Rendahl v. Peluso

******************************************************

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.