for the appellees (plaintiffs).

Keller, Elgo and Moll, Js.

ELGO, J.

In this breach of contract action, the self-represented defendant, Barry Peloquin, appeals from the judgment of the trial court rendered in favor of the plaintiffs, Richard M. Patrowicz and Deborah Patrowicz.¹ On appeal, the defendant challenges the court's (1) denial of his request for a continuance following the close of the plaintiffs' case-in-chief and (2) determinations with respect to his statute of frauds defense. We affirm the judgment of the trial court.

In its memorandum of decision, the court found the following relevant facts. The plaintiffs are husband and wife, who jointly own a twenty-six acre parcel of land in Thompson. After retiring from a career as a millwright, Richard began operating a small forestry business on the property.

In 2012 or 2013, a mutual friend introduced the plaintiffs to the defendant. At that time, the defendant resided in the town of Pomfret, where zoning regulations prohibited the defendant from parking log trucks and other equipment on his residential property. The plaintiffs met with the defendant, and the parties subsequently reached an agreement, under which the defendant was permitted to store his commercial logging equipment on the plaintiffs' property.

As the court found, the plaintiffs learned "[i]n short order ... that zoning compliance was not the defendant's only problem. His equipment was in need of repairs or replacement, and at times his cash flow was insufficient to afford payment of his monthly home mortgage and other bills. [The defendant] turned to the plaintiffs for assistance." The court further found that the plaintiffs subsequently made a series of loans to the defendant, all with the expectation of repayment.²

As Richard testified at trial, the plaintiffs entered into a "verbal agreement" with the defendant on the basis of his "guarantee" that he would fully repay those loans.

When the defendant failed to repay those loans, the plaintiffs commenced this breach of contract action in December, 2015.³ In his answer, the defendant denied the material allegations of the plaintiffs' complaint, including the allegation that he had promised to repay the loans in question. The defendant also asserted five special defenses, only one of which is relevant to this appeal. In his second special defense, the defendant alleged that the breach of contract count was barred by the statute of frauds set forth in General Statutes § 52-550.⁴ The defendant filed numerous motions with the trial court over the next thirteen months, including a motion to dismiss, a motion for summary judgment, a motion for a default judgment, an "emergency motion for discovery," a motion to remove the plaintiffs' legal counsel, and a motion in limine, all of which were denied by the court.

A court trial was held on March 10, 2017. In their case-in-chief, the plaintiffs offered the testimony of Richard, who was subject to lengthy cross and recross-examination by the self-represented defendant.⁵ In addition, the plaintiffs introduced, and the court admitted, into evidence various financial documents, including purchase receipts, credit card statements, and copies of cancelled checks from the plaintiffs made payable to and signed by the defendant. Also admitted into evidence was a promissory note executed on October 7, 2013, regarding the defendant's purchase of a log truck for $ 8000.⁶

The defendant's case-in-chief consisted of additional testimony from Richard and six documents that were admitted into evidence as full exhibits. In his cross-examination of Richard during the plaintiffs' case-in-chief and his direct examination of Richard as part of his defense, the defendant repeatedly attempted to offer contrasting statements of fact in response to Richard's testimony. Each time, the court advised the defendant that such statements were improper and clarified that the defendant was free to offer such evidence during his own testimony.⁷ The defendant nonetheless declined to testify as a witness at trial. For that reason, when the defendant attempted to introduce his own affidavit into evidence during his case-in-chief, the court denied that request. As the court stated, "I'm not [going to] allow ... your affidavit when you don't want to testify and be subject to cross-examination."

In its subsequent memorandum of decision, the court found the defendant in breach of contract, stating: "Although the defendant, who represented himself, denied virtually all the essential allegations of the complaint, he declined to testify. When he attempted (frequently) to offer evidence in his role as counsel, and not under oath, the court directed him to hold that information until he was sworn. At that time he could have expounded at length upon his version of the facts. He expressly declined to take advantage of that opportunity. Even to the extent that his arguments and objections could be credited, however, they did not undercut [Richard's] narrative of steady cash transfers to [the defendant] in varying amounts over a considerable period, without repayment. At best, they reflect a hazy suggestion on their recipient's part that all these transfers were a gift. In support of this contention [the defendant] offered no evidence whatsoever.

"This court had the opportunity to observe [Richard] throughout approximately five hours of testimony and cross-examination. While he cannot be described as razor-sharp in his recollection, he is generally credible and, in the details to which he testified, there was substantial correspondence between his testimony and the [documents that the plaintiffs] submitted [into evidence]. The court finds that the plaintiffs have proven by a preponderance of the evidence that they made loans to the defendant totaling $ 48,518.66, of which he has repaid a mere $ 350. That leaves $ 48,168.66 due and owing." The court also rejected all five special defenses raised by the defendant. The court rendered judgment in favor of the plaintiffs in the amount of $ 48,168.66, and this appeal followed.

I

The defendant first claims that the court abused its discretion in denying his request for a continuance following the close of the plaintiffs' case-in-chief.⁸ We disagree.

The following additional facts are relevant to the defendant's claim. Trial commenced on March 10, 2017, with the presentation of the plaintiffs' case-in-chief. Early in Richard's testimony on direct examination, the defendant objected; in so doing, he sought to offer evidence to rebut Richard's testimony.⁹ As the court over-ruled that objection, a brief colloquy ensued:

"The Defendant: Excuse me? Did you just say—swear at me?

"[Deborah]: Yeah, I did.

"The Court: All right.

"[Deborah]: I'm sorry.

"The Court: I'm going to—okay. [Deborah] is leaving the courtroom. That's probably going to solve the problem. I'll put on the record [that] there was an exchange of words between her and the defendant, but I think her leaving has resolved it."

The plaintiffs' counsel then continued his direct examination of Richard, followed by cross-examination by the defendant. There is no indication in the record before us that Deborah ever reentered the courtroom.

When Richard's testimony concluded, the plaintiffs rested their case-in-chief. The court at that time informed the defendant that "now it's your opportunity to testify or to call any other witnesses on your behalf." The defendant then stated that he wanted to call Deborah as his first witness. Noting that Deborah was not present in the courtroom, the court asked the defendant if he had served a subpoena on her. The defendant did not answer that query and instead argued that he was not required to do so under Connecticut law because Deborah was a party to the proceeding.

¹⁰ In response, the court explained that "she's a plaintiff, but she's not present so she's not required to be here unless you've subpoenaed her.... [Y]ou have the right ... to have her under subpoena. But if you haven't issued a subpoena to her, she's not required to be here."

The defendant then requested a continuance to subpoena Deborah, which the court denied. The defendant nonetheless proceeded to argue that her testimony was "key to [his] case," without making any detailed proffer as to the nature of Deborah's expected testimony.¹¹ Contra State v. Gauthier , 140 Conn. App. 69, 73, 57 A.3d 849, cert. denied, 308 Conn. 907, 61 A.3d 1097 (2013). The court again reminded the defendant that "[Deborah is] not here and you don't have any ... way of compelling her to be here yet and I'm not recessing the trial to allow a subpoena to be sent out.... [M]aybe you've been taken by surprise, but it's not an unfair or illegal surprise. It's the kind of thing that attorneys would anticipate that if they want to have a person here who's a hostile witness, that they might have them under subpoena."

Undaunted, the defendant asked the court to explain why it would not permit him to seek a trial subpoena at that time. The court at that time reminded the defendant that the case had been scheduled for one day. When the defendant asked why the court was insistent on "holding [him] to one day," the court explained that it had "other business [that is] scheduled. Courts always have other business [that is] scheduled.... You don't make the schedule up at your convenience."

The court asked the defendant if any of the other witnesses named in his trial management report were present and ready to testify. When the defendant conceded that they were not, the court asked why they were not present, noting that "[i]t's trial day." The defendant responded: "Because I knew that [the plaintiffs' counsel] was going to put his trial on...