Rendahl v. Peluso , 173 Conn. App. 66 ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
JOY M. RENDAHL, ADMINISTRATRIX (ESTATE OF
FRANCES M. RENDAHL) v. FRANK N.
PELUSO ET AL.
(AC 38181)
Sheldon, Alvord and Gruendel, Js.
Argued November 30, 2016—officially released April 28, 2017*
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Povodator, J.)
Philip Russell, with whom, on the brief, was Cather-
ine Keenan, for the appellants (plaintiffs).
Robert C. E. Laney, with whom was Shivani J. Desai,
for the appellees (defendants).
Opinion
SHELDON, J. The plaintiff, Joy M. Rendahl, individu-
ally and as administratrix of the estate of her deceased
mother, Frances M. Rendahl, brought this action against
the defendants, Frank N. Peluso and his law firm, the
Law Offices of Frank N. Peluso, P.C. (collectively, the
defendant), to recover damages, inter alia, for breach
of fiduciary duty, legal malpractice, and wilful, wanton,
and reckless misconduct based upon the defendant’s
alleged mishandling of his responsibilities as the execu-
tor of and the attorney for the estate. Following an eight
day trial and two days of deliberations, the jury returned
a verdict in favor of the defendant on all counts. There-
after, the plaintiff filed two motions to set aside the
verdict, alleging, in the first motion, that the court erred
in declining to accept an earlier verdict by the same
jury, assertedly awarding her punitive damages on her
claim of breach of fiduciary duty, and requiring the
jury, under supplemental instructions, to continue its
deliberations and make further factual findings before
returning its final verdict; and, in the second motion,
that the court erred in refusing to admit certain relevant,
material evidence at trial. On June 30, 2015, the trial
court, Povodator, J., denied both motions. This
appeal followed.
On appeal, the plaintiff reasserts the claims presented
in her motions to set aside the verdict, and seeks rever-
sal of the court’s judgment based upon the denial of
those motions. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the plaintiff’s claims on appeal. The plaintiff
first met the defendant in 1961, when she was eleven
years old. At that time, the defendant’s father was help-
ing to construct the plaintiff’s family home in Green-
wich, where the plaintiff still resides. In 1975, the
plaintiff’s father hired the defendant to draft wills for
himself and his wife, the plaintiff’s mother, Frances M.
Rendahl. The defendant was also asked to create and
administer two income trusts for members of the plain-
tiff’s family, specifically, one for the benefit of her
mother, for the remainder of her mother’s life; the other
for the benefit of the plaintiff, until she reached the age
of thirty-five. The plaintiff testified that the defendant
performed his role as trustee ‘‘reasonably well’’ until
her mother’s death in 2006.
When the plaintiff’s mother died on October 29, 2006,
she left behind an estate comprised of cash, stocks,
personal property, and real property with a total esti-
mated value of approximately $3,083,982.1 The plaintiff,
an only child, was the sole beneficiary named in her
mother’s will. The defendant, who had helped to draft
the will, was named in the will as one of two coexecu-
tors of the decedent’s estate. Accordingly, when she
died, he promptly filed an application for administration
of the estate in the Probate Court, for the district of
Greenwich. The Probate Court, Hopper, J., approved
that application on November 3, 2006. Shortly there-
after, on November 6, 2006, the defendant was
appointed as the sole executor of the estate.2 Under
the terms of a November 1, 2006 engagement letter, the
defendant informed the plaintiff that, in exchange for
his services as executor, he would charge an executor’s
fee equal to 2.5 percent of the estate’s gross value.3
Thereafter, under the express terms of the will, the
defendant, as executor, hired the codefendant, his own
law firm, as the attorney for the estate.4 On that same
day, the defendant executed a second engagement letter
between himself, as executor, and his law firm, as attor-
ney, to perform legal services on behalf of the estate
for an additional fee equal to 2.5 percent of the estate’s
gross value.
The following month, December, 2006, the defendant
met with the plaintiff to discuss the administration of
the estate. At that meeting, the plaintiff gave the defen-
dant several documents that would be necessary for
his work as executor, including stock certificates,
health care bills, utility bills, and insurance policies.
Thereafter, the defendant began to marshal the assets
of the estate, which included: $14,925 in personal funds;
a stock portfolio valued at approximately $331,625; real
property in Connecticut with an appraised value of
approximately $2.3 million; real property in Florida5
with an appraised value of approximately $400,000; two
joint bank accounts with a combined value of $25,332;
and miscellaneous property with a reported value of
$6551. The defendant ultimately reported on the estate’s
federal estate tax return that the estate had a gross
value of approximately $3.083 million at the time of the
decedent’s death.
Between December, 2006, and July, 2007, the defen-
dant liquidated a substantial portion of the estate’s
stock portfolio, producing an additional $278,434.83 in
cash assets for the estate. The defendant used those
assets to pay off $273,445 in estate debts and expenses,
including funeral expenses, accountant fees, probate
fees, property taxes, unpaid medical bills, utilities
charges and mortgage payments, and repairs to the roof
of the Florida property.
As early as January, 2007, the plaintiff’s relationship
with the defendant began to sour. Specifically, the plain-
tiff became dissatisfied with the defendant’s handling
of certain estate assets and his unresponsiveness to her
questions and concerns. As a result of these concerns,
the plaintiff met with the defendant to discuss the
administration of the estate. Also at this meeting, the
plaintiff informed the defendant that she had a personal
claim against the estate in the amount of $536,914, for
funds she had loaned to her mother during her mother’s
lifetime, and asked him how she should go about per-
fecting that claim. The defendant responded by
informing her that, although she was the sole benefi-
ciary of the estate, he was not her personal attorney,
and thus she should hire her own attorney to obtain
such advice. Acting on that suggestion, the plaintiff
hired attorney Daniel Johnson to perfect her claim
against the estate. By April, 2007, the plaintiff and John-
son had provided the defendant with sufficient docu-
mentation substantiating her claim that the defendant
listed it as a debt of the estate on the estate’s federal
estate tax return.
Several months later, on July 25, 2007, the defendant
filed the estate’s inventory with the Probate Court. In
that filing, the defendant reported that the estate’s Con-
necticut assets had a combined gross value of $2.65
million, of which $2.3 million was the appraised value
of the decedent’s Greenwich property. After accounting
for a $749,834 mortgage on that property,6 however,
the defendant reduced the property’s net value by that
amount to $1.55 million, and reported on the inventory
that the combined net value of the estate’s Connecticut
assets was approximately $1.9 million.
The following day, July 26, 2007, the defendant filed
the estate’s federal and state tax returns on Form 706
and Form CT-706, respectively. These forms, as submit-
ted by the defendant, reported a tentative taxable estate
of $1,475,451.7 Because the reported value of the estate’s
Connecticut assets was less than $2 million, the estate
was determined not to be subject to Connecticut’s then
existing cliff rate8 of 7.2 percent tax on its total net
assets. The following week, on July 30, 2007, the defen-
dant received an ‘‘Opinion of No Connecticut Estate
Tax Due,’’ which was certified and signed by the Pro-
bate Court. As for the estate’s federal estate tax return,
the defendant reported on Form 706 that the estate had
utilized a ‘‘maximum unified credit’’ of $780,800 to offset
a potential liability of $545,244 in federal estate taxes,
resulting in a net federal estate tax of zero dollars. On
November 14, 2007, the defendant received an ‘‘Estate
Tax Closing Document’’ from the Internal Revenue Ser-
vice, confirming that the estate owed zero dollars in
federal estate taxes.
Notwithstanding these favorable results, the plaintiff
grew increasingly dissatisfied with the defendant’s
administration of the estate. Specifically, she had con-
cerns about: (1) the defendant’s invasion of her and her
mother’s joint bank account, which she claimed to be
a nonprobate asset; (2) the commingling of her mother’s
income trust assets with the assets of the estate; and
(3) the defendant’s claim to a combined total of $151,687
in executor’s and attorney’s fees, which she believed
to be excessive. Thus, in the spring of 2007, the plaintiff
hired a second attorney, Sharon Schweitzer, to dispute
the amount of the defendant’s claimed fees and to seek
his removal as executor of the estate. Ultimately, how-
ever, Schweitzer advised the plaintiff that it was too
early either to contest the defendant’s fees or to seek
his removal as executor, and thus that she should wait
until a later time before raising those claims.
The estate remained open for an additional eighteen
months following the Internal Revenue Service’s
November, 14, 2007 estate tax closing letter. During
that time, the defendant prepared the final account of
the estate, which he filed with the Probate Court on
March 20, 2009. Thereafter, on August 17, 2009, the
Probate Court issued a certificate of devise with respect
to the Greenwich property.
On June 1, 2009, the plaintiff submitted a letter to
the Probate Court objecting to the fees charged by the
defendant as the executor of and the attorney for the
estate. Thereafter, the plaintiff resumed her efforts to
dispute the defendant’s fees and to remove him as exec-
utor of the estate. To that end, in December, 2009,
she hired a third attorney, William Prout, to seek the
removal of the defendant as executor of the estate, to
dispute the defendant’s claim for a combined sum of
$151,687 in executor’s and attorney’s fees, and to defend
against the defendant’s claim for an additional sum
of $125,000 in attorney’s fees that he claimed to have
incurred ‘‘to [recover] his [original] fees.’’9
Between January and March, 2010, the Probate Court
held four hearings to address the parties’ fee dispute.
In those hearings, the Probate Court ordered the defen-
dant to produce evidence justifying his claimed entitle-
ment to $151,687 in fees for the work he had performed
as executor of and the attorney for the estate. The
defendant complied with the court’s request by prepar-
ing and presenting, at the second hearing on the fee
dispute, a sixty-two page document—later marked at
trial as exhibit 88—in which he detailed the time and
effort he claimed to have had spent performing services
on behalf of the estate. After reviewing the defendant’s
submission, the Probate Court ruled in favor of the
plaintiff by ordering that the defendant’s total fees for
past services be reduced from $151,687 to $60,000, and
denying his claim for an additional $125,000 in fees
allegedly incurred to collect his original fees. See Peluso
v. Probate Appeal, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-10-5013414-S, 2012
WL 898753, *1 (Hon. Alfred J. Jennings, Jr., judge trial
referee). On May 7, 2010, the defendant appealed from
that decision to the Superior Court for the judicial dis-
trict of Stamford-Norwalk. We will refer to that probate
appeal as the ‘‘fee appeal.’’10
On April 11, 2011, the plaintiff filed an application to
remove the defendant as executor of the estate. Peluso
v. Probate Appeal, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-11-6011567-S, 2015
WL 3522304,*4 n.4 (Povodator, J.). The Probate Court,
Hopper, J., ultimately granted that application as well,
ordering the removal of the defendant as executor. Id.,
*1. On October 7, 2011, the Probate Court appointed
the plaintiff as administratrix of the estate, a position
she retains to this date. The following week, on October
13, 2011, the defendant appealed from that decision to
the Superior Court for the judicial district of Stamford-
Norwalk. We will refer to that probate appeal as the
‘‘removal appeal.’’11
On December 19, 2011, the plaintiff commenced the
present action, which the parties refer to as ‘‘the mal-
practice action.’’12 On November 15, 2012, the plaintiff
filed the operative second amended complaint in this
action, in which she pleaded claims of breach of fidu-
ciary duty; legal malpractice; wilful, wanton, and reck-
less misconduct; breach of contract; conversion; civil
theft, in violation of General Statutes § 52-564; and viola-
tion of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq.
Thereafter, on November 4, 2013, the plaintiff moved
to consolidate the malpractice action with the fee
appeal and the removal appeal. The trial court, Mintz,
J., granted the plaintiff’s motion to consolidate over the
defendant’s objection. Ultimately, both the fee appeal
and the removal appeal were tried de novo to the trial
court, Povodator, J., in the same proceeding as the
malpractice action was tried to a jury. See Peluso v.
Probate Appeal, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-10-5013414-S, 2015
WL 4879974, *1. The eight day jury trial took place
between March 11 and March 25, 2015. On the second
day of its deliberations, the jury ultimately returned
a defendant’s verdict on all counts of the operative
complaint. Thereafter, the plaintiff filed, and the trial
court heard and denied, two separate motions to set
aside the verdict. This appeal followed. Additional facts
will be set forth as necessary.
I
On appeal, the plaintiff first claims that the trial court
erred in declining to accept the jury’s initial verdict
and in reinstructing the jury before sending it back to
continue its deliberations. More specifically, the plain-
tiff argues that the court committed reversible error:
(1) by failing to inform the parties that the jury’s initial
verdict included answers to interrogatories supporting
an award of punitive damages to the plaintiff on her
claim of breach of fiduciary duty; (2) by failing to accept
what she describes as the jury’s initial ‘‘valid punitive
damage verdict’’ pursuant to Practice Book § 16-31;13
and (3) by reinstructing the jury on the legal principles
of liability and directing it to ‘‘ ‘start [its deliberations]
from scratch,’ ’’ instead of ‘‘simply [directing] the jury
to enter nominal damages on this charge’’ in support
its preexisting award of punitive damages. The plaintiff
asserts that these errors were prejudicial because they
‘‘caused a different result than justice required. Accord-
ingly, the plaintiff . . . requests a new trial, or alterna-
tively, a hearing in damages with respect to the punitive
damage award initially rendered by the jury.’’
The defendant responds that the trial court properly
refused to accept the jury’s initial verdict because the
verdict form and accompanying interrogatories were
incomplete, in that the jury had not filled out several
necessary portions of the verdict form and interrogato-
ries, and further, the interrogatories were neither signed
nor dated by the jury foreperson, as the court had
instructed. The defendant further argues that, to the
extent that the jury did answer questions in the interrog-
atories, those answers were inherently contradictory,
resulting in an initial verdict that was incomplete, incon-
sistent, and incomprehensible. The defendant thus
argues that the court did not abuse its discretion in
declining to accept the initial verdict pursuant to Prac-
tice Book § 16-31. With respect to the plaintiff’s claims
of error in instructing the jury after declining to accept
its initial verdict, the defendant argues that the plaintiff
failed to preserve such claims because she failed either
to object to the court’s supplemental instructions when
the court discussed them on the record or to except to
those instructions after they were given. In the alterna-
tive, the defendant argues that, even if this court were to
reach the merits of the plaintiff’s claims of instructional
error, such claims are meritless because the challenged
instructions were correct statements of the law. We
agree with the defendant that the court properly
declined to accept the jury’s initial verdict and that the
plaintiff’s claims of instructional error are unreviewable
because the plaintiff failed to preserve them.
The following additional facts and procedural history
are necessary for our resolution of this claim. As more
fully discussed in part II of this opinion, the jury
received evidence in the malpractice action between
March 11 and March 25, 2015. On March 26, counsel
gave closing arguments on the plaintiff’s then remaining
claims of breach of fiduciary duty; legal malpractice
against the defendant, in her capacity as administratrix;
legal malpractice against the defendant, in her capacity
as the sole beneficiary of the estate; and wilful, wanton
and reckless misconduct.14 After those arguments were
completed, the court instructed the jury in accordance
with a written jury charge, to which plaintiff’s counsel
neither objected nor excepted, either before or after it
was given.
In its charge, the court instructed the jury generally
that: ‘‘[The] plaintiff . . . claims that [the] defendant
breached his fiduciary duty in his conduct as executor
of the estate of Frances Rendahl . . . [and also] claims
that [the] defendant’s conduct went beyond negligence
to the point that it could be characterized as wilful,
wanton and reckless, which, if proven, might entitle
[the] plaintiff to enhanced relief. . . . [The] defendant
has denied that he was negligent, that he committed
legal malpractice and denies that he breached his duty
as a fiduciary or that he acted wilfully and recklessly.
. . . This, then, is a case in which both liability and
damages are in issue. Your task is to determine the
extent, if any, to which [the] defendant is liable and
the amount of damages, if any, the plaintiff is entitled
to recover.’’ (Emphasis added.)
In dealing specifically with the plaintiff’s claim of
breach of fiduciary duty, the court instructed the jury,
inter alia, that: ‘‘[The] plaintiff has alleged that the defen-
dant, acting as a fiduciary, engaged in numerous acts
that constituted breaches of his fiduciary duty. . . .
She must prove that the defendant was acting as a
fiduciary, that the fiduciary breached this fiduciary duty
and that such breach of fiduciary duty caused the
plaintiff damages. If you conclude that [the] plaintiff
has satisfied all of these requirements and has estab-
lished that her claimed injuries were proximately
caused by the misconduct of [the] defendants, then she
would be entitled to recover under this claim. If she
has not satisfied all of the requirements, then [the]
defendants are entitled to judgment on this claim.’’
(Emphasis added.)
On the issue of compensatory damages for breach
of fiduciary duty or legal malpractice, the court
instructed the jury, inter alia, as follows: ‘‘Damages are
intended to compensate [the] plaintiff for her losses
and are not to be awarded in an effort to punish [the]
defendant. You must attempt to put the plaintiff in the
same position, as far as money can do it, that she would
have been in had the defendants not been negligent. In
order to recover money damages, the plaintiff must
prove that she suffered an actual injury. Unless the
plaintiff proves an actual injury caused by negligence
of the defendant, you cannot find for the plaintiff and
award damages. . . . [The] plaintiff has claimed that
the wrongful conduct caused economic losses and to
the extent you find those economic losses to have been
proven, she is entitled to compensation for such losses.
. . . Generally speaking, [the] plaintiff must prove by
a preponderance of the evidence the amount of any
damages to be awarded. The evidence must give you a
sufficient basis to estimate the amount of damages to
a reasonable certainty. Although damages may be based
on reasonable and probable estimates, you may not
award damages on the basis of guess, speculation or
conjecture. Absolute accuracy as to the amount of dam-
ages is not required; only such definiteness as is appro-
priate under the circumstances. . . . You may not
guess or speculate as to the nature or extent of the
plaintiff’s losses or damage. Your decision must be
based on reasonable probabilities in light of the evi-
dence presented at trial and not speculation or conjec-
ture.’’ (Emphasis added.)
On the issue of punitive damages as enhanced relief
for either breach of fiduciary duty or legal malpractice,
the court instructed, inter alia, as follows: ‘‘In addition
to seeking compensatory damages for negligence and
breach of fiduciary duty, [the] plaintiff also is seeking
punitive damages based on wilful, wanton or reckless
misconduct. If you find that [the] plaintiff has proven
that [the] defendant acted wilfully, wantonly or reck-
lessly, then you may award punitive damages. . . .
Punitive damages are limited to the costs of litigation,
including attorney’s fees, less certain costs that are
allowed in all cases which are called taxable costs.
Within that limitation, the extent to which they are
awarded is within your sole discretion. The parties have
agreed that you are to determine whether to award
punitive damages; they have agreed that I will do the
actual calculation at a later date. Therefore, you are
only being asked whether you have determined that
punitive damages are to be awarded, but are not being
asked to calculate the amount.’’
Finally, the court instructed the jury with regard to
the verdict forms and interrogatories, inter alia, as fol-
lows: ‘‘When you retire, you will be receiving a plaintiff’s
verdict form. There are blanks to be filled in, dollar
amounts for damages you find to have been proven,
if you conclude that [the] plaintiff has proven her enti-
tlement to damages. You also will be receiving a defen-
dant’s verdict form, if you conclude that [the] plaintiff
has not proven that she is entitled to recover from [the]
defendant. I am also submitting interrogatories which
will assist you in reaching a verdict and calculating the
amounts of damages, if any, to be awarded.15 It also
will assist the court in understanding the source of your
determinations. . . . I also have provided a summary
table in which you will fill in the dollar amount for each
injury you conclude [the] plaintiff sustained without
regard to theory. This is intended to avoid any overlap
or duplication in damages. The reason I am doing this
and asking you to use the summary table is that damages
awarded can only compensate [the] plaintiff once for
any element of damages that she has proven or that
has been proven. . . . The verdict form and the inter-
rogatories must be signed in ink by the foreperson and
dated.’’ (Emphasis added; footnote added.)
Following these instructions, the court inquired as
to whether counsel wished to take exception to any of
its jury instructions. The plaintiff’s counsel responded,
‘‘No, Your Honor. Thank you.’’
Jury deliberations began after the instructions were
completed and continued into the following day, March
27, 2015. In the latter part of that afternoon, the jury
sent the court a series of three notes. The first note,
which was marked court exhibit 18, was received at
3:43 p.m. Upon receiving the note, the court first read
it to itself, then announced on the record that it stated
that the jury had reached a verdict. After summoning
the jury and taking a roll call, the court was handed the
jury’s verdict form and accompanying interrogatories in
open court.
The court initially began to read the jury’s verdict
form and interrogatories to itself. Then, however, with-
out showing them to or discussing their contents with
counsel, the court addressed the jury as follows: ‘‘All
right. Ladies and gentlemen, we have a problem of sorts.
Let me explain the problem. . . . In interrogatory num-
ber four, you indicate yes to some of the subsections
indicating certain things that you claim were done
improperly in the fiduciary sense.16 You then, on number
five, say that . . . did [the] plaintiff prove that the
estate suffered damages or losses and you answer yes
and then there are zeros for all those losses.17 You can’t
have proved losses by zero. . . . You are . . . entitled,
if you feel it appropriate, to award what I would call
nominal damages, but if you’re saying damages would
actually exist, then it should be something more than
zero; it could be a dollar, it could be ten dollars, it could
be a hundred dollars. Nominal. Either it should be no
damages proved or damages were proved but a nonzero
amount.’’ (Footnotes added.) The court then returned
the initial interrogatories to the jury and instructed the
jury to continue its deliberations.
Immediately after making these remarks, which were
directed exclusively to particular interrogatories con-
cerning the plaintiff’s claim of breach of fiduciary duty,
and excusing the jury from the courtroom, the court
addressed counsel, outside the presence of the jury, as
follows: ‘‘As you may have gathered there appears to
be that inconsistency. I don’t know if anyone wants to
be heard on that, but I think that . . . I had to instruct
them that they could give nominal damages . . . . I
mean, technically I could accept zeros and the appellate
courts have said that they are not going to reverse if
you have a plaintiff’s verdict of zero . . . but I’m not
going to get into that as long as I’ve spotted it early
enough. It’s either going to be that they are going to
change that they proved damages to ‘no’ or they are
going to say nominal damages or they are going to
decide no oops, we really meant to put nontrivial num-
bers; I don’t know what it is. . . . [A]nyone wish to be
heard further on that?’’ The plaintiff’s counsel replied
‘‘No.’’
Shortly thereafter, the jury sent out the second note,
which the court marked as court exhibit 19. In that
note, the jury requested further clarification as to how
it was to ‘‘derive’’ compensatory damages. The second
note read, more specifically, as follows: ‘‘We put $0 in
[the] spot where damages should not be awarded. We
left in blank spots where damages need to be awarded.
Where do we derive these numbers from?’’18 (Emphasis
in original.) After the court read aloud the note to coun-
sel, the plaintiff’s counsel stated, ‘‘I think they have to
be instructed.’’ The court agreed, stating: ‘‘I’m going to
tell them that they need to find that [the] plaintiff has
proven by a preponderance of the evidence the dam-
ages, and they have to derive it from the evidence they
were presented with, and if they cannot they have to
decide whether or not that is a failure of proof.’’ The
court also stated that it would provide the jury with a
fresh set of interrogatories.
Thereafter, in an additional set of supplemental
instructions, the court instructed the jury, inter alia, as
follows: ‘‘Damages are something that [the] plaintiff
must prove and . . . when you say, where do you
derive it from, you need to derive it from the evidence
that has been presented to you in court. If you conclude
that [the] plaintiff has met her burden of proving dam-
ages as to any or all of the claims that you think she’s
proven she is entitled to the damages that you believe
she has proven. If you find that she hasn’t submitted
sufficient proof for you [to] conclude with reasonable
certainty what those damages are then she hasn’t
proven damages and she’s not entitled to damages.
Damages, you know, you have to prove fault, proxi-
mate cause, damages. It’s all of these things, all of
these elements are required. And if you only get to yes,
somebody did something wrong and yes, there was
proximate cause, we don’t know what it is, then there’s
a failure of proof. . . .
‘‘It’s for you to determine what the damages were
based on the evidence presented. Has [the] plaintiff
sustained her burden of proof on each of the elements
. . . for each aspect of wrongful conduct you need to
be able to say okay, and the damages resulting from
that are X dollars with whatever level of confidence
you think is appropriate. But the burden of proof is on
the plaintiff. All right. . . . The [courtroom] clerk is
going to give you another set of interrogatory forms so
you can start from scratch. The . . . numbers only
need to be put in where you find that there was some
kind of liability; if you leave it blank, I’m assuming that
you don’t even find liability. In other words, the idea
of putting in numbers is, [the] plaintiff . . . has proven
that there was a certain type of liability. If there’s a
number that you can figure out, you put in that number;
if it’s zero, that means [that the] plaintiff didn’t prove
it or something of that nature. If [the] plaintiff did not
prove a particular form of liability you can just ignore
that for damages because there’s no need to worry
about damages on something that hasn’t [been] proved
with respect to liability.’’ (Emphasis added.) The plain-
tiff did not object or take exception to these supplemen-
tal instructions.
The jury was then returned to deliberate for a third
time with a fresh set of interrogatories, the court then
noting that the jury’s initial verdict form and interroga-
tories would have to be marked as court exhibits.
Before they could be marked, however, the defendant
requested that the jury’s first set of interrogatories be
sent in to the jury room so that the jurors could tran-
scribe their prior findings onto the fresh set of interroga-
tories.19 The court agreed with this suggestion and,
without first marking the initial jury interrogatories as
a court exhibit, instructed the clerk to deliver those
interrogatories to the jury with the further instruction,
‘‘Just tell them to keep, preserve the old one. Tell them
to preserve the old one.’’ The plaintiff voiced no objec-
tion to this proposal, and so the jury’s initial interrogato-
ries were sent back into the jury room for the jury’s
reference. The court then stood in recess.
Shortly before the end of the day, the court received
the jury’s third and final note, which was marked as
court exhibit 20. This note again reported that the jury
had reached a verdict. Before taking a roll call, the court
requested, and the parties stipulated, to the waiving of
the second reading of the interrogatories. The court
then called the roll of the jury, confirmed that each
juror was present, and then received the jury’s verdict
and interrogatories. This time, on the defendant’s ver-
dict form, which was duly signed and dated by the
foreperson, the jury reported that it had reached a
defendant’s verdict on each of the plaintiff’s claims.
In the accompanying interrogatories, which were also
signed and dated by the foreperson, the jury provided
answers to interrogatories as to each of the plaintiff’s
claims of liability that were consistent with its decision
to return a defendant’s verdict on all claims.20 The court
thereupon read the verdict form and interrogatories
aloud in open court. Thereafter, it read the verdict form
aloud a second time and asked the jurors whether that
verdict, as it had been read back to them, was their
true and unanimous verdict. The jurors all replied,
‘‘Yes.’’ The court finally ordered that the verdict be
accepted and recorded as it had been read. Neither
counsel requested that the jury be polled.
On or about April 10, 2015, the court received a letter,
dated March 31, 2015, from one of the six jurors in
the malpractice action. In that letter, which was later
marked as court exhibit 24, the juror indicated that the
jury had misunderstood the court’s instructions and
intended to find in favor of the plaintiff on several of
her claims. The letter also indicated that the jurors
had been unaware that the defendant could have been
‘‘found liable despite zero damages awarded by the
jury,’’ a nuance that the trial court had discussed with
them during a courtesy visit to the jury room following
the verdict. Thereafter, the court disclosed its receipt
of this letter to counsel for the parties, who at the time
were still presenting evidence in the ancillary fee
appeal.
After reviewing the juror’s letter, the plaintiff’s coun-
sel went to the courthouse clerk’s office and, ‘‘for the
first time,’’ inspected the jury’s initial verdict form and
interrogatories. It was only then that the plaintiff’s coun-
sel became aware of the contents of the jury’s initial
verdict form and interrogatories, in which its answers
to interrogatories did not state that the defendant’s
proven breaches of fiduciary duty had caused the plain-
tiff any proven damages, but did state that the plaintiff
was entitled to recover punitive damages for such
proven breaches based upon the wilful, wanton, or reck-
less manner in which the defendant had engaged in the
wrongful conduct by which he had committed such
breaches. The initial verdict form was signed and dated
in accordance with the court’s instructions, but the
accompanying interrogatories were not.
The problem that the court had identified while
reviewing the jury’s answers to the initial interrogato-
ries that it had submitted, along with its initial verdict
form, arose from an apparent inconsistency between
the jury’s answers to the first and second portions of
interrogatory number five. The first part of interroga-
tory number five asked the jury: ‘‘Did [the] plaintiff
prove that the estate suffered any damages or losses
as a result of the defendant’s breach(es) of fiduciary
duty?’’ The jury answered, ‘‘Yes,’’ to that question.
Below that answer was a table listing all of the ways
in which the plaintiff claimed at trial that the defendant
had breached his fiduciary duties. The jury was
instructed, in interrogatory number five itself, that if it
had answered, ‘‘Yes,’’ to the initial damages question,
it was to fill out the accompanying table by recording
its findings as to particular sums of damages, if any,
that the defendant had caused the plaintiff to suffer as
a result of each alleged breach of fiduciary duty which
the plaintiff had proven. The written instruction
directed the jury, more particularly, to ‘‘leave blank
. . . any claimed breach you do not find to have been
proven or for which no damages were proven . . . .’’
The jury left the entire table blank, leaving open the
question, resulting from the inherent ambiguity in the
written instruction, whether the blanks it had left on
the table in interrogatory number five signified that the
particular breaches of fiduciary duty which it had found
proven by its answers to interrogatory number four21
had caused the plaintiff to suffer no damage at all, in
which case they could not support a finding of liability,
or that those proven breaches of fiduciary duty had
caused the plaintiff some damage which the jury found
itself unable to quantify. Notwithstanding this lack of
clarity, the jury appears to have moved on, after leaving
blanks on the table in interrogatory number five, by
answering the questions concerning the plaintiff’s claim
for punitive damages for breach of fiduciary duty in
interrogatory numbers six and seven. Interrogatory
number six asked: ‘‘Did [the] plaintiff prove that [the]
defendant’s wrongful conduct relating to breach of fidu-
ciary duty was outrageous and showed a reckless indif-
ference to the rights of others or an intentional and
wanton violation of those rights?’’; interrogatory num-
ber six also asked: ‘‘Did [the] plaintiff prove that she
is entitled to recover punitive damages for such reckless
conduct?’’ The jury answered, ‘‘Yes,’’ to both questions
in that interrogatory, and answered, ‘‘Yes,’’ to that por-
tion of the initial plaintiff’s verdict form as to whether
the plaintiff was entitled to recover punitive damages
from the defendant. It cannot be determined from the
record what other answers the jury may have recorded
on the initial interrogatories when it attempted to return
its initial verdict because the trial court did not discuss
such matters on the record at that time, and further,
no copies of the initial verdict form and interrogatories
were made before they were sent back into the jury
room for the continuation of deliberations. It is clear
from the very last page of the initial interrogatories,
however, that the jury did not complete those interroga-
tories in accordance with the court’s instructions, for
the signature and date lines were left blank by the
jury foreperson.
On April 21, 2015, the plaintiff informed the court
and the defendant that she intended to file two motions
to set aside the verdict; the first motion to address the
verdict and supplemental instructions, and the second
to address the court’s evidentiary rulings in the malprac-
tice action. By agreement of all parties, the court
extended the deadline to file postverdict motions until
April 30, 2015, and stated its intent to hear both motions
at the same time. On May 28, 2015, the trial court con-
ducted a posttrial hearing on the plaintiff’s postver-
dict motions.
At that hearing, the defendant argued that the jury’s
initial verdict was not valid because its verdict forms
and interrogatories contained missing answers, incon-
sistent answers, and the interrogatories were not
signed; on that basis, the defendant argued that the
court could not have accepted the jury’s initial verdict
pursuant to Practice Book §§ 16-1822 or 16-31.23 As for
the plaintiff’s claims of error with respect to the court’s
supplemental instructions, the defendant argued that
‘‘without an objection to any of those charges . . . the
plaintiff [cannot] complain about what the court told
the jury. . . . The time to object was when the jury
was being charged.’’ Last, with respect to the juror’s
postverdict letter, the defendant argued that, pursuant
to Practice Book § 16-34,24 the court could not consider
that letter as a basis for setting aside the verdict.
The plaintiff responded that she could not have
objected or excepted to the court’s supplemental
instructions on any of the grounds raised in her first
motion to set aside the verdict because she did not
learn of the errors in them until after being notified of
the juror’s letter, which prompted her to inspect the
jury’s initial verdict form and interrogatories. Thus,
although the plaintiff’s counsel conceded that ‘‘[he] did
not object to the court’s instruction,’’ he argued that
‘‘you [cannot] waive what you don’t know. And I didn’t
know about the verdict form.’’ As to the merits of her
claims of instructional error, the plaintiff asserted that
the court’s supplemental jury instructions ‘‘contained
palpable errors,’’ especially in light of the fact that the
jury, in its initial verdict, had ‘‘rendered a full and com-
plete verdict on the question of liability,’’ and that the
juror’s letter corroborated the plaintiff’s claim of
prejudice.
Thereafter, on June 30, 2015, the court issued sepa-
rate rulings denying the plaintiff’s motions to set aside
the verdict. As for the first motion to set aside the
verdict, the court found that: ‘‘[i]n its initial response
[to the jury’s first attempted verdict] . . . the court
instructed the jury that a verdict for [the] plaintiff
required nonzero damages and further advised the jury
that it could award nominal damages.’’ With respect to
the jury’s second note, the court attempted to address
those questions ‘‘focusing on the need for [the] plaintiff
to prove damages with reasonable certainty as part of
her burden of proof a cause of action.’’ The court further
stated that it had referred only to the elements of liabil-
ity ‘‘to put the issue in context—to prevail, [the] plaintiff
was required to prove all elements of her cause of
action.’’ In addressing the plaintiff’s argument that she
was unaware that a plaintiff’s verdict had been returned,
the court stated that such a position was ‘‘not a fair
assessment of the situation. The jury reported that it
had reached a verdict; the court made it clear that it
could not accept responses that [the] plaintiff had
proven damages arising from tortious conduct but that
did not include any nonzero award of damage[s]. After
the jury had been excused, the court referred to its
recollection of appellate decisions relating to a verdict
for a plaintiff with zero damages. None of this would
have made any sense but for the jury having found for
[the] plaintiff on liability but without a nonzero award
of damages. . . . If [the] plaintiff truly had been
unclear, either after the court’s initial reinstruction of
the jury or after its response to the follow-up question,
it would have been a simple matter to ask.
‘‘As to the issue of punitive damages, the court does
not believe it would have been appropriate to address
punitive damages in the absence of a proper verdict for
[the] plaintiff or a question from the jury. The jury had
copies of the court’s entire charge, and there was no
perceived need to instruct on an area for which there
was no question or obvious need for curative action.’’
(Emphasis in original.) On those grounds, the court
denied the plaintiff’s first motion to set aside the verdict.
A
Valid Verdict
On appeal, the plaintiff reasserts her claim that the
court erred in declining to accept the jury’s initial ver-
dict. In support of that claim, the plaintiff argues that
the jury ‘‘unequivocally and unanimously found for the
plaintiff and indicated that [the] plaintiff should be
awarded punitive damages. . . . The only thing miss-
ing from the form was an amount of economic dam-
ages.’’ In support of her argument, the plaintiff cites
our Supreme Court’s ruling in Hi-Ho Tower, Inc. v.
Com-Tronics, Inc., 255 Conn. 20, 761 A.2d 1268 (2010)
(Hi-Ho Tower), for the proposition that ‘‘the jury’s
award of punitive damages proved the element of actual
damages.’’ The plaintiff thus argues that, because ‘‘the
verdict was technically correct with respect to punitive
damages,’’ the court should have accepted the verdict
pursuant to Practice Book § 16-31.25 For all of these
reasons, the plaintiff further argues that the trial court
abused its discretion in denying her first motion to set
aside the verdict.
The defendant counters that the court properly
declined to accept the jury’s initial verdict because the
accompanying interrogatories were ‘‘unsigned, incom-
plete, and inconsistent and the verdict [based upon
them] was not in order or technically correct.’’ The
defendant further asserts that ‘‘damages were an essen-
tial element of the plaintiff’s cause of action,’’ and thus
the initial verdict could not have been accepted by the
court because ‘‘[i]t is inherently inconsistent to state
that a plaintiff has prevailed in proving a cause of action
while simultaneously stating that the plaintiff has not
proven an element of the cause of action.’’ The defen-
dant also asserts that there is no support for the plain-
tiff’s assertion that the court should have instructed the
jury simply to enter an award of punitive damages. We
agree with the defendant.
We begin with our standard of review. ‘‘The proper
appellate standard of review when considering the
action of a trial court in granting or denying a motion
to set aside a verdict is the abuse of discretion standard.
. . . In determining whether there has been an abuse
of discretion, every reasonable presumption should be
given in favor of the correctness of the court’s ruling.
. . . Reversal is required only [when] an abuse of dis-
cretion is manifest or [when] injustice appears to have
been done. . . . [T]he role of the trial court on a motion
to set aside the jury’s verdict is not to sit as [an added]
juror . . . but, rather, to decide whether, viewing the
evidence in the light most favorable to the prevailing
party, the jury could reasonably have reached the ver-
dict that it did. . . . In reviewing the action of the trial
court in denying [or granting a motion] . . . to set aside
the verdict, our primary concern is to determine
whether the court abused its discretion . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Hall
v. Bergman, 296 Conn. 169, 179, 994 A.2d 666 (2010).
‘‘[P]ursuant to General Statutes § 52-223, [t]he court
may, if it judges the jury has mistaken the evidence in
the action and has brought in a verdict contrary to the
evidence, or has brought in a verdict contrary to the
direction of the court in a matter of law, return them
to a second consideration, and for the same reason may
return them to a third consideration. The jury shall
not be returned for further consideration after a third
consideration. See also Practice Book § 16-17. This stat-
ute . . . does not limit the power of the trial court to
return the jury to a second or third consideration, to
cases in which the verdict is, in the opinion of the court,
in favor of or against a wrong party. A verdict in other
respects correct may be contrary to the evidence, or
to the direction of the court in a matter of law, because
[it is] for too large or too small a sum, and the provisions
of this section are applicable to such cases.’’ (Internal
quotation marks omitted.) Mazier v. Signature Pools,
Inc., 159 Conn. App. 12, 41, 123 A.3d 1, cert. denied,
319 Conn. 933, 125 A.3d 207 (2015).
A trial court may decline to accept a verdict and
return the jury to continue its deliberations when the
verdict form or accompanying interrogatories, if any:
are legally inconsistent; e.g., Bilodeau v. Bristol, 38
Conn. App. 447, 455, 661 A.2d 1049 (‘‘[w]here answers
to interrogatories are inconsistent, the trial court has
the duty to attempt to harmonize the answers’’), cert.
denied, 235 Conn. 906, 665 A.2d 899 (1995); contain
incomplete findings as to the essential elements of a
cause of action or fail to completely dispose of an essen-
tial issue; e.g., Tisdale v. Riverside Cemetery Assn., 78
Conn. App. 250, 258–60, 826 A.2d 232, cert. denied, 266
Conn. 909, 832 A.2d 74 (2003); or are so ambiguous that
the verdict cannot be said to contain an intelligible
finding; see, e.g., id., see also Sigular v. Gilson, 141
Conn. App. 581, 587, 62 A.3d 564 (‘‘A verdict is not
defective as a matter of law as long as it contains an
intelligible finding so that its meaning is clear. . . . A
verdict will be deemed intelligible if it clearly manifests
the intent of the jury.’’ [Internal quotation marks omit-
ted.]), cert. granted, 308 Conn. 948, 67 A.3d 291 (2013)
(appeal withdrawn August 1, 2013).
After reviewing the jury’s initial verdict form and
accompanying interrogatories, we agree with the defen-
dant that the jury’s failure to award damages rendered
the initial verdict ambiguous as first presented, and
thus that the trial court acted well within its discretion
by not accepting that verdict and returning the jury to
continue its deliberations.26
In order to constitute a complete verdict, the jury’s
verdict form, and where applicable, its accompanying
interrogatories, must contain legally consistent findings
as to all essential elements of the plaintiff’s cause of
action. Cf. Right v. Breen, 277 Conn. 364, 377, 890 A.2d
1287 (2006) (‘‘[w]ithout proof of each of [the elements
of a cause of action], a plaintiff’s cause fails entirely,
and he is not entitled to have the question of damages
considered’’); see also Magnan v. Anaconda Industries,
Inc., 193 Conn. 558, 577, 479 A.2d 781 (1984) (holding
that ‘‘in civil cases when a verdict rests upon a factual
finding contradictory to another finding of the same
issue by the trier the judgment cannot stand’’); Arnold
v. Moriarty, 140 Conn. App. 872, 880, 60 A.3d 317 (2013)
(holding that ‘‘it is not unreasonable for a jury to deter-
mine that a plaintiff has proved some elements of his
or her cause of action without proving them all . . .
and in such a situation a defendant’s verdict is proper’’
[citation omitted]).
In this case, the plaintiff argues that the jury’s initial
verdict was complete with respect to her claim of
breach of fiduciary duty, and thus that the court should
have accepted that verdict. As discussed in the preced-
ing paragraphs, the plaintiff cites Hi-Ho Tower, Inc. v.
Com-Tronics, Inc., supra, 255 Conn. 20, for the proposi-
tion that ‘‘the jury’s award of punitive damages proved
the element of actual damages’’ and, therefore, the jury’s
initial verdict in this case contained legally consistent
findings as to each of the essential elements of the
plaintiff’s claim of breach of fiduciary duty. We disagree.
In Hi-Ho Tower, the plaintiff communications busi-
ness sought damages from the defendants ‘‘for the
defendants’ alleged unlawful use of the plaintiff’s radio
and communications tower.’’ Hi-Ho Tower, Inc. v. Com-
Tronics, Inc., supra, 255 Conn. 22. The defendant, Com-
Tronics, Inc. (Com-Tronics), and its principal, filed a
four count counterclaim. Id. Thereafter, the jury found
in favor of the defendants ‘‘on all . . . counts of the
complaint, and for Com-Tronics on the third count of
its counterclaim, which was based on the theory of
tortious interference with business expectancies.’’ Id.
In connection with Com-Tronics’ claim of tortious inter-
ference, ‘‘the court bifurcated the question of punitive
damages. After the jury rendered a verdict for Com-
Tronics . . . but awarded damages of $0, the trial
court, over the objection of the plaintiff, submitted the
question of punitive damage to the jury with supplemen-
tary instructions. The jury then rendered a verdict of
$120,000 in punitive damages.’’ Id., 26. On appeal, the
plaintiff in Hi-Ho Tower claimed that the court ‘‘improp-
erly denied [its] motion for a directed verdict . . .
because Com-Tronics failed to prove actual loss and
recovered punitive damages in the absence of an award
of compensatory damages.’’ Id. Our Supreme Court dis-
agreed.
The court in Hi-Ho Tower first agreed that, in order to
establish a claim of tortious interference with business
expectancies, a complainant must prove that ‘‘as a
result of the [tortfeasor’s] interference, the plaintiff suf-
fer[ed] actual loss.’’ Id., 27. In discussing the element
of actual loss, the court noted that ‘‘[a] major problem
with damages of this sort . . . is whether they can be
proved with a reasonable degree of certainty. . . . If
the question is whether the plaintiff would have suc-
ceeded in attaining a prospective business transaction
in the absence of [the] defendant’s interference, the
court may . . . give due weight to the fact that the
question was made hypothetical by the very wrong of
the defendant. . . . Thus, an award of compensatory
damages is not necessary to establish a cause of action
for tortious interference as long as there is a finding
of actual loss, and a finding of actual loss may support
an award of punitive damages.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.)
Id., 34.
The court in Hi-Ho Tower then analyzed the jury’s
interrogatories and the trial court’s supplemental jury
instructions. In so doing, the court first noted that the
jury’s interrogatories contained findings that the plain-
tiff had tortiously interfered with Com-Tronics’ busi-
ness expectancies; that Com-Tronics had proved zero
dollars in damages as a result of such tortious interfer-
ence; and that Com-Tronics had proved that it was
entitled to recover punitive damages. Id., 34–35. It also
noted that, after receiving these interrogatories, the trial
court provided the following supplemental instructions:
‘‘punitive damages may lie if you have found Com-Tron-
ics suffered actual loss, even though it may not be
proven to you the dollar amount of damages with the
required degree of certainty [by a] preponderance of
the evidence. If your zero damage in Question 9 was
intended to indicate that you believe there was no loss,
calculable or not, that was shown to have been suffered
at all, then when you state a punitive amount, it ought
to be zero, because some actual loss, even if not calcula-
ble, is an element of tortious interference . . . .’’
(Emphasis in original; internal quotation marks omit-
ted.) Id., 36. Following that additional instruction, ‘‘[t]he
jury returned with a punitive damages award of
$120,000.’’ Id., 37.
In affirming the trial court’s denial of the plaintiff’s
motion for a directed verdict in Hi-Ho Tower, our
Supreme Court held that ‘‘the jury was explicitly
instructed that, if it did not find that Com-Tronics had
suffered an actual loss, it should not award any punitive
damages, but that if it found that Com-Tronics had
suffered some actual loss, even if not calculable, it
should award punitive damages. . . . In light of the
specific jury interrogatories and answers, we conclude
that the jury found that Com-Tronics had suffered some
actual loss, although its specific amount had not been
proven. Accordingly, we give due weight to the fact
that the [specific amount of the loss] was made hypo-
thetical by the very wrong of the defendant. . . .
Because the jury found that actual loss had been proven,
the fact that Com-Tronics did not prove by a preponder-
ance of the evidence the specific amount of the loss
should not bar recovery of punitive damages in this
case.’’ (Citations omitted; internal quotation marks
omitted.) Id.
In the present case, the plaintiff argues that the jury’s
initial verdict and accompanying interrogatories were
substantially similar to those interrogatories returned
in Hi-Ho Tower and thus the court should have
accepted the initial verdict as a complete and consistent
verdict on the plaintiff’s claim of breach of fiduciary
duty. Although we find Hi-Ho Tower to be instructive
in our analysis, we conclude that the rationale of that
case supports, rather than undermines, the propriety
of the trial court’s actions in this case.
As a preliminary matter, we note that the plaintiff in
this case had the burden of establishing four essential
elements with respect to her claim of breach of fiduciary
duty: ‘‘[1] [t]hat a fiduciary relationship existed which
gave rise to . . . a duty of loyalty . . . an obligation
. . . to act in the best interests of the plaintiff, and
. . . an obligation . . . to act in good faith in any mat-
ter relating to the plaintiff; [2] [t]hat the defendant
advanced his or her own interests to the detriment of
the plaintiff; [3] [t]hat the plaintiff sustained damages;
[and] [4] [t]hat the damages were proximately caused
by the fiduciary’s breach of his or her fiduciary duty.’’
(Emphasis added.) T. Merritt, 16 Connecticut Practice
Series: Elements of an Action (2016–2017 Ed.) § 8:1, p.
686; see also Bozelko v. Papastavros, 323 Conn. 275,
283 n.10, 147 A.3d 1023 (2016). As for the plaintiff’s
claim for punitive damages, it is well established that
‘‘a demand for punitive damages is not a freestanding
claim; rather, it is parasitic and possesses no viability
absent its attachment to a substantive cause of action.’’
(Internal quotation marks omitted.) Gallinari v. Kloth,
148 F. Supp. 3d 202, 217 (D. Conn. 2015); see also Suf-
field Development Associates Ltd. Partnership v.
National Loan Investors, L.P., 97 Conn. App. 541, 577,
905 A.2d 1214 (‘‘[p]unitive damages are a remedy
awarded only when the evidence shows reckless, inten-
tional or wanton violation of the rights of others’’
[emphasis added; internal quotation marks omitted]),
cert. denied, 280 Conn. 943, 912 A.2d 479 (2006).
Accordingly, before the jury in this case could con-
sider whether to award the plaintiff punitive damages
for breach of fiduciary duty, it was required to find that
the plaintiff had established the defendant’s liability for
breach of fiduciary duty. The court’s analysis in Hi-Ho
Tower does not run counter to this proposition. Indeed,
the court in Hi-Ho Tower expressly approved of the
trial court’s supplemental instructions, wherein it reins-
tructed the jury that, if its finding of zero dollars in
damages ‘‘was intended to indicate that you believe
there was no loss, calculable or not, that was shown
to have been suffered at all, then when you state a
punitive amount, it ought to be zero, because some
actual loss, even if not calculable, is an element of
tortious interference . . . .’’ (Emphasis altered.) Hi-
Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn.
36; see also Froom Development Corp. v. Developers
Realty, Inc., 114 Conn. App. 618, 638, 972 A.2d 239
(‘‘Regardless of whether there was sufficient evidence
to support the jury’s finding that the trust did not breach
the fiduciary duty owed to the plaintiffs . . . the defen-
dants would still prevail on the count alleging a breach
of fiduciary duty. Even if we were to assume there
was a breach, a defendants’ verdict on this count is
supported by the evidence because there was sufficient
evidence to support the jury’s finding that any breach
did not cause any injury.’’), cert. denied, 293 Conn. 922,
980 A.2d 909 (2009).
We have held previously that ‘‘[a] plaintiff’s verdict
with a nominal damage award ordinarily suggests that
the jury found that despite the defendant’s liability, the
plaintiff failed to prove damages. . . . [T]he jury’s
intent in rendering a plaintiff’s verdict with zero dam-
ages . . . is far less clear. . . . In this situation, it can-
not be stated with certainty either that the jury found
that the plaintiff had failed to prove any damages or
that the jury was confused as to the correct interplay
between damages and liability.’’ (Internal quotation
marks omitted.) Froom Development Corp. v. Develop-
ers Realty, Inc., supra, 114 Conn. App. 633. Here, how-
ever, the jury’s interrogatories contained neither a
nominal, nor substantial, nor a zero dollar award of
damages. Although the jury in this case responded,
‘‘Yes,’’ to interrogatory number five: ‘‘Did [the] plaintiff
prove that the estate suffered any damages as a result
of the defendant’s breach(es) of fiduciary duty?’’; it left
blank the accompanying table wherein the jury was
instructed to list the particular amounts of damages
that she had suffered as a result of the defendant’s
proven breaches. Thus, much like the trial court in Hi-
Ho Tower, the court in this case was presented with
interrogatories that reasonably could have been inter-
preted in either of two ways: that the plaintiff had
proved harm, but the amount of damages was not quan-
tifiable, or that the plaintiff had failed to prove that she
was harmed at all, resulting in a failure of proof as to
the defendant’s liability on the basis of such breaches.
Faced with these two reasonable interpretations as to
what the jury intended by leaving blank the table in
interrogatory number five, the court had the power
to return the jury with the instruction to continue its
deliberations on the issue of liability and clarify its
initial verdict. See Practice Book §§ 16-17 and 16-18. In
a reasonable exercise of its authority, the trial court
attempted to clarify the jurors’ intent—much like the
trial court in Hi-Ho Tower—by reinstructing them, inter
alia, that ‘‘if you’re saying damages would actually exist
then it should be something more than zero; it could
be a dollar, it could be ten dollars, it could be a hundred
dollars. Nominal. Either it should be no damages proved
or damages were proved but a nonzero amount.’’
In these circumstances, we agree with the defendant
that, until the court resolved the potential inconsistency
of returning a plaintiff’s verdict for breach of fiduciary
duty without first finding that the defendant, by one or
more of his proven breaches, had caused the plaintiff
some harm, the initial verdict and interrogatories were
ambiguous, and thus could not have been accepted
pursuant to Practice Book § 16-31.27 See, e.g., Tezack
v. Fishman & Sons, Inc., 173 Conn. 183, 187–89, 377
A.2d 272 (1977).
We further agree with the defendant that once the
jury had returned to continue its deliberations, it had
the power to change its initial plaintiff’s verdict to a
defendant’s verdict on all counts. See Van Nesse v.
Tomaszewski, 265 Conn. 627, 635, 829 A.2d 836 (2003)
(‘‘until the jury rendered a verdict that the court
accepted, the jury was free to change its award regard-
ing the award of noneconomic damages’’); see also
Towhill v. Kane, 147 Conn. 191, 194, 158 A.2d 251 (1960)
(rejecting the claim that ‘‘that the jury, upon reconsider-
ation, were powerless to change their verdicts on the
issue of liability’’). When the jury returned its final ver-
dict, which was complete and legally consistent in all
material respects, and thereafter, orally confirmed for
the court that that was indeed their true and unanimous
verdict, the court was required to accept that verdict
under Practice Book § 16-31. Szlinsky v. Denhup, 156
Conn. 159, 164, 239 A.2d 505 (1968) (‘‘[i]f a verdict in
the proper form is returned by the jury after the jury’s
second reconsideration, it must be accepted by the
court’’), citing State v. Searles, 113 Conn. 247, 256, 155
A. 213 (1931). That, of course, is what the trial court
did. Accordingly, we conclude that the trial court did
not abuse its discretion in declining to accept the jury’s
initial verdict and instead returning the jury to continue
its deliberations.
B
Supplemental Instructions
The plaintiff next claims that the court’s supplemen-
tal jury instructions were erroneous because, inter alia,
the court: (1) deviated from the language in its original
jury charge; (2) conflated the elements of liability with
its instructions on damages; and (3) told the jury to
‘‘ ‘start from scratch,’ ’’ even though the jury had already
determined the issue of liability. The plaintiff maintains
that she was unable to take meaningful exception to
the court’s proposed charges before or after the court’s
supplemental instructions because she was never
informed either that the plaintiff’s verdict form con-
tained findings awarding her punitive damages or that
the jury’s interrogatories indicated that the jury had
found that she was entitled to such damages. She
argues, therefore, that the court’s failure to communi-
cate this information ‘‘impacted the actions taken by
[the] plaintiff’s counsel and [was] reflected in counsel’s
silence and failure to object to subsequent proceedings
and instructions by the court.’’ The plaintiff thus argues
that these claims were adequately preserved when she
presented her first motion to set aside the verdict.
The defendant responds that the plaintiff’s claims of
instructional error are not reviewable on appeal
because they were not properly preserved at trial. This
is so, the defendant argues, because the plaintiff ‘‘raised
no objection to any of [the] instructions’’ she now chal-
lenges on appeal until she filed her first motion to set
aside the verdict. The defendant argues that the plaintiff
was aware that the jury had reportedly reached a verdict
and that there were inconsistencies within the interrog-
atories. At no point, however, did the plaintiff request
to see the interrogatories or attempt to clarify whether
there were other inconsistencies in the interrogatories.
The defendant thus argues, under Practice Book § 16-
20 and applicable case law, that the plaintiff’s failure
to take exception to the court’s proposed instructions
until after the jury had already returned a valid defen-
dant’s verdict should preclude the plaintiff from chal-
lenging those instructions on appeal. We agree with
the defendant.
Pursuant to Practice Book § 60-5: ‘‘The court shall
not be bound to consider a claim unless it was distinctly
raised at the trial or arose subsequent to the trial. . . .’’
‘‘As we have repeatedly reiterated, issues not properly
raised before the trial court will ordinarily not be con-
sidered on appeal. . . . We have referred to the policy
reasons underlying the preservation requirement on
several occasions. The policy serves, in general, to elim-
inate the possibility that: (1) claims of error would be
predicated on matters never called to the attention of
the trial court and upon which it necessarily could have
made no ruling in the true sense of the word; and (2)
the appellee . . . would be lured into a course of con-
duct at the trial which it might have altered if it had
any inkling that the [appellant] would . . . claim that
such a course of conduct involved rulings which were
erroneous and prejudicial to him.’’ (Citation omitted;
internal quotation marks omitted.) Willow Springs Con-
dominium Assn., Inc. v. Seventh BRT Development
Corp., 245 Conn. 1, 48, 717 A.2d 77 (1998), citing Skrzy-
piec v. Noonan, 228 Conn. 1, 13, 633 A.2d 716 (1993).
With respect to claims of instructional error, Practice
Book § 16-20 provides in relevant part: ‘‘An appellate
court shall not be bound to consider error as to the
giving of, or the failure to give, an instruction unless
the matter is covered by a written request to charge
or exception has been taken by the party appealing
immediately after the charge is delivered. Counsel tak-
ing the exception shall state distinctly the matter
objected to and the ground of objection. . . .’’ Thus,
in order ‘‘[t]o preserve an exception to a jury instruction
for further review under Practice Book § 16-20, a party
must either submit a written request to charge or state
distinctly the matter objected to and the ground of
objection. . . . It is our long-standing position that [t]o
review [a] claim, which has been articulated for the
first time on appeal and not before the trial court, would
result in a trial by ambuscade of the trial judge.’’ (Cita-
tion omitted; emphasis in original; internal quotation
marks omitted.) Socci v. Pasiak, 137 Conn. App. 562,
572, 49 A.3d 287, cert. denied, 307 Conn. 919, 54 A.3d
563 (2012). ‘‘The purpose of the rule is to alert the court
to any claims of error while there is still an opportunity
for correction in order to avoid the economic waste
and increased court congestion caused by unnecessary
retrials.’’ (Internal quotation marks omitted.) Pestey v.
Cushman, 259 Conn. 345, 373, 788 A.2d 496 (2002).
After reviewing our case law and considering the
policies underlying Practice Book § 16-20, we conclude
that the plaintiff failed to adequately preserve this issue
for our review. We are also cognizant that, at the time
the court provided its supplemental jury instructions,
the plaintiff had at her disposal several procedural safe-
guards that, if utilized, could have revealed the contents
of the jury’s initial verdict and interrogatories, including
its answers to interrogatories concerning her claim for
punitive damages on the claim of breach of fiduciary
duty. To begin with, plaintiff’s counsel was present
when the court, upon receiving the jury’s first note,
marked as court exhibit 18, announced that the jury
was reporting that it had reached a verdict. The word
‘‘verdict’’ was repeated thereafter on several occasions
when the court addressed the jury about the problems
with its initial verdict and interrogatories, clearly put-
ting counsel on notice that the jury was about to return
a plaintiff’s verdict that might include findings as to
her right to recover punitive damages. Moreover, after
giving the jury supplemental instructions on the princi-
ples of nominal damages, the court stated to counsel,
outside the presence of the jury: ‘‘I mean, technically
I could accept zeros and the appellate courts have said
that they are not going to reverse if you have a plaintiff’s
verdict of zero . . . but I’m not going to get into that
as long as I’ve spotted it early enough.’’ (Emphasis
added.) At no point, however, did the plaintiff request
to have the verdict and interrogatories read aloud prior
to discussing the court’s proposed supplemental
instructions.28 See, e.g., Intelisano v. Greenwell, 155
Conn. 436, 450, 232 A.2d 490 (1967); Gillette v.
Schroeder, 133 Conn. 682, 685, 54 A.2d 498 (1947). Simi-
larly, the plaintiff neither requested to review the inter-
rogatories nor did she inquire on the record as to
whether the verdict form contained findings as to puni-
tive damages prior to assenting to the court’s proposed
supplemental instructions. See, e.g., Towhill v. Kane,
supra, 147 Conn. 193–94. Finally, after waiving the sec-
ond reading of the verdict and interrogatories, the plain-
tiff declined the court’s invitation to have the jury
polled.
At oral argument before this court, the plaintiff was
unable to articulate why she did not ask the trial court
if she could inspect the jury’s initial interrogatories.
Had she done so, she would have learned of the jury’s
answers to those interrogatories regarding punitive
damages and, thereafter, could have taken exception
to the court’s supplemental instructions while there
was a meaningful opportunity for the court to rule on
the issues. She failed to do so. Accordingly, she has not
adequately preserved this issue for our consideration.
II
We finally address the plaintiff’s claims of error in
the exclusion of evidence at trial, as initially raised at
trial and later renewed in the plaintiff’s second motion
to set aside the verdict. The plaintiff first claims that
the court abused its discretion in declining to admit
her exhibit 88 as a full exhibit because it was ‘‘central
to [the] plaintiff’s proof.’’ The plaintiff asserts that
exhibit 88 would have served four substantive purposes:
(1) it would have demonstrated that the defendant
breached his fiduciary duties by failing to keep contem-
poraneous time records of the work he performed as
both executor of and attorney for the estate; (2) it would
have served as a ‘‘powerful tool of impeachment’’ during
the defendant’s examination by the plaintiff, and thus
would have provided the jury with additional evidence
as to the defendant’s lack of credibility; (3) it would
have enabled the plaintiff ‘‘to more fully prove [the
defendant’s] wanton and reckless conduct’’; and (4) it
would have been ‘‘another source by which [the jury
could] glean information to determine proper damages
to award to the plaintiff.’’29 The plaintiff argues that the
court abused its discretion in declining to admit exhibit
88 into evidence, created ‘‘an impassible burden for the
plaintiff to prove her claims,’’ and ‘‘[t]hus it is clear that
[the] plaintiff was prejudiced . . . as it related to [the]
plaintiff’s ability to prove essential elements of her
claims . . . .’’ For the same reasons, the plaintiff also
claims that the trial court abused its discretion in deny-
ing her second motion to set aside the verdict. In the
alternative, the plaintiff argues that the court abused
its discretion in denying her second motion to set aside
the verdict because the court’s written order failed to
address several arguments advanced in the plaintiff’s
accompanying memorandum of law in support of her
second motion to set aside the verdict.
The defendant responds that exhibit 88 was not rele-
vant to the plaintiff’s allegations in the malpractice
action, and thus the court’s refusal to admit it did not
constitute an abuse of discretion for three reasons.
First, the plaintiff’s second amended complaint, the
operative pleading in the malpractice action, failed to
allege that the amount of the fees claimed by the defen-
dant, by itself, constituted any basis for establishing
either legal malpractice or a breach of fiduciary duty.
Second, to the extent that exhibit 88 could be consid-
ered probative of the allegations actually asserted
within the operative complaint, those allegations, if
proven, would constitute neither a breach of fiduciary
duty nor legal malpractice, and thus exhibit 88 was not
probative on any material issue. Last, the probative
value of such evidence, if any, would have been substan-
tially outweighed by its prejudicial effect. In the alterna-
tive, the defendant argues that the court’s failure to
admit such evidence in the jury trial was harmless error.
With regard to the court’s denial of the plaintiff’s second
motion to set aside the verdict, the defendant asserts
that, contrary to the plaintiff’s argument, the trial court
‘‘thoroughly evaluated the substantive arguments raised
in both the second motion to set aside and the defen-
dant’s objection to it, and addressed all of those . . .
arguments in its . . . decision.’’
After thoroughly reviewing the record, we conclude
that the trial court did not abuse its discretion in not
admitting exhibit 88 into evidence during the malprac-
tice action and that, in any event, the plaintiff failed to
establish harmful error. Because we conclude that the
court did not abuse its discretion in excluding such
evidence from the malpractice action, we further con-
clude that the trial court did not abuse its discretion
in denying the plaintiff’s second motion to set aside the
verdict. See Buchanan v. Moreno, 117 Conn. App. 732,
736–37, 980 A.2d 358 (2009).
The following additional facts are necessary for our
resolution of this claim. In the operative complaint,
the plaintiff alleged that the defendant breached his
fiduciary duty to the estate in fourteen different ways,
including, inter alia, his failure to keep accurate time
records as to the work he performed as executor of
and the attorney for the estate.
During the malpractice action, the plaintiff attempted
on many occasions to introduce exhibit 88, a document
marked for identification, as a full exhibit. On one such
occasion, the plaintiff attempted to introduce exhibit
88 during the examination of Mary Patricia Wilson, a
paralegal employed by the defendant to work on the
administration of the estate. The plaintiff sought to use
exhibit 88 in connection with her testimony as to the
defendant’s billing practices. After lengthy discussion,
the court found that there was no evidence that exhibit
88 had ever been submitted to the plaintiff as a contem-
poraneous bill, but permitted the plaintiff to ask Wilson
the limited question of how the Rendahl estate was
billed, to which she replied, ‘‘I believe it was on a set
fee.’’
During her examination of the defendant, the plaintiff
inquired as to whether he kept time and billing records
in connection with his work for the estate. The defen-
dant responded, ‘‘I kept some records, not complete
records.’’ The plaintiff did not attempt to impeach the
defendant with the contents of exhibit 88 at that time.
The following day, the plaintiff resumed her questioning
of the defendant with regard to his billing practices.
Specifically, the plaintiff questioned the defendant as
to whether he ‘‘attach[ed] an hourly value to the time
expended by Mary Patricia Wilson.’’ The defendant
objected on the grounds of relevance, and the court
instructed the plaintiff ‘‘to ask a different question that
focuses on the claim that’s proper.’’ Thereafter, the
following exchange occurred:
‘‘[The Plaintiff’s Counsel]: In the administration of
this estate did you assign an hourly value to the work
performed by Mary [Patricia] Wilson?
‘‘[The Defendant]: I did the estate on a basis of 2.5
percent.
‘‘The Court: The question—the question is not what
you actually billed. The question is whether you
assigned a value to her work on an hourly basis at
some point?
‘‘[The Defendant]: I would say yes. Yes.
‘‘[The Plaintiff’s Counsel]: Okay, and what was the
hourly value that you assigned to the work performed
by Ms. Wilson in this estate?
‘‘[The Defendant’s Counsel]: Objection to relevance.
‘‘The Court: I’ll allow it. You can answer the ques-
tion, please.
‘‘[The Defendant]: I—I did not charge on the basis
of—
‘‘The Court: Okay, the question is not charging, the
question is what is the value you assigned?
‘‘[The Defendant]: Okay, she’s a lawyer. It’s—about—
I think it’s $350 an hour.
‘‘(Pause)
‘‘[The Plaintiff’s Counsel]: If I could just have a
moment, if Your Honor please?’’
‘‘(Pause)
‘‘[The Plaintiff’s Counsel]: No further questions.
Thank you, very much.’’
At the close of evidence, counsel presented closing
arguments to the jury and thereafter, the jury was
instructed on the law. See part I of this opinion. In
its final verdict, the jury indicated that it had found
unanimously in favor of the defendant on all counts.
In the second set of interrogatories accompanying that
verdict, the jury answered, ‘‘No,’’ to interrogatory num-
ber one: ‘‘Did [the] plaintiff prove that any claimed
breach of fiduciary duty was related to self-dealing,
conflict of interest, or fraud (other than receipt of rea-
sonable fees)?’’ Interrogatory number one instructed
the jury that, ‘‘if the answer is NO, go to interrogatory
#4.’’ The jury then answered, ‘‘No,’’ to interrogatory
number four: ‘‘Did [the] plaintiff prove by a preponder-
ance of the evidence that [the] defendant Frank N. Pel-
uso breached his fiduciary duty owed to the estate as
executor in any or all of the following ways?’’30 Interrog-
atory number four instructed the jury as follows: ‘‘if
the answer to all of them is NO, go to interrogatory
#7.’’ By answering, ‘‘No,’’ to every instance of alleged
misconduct in interrogatory number four, the jury was
instructed not to consider whether the defendant’s
breach of duty proximately caused the plaintiff to suffer
harm, how much damages were incurred, or whether
the defendant acted with reckless indifference.
Although, in the plaintiff’s remaining count of legal mal-
practice, the jury answered, ‘‘Yes,’’ to interrogatory
number ten: ‘‘Did [the] plaintiff, in her capacity as the
beneficiary of the estate of Frances Rendahl, prove
that her relationship with the defendants . . . was the
functional equivalent of an attorney-client relationship,
for purposes of establishing the existence of a duty to
her?’’, the jury found against the plaintiff on each of the
remaining interrogatories, and thus returned a verdict in
favor of the defendant on all counts. With these addi-
tional facts in mind, we turn now to the substance of
the plaintiff’s claims.
Our standard of review is well established. ‘‘The trial
court’s ruling on the admissibility of evidence is entitled
to great deference. . . . [T]he trial court has broad dis-
cretion in ruling on the admissibility . . . of evidence
. . . [and its] ruling on evidentiary matters will be over-
turned only upon a showing of a clear abuse of the
court’s discretion. . . . We will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing, and only upset it for a manifest abuse of discretion.
. . . Moreover, evidentiary rulings will be overturned
on appeal only where there was an abuse of discretion
and a showing by the defendant of substantial prejudice
or injustice. . . . Furthermore, [b]efore a party is enti-
tled to a new trial because of an erroneous evidentiary
ruling, he or she has the burden of demonstrating that
the error was harmful. . . . The harmless error stan-
dard in a civil case is whether the improper ruling would
likely affect the result. . . . When judging the likely
effect of such a trial court ruling, the reviewing court
is constrained to make its determination on the basis
of the printed record before it. . . . In the absence of
a showing that the [excluded] evidence would have
affected the final result, its exclusion is harmless.’’
(Citation omitted; internal quotation marks omitted.)
Desrosiers v. Henne, 283 Conn. 361, 365–66, 926 A.2d
1024 (2007). Where an appellant further alleges that, as
a result of the trial court’s improper evidentiary rulings,
the court abused its discretion in denying a motion to
set aside the verdict, ‘‘[w]e treat [that] claim the same
as the defendants’ claim of evidential impropriety.’’
Buchanan v. Moreno, supra, 117 Conn. App. 736–37.
A
We first dispose of the plaintiff’s claim that the court
should have admitted exhibit 88 into evidence as ‘‘a
powerful tool of impeachment’’ that ‘‘would have elimi-
nated any and all credibility afforded by the jury to the
defendant’s testimony.’’ ‘‘[T]he standard for the preser-
vation of a claim alleging an improper evidentiary ruling
at trial is well settled. This court is not bound to consider
claims of law not made at the trial. . . . [A] party can-
not present a case to the trial court on one theory and
then seek appellate relief on a different one . . . .’’
(Citation omitted; internal quotation marks omitted.)
State v. Santana, 313 Conn. 461, 466–67, 97 A.3d 963
(2014); see also Grody v. Tulin, 170 Conn. 443, 448, 365
A.2d 1076 (1976) (‘‘a party is not entitled to raise issues
on appeal which have not been raised in the trial
court’’).
On appeal, the plaintiff claims that the court abused
its discretion in not admitting exhibit 88 into evidence
because the plaintiff could have used such evidence
to impeach the defendant, thereby ‘‘[highlighting] the
defendant’s low regard for accuracy or truthfulness.’’
The plaintiff, however, failed to assert this theory during
her examination of the defendant.31 Accordingly, we
decline to address the plaintiff’s claim that the court
abused its discretion in declining to admit exhibit 88
for this purpose. See State v. Santana, supra, 313 Conn.
468 (‘‘although a party need not use the term of art
applicable to the claim, or cite to a particular statutory
provision or rule of practice to functionally preserve
a claim, he or she must have argued the underlying
principles or rules at the trial court level in order to
obtain appellate review.’’).
We turn now to the plaintiff’s remaining claims that
exhibit 88 (1) would have demonstrated the defendant’s
breach of fiduciary duty for failing to maintain time
records; (2) would have more fully established the
defendant’s wanton and reckless conduct; and (3)
would have provided the jury with additional evidence
of the damages caused by the defendant’s misconduct.
We conclude that exhibit 88 was not probative as to
whether the defendant breached his fiduciary duty to
the estate under the facts of this case, and thus the
exclusion of such evidence did not amount to an abuse
of discretion.
From the outset, we note that ‘‘[e]vidence is relevant
when it has a logical tendency to aid the trier of fact
in deciding an issue that is material to the determination
of the proceeding.’’ State v. Smith, 275 Conn. 205, 217,
881 A.2d 160 (2005); see also Conn. Code Evid. § 4-1.
Relevance ‘‘embodies two concepts, materiality, and
relevancy or probative value.’’ C. Tait & E. Prescott,
Connecticut Evidence (5th Ed. 2014) § 4.1.2, p. 154.
‘‘The material issues are framed by the pleadings and
are controlled by substantive law.’’ Id., § 4.1.3.
Although we agree with the plaintiff that exhibit 88
was probative as to her allegation that the defendant
failed to maintain adequate time records in connection
with his work as executor of and attorney for the estate,
we conclude that, because the defendant’s compensa-
tion was a fixed percentage of the estate’s value, his
failure to keep time records did not constitute a breach
of fiduciary duty in this case. See Andrews v. Gorby,
237 Conn. 12, 25, 675 A.2d 449 (1996) (‘‘[A]n executor
who also acts as the attorney for the estate is not pre-
cluded from reasonable attorney’s fees solely because
he failed to keep time records for his services’’); cf.
Smith v. Snyder, 267 Conn. 456, 483, 839 A.2d 589 (2004)
(‘‘[a]lthough the better practice is for an attorney . . .
to maintain time records, the failure to do so does not
preclude the court from determining and awarding an
attorney’s fee’’) (Borden, J., concurring). Indeed, at oral
argument before this court, the plaintiff admitted that
her expert witness, Peter Mott, did not testify that a
failure to keep contemporaneous time records while
working on a fixed percentage fee constituted a breach
of fiduciary duty; instead, he testified merely that it was
better practice to keep such records to the extent that
‘‘it makes it [less] difficult later on to deal with [a poten-
tial] challenge’’ as to the amount of fees claimed.
Accordingly, to the extent that exhibit 88 was relevant
as to the plaintiff’s allegation that the defendant failed to
maintain time records, we conclude that that allegation,
even if established, would not constitute a breach of
fiduciary duty under the facts of this case. As such, that
allegation was not a material issue in the malpractice
action, and thus its exclusion in the malpractice action
was not an abuse of discretion. See Desrosiers v. Henne,
supra, 283 Conn. 365–66. Because we conclude that
the court did not abuse its discretion in not admitting
exhibit 88 into evidence for that purpose, we further
conclude that the court did not abuse its discretion in
denying the plaintiff’s second motion to set aside the
verdict on that ground. See Buchanan v. Moreno, supra,
117 Conn. App. 736–37.
We also reject the plaintiff’s claims that exhibit 88
would have provided evidence of the defendant’s wan-
ton and reckless misconduct, as well as evidence from
which the jury could derive an amount of compensatory
damages suffered. ‘‘It is well established that evidence
as to the expressions and arguments of the jurors in
their deliberations and evidence as to their own
motives, beliefs, mistakes and mental operations gener-
ally, in arriving at their verdict is excludable in postver-
dict proceedings as immaterial. . . . That rule has been
aptly described as applying the parol evidence rule to
a jury’s verdict, so that [the jurors’] outward verdict as
finally and formally made, and not their prior and pri-
vate intentions, is taken as exclusively constituting the
act.’’ (Internal quotation marks omitted.) Hall v. Berg-
man, supra, 296 Conn. 179–80. In its final verdict, the
jury in this case found that the plaintiff had failed to
prove by a preponderance of the evidence that the
defendant committed any breach of fiduciary duty.32
Pursuant to the instructions within the interrogatories,
the jury was instructed that, if it found no breach of
fiduciary duty had occurred, it was to proceed past
those questions regarding the amount of damages suf-
fered or whether the defendant acted with reckless
indifference. Accordingly, the jury did not consider and
made no finding as to whether the plaintiff suffered
harm or whether she was entitled to recover punitive
damages. Without first reaching and making findings
as to either of these factual predicates, we conclude
that there is no basis to furnish the relief requested by
the plaintiff. For the same reason, we further conclude
that the trial court did not abuse its discretion in denying
the plaintiff’s first motion to set aside the verdict on
these grounds.
B
Finally, we dismiss the plaintiff’s remaining claim
that, in denying her second motion to set aside the
verdict, the trial court abused its discretion by not
addressing the plaintiff’s argument that exhibit 88
‘‘would have proved additional elements of [the] plain-
tiff’s complaint, and specifically that the defendant
failed to maintain adequate time records.’’
We first note our agreement with the defendant that
the trial court thoroughly considered and examined the
legal arguments presented by the plaintiff in its order
denying her second motion to set aside the verdict.
Further, to the extent that the court did not expressly
address her claim that exhibit 88 would have demon-
strated a breach of fiduciary duty for failing to maintain
adequate time records, the plaintiff failed to file a
motion for articulation on this particular ground. ‘‘[W]e
read an ambiguous record, in the absence of a motion
for articulation, to support rather than undermine the
judgment. . . . Because the [plaintiff] did not seek the
trial court’s articulation in that regard, we must assume
[that] the [court] acted properly. . . . Absent an articu-
lation regarding the legal basis for the trial court’s deci-
sion, a claim of error cannot be predicated on the
assumption that the trial court acted erroneously.’’
(Citation omitted; internal quotation marks omitted.)
In re Kyara H., 147 Conn. App. 855, 871 n.11, 83 A.3d
1264, cert. denied, 311 Conn. 923, 86 A.3d 468 (2014);
see Ippolito v. Olympic Construction, LLC, 163 Conn.
App. 440, 451 n.6, 136 A.3d 653, cert. denied, 320 Conn.
934, 134 A.3d 623 (2016). Finally, as we have already
concluded in part II A of this opinion, that allegation,
even if proven to be true, would not constitute a breach
of fiduciary duty under the facts of this case. In light
of the foregoing, we conclude that the trial court did
not abuse its discretion in denying the plaintiff’s second
motion to set aside the verdict.
The judgment is affirmed.
In this opinion the other judges concurred.
* April 28, 2017, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
For reasons more fully explained throughout this opinion, the plaintiff
vehemently disagreed with several components of this valuation.
2
The other coexecutor of the estate, Scott Carroll Knauer, predeceased
Frances M. Rendahl. Accordingly, the defendant was appointed as the sole
executor of the estate.
3
At trial, the plaintiff testified that she had never received this engagement
letter and claimed that she was unaware of the mathematical basis for the
defendant’s fee. The defendant later testified that the plaintiff had not signed
the engagement letter but maintained that he had disclosed his fees.
4
Under the terms of her will, the testator expressed the desire to have
the defendant occupy both roles of executor and attorney because ‘‘[the
defendant’s firm was] familiar with my estate, and they have in the past
assisted me in legal matters.’’
5
Testimony at trial revealed that, prior to her death, the decedent had
inherited her brother’s house in Florida. The plaintiff was named as the
decedent’s personal representative with respect to the Florida property.
With the defendant’s assistance, the plaintiff hired another attorney, Bruce
Benenfeld, to oversee the ancillary probate proceedings in Florida concern-
ing this property.
6
This figure represented a home equity line of credit that the decedent
had opened originally in 1990 to maintain her standard of living. Although
the original line of credit was for only $39,000, the decedent continued to
use that line of credit throughout the following sixteen years, resulting in
a balance of $775,387.42 on the date of the decedent’s death. By the date of
the estate’s 2007 inventory filing, that balance had been reduced to $749,834.
7
As previously stated, the estate’s reported gross value was approximately
$3.083 million. From that number, the defendant subtracted $1.608 million
in deductions, including, inter alia: $204,874 in funeral and probate expenses;
the plaintiff’s $536,914 personal loan to her mother; and $791,946 in mort-
gages, property taxes, and liens. Thus, the reported tentative taxable estate
was approximately $1,475,451.
8
Attorney Johnson testified that there was a ‘‘short period of time where
Connecticut had a Cliff rate and estates [valued] in excess of two million
dollars [paid] tax based on the full two million dollars.’’ Thus, he explained,
‘‘if [you were] over two million dollars, you are going to pay tax on the full
two million dollars’’ at a rate of ‘‘7.2 percent.’’
9
The defendant claimed that he incurred these fees ‘‘in responding to the
objections to the executor’s final account by the sole beneficiary of the
estate . . . .’’ Peluso v. Probate Appeal, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-05-013414-S, 2012 WL 898753, *1 (Hon.
Alfred J. Jennings, Jr., judge trial referee).
10
Although our analysis of the plaintiff’s claim of improper evidentiary
rulings implicates the fee appeal, as the fee appeal was tried simultaneously
to the court alongside the malpractice action, we note that neither the merits
of the fee appeal nor the merits of the removal appeal are before this court
in the instant appeal.
11
See footnote 10 of this opinion.
12
See footnote 10 of this opinion.
13
Practice Book § 16-31 states: ‘‘Subject to the provisions of Section 16-
17, the judicial authority shall, if the verdict is in order and is technically
correct, accept it without comment.’’
14
Prior to trial, the defendant filed a motion to strike the plaintiff’s third
count of wilful, wanton and reckless misconduct, her fourth count of breach
of contract, her fifth count of conversion, and her sixth count of civil theft.
Thereafter, on June 5, 2013, the trial court, Povodator, J., ordered that the
fourth, fifth, and sixth counts be stricken, but denied the defendant’s motion
with respect to the third count of wilful, wanton and reckless misconduct.
Following the close of evidence, the defendant orally moved for a directed
verdict on the plaintiff’s seventh count, alleging a violation of CUTPA. The
court subsequently granted that motion. Thus, at the time the jury was
instructed of the law, its consideration was limited to the following claims:
one count of breach of fiduciary duty with respect to the estate; one count
each of legal malpractice with respect to the plaintiff in her individual
capacity, as sole beneficiary of the estate, and as to the plaintiff in her
representative capacity, as administratrix of the estate; and one count of
wilful, wanton and reckless misconduct as a basis for seeking enhanced
relief from the defendant, in the form of punitive damages, on each of the
plaintiff’s claims of breach of fiduciary duty and legal malpractice.
15
The interrogatories provided by the court were subdivided into three
sections, as follows: part one included interrogatory questions one through
six, and dealt with the plaintiff’s claim of breach of fiduciary duty; part two
included interrogatory questions seven through nine, and dealt with the
plaintiff’s claim of legal malpractice against the defendant, in her capacity
as administratrix of the estate; and part three included interrogatory ques-
tions ten through thirteen, and dealt with the plaintiff’s claim of legal mal-
practice against the defendant, in her capacity as beneficiary of the estate.
The final interrogatory, interrogatory number fourteen, was a damages sum-
mary table wherein the jury was instructed to report the total amount of
damages, if any, that the plaintiff had proven to have had suffered.
16
In the initial set of interrogatories, the jury indicated in interrogatory
number four that the plaintiff had breached his fiduciary duty to the estate
in five specific ways, more particularly, by: (1) failing to timely transfer real
property to the plaintiff; (2) improperly including the corpus of a trust in
the estate; (3) causing a delay in administering the estate; (4) improperly
retaining joint account funds; and (5) misplacing approximately $90,000 of
stock for a year and a half.
17
Although the court remarked, prior to its supplemental instructions,
that the jury had placed ‘‘zeros for all [of] those losses’’ in interrogatory
number five, the portion of the initial interrogatories to which the court
was referring does not contain zeros. Rather, the jury merely circled that
entire portion of the interrogatories and placed a question mark in the
margin beside it.
18
After reviewing the jury’s initial interrogatories, we conclude that the
jury’s second note referred to the damages summary table in interrogatory
number fourteen and not the table accompanying interrogatory number five.
See footnotes 15 and 17 of this opinion.
19
The following exchange occurred outside the presence of the jury:
‘‘Attorney Laney: Your Honor—Your Honor, before Sandra exits stage
right—
‘‘The Court: Yes.
‘‘Attorney Laney: —are you proposing to send them a brand-new blank
set of interrogatories?
‘‘The Court: We’re going to mark this one as—yes. We’re going to mark
the old one as—
‘‘Attorney Laney: Well, shouldn’t they have what they are working from
so they know what they’ve already answered?
‘‘The Court: All right.
‘‘Attorney Laney: I mean, they have reached zeros on certain things.
‘‘The Court: Well, they are saying that the zeros are things that they didn’t
really even find liability on.
‘‘Attorney Laney: Right. But if you give them a blank set—
‘‘The Court: All right. Give them a blank—okay. Just tell them to keep,
preserve the old one. Tell them to preserve the old one.
‘‘The Clerk: Okay.
‘‘The Court: All right. Anything further from either side?
‘‘Attorney Laney: No, Your Honor.
‘‘Attorney Russell: No, Your Honor.’’
20
In the final set of interrogatories, the jury made the following findings:
(1) with respect to the plaintiff’s claim for breach of fiduciary duty, the jury
found that the plaintiff had failed to prove that the defendant had breached
his fiduciary duty in any of the ways alleged in her operative complaint;
(2) with respect to the plaintiff’s claim of legal malpractice, brought in her
capacity as administratrix of the estate, the jury found that the plaintiff had
failed to prove that the defendant ‘‘departed from the standard of profes-
sional care owed by an attorney to the estate’’; and (3) with respect to the
plaintiff’s claim of legal malpractice, in her capacity as beneficiary of the
estate, the jury found that, although the plaintiff’s relationship with the
defendant was ‘‘the functional equivalent of an attorney-client relationship,’’
the plaintiff had failed to prove that the defendant ‘‘departed from the
standard of professional care owed by an attorney to the beneficiary of the
estate . . . .’’
21
See footnote 16 of this opinion.
22
Practice Book § 16-18 states in relevant part: ‘‘The judicial authority
may submit to the jury written interrogatories for the purpose of explaining
or limiting a general verdict, which shall be answered and delivered to the
clerk as a part of the verdict. . . . The judicial authority will not accept a
verdict until the interrogatories which are essential to the verdict have
been answered.’’
23
See footnote 13 of this opinion.
24
Practice Book § 16-34 states: ‘‘Upon an inquiry into the validity of a
verdict, no evidence shall be received to show the effect of any statement,
conduct, event or condition upon the mind of a juror nor any evidence
concerning mental processes by which the verdict was determined. Subject
to these limitations, a juror’s testimony or affidavit shall be received when
it concerns any misconduct which by law permits a jury to be impeached.’’
25
See footnote 13 of this opinion.
26
The defendant further argues that the initial interrogatories contained
inconsistent findings because, on one hand, the jury indicated that the
defendant engaged in self-dealing, fraud or conflict of interest—yet, on the
other hand, indicated that the defendant had proven, by clear and convincing
evidence, that any benefit gained from the estate was the product of fair
dealing and was not the product of self-dealing, fraud or a conflict of interest.
We agree with the defendant that these findings raise a colorable issue
as to whether the initial interrogatories contained legally inconsistent
answers. We decline to address this alternative argument, however, because
at this stage of the proceedings, the initial interrogatories contain excessive
markings, circling, cross-outs, and the use of at least two different pens to
modify preexisting answers. Accordingly, we are unable to discern and
decline to speculate as to whether the initial interrogatories contained these
inconsistent findings when they were first presented to the court.
27
We are also reminded of our long-standing jurisprudence that it is ‘‘nei-
ther [the act of] giving assent to the verdict in the jury-room, nor the signing
of a writing there, nor the delivery of it to the clerk, absolutely bound the
conscience of the juror, but it was what he assented to in open court that
[constitutes] the verdict . . . .’’ McCaskey Register Co. v. Keena, 81 Conn.
656, 660, 71 A. 898 (1909); see also Ferris v. Hotel Pick Arms, Inc., 147
Conn. 72, 74, 157 A.2d 106 (1959) (noting that ‘‘the final assent of the jurors,
given after the verdict has been read aloud by the clerk, accepted and
ordered recorded by the court, and read aloud a second time by the clerk,
makes the verdict’’); cf. Tisdale v. Riverside Cemetery Assn., supra, 78
Conn. App. 260–61, citing McCaskey Register Co. v. Keena, supra, 660.
It is undisputed on this record that the initial verdict form and interrogato-
ries were not read aloud, nor did the jury assent to those findings in open
court. Accordingly, the plaintiff’s reliance on the mandatory language of
Practice Book § 16-31 is misplaced.
28
The plaintiff makes a related argument that the court had the duty to
inform her that the jury had found punitive damages in her favor and that
the court’s failure to do so was reversible error. Arguably, she is correct in
her assertion that the court should have apprised counsel of all of the
inconsistent answers within the interrogatories. See Intelisano v. Greenwell,
155 Conn. 436, 450, 232 A.2d 490 (1967) (‘‘Intelisano also claims that the court
should have had the verdict in the first case read aloud before instructing the
jury to reconsider. His claim is correct. The proper procedure is outlined
in Watertown Ecclesiastical Society’s Appeal, 46 Conn. 230, 232 [1878].
Needless deviations from this procedure invite appeals, although failure to
follow it is not necessarily reversible error.’’). Better practice would be for
the court to first review the verdict form and the interrogatories in their
entirety in order to apprise itself of all of the potential inconsistencies
therein. Thereafter, the court should address those inconsistencies with
counsel outside the presence of the jury. We conclude, however, that the
court’s failure to do so in this case did not amount to reversible error.
29
The plaintiff also asserts that the primary purpose of offering exhibit
88 into evidence was in support of her allegation that the defendant violated
CUTPA. On March 25, 2015, following the close of evidence, the defendant
moved for a directed verdict on the plaintiff’s CUTPA claim. Although the
trial court, Povodator, J., reserved its ruling as of that date, the trial court
subsequently found, ‘‘during the course of a charge conference . . . that
the plaintiff had failed to present sufficient evidence to allow the claim
under CUTPA to be submitted to the jury, and eliminated all references to
CUTPA from the charge and interrogatories.’’ Thereafter, on March 31, 2015,
the court formally granted the defendant’s motion for a directed verdict on
the plaintiff’s CUTPA claim.
On appeal, the plaintiff does not challenge the propriety of the trial court’s
order granting the defendant’s motion for a directed verdict on this count.
We thus deem this claim abandoned and, accordingly, decline to consider
exhibit 88’s relevance to the plaintiff’s CUTPA claim. See Heyward v. Judi-
cial Dept., 159 Conn. App. 794, 804, 124 A.3d 920 (2015) (‘‘[b]ecause the
[plaintiff] . . . failed to adequately brief any cognizable claim of error
regarding the court’s dismissal of the counts . . . we deem the claim
abandoned’’).
30
Below interrogatory number four, the parties had submitted a table
wherein the jury was to circle ‘‘yes’’ or ‘‘no’’ next to each allegation as to
why the defendant breached his fiduciary duty. Included amongst those
potential breaches of duty were allegations that the defendant failed to keep
accurate time records of the work being performed as executor and attorney
for the estate.
31
Although the plaintiff did attempt to impeach the defendant with a
prior inconsistent statement as to whether the defendant was still pursuing
additional fees from the plaintiff, the plaintiff did not attempt to impeach
the defendant’s testimony with the contents of exhibit 88.
32
See footnote 20 of this opinion.