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Iino v. Spalter

Appellate Court of Connecticut

September 10, 2019

Elizabeth Spalter IINO
Diane Rogers SPALTER, Executrix (Estate of Harold Spalter)

         Argued April 16, 2019

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          Superior Court in the judicial district of Stamford-Norwalk, where the court, Lee, J.

          Alexander Copp, Danbury, with whom were David B. Zabel, Bridgeport, and, on the brief, Barbara M. Schellenberg, Orange, for the appellant (defendant).

         Hugh D. Hughes, New Haven, for the appellee (plaintiff).

         Elgo, Bright and Beach, Js.


         BRIGHT, J.

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          [192 Conn.App. 423] The defendant, Dianne Rogers Spalter, executrix of the estate of Harold Spalter, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Elizabeth Spalter Iino, the biological daughter of Harold Spalter, the decedent (decedent). On appeal, the defendant claims that the trial court improperly (1) denied her motion to dismiss for lack of personal jurisdiction, (2) admitted certain evidence, (3) permitted the jury to find her liable for punitive damages without evidence as to the plaintiff’s litigation expenses and reserved to itself the issue of the amount of punitive damages to be awarded, and (4) denied her motion to set aside the verdict, which alleged that there was insufficient evidence that the plaintiff suffers from psychological trauma caused by childhood sexual abuse. We agree with the defendant’s [192 Conn.App. 424] third claim. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

         The following procedural history provides a sufficient foundation for our analysis. Following the death of the decedent, the plaintiff brought a two count complaint against the defendant executrix of the decedent’s New York estate, alleging that the decedent repeatedly had sexually abused her in Connecticut from the time she was six years old until she reached the age of seventeen. She claimed extreme trauma, mental anguish and psychological injuries, and that such injuries were permanent. The first count of her complaint alleged intentional sexual abuse, and the second count alleged reckless sexual abuse. The plaintiff requested compensatory damages and punitive damages. Following a trial, the jury found in favor of the plaintiff on the first count of her complaint, and it returned a verdict awarding her $15 million in compensatory damages.[1] The jury also found that the plaintiff was entitled to an award of punitive damages, but it was not asked to determine the amount of the punitive damages to be awarded. The court rendered judgment in accordance with the jury’s verdict, reserving to itself a finding as to the amount of punitive damages, to be determined later. The relevant facts and additional procedural history will be set forth as necessary throughout this opinion.


          The defendant claims that the trial court improperly denied her motion to dismiss for lack of personal jurisdiction. She argues that the court’s denial of her motion to dismiss was improper because "asserting jurisdiction over a New York executrix with absolutely no ties to Connecticut ... violate[s] due process." She contends that, despite its agreement that the defendant [192 Conn.App. 425] "had no appreciable contacts in Connecticut ... the trial court denied the motion to dismiss on the ground that [the decedent’s] contacts with Connecticut were sufficient to support jurisdiction.... The trial court erred by failing to base its decision on [the] defendant’s complete lack of contacts with this state." We disagree.

          The standard of review for a court’s decision on a motion to dismiss is well settled. "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.... [O]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo." (Internal quotation marks omitted.)

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Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

          Although, "[a]s a general matter, the burden is placed on the defendant to disprove personal jurisdiction ... [i]f the defendant challenging the court’s personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff’s burden to prove the court’s jurisdiction." (Citations omitted; internal quotation marks omitted.) Id., at 515, 923 A.2d 638. "When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. The trial court must first decide whether the applicable state’s long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Id., at 514-15, 923 A.2d 638. Thus, on the basis of the facts in the record, this court must determine whether our long arm statute, General Statutes § 52-59b,[2] properly applies to [192 Conn.App. 426] the defendant and, if that statutory threshold is met, whether the defendant, acting as executrix of the estate of the decedent, has the requisite minimum contacts with this state sufficient to satisfy constitutional due process concerns. See id.

          In the present case, the defendant does not contest that the statutory threshold has been met. Indeed, she never cites § 52-59b in her primary appellate brief or in her reply brief. Rather, the defendant argues that her right to due process of law has been violated by the court’s assertion of jurisdiction over her because she, personally, has no minimum contacts with our state. Specifically, she argues that "[a]lthough a long arm statute may change [the common-law rule regarding jurisdiction over a nonresident defendant] as a matter of state law, it does not alter the minimum contacts requirement under the United States constitution, which require[s] analysis into [the] [d]efendant’s contacts with the forum state." (Emphasis in original.) Accordingly, we consider whether the exercise of personal jurisdiction over the defendant is proper under the due process clause of the fourteenth amendment to the federal constitution; see [192 Conn.App. 427] U.S. Const., amend. XIV, § 1; which limits the jurisdiction of state courts called on to render judgments against nonresident defendants. See Samelko v. Kingstone Ins. Co., 329 Conn. 249, 265, 184 A.3d 741 (2018), citing

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Kulko v. Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). We agree with the multitude of cases and § 358 of the Restatement (Second) of Conflict of Laws, which have considered this issue and have concluded that, if the relevant long arm statute would have permitted the court to exercise jurisdiction over the decedent had he been living, the due process clause of the federal constitution is not offended by that statute also permitting the exercise of jurisdiction over the decedent’s executrix, who stands in the shoes of the decedent for purposes of the action. See 2 Restatement (Second), Conflict of Laws § 358, p. 421 (1971) ("[a]n action may be maintained against a foreign executor or administrator upon a claim against the decedent when the local law of the forum authorizes suit in the state against the executor or administrator and (a) suit could have been maintained within the state against the decedent during his lifetime because of the existence of a basis of jurisdiction other than mere physical presence").

         "In the past, common law directed that an executor could only be sued in the state in which he was appointed. See Martel [v. Stafford, 992 F.2d 1244, 1246 (1st Cir. 1993)] (discussing Massachusetts common law rule); Gandolfo v. Alford, 31 Conn.Supp. 417, 333 A.2d 65, 66 (1975) (stating ‘that the general common-law rule is an executor or administrator of an estate can sue and be sued only in a jurisdiction in which he has been so appointed’). However, within the last several decades, many state legislatures have abrogated that common law notion by enacting long arm statutes which expressly provide for jurisdiction over the executor if jurisdiction could have been maintained over the decedent. See [192 Conn.App. 428] Eubank Heights Apartments, Ltd. v. Lebow, 615 F.2d 571, 574 (1st Cir. 1980) (concluding that jurisdiction over the decedent’s estate was appropriate if the Texas long arm statute would have provided jurisdiction over the decedent had he not died); Nile v. Nile, 432 Mass. 390, 734 N.E.2d 1153, 1159 (2000) (holding that the Massachusetts long-arm statute provides for jurisdiction over a non-resident personal representative when the decedent had sufficient contacts with the forum such that the decedent would have been subject to personal jurisdiction had he lived); V.H. v. Estate of Birnbaum, 543 N.W.2d 649, 655 (Minn. 1996) (concluding that ‘the decedent’s foreign personal representative is subject to in personam jurisdiction under the long-arm statute if the decedent would be subject to jurisdiction if alive’); Hayden v. Wheeler, 33 Ill.2d 110, 210 N.E.2d 495, 497 (1965) (holding that the foreign administrator of a deceased non-resident was subject to jurisdiction under the Illinois state long-arm statute because decedent would have been subject to jurisdiction had he lived); Gandolfo [v. Alford], supra, [at 425, 333 A.2d 65] (holding that Connecticut’s long-arm statute modified the common law rule and granted Connecticut’s courts jurisdiction over suits brought against an executor of a foreign estate when the non-resident decedent could have been sued in Connecticut if he had lived)." K. Hesse & C. Fields, "Representing Estate & Trust Beneficiaries & Fiduciaries: Get Me to the Court on Time: Jurisdiction and Choice," ALI-ABA Course of Study, SR003 ALI-ABA 67, 81-82 (July 2009).

         "In deciding whether an executor is subject to suit in a particular jurisdiction, a [federal] district court looks to the law of the forum state. Many state long-arm [statutes] include the executor, administrator, or other personal representative of a person within the long-arm jurisdiction of a state as also being within the long-arm jurisdiction. It has generally been held that such [statutes] are constitutional even though only the [192 Conn.App. 429] decedent, and not his or her representative, had any contact with the forum jurisdiction ...." (Footnotes

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omitted.) 28 Fed. Proc., L.Ed. § 65:23 (June 2019 Update); see Rosenfeld v. Hotel Corp. of America, 20 N.Y.2d 25, 228 N.E.2d 374, 281 N.Y.S.2d 308 (1967) (thoroughly discussing constitutionality of state court obtaining in personam jurisdiction over nonresident executors, although such nonresident executors had committed no acts and transacted no business in state, but decedent had transacted such business); see also SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 180-81 (2d Cir.), cert. denied, 531 U.S. 824, 121 S.Ct. 68, 148 L.Ed.2d 33 (2000) ("[w]hether the [e]state is subject to long-arm jurisdiction in Louisiana with respect to SongByrd’s cause of action depends on whether [the decedent] would have been subject to such jurisdiction during his lifetime"); Crosson v. Conlee, 745 F.2d 896, 900-901 (4th Cir. 1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1759, 84 L.Ed.2d 822 (1985) ("There can be no doubt that personal jurisdiction could have been obtained over [the decedent] during his lifetime, as he had operated a business in Virginia .... Accordingly, we hold that personal jurisdiction was properly obtained over defendant, a Florida executor, under the Virginia long-arm statute, notwithstanding the absence of any assets of the decedent’s estate in Virginia"); Steego Corp. v. Ravenal, 830 F.Supp. 42, 48 (D. Mass. 1993) ("Massachusetts courts will permit personal jurisdiction over an executor where there would have been personal jurisdiction over the testator while he was still living").

         The defendant relies on three cases to support her contention that she, personally, must have sufficient minimum contacts with this state to support the court’s exercise of jurisdiction over her. Specifically, she cites Walden v. Fiore, 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014), [192 Conn.App. 430] Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980), and Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), for the proposition that sufficient minimum contacts must arise out of the contacts that the defendant executrix, personally, had with the forum state. We conclude that each of those cases is inapposite from the present case. None of them involves or speaks to an action that could have been brought in the forum state against a decedent had he still been alive, but, instead, by necessity, due to the death of the decedent, was brought against the executrix of the decedent’s estate, who stood in the shoes of the decedent for purposes of the action.

         In the present case, the action brought by the plaintiff could have been brought against the decedent for the tortious acts he committed while in this state . The action names the defendant, not because of any act or failure to act on her part, but because she is standing in the shoes of the decedent. See 2 Restatement (Second), supra, § 358; id., comment (d), pp. 422-23; id., reporter’s note to comment (d), pp. 425-26, and cases cited therein. Given the well established precedent on the constitutionality of a court’s exercise of long arm jurisdiction in accordance with its statutory authority, we conclude that the court in the present case did not violate the defendant’s right to due process of law by exercising jurisdiction over her because she had stepped into the shoes of the decedent when she became the executrix of his estate. Accordingly, the court properly denied the defendant’s motion to dismiss.


         The defendant claims that the trial court improperly admitted certain evidence, which she claims was highly prejudicial and likely affected the outcome of the trial. Specifically, she argues that the court erred in (1) admitting "evidence of verbal

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and physical abuse allegedly [192 Conn.App. 431] perpetrated by [the decedent] on [the] plaintiff and [on] third parties," and (2) admitting "hearsay evidence[3] purporting to be from a 1997 journal, the original of which was discarded by [the] plaintiff’s attorney during the course of [the] litigation." (Footnote added.) After setting forth our standard of review, we will consider each of these in turn.

          "To the extent [that] a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review.... We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law, however, for an abuse of discretion.... Additionally, [b]efore a party is entitled 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 standard in a civil case is whether the improper ruling would likely affect the result." (Internal quotation marks omitted.) LM Ins. Corp. v. Connecticut Dismanteling, LLC, 172 Conn.App. 622, 627-28, 161 A.3d 562 (2017).


          The defendant claims that the court erred in admitting evidence of verbal and physical abuse committed by the decedent and that such evidence was highly prejudicial, likely affecting the outcome of the trial. She argues that she "filed a motion in limine seeking to preclude evidence of claimed verbal and physical abuse of [the] [192 Conn.App. 432] plaintiff’s brothers (Jonathan [Spalter], Alan [Spalter], and Michael Spalter) on the ground that such evidence was not relevant and constituted improper character and/or propensity evidence, particularly because it effectively allowed statutorily time-barred claims of third parties to be brought before the jury.... The trial court denied the motion in limine .... The trial court erred by admitting this evidence." (Citation omitted.)

          The plaintiff argues that the evidence was relevant to explain the plaintiff’s fear of the decedent and why she delayed reporting his sexual abuse, and that the defendant failed to object to much of the testimony that she now claims was admitted improperly. The plaintiff contends that the defendant’s motion in limine did not serve to preserve her objections to each and every bit of testimony related to the decedent’s verbal and physical abuse of the plaintiff and her brothers because the court stated that it was delaying its ruling on the admissibility of this evidence until it was offered at trial, thereby necessitating that the defendant object to the specific evidence as it was being offered. The plaintiff also argues that any improper admission by the trial court was harmless.

         The following additional facts inform our review. The defendant filed a motion in limine to "preclude evidence of alleged other crimes, wrongs, or bad acts" committed by the decedent, including alleged physical or emotional abuse by the decedent against the family dog, the plaintiff, and

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the plaintiff’s brothers, on the ground that it was "improper character and/or propensity evidence." She also argued that the evidence was not relevant and that its prejudicial effect significantly would outweigh its probative value. The court held a hearing on the defendant’s motion, and other items, on February 7, 2017, at which the court explained, " [192 Conn.App. 433] Connecticut Code of Evidence [§ 4-5][4] appl[ies] to both civil and criminal cases.... So, what this means, to the extent evidence of [the decedent’s] abuse of other people and the dog ... are offered, I will need to do a two part test before I can admit it. I have to make a determination as to relevance, and I also have to weigh the probative value of the evidence against the prejudicial effect of the evidence, and that needs to be done ... out of the hearing of the jury." (Footnote added.) Consistent with this explanation, the court, also on February 7, 2017, issued a short written ruling denying the motion in limine because "[e]vidence of other wrongs and acts is admissible for certain purposes pursuant to [§ ] 4-5 (c) of the Connecticut Code of Evidence, provided it is relevant and that its probative value outweighs any prejudicial effect."

         The record reflects that the defendant clearly was told that the court, although denying the motion in limine, was reserving judgment on specific objections to evidence of other wrongs or acts until the evidence was offered at trial. Later in the February 7, 2017 hearing, the parties were discussing the admissibility of portions of depositions regarding allegations of physical [192 Conn.App. 434] and emotional abuse committed by the decedent to which the defendant objected. The plaintiff’s attorney told the court that he would be telling the jury during opening argument that the plaintiff was terrified of the decedent because of his sexual abuse and his violent acts toward her, her brothers, and her dog. He also stated that he would explain to the jury that this is why she waited until he died to disclose this abuse publicly and file this action; it helped to explain her fearful state of mind during his lifetime. The defendant’s attorney responded: "The fact that opposing counsel wants to make some statements in opening argument about evidence that may or may not come in is his choice. The court doesn’t have before it the information at this point in time sufficient to rule [on] whether ... the evidence that will be offered comes in under [§ 4-5 (c) of the Connecticut Code of Evidence]. There are significant issues about that evidence. We would be severely prejudiced by the introduction of evidence.... And so, if counsel wants to make statements in opening argument, he can state whatever he wants to, but, as [with] any opening argument, Your Honor, you take the chance if you want to make statements about evidence that may or may not come in; that’s

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their choice. The court should not make rulings on evidence at this point in time based upon what [the] plaintiff’s counsel says he wants to say in opening argument." The court responded: "All right then. What I understand you [to] say is you would object to my ruling, but not to him raising these, these concepts."

          The following day, February 8, 2017, when the plaintiff was on the witness stand, she brought up an incident involving the decedent and her brothers, and the following colloquy occurred:

          "[The Defendant’s Attorney]: Your Honor, may I state my objection for the record?

          "The Court: Sure.... Yes, go ahead.

         [192 Conn.App. 435] "[The Defendant’s Attorney]: Okay. And so I would object and move to strike that response to the extent that, again, Your Honor, it seems to have been nonresponsive to the question that I understood [the plaintiff’s attorney to be] asking, which was directed at an incident of alleged sexual abuse. And we claim that objection based on the fact that we have a pending objection to incidents of physical abuse.

         "The Court: Well, let’s be clear about that. I don’t acknowledge a pending objection.[5] There is— you [filed] a motion in limine, and I said we would take it in turn, as necessary. But I do not— pending objections are not favored in Connecticut practice, and I don’t [favor them] either. So, and it hasn’t stopped you from raising objections when you felt it appropriate. And, so that’s the status of that. In terms of this one, I’ll reserve [ruling] pending connection to the witness.

          "[The Defendant’s Attorney]: Thank you, Your Honor. And I understand that, thank you."

          The defendant now argues that her motion in limine preserved her objections to every instance of evidence regarding allegations that the decedent committed acts of physical, verbal, or emotional abuse.[6] We disagree. [192 Conn.App. 436] The court explained to the parties during the hearing on the defendant’s motion in limine that its

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denial of the defendant’s motion was only a preliminary ruling, because it thought that some of the evidence likely would be admissible at trial. Additionally, the court clearly reiterated, the following day, that the defendant was required to object to specific evidence at the time it was offered, and it told the defendant that it would not recognize a standing objection to evidence on this issue; the defendant’s attorney then told the court that he understood.

         We conclude, therefore, that in order to preserve her objections, the defendant needed to object each time evidence was offered on the issue so that the court could consider the evidence in the context for which it was being offered. See Birkhamshaw v. Socha, 156 Conn.App. 453, 468, 115 A.3d 1 (objections not preserved by motion in limine when court clearly stated it would not rule in vacuum by issuing blanket prohibition because some evidence might be admissible; court left issue "open for objection during trial as specific testimony was offered"), cert. denied, 317 Conn. 913, 116 A.3d 812 (2015). Accordingly, after setting forth additional relevant facts, we will examine the specific evidence that the defendant in her appellate brief now claims was admitted improperly.

          In response to the plaintiff’s revised complaint, the defendant filed five special defenses, including a defense that "[t]he plaintiff’s claims are barred or diminished to the extent she failed to take proper and reasonable steps to avoid or mitigate damages." The plaintiff [192 Conn.App. 437] denied each of the special defenses. As explained previously in this opinion, the plaintiff’s attorney told the court that he would be telling the jury during his opening statement that the plaintiff was terrified of the decedent because of his sexual abuse and his violent acts toward her, her brothers, and her dog, and that this was why she waited until he died to disclose this abuse and file this action. He said this information would be used to explain her fearful state of mind during the decedent’s lifetime and her inability to bring an action before his death. The defendant’s attorney responded by saying that counsel could argue whatever he wanted during his opening statement but that it did not mean the evidence of which he spoke would be admissible.

          During opening argument, the plaintiff’s attorney argued, in part, that he believed that the evidence would show that the decedent "serially and repeatedly abused [the plaintiff] sexually for his own gratification from the time she was six years old to the time she was seventeen, [and] that he kept her in abject fear of him for his entire life by his acts and his violence that she witnessed as a child ...." The defendant’s attorney argued: "[W]e expect that [the plaintiff] will come into court and take the [witness] stand and testify that she was afraid to bring this suit or to bring a suit during [the decedent’s] lifetime. In fact, we expect [the plaintiff] to come in and testify that she thought about suing [the decedent] ... for years and that she even thought about it as far back as the 1990s, but that she couldn’t bring herself to do it. She only found the courage after [the decedent] died. But, we think that once you’ve heard everything, once you’ve listened to the testimony, once you’ve seen the record, the evidence that comes in, that [the] evidence will tell a very different story. And that story ... is that [the decedent’s] death is actually the reason for this lawsuit, because when [the decedent died] ... he left a will. And [the decedent’s] [192 Conn.App. 438] will ...

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