Preserving a Claim that a Claim is Unpreserved

By Kenneth J. Bartschi, Partner

Sometimes a case comes along that is befuddling, such as Melendez v. Deleo, 159 Conn. App. 415 (2015). Ms. Melendez was injured by Mr. Deleo as a result of “a moderate collision between the front end of the defendant’s car and the driver’s side of the plaintiff’s car.” Id. at 416. The jury found her 40% comparatively negligent and awarded her all of her claimed past medicals but no noneconomic damages. Id. The court offered, pursuant to Conn. Gen. Stat. § 52-223, to send the jury back for reconsideration but her lawyer asked the court not to do so. Id. at 416-17. The court subsequently denied the plaintiff’s motion to set aside the verdict or for additur, and the plaintiff appealed. Id. at 417. The Appellate Court affirmed, concluding that the trial court did not abuse its discretion in denying the post-verdict motion. Id. at 424.

In a footnote, the Appellate Court noted that the plaintiff did not order the entire trial transcripts but only provided her own testimony. Id. at 416 n.1. It is somewhat surprising, then, that the court reviewed the merits, as normally it will not review factual claims or claims of abuse of discretion without a complete trial transcript. See, e.g., Calo-Turner v. Turner, 83 Conn. App. 53, 56 (2004). Here, it was apparent from the plaintiff’s own testimony that her claim for pain and suffering was weak, so the court was able to affirm the trial court on the merits despite the incomplete record. This is at least understandable on the facts of this case. It is also commendable that the court reached the merits notwithstanding the incomplete record.

What is confusing to me, however, is that in footnote 1, the court notes that the defendant claimed the plaintiff failed to preserve her claim for appeal when she declined the court’s invitation to send the jury back to reconsider. Because the defendant had not provided the transcripts of that exchange, the court determined the record was inadequate to review the claim regarding the lack of preservation. 159 Conn. App. at 417-18 n.1.

It is true that the appellee bears the burden of providing an adequate record to review an alternate basis to affirm. Zahringer v. Zahringer, 262 Conn. 360, 370 (2003). But an alternate basis to affirm exists when the trial court reached the correct result for the wrong reason, see State v. Lynch, 21 Conn. App. 386, 393, cert. denied, 216 Conn. 806 (1990), and the result was required as a matter of law. See Grady v. Somers, 294 Conn. 324 (2009) (affirming summary judgment on alternate grounds). Here, the defendant claimed that the plaintiff failed to carry her burden of providing an adequate record, which does not turn on the merits of her claim as a matter of law.

Moreover, I don’t understand why a transcript of the colloquy regarding the offer to send the jury back is necessary to review the claim. It is clear that plaintiff’s counsel declined the offer. Presumably the preservation question is whether the plaintiff waived the claim through her affirmative act of declining the procedural means to correct the error. Although waiver is normally a question of fact, appellate tribunals routinely determine whether a party has waived a claim. See, e.g., State v. Kitchens, 299 Conn. 447 (2011) (defendant waived instructional error when agreeing with jury charge). Here, where it was clear that the plaintiff declined the opportunity to have the jury reconsider, it is difficult to understand what more the court needed to decide whether the issue was preserved. (This is not to say that the defendant would have prevailed on this argument, but by mentioning the claim and refusing to review it, the court intimates that the question is open as to whether the plaintiff should have had the jury reconsider in order to preserve her claim.)

The lesson for appellees after Melendez appears to be: order the transcripts if they pertain to your preservation claim if it involves something that occurred at trial and otherwise make sure the record is adequate to show that a claim was not preserved.