NORCOTT, J.
The principal issue in this appeal is whether, by bringing a cause of action against a private party, the state of Connecticut waives its sovereign immunity for all counterclaims against it, including those seeking monetary damages. The plaintiffs, the Department of Information Technology and its Chief Information Officer,
The record reveals the following facts, which the jury reasonably could have found, and relevant procedural history. The present case arises from disputes between the department and the defendant, a computer equipment supplier, in connection with two contracts under which the defendant had agreed to provide computer servers for the department and the Department of Transportation (server contracts), and a contract under which the defendant had agreed to provide personal
In August, 2002, the department determined that the defendant was not a "responsible" bidder as that term is defined in General Statutes § 4a-59 (a),
Unsatisfied with the defendant's response, the department performed a physical audit of all of the computers that the defendant had supplied under the computer contract. In conducting this audit, the department discovered that many of those computers contained only an integrated network interface card while, in the department's view, the contract specifications required both an integrated and a stand alone network interface card. On the basis of its findings during its audit, in December, 2002, the department notified the auditor of public accounts and the state comptroller of "apparently pervasive contract irregularities" with the defendant, and also requested that the Commissioner of Public Safety "conduct a more thorough review" of the defendant's activities in relation to the computer contract.
Shortly thereafter, the department terminated the computer contract with the defendant, citing, as reasons for the contract termination, that it was a financial burden to the state and that the purchasing process had not achieved the expected cost savings.
Around the same time, state police officers obtained and executed search warrants at the defendant's office and the personal residence of Gina Kolb, the defendant's president.
On April 8, 2004, the department filed this action against the defendant,
The defendant filed an amended counterclaim in response, wherein it alleged that the department: (1) took the defendant's property, namely its business expectancy
On November 27, 2007, the trial court, Shortall, J., denied the department's motion to dismiss both the takings and the procedural due process counterclaims, concluding that, by asserting claims against the defendant, the department had waived the state's sovereign immunity for any related counterclaims. Judge Shortall cited State v. Kilburn, 81 Conn. 9, 12, 69 A. 1028 (1908), and noted that, "[f]or almost 100 years, it has been the law that, when the state sues a party, it `open[s] the door to any defense or cross complaint germane to the matter in controversy.'" Judge Shortall further stated that, "[t]his rule was announced in Kilburn, an equitable action, but no reason appears why it should be limited to suits in equity and not actions at law, and other courts have not so limited it."
Thereafter, the defendant filed a second amended counterclaim, wherein it reiterated its takings and procedural due process counterclaims, recharacterized its defamation counterclaim as one for trade libel, and added claims that the department: (1) breached the computer contract by terminating it early when the defendant was ready, willing and able to perform; (2) breached the covenant of good faith and fair dealing by terminating the computer contract early and engaging in conduct that impugned the defendant's integrity and reputation; and (3) violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110 et seq., by terminating the computer contract early
The defendant then filed a fourth amended counterclaim,
The remainder of the department's claims and the defendant's counterclaims were then submitted to the jury. The jury found in favor of the defendant on all of the department's claims except for the claim that the defendant had breached the server contract regarding the servers that it had agreed to provide for the Department of Transportation. Although the jury found that the defendant had breached the Department of Transportation server contract by failing to provide the contractually required factory installed, Dell certified memory in the computer servers, however, it did not award the department any damages on that claim. Regarding
Thereafter, the department made several motions to set aside the verdict, including a motion to set aside the verdict regarding all of the department's claims on which the jury had found in favor of the defendant and regarding the defendant's procedural due process counterclaim, arguing that the trial court had improperly: (1) allowed the presentation of prejudicial and irrelevant evidence to the jury; and (2) precluded the department from presenting evidence that Kolb applied for and accepted accelerated rehabilitation as a means of resolving the criminal charges against her. The trial court denied these motions.
The department also made a number of other post-verdict motions regarding the defendant's procedural due process counterclaim, including: (1) a renewed motion to dismiss, arguing, inter alia, that sovereign immunity deprived the court of subject matter jurisdiction over that counterclaim; (2) a motion to set aside the verdict and for judgment notwithstanding the verdict, arguing, inter alia, that any waiver of the state's sovereign immunity was limited to counterclaims sounding in recoupment and did not permit an affirmative award of damages against the department; and (3) a motion to reduce the $18.3 million verdict, arguing, inter alia, that the award was not supported by the evidence and was the result of the jury's inflammation and prejudice, as evidenced by its attempt to award "plus punitive damages," despite the trial court's specific instruction not to consider punitive damages for that counterclaim. See footnote 16 of this opinion. The trial court denied the department's renewed motion to dismiss and the motion to set aside the verdict and for judgment notwithstanding the verdict, but granted its motion to reduce the verdict.
Accordingly, the trial court ordered a remittitur reducing the jury's damages award to $1.83 million, concluding that the $18.3 million award "manifest[ed] a shocking injustice indicating that the jury's award ... was influenced by partiality or mistake. The sense that the jury was moved by an erroneous or inflamed view in regard to ... damages [was] further evidenced by the jury's conclusion that punitive damages should be imposed in addition to the $18.3 million compensatory award." The defendant refused to accept the reduced award and, on July 12, 2010, the trial court rendered judgment in accordance with the jury's verdict on all of the
On appeal, the department claims, inter alia,
We begin with the department's claim that the trial court improperly determined that, by initiating the present action against the defendant, it waived the state's sovereign immunity for all counterclaims, including those seeking monetary damages. Specifically, the department claims that the trial court improperly expanded the judicially created exception to sovereign immunity set forth in State v. Kilburn, supra, 81 Conn. at 12, 69 A. 1028, wherein this court allowed a defendant to advance equitable counterclaims in response to the state's equitable foreclosure action.
"The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 106 (2010). In addition, "[s]overeign immunity relates to a court's subject matter jurisdiction over a case, and therefore [also] presents a question of law over which we exercise de novo review.... In so doing, we must decide whether [the trial court's] conclusions are legally and logically correct and find support in the facts that appear in the record.... The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law.... It has deep roots in this state and our legal system in general, finding its origin in ancient common law.... Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the
Finally, we observe that, "[i]n its pristine form the doctrine of sovereign immunity would exempt the state from suit entirely, because the sovereign could not be sued in its own courts and there can be no legal right as against the authority that makes the law on which the right depends.... This absolute bar of actions against the state [however] has been greatly modified both by statutes effectively consenting to suit in some instances as well as by judicial decisions in others." (Citations omitted; internal quotation marks omitted.) Doe v. Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987). For example, we have held that the doctrine of sovereign immunity does not prevent a claimant from seeking declaratory or injunctive relief for allegations that a state official is acting either pursuant to an unconstitutional statute or in excess of his authority. See, e.g., Gold v. Rowland, supra, 296 Conn. at 212, 994 A.2d 106; Doe v. Heintz, supra, at 31, 526 A.2d 1318. This is so because individuals have an important interest in being protected from improper governmental action and the state has no interest in allowing such activity to continue such that a court's action to curb that activity would interfere with the state's legitimate governmental functions. See Gold v. Rowland, supra, at 214, 994 A.2d 106; see also Antinerella v. Rioux, 229 Conn. 479, 487-88, 642 A.2d 699 (1994), overruled on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).
We have expressly limited the exceptions to sovereign immunity for when a state official acts pursuant to an unconstitutional statute or in excess of his authority to actions seeking declaratory or injunctive relief, however, because "a court may fashion these remedies in such a manner as to minimize disruption to government and to afford an opportunity for voluntary compliance with the judgment.... We have adjudicated the rights of the parties in such cases acting on the presumption that other governmental departments will accede to our interpretation of the applicable law." (Citation omitted.) Doe v. Heintz, supra, 204 Conn. at 32, 526 A.2d 1318. In contrast, "[a] money judgment... is directly enforceable, without further court intervention, against any property of the judgment debtor that is not statutorily exempt.... [Therefore, even] where the monetary award is so minimal as the sum a prevailing party would be entitled to receive as taxable costs ... this court has refused to sanction a monetary judgment against the state in the absence of explicit statutory authority." (Citation omitted; emphasis added.) Id.; see also, e.g., Miller v. Egan, supra, 265 Conn. at 321, 828 A.2d 549 ("the exception to sovereign immunity for actions in excess of statutory authority or pursuant to an unconstitutional statute, applies only to actions seeking declaratory or injunctive relief, not those seeking monetary damages"). Because there is no dispute that there is no applicable statutory waiver of immunity in the present case, we must determine whether the department waived the state's sovereign immunity by initiating the present litigation and voluntarily invoking the jurisdiction of the courts.
We begin with the department's contention that the trial court, Shortall, J., improperly concluded that State v. Kilburn, supra, 81 Conn. at 12, 69 A. 1028, articulated
In Kilburn, the state had obtained a mortgage on a parcel of property located in city of Hartford (city) to secure a loan from the state's school fund. Id., at 11, 69 A. 1028. Thereafter, the city obtained liens upon the same property for a sewer assessment and an assessment for the expense of removing snow from the sidewalks on the property, which, pursuant to General Statutes (1902 Rev.) § 1954, had priority over mortgages to private individuals previously existing and recorded. Id. When the state sought to foreclose its mortgage upon the property, the city, which, as a lienholder on the property, was made a defendant in the foreclosure action, filed a cross complaint claiming that its sewer and snow removal assessment liens had priority over the state's mortgage under § 1954. Id., at 10, 69 A. 1028. The state moved to dismiss the city's cross complaint on the basis of sovereign immunity. Id. This court concluded that, "[t]his action being an equitable one, the [s]tate, by bringing it, opened the door to any defense or cross-complaint germane to the matter in controversy, that the city might see fit to interpose. A sovereign who asks for equity must do equity." Id., at 12, 69 A. 1028. The court further concluded, however, that there was "no equity in favor of the city" and that liens for municipal assessments may override a prior mortgage to a private individual, but they could not take priority over a prior mortgage to the state. Id., at 12-13, 69 A. 1028. The court, therefore, ordered the trial court to grant the state's motion to dismiss the city's cross complaint. Id., at 13, 69 A. 1028.
In our view, this court's emphasis on the equitable nature of Kilburn provided the foundation for its willingness to consider the defendant's equitable counterclaims in that case.
The defendant contends, however, that subsequent cases citing Kilburn demonstrate that the applicability of the exception to sovereign immunity set forth in that case has not been limited to actions in equity or equitable counterclaims, and argues that it should also apply to counterclaims for monetary damages. For this proposition, the defendant relies on Lacasse v. Burns, 214 Conn. 464, 468-70, 572 A.2d 357 (1990), State v. Hartford Accident & Indemnity Co., 136 Conn. 157, 160 n. 1, 70 A.2d 109 (1949), Reilly v. State, 119 Conn. 217, 219-20, 175 A. 582 (1934), overruled on other grounds by Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 46, 478 A.2d 601 (1984), Isaacs v. Ottaviano, 65 Conn.App. 418, 421-23, 783 A.2d 485 (2001), University of Connecticut v. Wolf, Superior Court, judicial district of New Haven, Docket No. CV-03-0482479-S, 2004 WL 2666168 (October 26, 2004) (38 Conn. L. Rptr. 148), and State v. Lex Associates, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 4259, 1995 WL 771198 (December 1, 1995) (15 Conn. L. Rptr. 611). None of the cases on which the defendant relies, however, support its argument that Kilburn provides the authority under which its counterclaims survive sovereign immunity.
First, the defendant contends that Reilly v. State, supra, 119 Conn. at 219-20, 175 A. 582, "first applied Kilburn in an action for money damages...." In Reilly, the state brought an action against a trustee who had failed to pay the state for the support of an inmate of the Connecticut state hospital as required by the trust. Id., at 218-19, 175 A. 582. The trustee refused to participate in the litigation, and the state obtained a default judgment against the trustee in the amount of the state's expenditures for the inmate's support plus costs. Id., at 219, 175 A. 582. Thereafter, the trustee brought a writ of error attacking the judgment of the trial court. Id. In response, the state filed a plea in abatement claiming that the writ of error was barred by sovereign immunity because a writ of error, as opposed to an appeal, is a new cause of action, and the state had not agreed to become a party in that "new" case. Id. This court rejected the state's claims, concluding that a writ of error is, like an appeal, a direct attack on the underlying judgment and, therefore, was not a new action for which the trustee, as the plaintiff in error, was required to obtain the state's consent to be sued. Id., at 220, 175 A. 582. Accordingly, the court concluded that "[w]hen the [s]tate brought the original action it waived its [sovereign] immunity as regards this writ of error just as much as it would have waived it had the plaintiff in error appealed." Id., at 221, 175 A. 582.
In reaching its conclusion, the court in Reilly observed that Kilburn had indicated that, "if the [s]tate itself invokes the jurisdiction
Next, the defendant argues that this court again relied on Kilburn in recognizing "the significance of the state having commenced suit against a contractor and its insurer for costs incurred to complete a road construction project" in State v. Hartford Accident & Indemnity Co., supra, 136 Conn. 157, 70 A.2d 109. In Hartford Accident & Indemnity Co., the Deliso Construction Company, Inc. (Deliso Construction) had been contracted to perform a road construction project for the state. Id., at 164, 70 A.2d 109. After Deliso Construction began work on the project, however, it discovered that the excavation required far exceeded the estimate from the state on which its bid was based. Id. When its efforts to revise the contract price for the project failed, Deliso Construction stopped work and rescinded the contract. Id., at 165, 70 A.2d 109. Thereafter, the state hired another contractor to complete the project and brought an action against Deliso Construction to recover the excess cost of completion. Id., at 159, 165, 70 A.2d 109. Deliso Construction filed a counterclaim in which it sought to recover the reasonable value of work that it had completed before rescinding the contract. Id., at 159-60, 70 A.2d 109. In a footnote, this court noted that Deliso Construction "was authorized by the General Assembly to sue the state on its claim" but opined that "[t]he special authority so given was unnecessary ... [because] `if the [s]tate itself invokes the jurisdiction of the court to secure affirmative relief, it subjects itself to any proper cross demand involved in the subject-matter of the action.' Reilly v. State, [supra, 119 Conn. at 219, 175 A. 582]." State v. Hartford Accident & Indemnity Co., supra, 160 at n. 1, 70 A.2d 109.
The defendant contends that the statement contained within the first footnote of Hartford Accident & Indemnity Co. indicates this court's recognition of a waiver of sovereign immunity for counterclaims for monetary damages whenever the state brings an action. The defendant, however, overstates the import of this footnote. First, because the question before the court in that case was whether Deliso Construction was entitled to rescind the contract on the ground that the state had misrepresented the scope of the job, and because the legislature had expressly waived sovereign immunity regarding the counterclaim, giving the court subject matter jurisdiction over that claim, our
Furthermore, Lacasse v. Burns, supra, 214 Conn. at 468-70, 572 A.2d 357, is also inapposite to the present case. In Lacasse, the question before the court was whether the accidental failure of suit statute applied in a case where the state had expressly waived its sovereign immunity under the highway defect statute, General Statutes § 13a-144. Id., at 468, 572 A.2d 357. Although this court quoted Kilburn in Lacasse, that quotation was merely an example of the concept that, once involved in a civil action, the state enjoys the same procedural status as any other litigant and, therefore, does not support the proposition that the state waives sovereign immunity entirely by initiating litigation.
The defendant's reliance on Isaacs v. Ottaviano, supra, 65 Conn.App. at 423, 783 A.2d 485, is similarly misplaced. Although, in Isaacs, the Appellate Court stated that, "[t]o allow the state to invoke the jurisdiction of the court to seek to establish that a defendant is liable to it and yet allow it to shield itself from a counterclaim by way of sovereign immunity would be patently unfair," it went on to conclude that "[t]hat rationale simply does not apply here...." (Emphasis added.) Id. Indeed, the state did not initiate the litigation in Isaacs either. Thus, the Appellate Court's observation regarding the effect of bringing suit not only is not
Thus, none of the cases on which Judge Shortall relied, and on which the defendant relies in this appeal, accurately stand for the proposition that Kilburn has been extended beyond the context of equitable actions. Our independent research also has failed to uncover such a case. Therefore, because we construe exceptions to sovereign immunity narrowly; see, e.g., Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. at 349-50, 977 A.2d 636; we conclude that Kilburn does not provide authority justifying the extension of the recognition of equitable counterclaims in an equitable action to any and all counterclaims a defendant may wish to bring when it has been sued by the state.
We turn next to the department's claim that the adoption of article eleventh, § 4, of the Connecticut constitution and the subsequent enactment of General Statutes §§ 4-141 through 4-165c, which established the Office of the Claims Commissioner, who is empowered to "hear and determine all claims against the state"; General Statutes § 4-142;
It is well established that, "[w]hen the doctrine of sovereign immunity is applicable, the state must consent to be sued in order for a claimant to pursue any monetary claim against the state.... The claims commissioner may waive that immunity pursuant to ... § 4-160(a) and consent to suit, but until that occurs, the Superior Court has no jurisdiction to hear any such monetary claim." (Citation omitted.) Capers v. Lee, 239 Conn. 265, 267-68 n. 3, 684 A.2d 696 (1996); see also Krozser v. New Haven, 212 Conn. 415, 423, 562 A.2d 1080 (1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 757, 107 L.Ed.2d 774 (1990). Thus, a claimant "who seeks to bring an action for monetary damages against the state must first obtain authorization from the claims commissioner.... [T]he Superior Court does not have the authority to waive sovereign immunity on behalf of the state.... When sovereign immunity has not been waived, the claims commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. See General Statutes §§ 4-141 through 4-165[c].... This legislation expressly bars suits upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the commissioner or other statutory provisions....
"In the same public act, the legislature enacted what is now General Statutes § 4-165, which provides in relevant part: No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.... [Section] 4-165 makes clear that the remedy available to [individuals] who have suffered harm from the negligent actions of a state employee who acted in the scope of his or her employment must bring a claim against the state under ... chapter 53 of the General Statutes, which governs the [O]ffice of the [C]laims [C]ommissioner." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. at 317-19, 828 A.2d 549.
Thus, the comprehensive nature of the statutory scheme, which specifies in detail the circumstances under which a claimant may bring an action against state employees individually, as well as when a claimant must seek the authorization of the claims commissioner before proceeding against the state, is consistent with the rule articulated in Miller that the exceptions to sovereign immunity apply only to equitable relief, not to those seeking monetary damages. See id., at 321, 828 A.2d 549.
This conclusion is also consistent with this court's previous decisions in the related context of federal sovereign immunity. In Davis v. Naugatuck Valley Crucible Co., 103 Conn. 36, 40, 130 A. 162 (1925), this court concluded that, because of sovereign immunity, a company could not maintain a counterclaim against a United States official without first following the procedure established in the relevant statutes for bringing such claims and, accordingly, reversed the judgment of the trial court rendered in favor of the company on that counterclaim. In reaching this conclusion, this court stated that, "[w]hen [a] statute says that an action may be brought against [a United States official], it means that it shall be so brought, and this is equivalent to saying that it must be brought in this way, since this is the only way in which it can be brought against the United States. There is no statute or order waiving the immunity of the United States from suit in such an action, other than as provided in [the relevant statutes]." (Emphasis added.) Id.
Furthermore, the defendant's contention in the present case that the procedures for obtaining permission to bring a claim against the state as a plaintiff are
In addition, the claims commissioner statutes do not distinguish between claims asserted by a plaintiff and counterclaims asserted by a defendant in defining claims against the state. Section 4-165(a) provides that "[a]ny person having a complaint" for damages, caused by a state officer within the scope of his employment, "shall present it as a claim against the state under the provisions of [chapter 53]."
We are mindful that the waiver of sovereign immunity is generally best left to the discretion of the legislature. See State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 436, 54 A.3d 1005 (2012) ("We long have held that our authority over the common law does not extend to
We next turn to the department's claims that the trial court improperly admitted evidence that was irrelevant and unduly prejudicial to it, while excluding evidence in the department's favor, which likely inflamed the passions of the jury and tainted its verdict.
We first address the department's claim that the trial court improperly admitted Kolb's testimony regarding the state police searches and seizures, her arrest, and the resolution of the criminal charges against her. Specifically, the department claims that this evidence was irrelevant to any of the defendant's counterclaims, and posits that, even if it was marginally relevant, it was "far more prejudicial than probative given the emotional nature of the testimony...." The department also claims that the resulting prejudice to it was exacerbated because Kolb's testimony that the charges against her had been "dismissed" likely led the jury incorrectly to believe that the charges were groundless, rather than understanding that the charges were dropped only after Kolb had applied for, and completed, the accelerated rehabilitation program. Moreover, the department argues that it was plain error
The following additional facts are relevant to this claim. In its case-in-chief, the department introduced testimony indicating that it had reported what it believed was the defendant's fraudulent behavior to the state police for an investigation. This testimony also implied that the state police ultimately executed a search and that Kolb was arrested. During the defendant's presentation of evidence, it called Kolb as a witness and attempted to elicit her explanation of the events that had transpired as a result of the department's referral of its concerns to the state police. The department objected on relevance grounds; the trial court overruled the objection but, before the defendant could continue questioning Kolb, she began to cry. The court excused the jury to give Kolb a moment to compose herself and to address the department's objection in greater depth. The court and the parties' attorneys then discussed, for the remainder of the court day, the department's objections on both relevance grounds and on the ground that Kolb's testimony in this respect would improperly inflame the jury. The court also took additional time the following morning to address and resolve the department's objections. The trial court ultimately overruled the department's objections and allowed Kolb to testify regarding the searches and seizures at the defendant's office and her personal residence as well as regarding her arrest and the subsequent dismissal of the charges against her. The trial court concluded that such testimony was relevant to the department's special defense that the defendant had failed to mitigate its damages "as to all counts" of the defendant's counterclaim.
Kolb also testified that she and the state had reached a compromise regarding the criminal charges against her and that those charges were ultimately dismissed. On cross-examination, the department sought to clarify that the charges had been dismissed only after she had applied for, and completed, accelerated rehabilitation. After several attempts by the department to elicit that testimony, the trial court, sua sponte, excused the jury and inquired as to the reason that the department was following this line of questioning when it previously
Following the jury's verdict, the department filed a motion to set aside the verdict arguing, inter alia, that the trial court improperly admitted Kolb's testimony regarding the state police execution of the search warrants, Kolb's arrest, and the disposition of the charges against her because that evidence was irrelevant to any of the claims before the jury and served only to inflame the jury. The department also argued that the trial court had improperly prohibited it from presenting evidence that Kolb had applied for and accepted accelerated rehabilitation in order to obtain the dismissal of the criminal charges against her. The trial court denied the department's motion, concluding that the department's evidentiary claims lacked merit, and noting that it "did not sustain any objection precluding the [department's] examination about accelerated rehabilitation or otherwise order any such preclusion." The trial court further noted that it had "questioned outside the presence of the jury the relevancy of the [department's] inquiry in light of the [department's] sustained objections to the topic and afterwards instructed the [department] that it could proceed with its inquiry."
It is well established that "[r]elevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.... Evidence is relevant if it tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence.... To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.... All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative....
"Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value.... Of course, [a]ll adverse evidence is damaging to one's case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted.... The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.... Reversal is required only whe[n] an abuse of discretion is manifest or whe[n] injustice appears to have been done." (Citations omitted; internal quotation marks omitted.) State v. Wilson, 308 Conn. 412, 429-30, 64 A.3d 91 (2013). "[T]he primary responsibility for conducting the balancing test to determine whether the evidence is more probative than prejudicial rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion.... [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and [whether it] reasonably could have reached the conclusion that it did." (Citations omitted; internal quotation marks omitted.) State v. James G., 268 Conn. 382, 396, 844 A.2d 810 (2004).
The department posits, however, that even if Kolb's testimony was logically relevant, the trial court improperly determined that it was admissible because its emotional nature rendered the testimony unduly prejudicial. In order to render otherwise admissible evidence inadmissible, the prejudice must be unfair in the sense that it "unduly arouse[s] the jury's emotions of prejudice, hostility or sympathy"; State v. Wilson, 180 Conn. 481, 490, 429 A.2d 931 (1980); or "tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence." (Internal quotation marks omitted.) State v. Graham, 200 Conn. 9, 12, 509 A.2d 493 (1986).
Before the trial court, the department took issue with Kolb's testimony on the ground that it would make the jury upset over "how terrible it was" that the state police had searched the defendant's business. Immediately thereafter, however, the department conceded that "the fact that [the defendant's business] got searched has been entered into evidence. The fact that she was arrested was [also] mentioned in the opening statement." Therefore, although Kolb's testimony most likely had an adverse effect on the department's case, it simply provided additional
As a final matter, we disagree with the department's contention that Kolb's testimony regarding the resolution of the criminal charges against her was misleading and, therefore, unduly prejudicial. Specifically, on direct examination, Kolb testified that she had reached a compromise with the state that resulted in the dismissal of the charges against her. Kolb further testified, on cross-examination by the department, that she had undertaken accelerated rehabilitation. This testimony was legally and factually accurate. "[A]cceptance of accelerated rehabilitation is not evidence of guilt ... it cannot be used as evidence of guilt, and ... indeed, acceptance of accelerated rehabilitation has no probative value on the issue of guilt or innocence of the charged offense." (Emphasis added.) AFSCME, Council 4, Local 1565 v. Dept. of Correction, 298 Conn. 824, 828, 6 A.3d 1142 (2010). As the trial court correctly noted, upon the successful completion of accelerated rehabilitation, the criminal charges are dismissed. See General Statutes (Rev. to 2007) § 54-56e.
It is also clear from the record that the trial court did not preclude the state from questioning Kolb further with respect to the accelerated rehabilitation issue. Indeed, the trial court stated, "I think we're wasting time, but if you [two] don't think that, then we'll listen to this." (Emphasis added.) Thus, the department's claim that it was plain error for the trial court to refuse to grant its motion to dismiss on the ground that counsel believed at trial, albeit mistakenly, that the court had precluded further questioning on that issue lacks merit.
Accordingly, we conclude that the trial court did not abuse its discretion in admitting Kolb's testimony regarding the state police searches and seizures, her arrest, and the ultimate disposition of those charges.
The department next claims that the trial court improperly admitted testimony from the defendant's expert witness, Patricia Poli, a certified public accountant and certified valuation analyst, as to the valuation
The following additional facts and procedural history are relevant to this claim. The defendant called Poli to testify regarding her expert opinion of the value of its business. During her testimony on direct examination, Poli stated that she chose December 31, 2002, as the appropriate date to assess the value of the defendant's business because, based on the company records that she reviewed, after that date the defendant was "unable to continue in business as a going concern...." The department objected to this testimony, stating: "At this point we haven't established the causal link as of [December 31, 2002] to any of the issues in this case." The trial court overruled the department's objection on the ground that it was not a proper evidentiary objection, but indicated that the department could "take that up" at a later point. Poli then testified that, in her opinion, the defendant's business was worth $18.3 million as of December 31, 2002.
We note that, with respect to expert testimony, "the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed.... Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues." (Internal quotation marks omitted.) Prentice v. Dalco Electric, Inc., 280 Conn. 336, 342, 907 A.2d 1204 (2006).
The department, nevertheless, relies on Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 519-22, 656 A.2d 1009 (1995), to support its argument that there was no evidence to support Poli's determination that December 31, 2002, was the correct date on which to value the business and, therefore, her testimony should have been excluded as irrelevant. That reliance is misplaced. In Larsen Chelsey Realty Co., the trial court excluded certain documents that a real estate brokerage had offered as evidence of the value of the business immediately prior to March, 1989, when its president improperly told the brokerage's customers and other business contacts that the brokerage would no longer be doing business. Id., at 485, 519, 656 A.2d 1009. It was undisputed in Larsen Chelsey Realty Co., however, that March, 1989, was the date upon which the president's actions caused the brokerage's harm. Id., at 485, 656 A.2d 1009. It was further undisputed that the documents that the brokerage sought to admit were prepared many months before March, 1989, and included exclusive real estate listings that had expired — and, therefore, were no longer potential sources of revenue to the brokerage — prior to that date. Id., at 521, 656 A.2d 1009. Finally, the trial court concluded that one of the documents, prepared in May or June, 1988, based on handwritten revenue projections provided by the president of the brokerage, "`would be couched in very optimistic phrases'" because it set forth an income projection for the second half of 1988 and all of 1989 for the purpose of obtaining a line of credit for the brokerage. Id., at 519-21, 656 A.2d 1009. For all of these reasons, this court concluded that "it was well within the broad discretion of the trial court to conclude that [the documents] were not admissible for the purpose of determining the value of the [brokerage] in March, 1989." Id., at 521, 656 A.2d 1009.
Larsen Chelsey Realty Co. is inapposite. The events in question regarding the defendant's counterclaims in the present case cannot necessarily be tied to a specific date. It is clear, however, that the alleged pattern of wrongful conduct by the department began during the summer of 2002, when the defendant alleged that it was de facto disqualified from state bidding. The defendant also presented evidence that the department had refused to accept bids from or award contracts to the defendant during the time frame from the last quarter of 2002 through the first half of 2003. Poli explained that her reason for selecting
Finally, the department argues that the trial court improperly excluded a critical e-mail in which Kolb had acknowledged that the computer contract required two network interface cards. Specifically, the department contends that the e-mail was admissible under the hearsay exception for statements of a party opponent and that it made a prima facie showing of the e-mail's authenticity. The department also argues that the trial court abused its discretion in sustaining the defendant's objection to the e-mail on a ground other than that offered by the defendant, namely, that additional testimony would be necessary to explain the e-mail's meaning to the jury and avoid juror confusion. The department contends that the substance of the e-mail would have been clear to the jury given the abundance of testimony that it had already heard regarding the relevant technology. Finally, the department argues that the trial court further abused its discretion in refusing, on foundational grounds, to permit the department to use the e-mail as a prior inconsistent statement to impeach Kolb during her testimony. Specifically, the department argues that a foundation is not required before evidence of a prior inconsistent statement may be admitted
In response, the defendant argues that authentication is a necessary preliminary to the introduction of most writings into evidence, and that State v. Eleck, 130 Conn.App. 632, 637-39, 23 A.3d 818, cert. granted, 302 Conn. 945, 30 A.3d 2 (2011), establishes that, for e-mails, authentication requires more than a showing that the e-mail came from a particular e-mail account. Id. Given that Kolb testified that she did not recognize the e-mail that the department sought to introduce, the business logo on the printout of the e-mail was not her logo, the e-mail appeared to be generated in a program that the defendant did not use and, most significantly, that the e-mail that the department claimed was from Kolb was actually addressed to her, the defendant argues that the trial court properly excluded the e-mail because there was significant doubt that it was, in fact, what the department purported it to be, namely, an e-mail from Kolb in which she acknowledged to the department that the computers to be provided under the computer contract would have two network interface cards. We conclude that, even if, arguendo, the department had presented sufficient evidence to authenticate the e-mail in question properly, the trial court did not abuse its discretion in refusing to admit the e-mail either as a statement of a party opponent or as impeachment evidence.
The record reveals the following additional relevant facts and procedural history. During the department's cross-examination of Kolb, it attempted to introduce an e-mail that it stated was from Kolb and addressed to an employee of the state.
On the next trial day, the department presented a certified copy of this e-mail
Thereafter, the department attempted to admit certified copies of several other documents that the defendant had submitted to the department for its bid on the computer contract. In particular, the department sought to elicit testimony from Kolb that some of those documents depicted the same logo shown on the e-mail at issue. In response, Kolb conceded that several of the documents had the same or similar logos depicted on them but reiterated, multiple times, that the logo did not belong to the defendant. Kolb also surmised that the logo was possibly generated by the software that the department used to print the documents.
The department then asked Kolb whether it was her understanding that Dell had informed the department that the computers supplied under the computer contract would have stand alone network interface cards. When Kolb testified that that was not her understanding, the department again attempted to introduce the e-mail, in which, according to the state, Kolb had acknowledged that the computers would have two network interface cards, as impeachment evidence. The defendant objected to the admission of the e-mail, and the trial court sustained the objection "on the basis of the record as to its foundation in this context." The department then moved onto another line of questioning.
We begin with the department's claim that the trial court improperly sustained
We further conclude that the trial court did not abuse its discretion in determining that the department's proffer of the e-mail did not sufficiently establish the e-mail's relevance to render the e-mail admissible under the hearsay exception for statements by a party opponent. See Conn. Code Evid. § 8-3(1). "The trial court has wide discretion to determine the relevancy of evidence.... Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995). "The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant." (Internal quotation marks omitted.) Id., at 747, 657 A.2d 611.
In the present case, the trial court determined that the department had not established a proper foundation for the e-mail to establish the relevance of that document as a statement by a party opponent. We cannot conclude that the trial court abused its discretion in determining that more testimony would have been required to provide the context of the e-mail, particularly to explain how content addressed to Kolb came to be sent from her e-mail address to the department. Indeed, it is completely unclear who initially created the content of the e-mail, from where the e-mail was initially sent, and why Kolb would send an e-mail to the department from her personal e-mail address without changing the greeting to address Tower, to whom the e-mail was sent, or adding her electronic signature. Furthermore, the content of the e-mail indicates that its author likely intended it to be a response to a previous inquiry but, unlike Kolb's responses to inquiries in other e-mails that were admitted into evidence, the e-mail at issue contains no context that would explain why it was sent. Furthermore, the trial court refused to admit, on the basis of the defendant's hearsay objection, the other e-mails that the department had proffered in an attempt to show that other documents from the defendant displayed a
Given the foundation that the department had established, and the concerns voiced by the defendant in raising its objections to the e-mail's admission as a statement by a party opponent, we conclude that the trial court did not abuse its discretion in determining that the foundation was insufficient to establish any relevance for the jury.
Next, we address the department's contention that the trial court improperly refused to admit the e-mail as impeachment evidence against Kolb. Relying on State v. Saia, 172 Conn. 37, 46, 372 A.2d 144 (1976), for the proposition that "[a]lthough laying a foundation is favored, it is not required and where the court requires a foundation it should be minimal," the department claims that the trial court improperly refused to admit the e-mail to impeach Kolb on foundational grounds. The department's reliance on Saia, however, is misplaced. In that case, we stated that "[t]he impeachment of a witness by extrinsic evidence [of a prior inconsistent statement] is somewhat limited. Not only must the inconsistent statements be relevant and of such a kind as would affect the credibility of the witness... but generally a foundation should be laid at the time of cross-examination." (Citations omitted; emphasis added.) Id., at 45-46, 372 A.2d 144. Furthermore, although we acknowledged that there is "no inflexible rule regarding" the necessity of laying a foundation before either questioning the witness with respect to a prior inconsistent statement or "introducing extrinsic evidence tending to impeach [her]," we also stated that "[f]rom early times, it has consistently been held that it rests within the judicial discretion of the trial court whether to admit the impeaching statements where no foundation has been laid.... The trial court is vested with liberal discretion as to how the inquiry should be conducted in any given case." (Citation omitted; emphasis added.) Id., at 46, 372 A.2d 144. Simply because the trial court has the discretion to admit impeaching statements where no, or little, foundation has been laid, however, does not require it to do so.
Under the circumstances of the present case as previously discussed, the court's refusal to admit the e-mail as evidence of a prior inconsistent statement on the basis of the foundation laid by the department was well within its discretion.
Finally, we address the department's claim that its claimed evidentiary issues, "[v]iewed separately or together ... call into question the reliability of the jury's verdict on both liability and damages" such that the trial court improperly denied its motion to set aside the verdict. Although "`[t]he trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence'"; Allison v. Manetta, supra, 284 Conn. at 405, 933 A.2d 1197; because we conclude that none of the evidentiary rulings with which the department takes issue were an abuse of the court's discretion, we similarly conclude that refusing to set aside the verdict on the basis of those evidentiary rulings was not an abuse of its discretion.
On the department's appeal, the judgment is reversed with respect to the defendant's counterclaims, the case is remanded with direction to dismiss those claims, and the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
We note that, although § 4a-59 was amended in 2009; see Public Acts 2009, No. 09-184, § 3; and in 2012; see Public Acts 2012, No. 12-205, § 6; those changes are not relevant to the present appeal. In the interest of simplicity, we refer to the current revision of the statute.
Furthermore, our research has revealed that the majority of courts to have considered this issue have recognized an exception to sovereign immunity for recoupment counterclaims. For example, with respect to the national sovereign, it is well settled that the United States government, when suing as a plaintiff in the federal courts, is subject to recoupment without regard to any statutory waiver of sovereign immunity. See, e.g., Bull v. United States, 295 U.S. 247, 262, 55 S.Ct. 695, 79 L.Ed. 1421 (1935) ("No direct suit can be maintained against the United States; but when an action is brought by the United States, to recover money in the hands of a party, who has a legal claim against them, it would be a very rigid principle, to deny to him the right of setting up such claim in a court of justice, and turn him round to an application to [C]ongress. If the right of the party is fixed by the existing law, there can be no necessity for an application to [C]ongress, except for the purpose of remedy. And no such necessity can exist, when this right can properly be set up by way of [defense], to a suit by the United States." [Internal quotation marks omitted.]).
Federal courts have similarly recognized that sovereign immunity does not preclude recoupment claims in defense of a sovereign's claim. See, e.g., Texas v. Caremark, Inc., 584 F.3d 655, 659-60 (5th Cir.2009); In re Lazar, 237 F.3d 967, 978 (9th Cir.2001); Federal Deposit Ins. Corp. v. Hulsey, 22 F.3d 1472, 1486-87 (10th Cir. 1994); United States v. Forma, 42 F.3d 759, 764-65 (2d Cir.1994); In re Friendship Medical Center, Ltd., 710 F.2d 1297, 1300-1301 (7th Cir. 1983); In re Monongahela Rye Liquors, 141 F.2d 864, 869 (3d Cir. 1944); see also, e.g., Regents of the University of New Mexico v. Knight, 321 F.3d 1111, 1125-26 (Fed.Cir.2003) (permitting all compulsory counterclaims, not just counterclaims in recoupment); Arecibo Community Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 28 (1st Cir.2001) (same); State v. Madeline Marie Nursing Homes, 694 F.2d 449, 456 (6th Cir.1982) (same).
The majority of state courts to have considered this issue also have concluded that, by initiating litigation, a state waives sovereign immunity for counterclaims sounding in recoupment. See State Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 346, 954 S.W.2d 907 (1997) (permitting recoupment counterclaim); State Board of Regents v. Holt, 8 Kan.App.2d 436, 436-37, 659 P.2d 836 (1983) (same); Commonwealth v. Barker, 126 Ky. 200, 210-11, 103 S.W. 303 (1907) (same); State v. Hogg, 311 Md. 446, 471, 535 A.2d 923 (1988) (same), overruled on other grounds by Dawkins v. Baltimore Police Dept., 376 Md. 53, 64, 827 A.2d 115 (2003); Missouri Highway & Transportation Commission v. Kansas City Cold Storage, Inc., 948 S.W.2d 679, 684 (Mo.App.1997) (same); State v. Grants, 69 N.M. 145, 149, 364 P.2d 853 (1961) (same); State v. Sparks, 208 Okla. 150, 154, 253 P.2d 1070 (1953) (same); Reata Construction Corp. v. Dallas, 197 S.W.3d 371, 383 (Tex.2006) (same); State v. Ruthbell Coal Co., 133 W.Va. 319, 329, 56 S.E.2d 549 (1949) (same); but see Sarradett v. University of South Alabama Medical Center, 484 So.2d 426, 427 (Ala.1986) (prohibiting all counterclaims against state); People v. Cook Development Co., 274 Ill.App.3d 175, 182, 210 Ill.Dec. 648, 653 N.E.2d 843 (1995) (same); Scates v. Board of Commissioners, 196 Tenn. 274, 280-82, 265 S.W.2d 563 (1954) (same, but acknowledging that counterclaims in recoupment would be different than counterclaims to recover from sovereign for alleged tort); see also State v. Shinkle, 231 Or. 528, 539-40, 373 P.2d 674 (1962) (permitting all counterclaims against state); Dept. of General Services v. Frank Briscoe Co., 502 Pa. 449, 456-57, 466 A.2d 1336 (1983) (same).
Second, we acknowledge that the trial court in State v. Lex Associates, supra, 15 Conn. L. Rptr. at 612, denied the state's motion to dismiss the defendant's counterclaim for monetary damages on the ground that sovereign immunity deprived the court of subject matter jurisdiction over the counterclaim. Citing Kilburn, Lacasse, and Reilly, the trial court concluded that, by bringing an action for specific performance and damages against Lex Associates for its refusal to perform under the purchase option contained in the lease between the parties, the state "consented to the bringing of the [damages] counterclaim which [arose] from the subject matter of the complaint." Id. In reviewing the Lex Associates appeal after the trial court had granted summary judgment in favor of the state, however, it becomes clear that the defendant did not actually litigate its damages counterclaim in that case. See State v. Lex Associates, 248 Conn. 612, 617, 730 A.2d 38 (1999). Indeed, in that appeal this court noted that "the parties agreed to resolve their dispute by the filing of cross motions for summary judgment based on a stipulation of facts, an amended complaint and an answer filed that same day." (Emphasis added.) Id., at 616, 730 A.2d 38. Because the state did not appeal from the denial of its motion to dismiss, and it appears that the defendant did not pursue its counterclaim thereafter, the trial court's decision in Lex Associates does not conclusively establish the principle that the state waives sovereign immunity for all counterclaims when it brings an action.
"(c) ... The state waives its immunity from liability and from suit in each such action.... The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances...."
We note that the legislature made certain changes to § 4-160 in 2005 that are not relevant to the present appeal. See Public Acts 2005, No. 05-170, § 4. In the interest of simplicity, we refer to the current revision of the statute.
We note that the legislature made certain changes to § 4-141 that are not relevant to the present appeal. See, e.g., Public Acts 2011, No. 11-152, § 7. In the interest of simplicity, we refer to the current revision of the statute.
"Dell will ship the same motherboard as in the standard system part number 2336v, which was reviewed by Mr. Gary Clauss at the state department of information technology on January 22, 2001. Only in the event of technology change will an equivalent or better motherboard be shipped.
"Also, Dimension will have a network card as opposed to an integrated network card and will be wake on lan ready."
Additionally, there was no signature at the end of the e-mail.
