Yuille v. Parnoff ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
DARCY YUILLE v. LAURENCE V.
PARNOFF ET AL.
(AC 40381)
Keller, Prescott and Pellegrino, Js.
Syllabus
The plaintiff sought to recover damages for, inter alia, conversion and statu-
tory theft from the defendant P, who had represented the plaintiff in
an arbitration matter, claiming that P had misappropriated funds that
had been held in escrow pending resolution of a dispute of the parties
concerning attorney’s fees in the arbitration matter. After the jury
returned a verdict in favor of the plaintiff on the counts alleging conver-
sion and statutory theft, the trial court rendered judgment in part for
the plaintiff, from which P appealed to this court. Held:
1. P could not prevail on his claim that the trial court abused its discretion by
ordering him to commence trial after allowing his attorney to withdraw,
without affording him time to obtain new counsel: the court specifically
found that P was responsible for the breakdown in the attorney-client
relationship by refusing to cooperate with his attorney and to give the
attorney the authorization necessary to work on the case, P, who had
been informed that the court would consider a current letter from a
medical provider stating that it would jeopardize P’s physical or mental
well-being to appear in court, did not attach a letter containing such a
statement to his motion to remove the case from the trial list, at the
time the case was ordered for trial it was three and one-half years old,
the issues presented were not complex, and, as a matter of docket
management, the court had the discretion to schedule the matter for
trial; accordingly, under the circumstances here and on the basis of the
continuing pattern of dilatory behavior evidenced by P, the court did
not abuse its discretion by ordering that the parties commence trial.
2. P could not prevail on his claim that the verdict in favor of the plaintiff
on the counts of conversion and statutory theft was irreconcilably incon-
sistent with the verdict in his favor on the count alleging breach of
fiduciary duty, which was based on his claim that the jury could not
have found a conversion or theft of the funds at issue without also
finding that he had a fiduciary obligation to the plaintiff to maintain
those funds for her benefit; although the jury had answered no to an
interrogatory that asked whether it found that P had advanced his own
interest, to the detriment of the plaintiff, acting as her attorney, P failed
to negate the reasonable hypothesis that the jury concluded that he was
not acting as the plaintiff’s attorney at the time that he converted the
funds, and, thus, the jury’s answer to the interrogatory could be harmo-
nized with the verdict.
3. P’s claim that the trial court improperly declined to submit his special
defense of waiver to the jury was unavailing; there having been no
evidence in the case to support a finding that the plaintiff had waived
her right to recover the disputed funds, the trial court properly declined
to submit the special defense of waiver to the jury.
Argued November 13, 2018—officially released April 9, 2019
Procedural History
Action to recover damages for, inter alia, conversion,
and for other relief, brought to the Superior Court in
the judicial district of Fairfield where the court, Rad-
cliffe, J., bifurcated the case as to the defendant Barbara
A. Parnoff; thereafter, the matter was tried to a jury;
verdict and judgment in part for the plaintiff, from
which the named defendant appealed to this court.
Affirmed.
John R. Williams, for the appellant (named
defendant).
Kenneth M. Rozich, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The defendant, Laurence V. Parnoff1
(Parnoff), appeals from the judgment rendered, follow-
ing a jury trial, in favor of the plaintiff, Darcy Yuille,
on the counts of Yuille’s complaint alleging conversion
and statutory theft. On appeal, Parnoff claims that (1)
the trial court abused its discretion by ordering him to
commence trial on extremely short notice, (2) the ver-
dict in Yuille’s favor on counts one and two is irreconcil-
ably inconsistent with the verdict in Parnoff’s favor on
count three, and (3) the court improperly declined to
submit any of the special defenses to the jury. We dis-
agree and, accordingly, affirm the judgment of the
trial court.2
The following facts, as set forth in the prior opinions
of this court in Parnoff v. Yuille, 139 Conn. App. 147,
57 A.3d 349 (2012) (Parnoff I), cert. denied, 307 Conn.
956, 59 A.3d 1192 (2013) and Parnoff v. Yuille, 163 Conn.
App. 273, 136 A.3d 48 (Parnoff II), cert. denied, 321
Conn. 902, 138 A.3d 280 (2016), and procedural history
are relevant to our resolution of the defendant’s claims.3
In 1998, Yuille retained Parnoff to represent her in an
action against Bridgeport Hospital. Parnoff I, supra,
152. The parties’ fee agreement provided for a contin-
gent fee of 40 percent. Id. On June 29, 2004, an arbitra-
tion panel awarded Yuille $1,096,032.93 in damages. Id.,
153. Parnoff sent an invoice to Yuille that included an
attorney’s fee representing 40 percent of the gross set-
tlement proceeds. Id. Yuille objected to the fee and
Parnoff subsequently brought an action against Yuille
to recover the fee. Id., 154. Parnoff’s action alleged
breach of contract, quantum meruit and bad faith. Id.,
154–55. Following a trial, the jury found in favor of
Parnoff on the breach of contract counts and, thus, did
not reach the quantum meruit count. Id., 157–58.
On appeal, this court held that the parties’ fee
agreement exceeded the cap contained in General Stat-
utes § 52-251c and, therefore, was unenforceable as
against public policy. Id., 169, 172. This court reversed
the judgment in favor of Parnoff on the breach of con-
tract counts and ordered that those counts be dismissed
on remand. Id., 173. The trial court later rendered judg-
ment for Yuille on the quantum meruit count, which
this court affirmed on appeal, concluding that an attor-
ney ‘‘who is barred from contract recovery because of
the contract’s failure to comply with the fee cap statute
cannot recover under the doctrine of quantum meruit.’’
Parnoff II, supra, 163 Conn. App. 275, 277.
In 2013, Yuille commenced the present action alleging
that Parnoff had misappropriated funds that had been
held in escrow pending resolution of the parties’ fee
dispute. The operative amended complaint alleged con-
version, statutory theft pursuant to General Statutes
§ 52-564,4 and breach of fiduciary duty. At the conclu-
sion of the evidence, the court denied Parnoff’s motion
for a directed verdict. The jury returned a verdict in
favor of Yuille on the counts alleging conversion and
statutory theft, and for Parnoff on the count alleging
breach of fiduciary duty. The court subsequently ren-
dered judgment for Yuille on the conversion and statu-
tory theft counts in the total amount of $1,480,336.37.
Parnoff then filed the present appeal. Additional facts
will be set forth as necessary.
I
Parnoff first claims that the court abused its discre-
tion by ordering that he commence trial after allowing
his attorney to withdraw, without affording him time
to obtain new counsel. We disagree.
We first set forth our standard of review. ‘‘The trial
court has a responsibility to avoid unnecessary interrup-
tions, to maintain the orderly procedure of the court
docket, and to prevent any interference with the fair
administration of justice. . . . In addition, matters
involving judicial economy, docket management [and
control of] courtroom proceedings . . . are particu-
larly within the province of a trial court. . . . Accord-
ingly, [a] trial court holds broad discretion in granting
or denying a motion for a continuance. Appellate review
of a trial court’s denial of a motion for a continuance
is governed by an abuse of discretion standard that,
although not unreviewable, affords the trial court broad
discretion in matters of continuances.’’ (Citations omit-
ted; internal quotation marks omitted.) Peatie v. Wal-
Mart Stores, Inc., 112 Conn. App. 8, 12, 961 A.2d
1016 (2009).
The following facts are necessary for the resolution
of this claim. Yuille commenced this action in 2013.
There was little activity in the case between December
4, 2013, when Parnoff filed his answer and special
defenses, and January 26, 2017, when the court, Bellis,
J., ordered that trial was to begin on January 31, 2017.5
On January 30, 2017, Yuille filed a reply to Parnoff’s
special defenses. Also on January 30, 2017, counsel for
Yuille filed a motion to continue the case until March
1, 2017, on the ground that he had only recently been
retained by Yuille. The court denied Yuille’s motion,
stating: ‘‘The defendants, indeed all parties were fully
aware that their case was exposed to trial on one hour’s
notice as their counsel at the time were all told and
agreed to same when the court granted yet another
continuance in a very old case. As it turned out, the
parties were given [five] days notice of their trial date
rather than the one hour’s notice.’’
On January 30, 2017, Attorney Michael S. Lynch, on
behalf of the law firm of Bai, Pollock, Blueweiss &
Mulcahey, P.C. (law firm), filed a motion to withdraw
the law firm’s appearance as counsel for Parnoff and
Barbara A. Parnoff. The basis for the motion was that
‘‘the attorney-client relationship [did] not exist in that
there [was] a severe breakdown in communication
between attorney and clients and the attorney is not
authorized to represent or act on behalf of the clients.’’
Specifically, after noting the complicated history
between these parties and the disputed attorney’s fees,
the motion indicated that in December, 2016, Parnoff
had advised in writing that the law firm was required to
obtain his authorization prior to performing any further
work on his file. After attending the status conference
in which the matter was ordered to trial, Lynch indi-
cated that he repeatedly requested authorization from
Parnoff to work on the file; Parnoff, however, did not
provide the necessary authorization. Under these cir-
cumstances, Lynch and the law firm requested permis-
sion to withdraw their appearance in this matter.
At the hearing on the motion to withdraw on February
2, 2017, the court, Bellis, J., stated: ‘‘[B]efore I hear
from either or both of the Parnoffs, I just want to point
out that the case is very old, that there’s been four trial
dates in it, and there will not be a continuance of the
trial date. I do note that . . . there was a motion for
stay that was filed back in September, 2015, asking for
a stay for the purposes of the Parnoff v. Yuille case to
be decided as opposed to any other case, and so there
was a brief stay but that was years into the case.
‘‘So when the case was last continued, counsel at
the time on both sides were informed that I would
reluctantly grant . . . that latest continuance but that
when the decision was issued by the Connecticut
Supreme Court, that the case would be on one hour’s
notice and it would . . . immediately proceed to trial
because, quite frankly, I did not want to continue the
case the last time.
‘‘So here we are. The case is on trial. It will not be
continued again due to the age of the case and the many
continuance requests . . . .’’
Over the course of the hearing on the motion to
withdraw, Lynch reiterated what he had stated in his
motion, namely, that he did not have the ability to
defend Parnoff because Parnoff had not authorized him
to do the work. The court questioned Parnoff regarding
whether he would cooperate with counsel; Parnoff,
however, did not provide a clear response to the court’s
questions. The court considered a letter from Parnoff
to Attorney Charles Fleischmann of the law firm, dated
December 14, 2016, in which Parnoff notified the law
firm that it should not perform any further work for
which he would be billed without his written approval.
The court also considered a series of emails from Lynch
to Parnoff in which Lynch notified Parnoff of the court’s
January 26, 2017 order setting deadlines for the filing
of trial management reports and proposed stipulations
of fact. Parnoff, however, had not authorized Lynch
to proceed.
At the conclusion of the hearing on the motion to
withdraw, the court stated: ‘‘Well . . . I’m going to find
good cause to grant the motion. I’m going to find that
there is a breakdown in the relationship and communi-
cations, and I’m going to find further that it was caused,
Attorney Parnoff, by your refusal to cooperate with
your attorney based on the information and evidence
before me, and that you put Attorney Lynch in a no-
win position where he was not given—where he was
attempting to do what was required to do to defend
you properly, and that you—your instructions to him
were to not do anything and you did not respond, so
there is not any way that he can properly represent you
based on all this information.’’6 Before court adjourned
on February 2, 2017, Parnoff indicated that he was going
to try to find an attorney to represent him during the
trial but that he did not know how long it was going
to take. In response, the court stated that ‘‘[i]t was your
choice not to cooperate with your attorney and not to
give him authorization to do what needed to be done,
so because of that I’m not going to continue the case.’’
On February 3, 2017, Parnoff informed the court that
he was on medication and was not practicing as a com-
missioner of the Superior Court. The court stated that
it had previously informed all counsel that, with respect
to a continuance, it would consider a current letter from
a medical provider indicating that it would jeopardize
Parnoff’s physical or mental well-being to appear in
court. Such a letter was not provided to the court. The
court also noted that Parnoff had an active law license
and remained a commissioner of the Superior Court.7
On February 7, 2017, Barbara A. Parnoff filed a
motion for a continuance in which she requested that
the matter be removed from the trial list in order for
her to find an attorney to represent her in the matter.
The same day, Parnoff filed a motion to remove the
case from the trial list to allow reasonable time for trial
preparation. In his motion, Parnoff stated that he had
worked on this case with Attorney Paul Pollock of the
law firm, who had retired, and Fleischmann, who had
not responded to his December, 2016 letter. He indi-
cated that he first learned that this case was ordered
to trial on January 26, 2017, when he was in court on
an unrelated matter. Parnoff did not state in the motion,
however, that he was going to find another attorney
to represent him. He stated, rather, that ‘‘[n]either the
undersigned nor his wife have any experience as
defense attorneys or in defense litigation and both have
long-standing medical conditions for which treatment
is continuing . . . .’’ Parnoff attached, as an exhibit to
his motion, a letter from an outpatient mental health
treatment coordinator indicating that Parnoff had a
medical appointment scheduled for February 7, 2017.
Prior to jury selection on February 7, 2017, the court,
Radcliffe, J., considered Parnoff’s motion to remove
the case from the trial list. At that time, Parnoff
described this motion as ‘‘a motion to get the thing off
the trial list; to stop with the proceedings and . . . have
[this matter] placed on a trial list in a period of time
that unrepresented people who thought they were being
represented for the last three or four years have an
opportunity to get trial counsel.’’ Judge Radcliffe ini-
tially referred both motions to Judge Bellis, as she had
previously ruled on these issues. After consulting with
Judge Bellis, however, Judge Radcliffe bifurcated the
matter as to Barbara A. Parnoff and ordered that jury
selection would begin that afternoon in the case against
Parnoff. The evidence in the case against Parnoff com-
menced on February 14, 2017, almost two weeks after
the date that Judge Bellis had set for the commence-
ment of trial.
In support of his argument that the trial court abused
its discretion by ordering him to commence trial on
extremely short notice, Parnoff points out that this was
a complex case and both sides had promptly requested
that the matter be continued. He contends that the case
was old because of the many collateral appeals and
that the prior continuance requests were appropriate.
He further argues that a continuance would not have
had an adverse impact upon the witnesses or the relia-
bility of the evidence, and that he had submitted medical
evidence demonstrating his inability to cope with the
complexity of the matters at hand. Finally, Parnoff con-
tends that the denial of the continuance had a devasta-
ting impact upon his ability to defend the action.
Specifically, Parnoff contends that throughout all of the
lawsuits and appeals over the years originating from
this set of facts, he had never represented himself. He
contends that, in addition to the disputed funds at issue,
this case also involved his license to practice law, and
that he should not have been expected to represent
himself in the matter.
On the basis of our review of the record, we disagree
with Parnoff that the court abused its discretion by
ordering this matter to trial. It is important to note that
six years had elapsed between June 29, 2004, the date
that Yuille received her arbitration award in this matter;
Parnoff I, supra, 139 Conn. App. 153; and July 26, 2010,
the date that Parnoff misappropriated the funds that
had been placed in escrow pending resolution of the
parties’ dispute. Another six and one-half years had
passed before the court’s January 26, 2017 order direct-
ing that this matter was scheduled for trial. During this
time, in addition to Parnoff I, supra, 147, and Parnoff
II, supra, 163 Conn. App. 273, Yuille had also filed a
grievance against Parnoff, alleging that he had violated
the Rules of Professional Conduct by transferring and
commingling the funds; this proceeding resulted in a
formal reprimand being issued against Parnoff. Disci-
plinary Counsel v. Parnoff, 324 Conn. 505, 511, 513,
152 A.3d 1222 (2016). Moreover, Parnoff, an attorney
with an active law license, as noted by the trial court,
was a party to all of this litigation and would have had
firsthand knowledge of the underlying proceedings and
complicated history involving the disputed funds.
In the present case, the court specifically found that
Parnoff was responsible for the breakdown in the attor-
ney-client relationship by refusing to cooperate with
Lynch and to give him the authorization necessary to
work on the case. It was for this reason the court stated
that it was not going to grant a continuance to Parnoff
after granting Lynch’s motion to withdraw. Parnoff was
informed that the court would consider a current letter
from a medical provider stating that it would jeopardize
his physical or mental well-being to appear in court.
Although Parnoff attached a letter to his motion to
remove the case from the trial list, that letter indicated
that Parnoff had an appointment on February 7, 2017,
and did not state that it would jeopardize Parnoff’s
physical or mental well-being to appear in court.
At the time this case was ordered for trial, it was
over three and one-half years old and the parties’ fee
dispute had been the subject of multiple related law-
suits. Prior to the court’s January 26, 2017 order, this
case had previously been set down for trial on Septem-
ber 24, 2014, September 24, 2015, and November 17,
2015. Five pretrial conferences had also been sched-
uled.8 Moreover, despite the complicated history of this
case, the issues presented in this matter were not com-
plex. The court had the discretion, as a matter of docket
management, to schedule this matter for trial. See Pea-
tie v. Wal-Mart Stores, Inc., supra, 112 Conn. App. 12.
Under these circumstances, and on the basis of the
continuing pattern of dilatory behavior evidenced by
Parnoff, we conclude that the court did not abuse its
discretion by ordering that the parties commence trial.
II
Parnoff next claims that the verdict in Yuille’s favor
on the counts alleging conversion and statutory theft is
irreconcilably inconsistent with the verdict in Parnoff’s
favor on the count alleging breach of fiduciary duty,
and that he is, therefore, entitled to have the verdict
set aside. We disagree.
The following facts are necessary for the resolution of
this claim. The operative complaint alleged conversion,
statutory theft, and breach of fiduciary duty. The factual
basis for each of these causes of action was the same.
Specifically, Yuille alleged that in 1998, she retained
Parnoff to represent her in an action against her
employer. After prevailing in this action and receiving
an arbitration award in the amount of $1,096,032.93, she
learned that her fee agreement with Parnoff, pursuant
to which Parnoff was to receive a fee of 40 percent of
her recovery, violated a state statute. She, therefore,
disputed Parnoff’s entitlement to a fee of $438,413.17.
On November 16, 2004, Yuille agreed that Parnoff could
pay himself $125,000 from the 40 percent he was claim-
ing as a fee, on the condition that the balance of the
fee would be held in escrow pending resolution of the
fee dispute. That same day, Parnoff established an
account in his name as trustee for Yuille in which he
placed the balance of the disputed fee.9
According to Yuille’s complaint, in March, 2005, Par-
noff commenced an action against her claiming that
she had breached her contract with him by refusing to
pay him the full 40 percent contingency fee provided
in the parties’ retainer agreement. Following trial in
that case, the jury awarded Parnoff $252,044.27. On July
13, 2010, the court rendered judgment in accordance
with the verdict. Yuille alleged that despite the auto-
matic stay provisions of Practice Book § 61-11, and the
fact that the entitlement to the disputed funds remained
undecided pending appeal of Parnoff’s prior action, on
July 26, 2010, Parnoff transferred the sum of $363,960.87
from the escrow account to his personal account, thus
misappropriating the funds from the 2004 arbitration
award. Yuille further alleged that as a result of the
decisions by this court in Parnoff I, supra, 139 Conn.
App. 147, and Parnoff II, supra, 163 Conn. App. 273,
she was entitled to the full amount of the funds that
Parnoff held in escrow prior to the July 26, 2010 transfer.
At the conclusion of the trial, the jury returned a
verdict for Yuille in the amount of $363,960.87 on the
conversion count and $1,091,882.61 on the statutory
theft count, for a total of $1,455,843.48 in damages.10
The jury returned a verdict for Parnoff on the count
alleging breach of fiduciary duty. An interrogatory sub-
mitted to the jury on the breach of fiduciary duty count
asked: ‘‘Do you find that the defendant, Laurence V.
Parnoff, advanced his own interest, to the detriment of
the plaintiff, Darcy Yuille, acting as her attorney?’’ The
jury responded ‘‘NO’’ in response to this interrogatory.
According to Parnoff, the sole basis for Yuille’s con-
version and statutory theft claims was that the specific
funds in question had been sequestered in his Interest
on Lawyers’ Trust Account for her benefit, and that
he thereafter took those funds from that account and
placed them in his personal account. Parnoff contends
that the jury could not have found a conversion or
theft of those funds without also finding that he had a
fiduciary obligation to Yuille to maintain those funds for
her benefit.11 Parnoff argues that, because the verdict
is irreconcilable and inconsistent, it must be set aside
and a new trial ordered.
‘‘When a claim is made that the jury’s answers to
interrogatories in returning a verdict are inconsistent,
the court has the duty to attempt to harmonize the
answers.’’ (Internal quotation marks omitted.) Suarez
v. Dickmont Plastics Corp., 242 Conn. 255, 270, 698
A.2d 838 (1997). ‘‘The role of an appellate court where
an appellant seeks a judgment contrary to a general
verdict on the basis of the jury’s allegedly inconsistent
answers to such interrogatories is extremely limited.
. . . To justify the entry of a judgment contrary to a
general verdict upon the basis of answers to interrogato-
ries, those answers must be such in themselves as con-
clusively to show that as [a] matter of law judgment
could only be rendered for the party against whom the
general verdict was found; they must [negate] every
reasonable hypothesis as to the situation provable
under the issues made by the pleadings; and in
determining that, the court may consider only the issues
framed by the pleadings, the general verdict and the
interrogatories, with the answers made to them, without
resort to the evidence offered at the trial.’’ (Citation
omitted; internal quotation marks omitted.) Id., 269–70.
‘‘A verdict that is inconsistent or ambiguous should be
set aside.’’ Kregos v. Stone, 88 Conn. App. 459, 470,
872 A.2d 901, cert. denied, 275 Conn. 901, 882 A.2d
672 (2005).
In the present case, the interrogatory submitted to
the jury asked whether it found that Parnoff had
advanced his own interest, to the detriment of Yuille,
acting as her attorney. Parnoff has not negated the
reasonable hypothesis that the jury concluded that he
was not acting as Yuille’s attorney at the time that he
converted the funds. In fact, Yuille’s complaint alleged
that, on November 16, 2004, after the parties’ fee dispute
arose, Parnoff established an account in his name as
trustee for Yuille in which he placed the balance of the
disputed fee and that Parnoff had sued Yuille to recover
the full 40 percent of the contingency fee in March,
2005. It was a reasonable hypothesis for the jury to
believe that at the time Parnoff converted the funds
in 2010, he was no longer acting as Yuille’s attorney.
Accordingly, because the jury’s answer to the interroga-
tory can be harmonized with the verdict, Parnoff cannot
prevail on his claim that the verdict is irreconcilably
inconsistent.
III
Parnoff’s final claim is that the court improperly
declined to submit his special defense of waiver to the
jury.12 We disagree.
The following facts are necessary for the resolution
of this claim. On December 4, 2013, Parnoff filed his
answer and special defenses. The special defenses
alleged, inter alia, that Yuille’s claims were barred by
the doctrines of equitable estoppel, unjust enrichment,
res judicata and collateral estoppel. The special
defenses also alleged that Yuille had failed to mitigate
damages, had breached the implied covenant of good
faith and fair dealing, and had waived possession of the
funds by failing to file a counterclaim or seek affirmative
relief to obtain a right to the possession of the funds.13
On January 30, 2017, in response to the court’s order,
Yuille filed a reply to Parnoff’s special defenses.
On February 14, 2017, after the trial had commenced,
Parnoff filed an amended answer and special defenses.
In addition to the allegations contained in the December
4, 2013 special defenses, the amended special defenses
alleged that Yuille’s claims were barred by the doctrine
of unclean hands, the applicable statutes of limitations
and the doctrine of accord and satisfaction. The
amended special defenses also alleged that any amounts
due to Yuille should be reduced and set off by certain
other sums. Yuille did not file a reply to the amended
answer and special defenses.14
Prior to the start of the evidence, the court indicated
that it would charge the jury on Parnoff’s special
defenses if they were supported by the evidence; the
court commented, however, that it ‘‘[had not] seen any-
thing that [it] could really charge on at [that] point.’’
During a break in the cross-examination of Yuille, the
court again indicated that it would submit Parnoff’s
special defenses to the jury if there was any evidence
to support them.15 During the court’s charge to the jury,
the court stated that ‘‘there are various defenses which
were raised here by way of a special defense in which
[Parnoff] made claims that notwithstanding the claims
made by [Yuille] that she could not recover for . . .
one or more of these bases. And the court has examined
the special defenses. And I am not going to instruct
you on, nor should you consider, any of the special
defenses raised in this case.’’ The court then proceeded
to charge on the claims raised by Yuille, namely, conver-
sion, statutory theft and breach of fiduciary duty.16
On appeal, Parnoff argues that he is entitled to a new
trial based on the court’s failure to charge on the special
defense of waiver.17 He contends that he was denied
the right to have the jury decide an issue of fact fairly
presented by the pleadings and the evidence. Specifi-
cally, Parnoff refers to defendant’s exhibit L, an affidavit
signed by Yuille in a prior related action, Parnoff v.
Mooney, Superior Court, judicial district of Fairfield,
Docket No. CV-XX-XXXXXXX-S. In this affidavit, Yuille
averred that she hired Attorney Laura Mooney in 1996
in connection with a workplace injury she sustained in
1995 while employed at Bridgeport Hospital. In 1997,
Yuille authorized Mooney to pursue a bad faith claim
against the hospital for its bad faith handling of her
workers’ compensation claim. In 1998, Yuille retained
Parnoff to represent her in a wrongful termination
claim. Yuille averred that, to her recollection, she did
not authorize Parnoff to bring a bad faith claim, as she
had already hired Mooney to handle that claim. She
later learned, however, that Parnoff had also brought
a bad faith claim on her behalf.
According to the affidavit, after Parnoff advised Yuille
of the arbitration award in her favor on the bad faith
claim he had brought, Yuille advised Parnoff that the
contingency fee of 40 percent that he was seeking to
collect was too high. The affidavit further states that
‘‘[i]n any event, I told Parnoff that any fee from the
award should be split between him and Mooney, since it
was my understanding that they were working together
and he had used her work to prosecute my case.’’ After
Parnoff refused to share the fee, she asked that the fee
from the award be held in escrow pending resolution
of the fee dispute. On the basis of this affidavit, Parnoff
contends that Yuille waived any claim that she might
have against him and in favor of Mooney, who was not
a party to this action.18 We disagree with Parnoff that
this affidavit constitutes evidence in support of his spe-
cial defense of waiver.
‘‘It is well established that waiver is the intentional
relinquishment or abandonment of a known right or
privilege.’’ (Internal quotation marks omitted.) Worth
Construction Co. v. Dept. of Public Works, 139 Conn.
App. 65, 70, 54 A.3d 627 (2012). ‘‘[T]o determine the
presence of waiver, there must be evidence of intelli-
gent and intentional action by the [plaintiff] of the right
claimed to be waived. . . . It must be shown that the
party understood its rights and voluntarily relinquished
them anyway. . . . Each case should be considered
upon the particular facts and circumstances sur-
rounding that case, including the background, experi-
ence and conduct of the party that is waiving its rights.’’
(Internal quotation marks omitted.) Id., 71.
The affidavit by Yuille directing that Parnoff split
the fee with Mooney does not constitute an intentional
relinquishment or abandonment of Yuille’s rights
regarding the disputed funds. At best, Yuille’s statement
in her affidavit is an assertion that Parnoff and Mooney
should split the fee to which they were legally entitled
rather than split the fee that violated the statutory cap
on contingent fees contained in § 52-251c. Moreover,
as the court correctly pointed out when discussing this
affidavit at trial, ‘‘[t]here is no claim by Attorney Mooney
in this case—Attorney Mooney is not a party in this
case, nor is she claiming any title, as far as this court
is aware, to any of the monies that were contained
in the certificate of deposit account and were later
deposited in a personal account by the defendant.’’19
With regard to whether Yuille had waived her right
to the disputed funds, the court was presented with
evidence that Yuille had retained counsel and defended
her interest in the disputed funds from the inception
of the lawsuit in Parnoff I, supra, 139 Conn. App. 147,
through the denial of certification by the Supreme Court
in Parnoff II, supra, 163 Conn. App. 273.
‘‘In determining whether the trial court improperly
refused to give a requested charge, we review the evi-
dence presented at trial in the light most favorable to
supporting the proposed charge. . . . A request to
charge which is relevant to the issues of [a] case and
which is an accurate statement of the law must be given.
. . . If, however, the evidence would not reasonably
support a finding of the particular issue, the trial court
has a duty not to submit it to the jury. . . . Thus, a
trial court should instruct the jury in accordance with
a party’s request to charge [only] if the proposed instruc-
tions are reasonably supported by the evidence.’’ (Cita-
tion omitted; internal quotation marks omitted.)
National Publishing Co. v. Hartford Fire Ins. Co., 287
Conn. 664, 671, 949 A.2d 1203 (2008). Because the evi-
dence in this case did not support a finding that Yuille
had waived her right to recover the disputed funds, we
conclude that the court properly declined to submit
that special defense to the jury. See id.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Barbara A. Parnoff was also named as a defendant in this action. On
February 7, 2017, the trial court bifurcated this matter as to Barbara A.
Parnoff, with the matter proceeding only as against Laurence V. Parnoff.
2
In her brief, Yuille claimed, as an alternative ground for affirming the
judgment of the trial court, that Parnoff’s appeal was untimely, as it was
filed more than twenty days after the verdict was accepted. Yuille withdrew
this claim during oral argument before this court, and, therefore, we need
not consider it in this opinion.
3
The trial court in this matter took judicial notice of the prior Appellate
Court opinions.
4
General Statutes § 52-564 provides: ‘‘Any person who steals any property
of another, or knowingly receives and conceals stolen property, shall pay
the owner treble his damages.’’
5
The order provided: ‘‘This matter is on trial. Trial management reports
are to be filed by 5 p.m. on Monday, January 30, 2017. Proposed stipulations
of fact are to be filed by Tuesday at 9 a.m. Each party is to bring all exhibits,
premarked for identification, on Tuesday morning.’’
6
On appeal, Parnoff has not challenged the court’s conclusion that he
was to blame for the breakdown in the attorney-client relationship.
7
The transcript reveals the following colloquy:
‘‘The Court: [W]hat I don’t have is a letter from a medical provider. As I
told your counsel at the time, what I do not have is a letter from your
medical provider saying that it would jeopardize your physical or mental
health or well-being to appear at court, because that is the standard. Every-
one—we all, we—all of us have different conditions, but—
‘‘[Parnoff]: Your Honor, I—
‘‘The Court: —there is—no, Mr. Parnoff, you can’t interrupt me. You know
better. So right now you have an active license and right now you are a
commissioner of the Superior Court, so that’s just how it is. You haven’t
offered your resignation, so you are a commissioner of the Superior Court
and I’m talking to you as a commissioner of the Superior Court.’’
8
The file reflects that pretrial conferences were scheduled on April 23,
2015, May 14, 2015, June 4, 2015, July 15, 2015, and August 4, 2015.
9
According to the complaint, on November 16, 2004, Parnoff deposited
the sum of $971,032.93 into the trust account, representing the balance
remaining from the original award of $1,096,032.93 less the $125,000 that
Parnoff paid himself. On or about the same date, Parnoff disbursed payments
for costs and payment to Yuille for her share of the proceeds, leaving a
balance remaining in the trust account of $313,413 as the amount of the
disputed fee.
10
The jury awarded treble damages on the statutory theft count, pursuant
to § 52-564. See footnote 4 of this opinion. Yuille also recovered prejudgment
interest in the amount of $24,492.89 for a total judgment of $1,480,336.37,
subject to postjudgment interest.
11
‘‘The tort of [c]onversion occurs when one, without authorization,
assumes and exercises ownership over property belonging to another, to
the exclusion of the owner’s rights.’’ (Internal quotation marks omitted.)
Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623
(2006). ‘‘Statutory theft under § 52-564 is synonymous with larceny under
General Statutes § 53a-119. . . . Conversion can be distinguished from stat-
utory theft as established by § 53a-119 in two ways. First, statutory theft
requires an intent to deprive another of his property; second, conversion
requires the owner to be harmed by a defendant’s conduct. Therefore,
statutory theft requires a plaintiff to prove the additional element of intent
over and above what he or she must demonstrate to prove conversion.’’
(Internal quotation marks omitted.) Id., 771.
12
Although the defendant contends that the court improperly refused to
submit any of his special defenses to the jury, his argument on appeal
concerns only his claim of waiver. We, therefore, limit our consideration
of this issue to whether the court properly refused to submit his special
defense of waiver to the jury.
13
In the operative special defense of waiver, Parnoff alleged: ‘‘[Yuille]
waived possession of the funds having failed to file a counterclaim or seek
affirmative relief to obtain a right to the possession or continued escrow
of the funds.’’ Parnoff did not allege any facts in connection with this special
defense. See McCann Real Equities Series XXII, LLC v. David McDermott
Chevrolet, Inc., 93 Conn. App. 486, 491, 890 A.2d 140 (‘‘[F]acts must be
pleaded as a special defense when they are consistent with the allegations
of the complaint but demonstrate, nonetheless, that the plaintiff has no
cause of action. Practice Book § 10-50’’ [internal quotation marks omitted]),
cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).
When instructing the jury, the court charged that ‘‘[Yuille] is under no
obligation or was not before bringing this case, as she had a right to do, to
file any counterclaim seeking to recover monies which were part of an
award which had been rendered on her behalf as the result of an arbitration
proceeding and on which you have received evidence in this case.’’ Parnoff
did not object to this charge.
14
Prior to closing arguments, the court stated that ‘‘the operative pleadings
are the amended complaint of February 14, 2017, the amended answer and
special defenses of February 13, 2017, and of course the reply pleading
remains the same.’’
15
The transcript reveals the following colloquy:
‘‘The Court: However what I indicated was the issue here involves—
this lawsuit—
‘‘[Parnoff]: Yeah.
‘‘The Court: —involves monies that were put into an escrow account—
‘‘[Parnoff]: Yes.
‘‘The Court: —to which you have no claim. And involves the right to the
ownership of those monies. There are three counts: conversion, statutory
theft and breach of fiduciary duty. Those are the only claims that are before
this jury.
‘‘[Parnoff]: There’s special defenses too, Your Honor. And there’s also the
question of credibility.
‘‘The Court: There are no claims by way of special defenses, by way
of counterclaim—
‘‘[Parnoff]: No.
‘‘The Court: —for any monies.
‘‘[Parnoff]: No. Absolutely.
‘‘The Court: And I have looked at some of the special defenses that you
filed, and that you’ve attempted to file at the eleventh hour, and I think we
already dealt with some of those. And I’ll deal with them when they come
up. If in fact there is ever any evidence in this case to support any of the
special defenses, we’ll deal with that.’’
16
When the court asked if there were any exceptions to the charge, Parnoff
did not object to the failure to charge on the special defenses. He did
question the court’s instruction regarding whether he had a right to recover
based on the prior Appellate Court opinions. This instruction is not at issue
in the present appeal. He then questioned whether it was necessary to tell
the jury that it should not consider the special defenses. After the court
explained that it had to do that because it had initially told the jury that
there was an answer and special defenses, Parnoff responded: ‘‘I see. I see
what your reasoning is.’’
17
At oral argument before this court, counsel for Parnoff stated that he
‘‘[did not] believe’’ that Parnoff filed a request to charge on the special
defenses. Prior to closing argument at the trial court, however, the court
commented that Parnoff had submitted a series of requests to charge. The
requests, if any, are not in the court file or in the appendices to Parnoff’s
brief. In any event, Parnoff never took any steps to rectify the record, to
the extent he believes, contrary to counsel’s representation at oral argument,
that he submitted such requests.
18
Parnoff also refers to defendant’s exhibit M, a page of a transcript from
the prior proceeding, in which Yuille indicated that half of Parnoff’s fee
should be paid to Mooney, as support for his claim that the court improperly
declined to charge the jury regarding waiver.
19
Mooney testified that following a prior lawsuit, she had been paid and
was not seeking any additional compensation by way of any legal fee in
this action.