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Rendahl v. Peluso

Court of Appeals of Connecticut

April 28, 2017

JOY M. RENDAHL, ADMINISTRATRIX (ESTATE OFFRANCES M. RENDAHL)
v.
FRANK N. PELUSO ET AL.

          Argued November 30, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Povodator, J.

          Philip Russell, with whom, on the brief, was Catherine Keenan, for the appellants (plaintiffs).

          Robert C. E. Laney, with whom was Shivani J. Desai, for the appellees (defendants).

          Sheldon, Alvord and Gruendel, Js.

          OPINION

          SHELDON, J.

         The plaintiff, Joy M. Rendahl, individually 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 executor 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. Thereafter, 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 reversal 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 relevant 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 helping to construct the plaintiff's family home in Greenwich, 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 plaintiff'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 estimated 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 coexecutors 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 thereafter, 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 attorney, 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 defendant 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 Florida[5]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 defendant 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 plaintiff 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 perfecting that claim. The defendant responded by informing her that, although she was the sole beneficiary 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 Johnson had provided the defendant with sufficient documentation 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 Connecticut 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 submitted 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 rate[8] of 7.2 percent tax on its total net assets. The following week, on July 30, 2007, the defendant received an ‘‘Opinion of No Connecticut Estate Tax Due, '' which was certified and signed by the Probate Court. As for the estate's federal estate tax return, the defendant reported on Form 706 that the estate had utilizeda ‘‘maximum unified credit'' of $780, 800to 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 Service, 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 concerns 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 executor 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, 687inexecutor'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 defendant to produce evidence justifying his claimed entitlement 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 preparing 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 district 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 malpractice 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 fiduciary duty; legal malpractice; wilful, wanton, and reckless misconduct; breach of contract; conversion; civil theft, inviolation of General Statutes§ 52-564; and violation 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 plaintiff 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. Accordingly, the plaintiff . . . requests a new trial, or alternatively, 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 interrogatories, 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 interrogatories, those answers were inherently contradictory, resulting in an initial verdict that was incomplete, inconsistent, and incomprehensible. The defendant thus argues that the court did not abuse its discretion in declining to accept the initial verdict pursuant to Practice 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 alternative, 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 defendant, 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 established 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 damages is not required; only such definiteness as is appropriate 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 evidence presented at trial and not speculation or conjecture.'' (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 recklessly, 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 follows: ‘‘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 entitlement to damages. You also will be receiving a defendant'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 interrogatories 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, without 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 number 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 concerning 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 numbers; 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 counsel, 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 damages, 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 damages 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, proximate 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 plaintiff did not object or take exception to these supplemental 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 interrogatories 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 transcribe their prior findings onto the fresh set of interrogatories.[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 objection to this proposal, and so the jury's initial interrogatories 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 verdict 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 counsel 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 counsel 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 plaintiff 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 reckless 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 interrogatories 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 interrogatory 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 four[21]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 fiduciary duty was outrageous and showed a reckless indifference to the rights of others or an intentional and wanton violation of those rights?''; interrogatory number 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 portion 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 interrogatories 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 malpractice 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 conducted a posttrial hearing on the plaintiff's postverdict 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, inconsistent 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 §§ 16-18[22] 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 complete 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 separate 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 liability ‘‘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 ...


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