Iino v. Spalter ( 2019 )

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ELIZABETH SPALTER IINO v. DIANE ROGERS
SPALTER, EXECUTRIX (ESTATE
OF HAROLD SPALTER)
(AC 40574)
Elgo, Bright and Beach, Js.
Syllabus
The plaintiff sought to recover compensatory and punitive damages from
the defendant executrix of the estate of the decedent for, inter alia,
intentional sexual assault in connection with the decedent’s sexual abuse
of the plaintiff. The plaintiff alleged that her father, the decedent, had
sexually abused her repeatedly in Connecticut from when she was six
years old until she was seventeen, that she suffered extreme trauma,
mental anguish and psychological injuries as a result of the decedent’s
sexual abuse and that her injuries were permanent. The defendant filed
a motion to dismiss for lack of personal jurisdiction, which the trial court
denied. Thereafter, the defendant filed a motion in limine to preclude
evidence of other wrongs or acts of verbal and physical abuse committed
by the decedent against the plaintiff, her brothers and the family dog.
The court denied the motion in limine but stated that it was reserving
judgment on specific objections to such evidence until the evidence
was offered at trial. Following the trial, the jury found in favor of the
plaintiff and returned a verdict awarding her $15 million in compensatory
damages. The jury also found that the plaintiff was entitled to an award
of punitive damages, but it was not asked to determine the amount of
the punitive damages to be awarded. Thereafter, the trial court denied
the defendant’s motion to set aside the verdict and rendered judgment
in accordance with the verdict, reserving to itself the finding as to the
amount of the punitive damages award, which would be determined
later. On the defendant’s appeal to this court, held:
1. The trial court properly denied the defendant’s motion to dismiss; contrary
to the defendant’s claim that that court’s assertion of personal jurisdic-
tion over her violated her right to due process because she personally
had no minimum contacts with Connecticut, because the court could
have exercised jurisdiction over the decedent pursuant to this state’s
long arm statute (§ 52-59b) for the tortious acts he committed while in
this state, it properly exercised jurisdiction over the defendant, who,
as executrix of the decedent’s estate, had stepped into his shoes for
purposes of this action.
2. The defendant could not prevail on her claim that the trial court improperly
admitted certain evidence, as any purported error in the admission of
the evidence was harmless:
a. The defendant’s claim that the trial court erred in admitting evidence
of other wrongs or acts of verbal and physical abuse committed by the
decedent against the plaintiff, her brothers and the family dog was
unavailing: the record revealed that when the court denied the defen-
dant’s motion in limine to preclude the subject evidence, it clearly stated
that it was reserving judgment on specific objections to such evidence
until it was offered at trial and that it would not recognize a standing
objection to evidence on the issue, and, therefore, to preserve her objec-
tions, the defendant needed to object each time evidence was offered
on the issue, which she failed to do; moreover, the testimony to which
the defendant did object to at trial was merely cumulative of other
similar testimony to which she did not object, and, therefore, even if
this court assumed that the trial court’s rulings were improper, the
defendant failed to show that they likely affected the outcome of the trial.
b. The defendant’s claim that the trial court improperly admitted certain
photocopied excerpts from the plaintiff’s 1997 journal, which was inad-
vertently discarded during the course of the litigation, under the state
of mind exception to the hearsay rule set forth in the applicable provision
(§ 8-3 [4]) of the Connecticut Code of Evidence was unavailing; even if
the subject excerpts were admitted improperly, the evidence merely
was cumulative of a considerable amount of other evidence, and, there-
fore, the defendant failed to prove that the claimed improper admission
of the excerpts likely affected the outcome of the trial.
3. The jury’s determination that the plaintiff was entitled to common-law
punitive damages was a final judgment for purposes of appeal because
it did not constitute a supplemental postjudgment award, despite the
fact that the trial court reserved the determination of the precise amount
of those damages to a time postjudgment.
4. The trial court improperly permitted the jury to find the defendant liable
for common-law punitive damages without evidence as to the plaintiff’s
litigation expenses and improperly reserved for its own consideration
the specific amount of common-law punitive damages to be awarded;
because the defendant properly and timely requested that the question
of the amount of punitive damages be decided by the jury, she had the
right to have the jury determine that issue, and because the plaintiff
admittedly submitted no evidence of her litigation expenses, the matter
should not have gone to the jury, as there was no evidence to support
the plaintiff’s claim for punitive damages.
5. The trial court did not abuse its discretion in denying the defendant’s
motion to set aside the verdict, in which she alleged that there was
insufficient evidence that the plaintiff suffers from post-traumatic stress
disorder and other psychological trauma and injuries; there was ample
evidence that the plaintiff suffers from psychological trauma caused by
the childhood sexual abuse of the decedent, as the plaintiff submitted
factual evidence as to what the decedent did to her and the impact his
actions have had on her emotional and psychological well-being, and
she submitted expert testimony regarding the symptoms typically dis-
played by victims of sexual abuse, and it was within the province of
the jury to conclude, on the basis of all of the evidence it heard, that the
plaintiff’s evidence regarding the emotional and psychological injuries
inflicted on her by the decedent was credible and that her injuries were
worthy of compensation.
Argued April 16—officially released September 10, 2019
Procedural History
Action to recover damages for, inter alia, intentional
sexual assault, and for other relief, brought to the Supe-
rior Court in the judicial district of Stamford-Norwalk,
where the court, Lee, J., denied the defendant’s motion
to dismiss; thereafter, the court denied the defendant’s
motion to preclude certain evidence; subsequently, the
matter was tried to the jury; verdict for the plaintiff;
thereafter, the court denied the defendant’s motion to
set aside the verdict and rendered judgment in accor-
dance with the verdict, from which the defendant
appealed to this court. Reversed in part; judgment
directed in part.
Alexander Copp, with whom were David B. Zabel
and, on the brief, Barbara M. Schellenberg, for the
appellant (defendant).
Hugh D. Hughes, for the appellee (plaintiff).
Opinion
BRIGHT, J. The defendant, Dianne Rogers Spalter,
executrix of the estate of Harold Spalter, appeals from
the judgment of the trial court, rendered after a jury
trial, in favor of the plaintiff, Elizabeth Spalter Iino,
the biological daughter of Harold Spalter, the decedent
(decedent). On appeal, the defendant claims that the
trial court improperly (1) denied her motion to dismiss
for lack of personal jurisdiction, (2) admitted certain
evidence, (3) permitted the jury to find her liable for
punitive damages without evidence as to the plaintiff’s
litigation expenses and reserved to itself the issue of
the amount of punitive damages to be awarded, and
(4) denied her motion to set aside the verdict, which
alleged that there was insufficient evidence that the
plaintiff suffers from psychological trauma caused by
childhood sexual abuse. We agree with the defendant’s
third claim. Accordingly, we affirm in part and reverse
in part the judgment of the trial court.
The following procedural history provides a sufficient
foundation for our analysis. Following the death of the
decedent, the plaintiff brought a two count complaint
against the defendant executrix of the decedent’s New
York estate, alleging that the decedent repeatedly had
sexually abused her in Connecticut from the time she
was six years old until she reached the age of seventeen.
She claimed extreme trauma, mental anguish and psy-
chological injuries, and that such injuries were perma-
nent. The first count of her complaint alleged inten-
tional sexual abuse, and the second count alleged
reckless sexual abuse. The plaintiff requested compen-
satory damages and punitive damages. Following a trial,
the jury found in favor of the plaintiff on the first count
of her complaint, and it returned a verdict awarding
her $15 million in compensatory damages.1 The jury
also found that the plaintiff was entitled to an award
of punitive damages, but it was not asked to determine
the amount of the punitive damages to be awarded. The
court rendered judgment in accordance with the jury’s
verdict, reserving to itself a finding as to the amount of
punitive damages, to be determined later. The relevant
facts and additional procedural history will be set forth
as necessary throughout this opinion.
I
The defendant claims that the trial court improperly
denied her motion to dismiss for lack of personal juris-
diction. She argues that the court’s denial of her motion
to dismiss was improper because ‘‘asserting jurisdiction
over a New York executrix with absolutely no ties to
Connecticut . . . violate[s] due process.’’ She con-
tends that, despite its agreement that the defendant
‘‘had no appreciable contacts in Connecticut . . . the
trial court denied the motion to dismiss on the ground
that [the decedent’s] contacts with Connecticut were
sufficient to support jurisdiction. . . . The trial court
erred by failing to base its decision on [the] defendant’s
complete lack of contacts with this state.’’ We disagree.
The standard of review for a court’s decision on a
motion to dismiss is well settled. ‘‘A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . [O]ur review of the
court’s ultimate legal conclusion and resulting [determi-
nation] of the motion to dismiss [is] de novo.’’ (Internal
quotation marks omitted.) Cogswell v. American Tran-
sit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
Although, ‘‘[a]s a general matter, the burden is placed
on the defendant to disprove personal jurisdiction . . .
[i]f the defendant challenging the court’s personal juris-
diction is a foreign corporation or a nonresident individ-
ual, it is the plaintiff’s burden to prove the court’s juris-
diction.’’ (Citations omitted; internal quotation marks
omitted.) Id., 515. ‘‘When a defendant challenges per-
sonal jurisdiction in a motion to dismiss, the court must
undertake a two part inquiry to determine the propriety
of its exercising such jurisdiction over the defendant.
The trial court must first decide whether the applicable
state’s long-arm statute authorizes the assertion of juris-
diction over the [defendant]. If the statutory require-
ments [are] met, its second obligation [is] then to decide
whether the exercise of jurisdiction over the [defen-
dant] would violate constitutional principles of due pro-
cess.’’ (Internal quotation marks omitted.) Id., 514–15.
Thus, on the basis of the facts in the record, this court
must determine whether our long arm statute, General
Statutes § 52-59b,2 properly applies to the defendant
and, if that statutory threshold is met, whether the
defendant, acting as executrix of the estate of the dece-
dent, has the requisite minimum contacts with this state
sufficient to satisfy constitutional due process con-
cerns. See id.
In the present case, the defendant does not contest
that the statutory threshold has been met. Indeed, she
never cites § 52-59b in her primary appellate brief or
in her reply brief. Rather, the defendant argues that her
right to due process of law has been violated by the
court’s assertion of jurisdiction over her because she,
personally, has no minimum contacts with our state.
Specifically, she argues that ‘‘[a]lthough a long arm stat-
ute may change [the common-law rule regarding juris-
diction over a nonresident defendant] as a matter of
state law, it does not alter the minimum contacts
requirement under the United States constitution,
which require[s] analysis into [the] [d]efendant’s con-
tacts with the forum state.’’ (Emphasis in original.)
Accordingly, we consider whether the exercise of per-
sonal jurisdiction over the defendant is proper under
the due process clause of the fourteenth amendment
to the federal constitution; see U.S. Const., amend. XIV,
§ 1; which limits the jurisdiction of state courts called
on to render judgments against nonresident defendants.
See Samelko v. Kingstone Ins. Co., 329 Conn. 249, 265,
184 A.3d 741 (2018), citing Kulko v. Superior Court,
436 U.S. 84, 91, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978).
We agree with the multitude of cases and § 358 of the
Restatement (Second) of Conflict of Laws, which have
considered this issue and have concluded that, if the
relevant long arm statute would have permitted the
court to exercise jurisdiction over the decedent had
he been living, the due process clause of the federal
constitution is not offended by that statute also permit-
ting the exercise of jurisdiction over the decedent’s
executrix, who stands in the shoes of the decedent for
purposes of the action. See 2 Restatement (Second),
Conflict of Laws § 358, p. 421 (1971) (‘‘[a]n action may
be maintained against a foreign executor or administra-
tor upon a claim against the decedent when the local
law of the forum authorizes suit in the state against the
executor or administrator and (a) suit could have been
maintained within the state against the decedent during
his lifetime because of the existence of a basis of juris-
diction other than mere physical presence’’).
‘‘In the past, common law directed that an executor
could only be sued in the state in which he was
appointed. See Martel [v. Stafford, 992 F.2d 1244, 1246
(1st Cir. 1993)] (discussing Massachusetts common law
rule); Gandolfo v. Alford, 31 Conn. Supp. 417, 333 A.2d
65, 66 (Ct. 1975) (stating ‘that the general common-law
rule is an executor or administrator of an estate can
sue and be sued only in a jurisdiction in which he has
been so appointed’). However, within the last several
decades, many state legislatures have abrogated that
common law notion by enacting long arm statutes
which expressly provide for jurisdiction over the execu-
tor if jurisdiction could have been maintained over the
decedent. See Eubank Heights Apartments, Ltd. v.
LeBow, 615 F.2d 571, 574 (1st Cir. 1980) (concluding
that jurisdiction over the decedent’s estate was appro-
priate if the Texas long arm statute would have provided
jurisdiction over the decedent had he not died); Nile
v. Nile, 432 Mass. 390, 734 N.E.2d 1153, 1159 (2000)
(holding that the Massachusetts long-arm statute pro-
vides for jurisdiction over a non-resident personal rep-
resentative when the decedent had sufficient contacts
with the forum such that the decedent would have been
subject to personal jurisdiction had he lived); V.H. v.
Estate of Birnbaum, 543 N.W.2d 649, 655 (Minn. 1996)
(concluding that ‘the decedent’s foreign personal repre-
sentative is subject to in personam jurisdiction under
the long-arm statute if the decedent would be subject
to jurisdiction if alive’); Hayden v. Wheeler, 33 Ill. 2d
110, 210 N.E.2d 495, 497 (1965) (holding that the foreign
administrator of a deceased non-resident was subject
to jurisdiction under the Illinois state long-arm statute
because decedent would have been subject to jurisdic-
tion had he lived); Gandolfo [v. Alford], supra, [425]
(holding that Connecticut’s long-arm statute modified
the common law rule and granted Connecticut’s courts
jurisdiction over suits brought against an executor of
a foreign estate when the non-resident decedent could
have been sued in Connecticut if he had lived).’’ K.
Hesse & C. Fields, ‘‘Representing Estate & Trust Benefi-
ciaries & Fiduciaries: Get Me to the Court on Time:
Jurisdiction and Choice,’’ ALI-ABA Course of Study,
SR003 ALI-ABA 67, 81–82 (July 2009).
‘‘In deciding whether an executor is subject to suit
in a particular jurisdiction, a [federal] district court
looks to the law of the forum state. Many state long-
arm [statutes] include the executor, administrator, or
other personal representative of a person within the
long-arm jurisdiction of a state as also being within the
long-arm jurisdiction. It has generally been held that
such [statutes] are constitutional even though only the
decedent, and not his or her representative, had any
contact with the forum jurisdiction . . . .’’ (Footnotes
omitted.) 28 Fed. Proc., L. Ed. § 65:23 (June 2019
Update); see Rosenfeld v. Hotel Corp. of America, 20
N.Y.2d 25, 228 N.E.2d 374, 281 N.Y.S.2d 308 (1967) (thor-
oughly discussing constitutionality of state court
obtaining in personam jurisdiction over nonresident
executors, although such nonresident executors had
committed no acts and transacted no business in state,
but decedent had transacted such business); see also
SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172,
180–81 (2d Cir.), cert. denied, 531 U.S. 824, 121 S. Ct.
68, 148 L. Ed. 2d 33 (2000) (‘‘[w]hether the [e]state is
subject to long-arm jurisdiction in Louisiana with
respect to SongByrd’s cause of action depends on
whether [the decedent] would have been subject to such
jurisdiction during his lifetime’’); Crosson v. Conlee, 745
F.2d 896, 900–901 (4th Cir. 1984), cert. denied, 470 U.S.
1054, 105 S. Ct. 1759, 84 L. Ed. 2d 822 (1985) (‘‘There
can be no doubt that personal jurisdiction could have
been obtained over [the decedent] during his lifetime,
as he had operated a business in Virginia . . . .
Accordingly, we hold that personal jurisdiction was
properly obtained over defendant, a Florida executor,
under the Virginia long-arm statute, notwithstanding
the absence of any assets of the decedent’s estate in
Virginia’’); Steego Corp. v. Ravenal, 830 F. Supp. 42,
48 (D. Mass. 1993) (‘‘Massachusetts courts will permit
personal jurisdiction over an executor where there
would have been personal jurisdiction over the testator
while he was still living’’).
The defendant relies on three cases to support her
contention that she, personally, must have sufficient
minimum contacts with this state to support the court’s
exercise of jurisdiction over her. Specifically, she cites
Walden v. Fiore, 571 U.S. 277, 134 S. Ct. 1115, 188 L.
Ed. 2d 12 (2014), Rush v. Savchuk, 444 U.S. 320, 100 S.
Ct. 571, 62 L. Ed. 2d 516 (1980), and Hanson v. Denckla,
357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), for
the proposition that sufficient minimum contacts must
arise out of the contacts that the defendant executrix,
personally, had with the forum state. We conclude that
each of those cases is inapposite from the present case.
None of them involves or speaks to an action that could
have been brought in the forum state against a decedent
had he still been alive, but, instead, by necessity, due
to the death of the decedent, was brought against the
executrix of the decedent’s estate, who stood in the
shoes of the decedent for purposes of the action.
In the present case, the action brought by the plaintiff
could have been brought against the decedent for the
tortious acts he committed while in this state. The
action names the defendant, not because of any act or
failure to act on her part, but because she is standing in
the shoes of the decedent. See 2 Restatement (Second),
supra, § 358; id., comment (d), pp. 422–23; id., reporter’s
note to comment (d), pp. 425–26, and cases cited
therein. Given the well established precedent on the
constitutionality of a court’s exercise of long arm juris-
diction in accordance with its statutory authority, we
conclude that the court in the present case did not
violate the defendant’s right to due process of law by
exercising jurisdiction over her because she had
stepped into the shoes of the decedent when she
became the executrix of his estate. Accordingly, the
court properly denied the defendant’s motion to
dismiss.
II
The defendant claims that the trial court improperly
admitted certain evidence, which she claims was highly
prejudicial and likely affected the outcome of the trial.
Specifically, she argues that the court erred in (1) admit-
ting ‘‘evidence of verbal and physical abuse allegedly
perpetrated by [the decedent] on [the] plaintiff and [on]
third parties,’’ and (2) admitting ‘‘hearsay evidence3 pur-
porting to be from a 1997 journal, the original of which
was discarded by [the] plaintiff’s attorney during the
course of [the] litigation.’’ (Footnote added.) After set-
ting forth our standard of review, we will consider each
of these in turn.
‘‘To the extent [that] a trial court’s admission of evi-
dence is based on an interpretation of the Code of
Evidence, our standard of review is plenary. For exam-
ple, whether a challenged statement properly may be
classified as hearsay and whether a hearsay exception
properly is identified are legal questions demanding
plenary review. . . . We review the trial court’s deci-
sion to admit [or exclude] evidence, if premised on
a correct view of the law, however, for an abuse of
discretion. . . . Additionally, [b]efore a party is 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.’’ (Internal quotation marks omit-
ted.) LM Ins. Corp. v. Connecticut Dismanteling, LLC,
172 Conn. App. 622, 627–28, 161 A.3d 562 (2017).
A
The defendant claims that the court erred in admitting
evidence of verbal and physical abuse committed by the
decedent and that such evidence was highly prejudicial,
likely affecting the outcome of the trial. She argues
that she ‘‘filed a motion in limine seeking to preclude
evidence of claimed verbal and physical abuse of [the]
plaintiff’s brothers (Jonathan [Spalter], Alan [Spalter],
and Michael Spalter) on the ground that such evidence
was not relevant and constituted improper character
and/or propensity evidence, particularly because it
effectively allowed statutorily time-barred claims of
third parties to be brought before the jury. . . . The
trial court denied the motion in limine . . . . The trial
court erred by admitting this evidence.’’ (Citation
omitted.)
The plaintiff argues that the evidence was relevant
to explain the plaintiff’s fear of the decedent and why
she delayed reporting his sexual abuse, and that the
defendant failed to object to much of the testimony that
she now claims was admitted improperly. The plaintiff
contends that the defendant’s motion in limine did not
serve to preserve her objections to each and every bit of
testimony related to the decedent’s verbal and physical
abuse of the plaintiff and her brothers because the court
stated that it was delaying its ruling on the admissibility
of this evidence until it was offered at trial, thereby
necessitating that the defendant object to the specific
evidence as it was being offered. The plaintiff also
argues that any improper admission by the trial court
was harmless.
The following additional facts inform our review. The
defendant filed a motion in limine to ‘‘preclude evidence
of alleged other crimes, wrongs, or bad acts’’ committed
by the decedent, including alleged physical or emotional
abuse by the decedent against the family dog, the plain-
tiff, and the plaintiff’s brothers, on the ground that it
was ‘‘improper character and/or propensity evidence.’’
She also argued that the evidence was not relevant and
that its prejudicial effect significantly would outweigh
its probative value. The court held a hearing on the
defendant’s motion, and other items, on February 7,
2017, at which the court explained, ‘‘Connecticut Code
of Evidence [§ 4-5]4 appl[ies] to both civil and criminal
cases. . . . So, what this means, to the extent evidence
of [the decedent’s] abuse of other people and the dog
. . . are offered, I will need to do a two part test before
I can admit it. I have to make a determination as to
relevance, and I also have to weigh the probative value
of the evidence against the prejudicial effect of the
evidence, and that needs to be done . . . out of the
hearing of the jury.’’ (Footnote added.) Consistent with
this explanation, the court, also on February 7, 2017,
issued a short written ruling denying the motion in
limine because ‘‘[e]vidence of other wrongs and acts is
admissible for certain purposes pursuant to [§] 4-5 (c)
of the Connecticut Code of Evidence, provided it is
relevant and that its probative value outweighs any
prejudicial effect.’’
The record reflects that the defendant clearly was
told that the court, although denying the motion in
limine, was reserving judgment on specific objections
to evidence of other wrongs or acts until the evidence
was offered at trial. Later in the February 7, 2017 hear-
ing, the parties were discussing the admissibility of
portions of depositions regarding allegations of physical
and emotional abuse committed by the decedent to
which the defendant objected. The plaintiff’s attorney
told the court that he would be telling the jury during
opening argument that the plaintiff was terrified of the
decedent because of his sexual abuse and his violent
acts toward her, her brothers, and her dog. He also
stated that he would explain to the jury that this is why
she waited until he died to disclose this abuse publicly
and file this action; it helped to explain her fearful state
of mind during his lifetime. The defendant’s attorney
responded: ‘‘The fact that opposing counsel wants to
make some statements in opening argument about evi-
dence that may or may not come in is his choice. The
court doesn’t have before it the information at this point
in time sufficient to rule [on] whether . . . the evi-
dence that will be offered comes in under [§ 4-5 (c) of
the Connecticut Code of Evidence]. There are signifi-
cant issues about that evidence. We would be severely
prejudiced by the introduction of evidence. . . . And
so, if counsel wants to make statements in opening
argument, he can state whatever he wants to, but, as
[with] any opening argument, Your Honor, you take the
chance if you want to make statements about evidence
that may or may not come in; that’s their choice. The
court should not make rulings on evidence at this point
in time based upon what [the] plaintiff’s counsel says
he wants to say in opening argument.’’ The court
responded: ‘‘All right then. What I understand you [to]
say is you would object to my ruling, but not to him
raising these, these concepts.’’
The following day, February 8, 2017, when the plain-
tiff was on the witness stand, she brought up an incident
involving the decedent and her brothers, and the follow-
ing colloquy occurred:
‘‘[The Defendant’s Attorney]: Your Honor, may I state
my objection for the record?
‘‘The Court: Sure. . . . Yes, go ahead.
‘‘[The Defendant’s Attorney]: Okay. And so I would
object and move to strike that response to the extent
that, again, Your Honor, it seems to have been nonre-
sponsive to the question that I understood [the plain-
tiff’s attorney to be] asking, which was directed at an
incident of alleged sexual abuse. And we claim that
objection based on the fact that we have a pending
objection to incidents of physical abuse.
‘‘The Court: Well, let’s be clear about that. I don’t
acknowledge a pending objection.5 There is—you [filed]
a motion in limine, and I said we would take it in turn,
as necessary. But I do not—pending objections are not
favored in Connecticut practice, and I don’t [favor them]
either. So, and it hasn’t stopped you from raising objec-
tions when you felt it appropriate. And, so that’s the
status of that. In terms of this one, I’ll reserve [ruling]
pending connection to the witness.
‘‘[The Defendant’s Attorney]: Thank you, Your Honor.
And I understand that, thank you.’’
The defendant now argues that her motion in limine
preserved her objections to every instance of evidence
regarding allegations that the decedent committed acts
of physical, verbal, or emotional abuse.6 We disagree.
The court explained to the parties during the hearing
on the defendant’s motion in limine that its denial of
the defendant’s motion was only a preliminary ruling,
because it thought that some of the evidence likely
would be admissible at trial. Additionally, the court
clearly reiterated, the following day, that the defendant
was required to object to specific evidence at the time
it was offered, and it told the defendant that it would
not recognize a standing objection to evidence on this
issue; the defendant’s attorney then told the court that
he understood.
We conclude, therefore, that in order to preserve her
objections, the defendant needed to object each time
evidence was offered on the issue so that the court
could consider the evidence in the context for which
it was being offered. See Birkhamshaw v. Socha, 156
Conn. App. 453, 468, 115 A.3d 1 (objections not pre-
served by motion in limine when court clearly stated it
would not rule in vacuum by issuing blanket prohibition
because some evidence might be admissible; court left
issue ‘‘open for objection during trial as specific testi-
mony was offered’’), cert. denied, 317 Conn. 913, 116
A.3d 812 (2015). Accordingly, after setting forth addi-
tional relevant facts, we will examine the specific evi-
dence that the defendant in her appellate brief now
claims was admitted improperly.
In response to the plaintiff’s revised complaint, the
defendant filed five special defenses, including a
defense that ‘‘[t]he plaintiff’s claims are barred or dimin-
ished to the extent she failed to take proper and reason-
able steps to avoid or mitigate damages.’’ The plaintiff
denied each of the special defenses. As explained pre-
viously in this opinion, the plaintiff’s attorney told the
court that he would be telling the jury during his opening
statement that the plaintiff was terrified of the decedent
because of his sexual abuse and his violent acts toward
her, her brothers, and her dog, and that this was why
she waited until he died to disclose this abuse and file
this action. He said this information would be used to
explain her fearful state of mind during the decedent’s
lifetime and her inability to bring an action before his
death. The defendant’s attorney responded by saying
that counsel could argue whatever he wanted during
his opening statement but that it did not mean the
evidence of which he spoke would be admissible.
During opening argument, the plaintiff’s attorney
argued, in part, that he believed that the evidence would
show that the decedent ‘‘serially and repeatedly abused
[the plaintiff] sexually for his own gratification from
the time she was six years old to the time she was
seventeen, [and] that he kept her in abject fear of him
for his entire life by his acts and his violence that she
witnessed as a child . . . .’’ The defendant’s attorney
argued: ‘‘[W]e expect that [the plaintiff] will come into
court and take the [witness] stand and testify that she
was afraid to bring this suit or to bring a suit during [the
decedent’s] lifetime. In fact, we expect [the plaintiff]
to come in and testify that she thought about suing [the
decedent] . . . for years and that she even thought
about it as far back as the 1990s, but that she couldn’t
bring herself to do it. She only found the courage after
[the decedent] died. But, we think that once you’ve
heard everything, once you’ve listened to the testimony,
once you’ve seen the record, the evidence that comes
in, that [the] evidence will tell a very different story.
And that story . . . is that [the decedent’s] death is
actually the reason for this lawsuit, because when [the
decedent died] . . . he left a will. And [the decedent’s]
will favors his wife . . . .’’ The defendant’s attorney
also argued that the evidence would show that the plain-
tiff maintained a close affectionate relationship with
the decedent up until the time of his death but that,
when the decedent died, and his will was disclosed,
‘‘that’s when things change[d]. And we think the evi-
dence in this case will show that that is the reason for
this lawsuit . . . .’’
The defendant now claims that all of the testimony
from the plaintiff and her brothers regarding the dece-
dent’s violent and physically abusive behavior should
have been excluded by the court. The plaintiff argues
that this evidence was necessary because the defense
sought to attack the plaintiff’s motivation for filing the
action after the decedent’s death, and the evidence,
therefore, was necessary to explain why she delayed her
action. The plaintiff also contends that the defendant
raised objections to approximately one half of the testi-
mony concerning the violence of the decedent and that
some of the objections were on grounds other than
improper character evidence. Accordingly, the plaintiff
argues that any impropriety by the court in overruling
the defendant’s limited objections was harmless in light
of the overwhelming additional evidence to which there
was no objection. We agree with the plaintiff.
In her appellate brief, the defendant cites several
instances of testimony given by the plaintiff and her
brothers. We will look at each of these instances, as
well as other cumulative testimony by these witnesses
to which the defendant did not object or that was
brought out during the defendant’s cross-examination.
At the start of the plaintiff’s testimony, her attorney
asked what her earliest recollection was of the dece-
dent. The plaintiff stated that she remembered a very
violent man. The defendant objected and asked that
the response be stricken, but the court allowed the
testimony to continue. The plaintiff then explained to
the jury that the decedent would ‘‘hit, scream, punch,
kick, [and] spit . . . .’’ The defendant again objected,
and the court overruled the objection stating that the
testimony went to explain the state of mind of the
plaintiff. The plaintiff continued: ‘‘I saw [the decedent]
punching, screaming, hitting my brothers on a regular
basis. He would slap me and punch—punch me and
pull my—pull me and throw me, and he also punched
and kicked my dog. And he would scream, and he
looked like a monster, you know, spitting and beady
eyes, and that’s what I observed.’’
The defendant also points to additional testimony by
the plaintiff regarding the decedent having an ulcer and
his anger. Specifically, the plaintiff testified: ‘‘[T]here
was an incident where [the decedent]—I was about
nine. . . . [He] had an ulcer and the violence was—
[he] would get so angry.’’ The defendant objected, and
the court overruled the objection.
During cross-examination, however, the defendant’s
attorney asked the plaintiff if she thought the decedent
was a ‘‘monster’’ because she ‘‘saw him do things regu-
larly such as punch and kick and scream and spit,’’ to
which the plaintiff responded in the affirmative. When
questioning the plaintiff about her decision to associate
with the decedent in 2004, the defendant’s attorney also
asked: ‘‘And in fact, you were in fear of [the decedent]
throughout your childhood because of his anger and
volatility?’’ The plaintiff answered, ‘‘Yes.’’ Counsel then
asked: ‘‘Okay. And you were in fear of him because of
the physical violence that he displayed in front of you
. . . and you were in fear of him because of his physical
abuse of your brothers that you witnessed . . . ?’’ The
plaintiff, again, responded in the affirmative. Counsel
then asked, ‘‘But still you chose to associate with him
in 2004?’’ The plaintiff answered, ‘‘I did.’’
The defendant also argues that the court improperly
admitted the following testimony by Alan Spalter: ‘‘Our
house in Connecticut was a house filled [with] basically
fear and terror. It was a house that we had a daily,
almost daily verbal abuse and physical abuse. Verbal
abuse in terms of being yelled at, screamed at. . . .
Physical abuse by [the decedent] included kicking,
punching, and hitting. These are all based on the fact
that [the decedent] was really a powder keg waiting to
go off at any moment for any type of indiscretion, any
kind of—if we displeased him in any way, there were
consequences. He ruled the house as a dictator. And,
if we did anything to displease him, there were conse-
quences. . . . Back in the day when there were no
sprinkler systems, underground sprinkler systems, we
had to move the hose from one end of the lawn to the
other, and I was doing that, and I sprayed [the plaintiff]
playfully with the sprinkler, and I . . . got [the dece-
dent] wet . . . . He enraged, got out of his chair, ran
after me, tackled me to the ground, put his knee on my
back, arm on my head, buried it into the ground, and
yelled at me, apologize.’’ This testimony, however, was
presented at trial without objection by the defendant.
The defendant also argues that certain testimony of
Jonathan Spalter improperly was admitted. Specifically,
she argues: ‘‘Jonathan Spalter testified that on one occa-
sion, [the decedent] punched him in the stomach,
grabbed him by the hair, and threw him down on the
ground. . . . He then testified as to several more sup-
posed incidences of violence, including [the decedent’s]
purportedly hitting him and [the] plaintiff while in the
car, a separate claimed road rage incident, and an addi-
tional incident involving alleged physical abuse of his
brother, Michael Spalter.’’7 The defendant, however,
raised no objection to that testimony when it was
offered at trial.
The defendant also argues: ‘‘Over objection of
defense counsel, Jonathan Spalter testified: ‘[The plain-
tiff], my brother Alan, my brother Michael, and myself
were in a horror house’ . . . . He later testified, also
over objection, that he ‘wanted [the decedent] to know
how gravely hurt I’ve remained by all of the abuse,
myself, and my brother, and [the plaintiff], particularly
[the plaintiff], endured at his hands . . . .’ ’’
A review of the transcripts also reveals that during
cross-examination by the defendant’s attorney, Jona-
than Spalter was asked about his anger toward the
decedent, and he replied in relevant part: ‘‘I was angry
at [the decedent] for many things. The most important
thing that I’ve been angry at [him] at that time was
about the fact that he had admitted to me that he sexu-
ally abused [the plaintiff] and the years of abuse, verbal
and physical, that I, and my brother Alan, and my
brother Michael suffered.’’ Jonathan Spalter also testi-
fied during cross-examination, when asked about an
e-mail sent to him by the decedent, alleging that he had
engaged in personal attacks against the decedent: ‘‘No,
I never made attacks at [the decedent]. I told him the
plain truth as I knew the truth to be, that I was hurt
and my family was hurt because of the years of abuse
that he perpetrated physically, emotionally, and sexu-
ally against [the plaintiff]. These were not attacks. These
were shining a mirror at [the decedent] and letting him
know how sad and how much he’s impacted me, and
particularly [the plaintiff] through his life, and also reg-
istering my deep disappointment and my protected
instinct for my children, my sweet children, that this
is a man who didn’t have the basic human decency to
be even remotely close to treating grandchildren as
they should be treated, which is having some level of
communication with them.’’
On the basis of the record and the objections voiced
by the defendant’s attorney to some of the testimony,
as specifically set forth in this opinion, we conclude
that even if we were to agree that the court improperly
overruled each of those objections, the defendant has
not established that the error was harmful. There simply
was a mound of similar testimony to which the defen-
dant did not object, much of which was much more in-
depth than that to which she did object during trial.
‘‘When a court commits an evidentiary impropriety,
we will reverse the trial court’s judgment only if we
conclude that the trial court’s improper ruling harmed
[a party]. . . . In a civil case, a party proves harm by
showing that the improper evidentiary ruling likely
affected the outcome of the proceeding. . . . It is well
established that if erroneously admitted evidence is
merely cumulative of other evidence presented in the
case, its admission does not constitute reversible error.
. . . In determining whether evidence is merely cumu-
lative, we consider the nature of the evidence and
whether any other evidence was admitted that was pro-
bative of the same issue as the evidence in controversy.’’
(Citations omitted; internal quotation marks omitted.)
DeNunzio v. DeNunzio, 320 Conn. 178, 204, 128 A.3d
901 (2016).
As previously discussed in this opinion, the defendant
objected to some of the plaintiff’s testimony wherein
she described the decedent’s violence against his chil-
dren and the plaintiff’s dog. She also objected to some
of the testimony of Jonathan Spalter wherein he testi-
fied that they had lived in a ‘‘horror house’’ and that
he wanted the decedent to know that he and his siblings
were hurt by the decedent’s abuse.
The defendant then cross-examined the plaintiff on
those issues. Additionally, during the defendant’s cross-
examination of Jonathon Spalter, he was asked about
his anger toward the decedent, which elicited a
response about the physical and verbal abuse perpe-
trated by the decedent. He also was questioned about
an e-mail sent to him by the decedent, which elicited
further testimony about the years of abuse. Alan Spalter
also testified on direct examination, without objection,
about the daily physical and verbal abuse perpetrated
by the decedent, and he referenced a specific violent
event that had been witnesses by the plaintiff; he also
testified, without objection, that their Connecticut
home was filled with ‘‘fear and terror.’’ The record
reveals that the testimony to which the defendant
objected merely was cumulative of other similar testi-
mony to which she did not object. Accordingly, she has
failed to show that the trial court’s rulings, even if we
assume that they were improper, likely affected the
outcome of the trial.8
B
The defendant also claims that the ‘‘trial court com-
mitted reversible error by admitting hearsay evidence
purporting to be from a 1997 journal, the original of
which was discarded by plaintiff’s attorney during the
course of litigation.’’ She argues that the court improp-
erly admitted the entries under the state of mind excep-
tion to the hearsay rule; see § 8-3 (4) of the Connecticut
Code of Evidence;9 and that the court should have
excluded the journal entries because the original jour-
nal was discarded by the plaintiff’s ‘‘attorney.’’ We are
not persuaded.
The following additional facts inform our review.
After the discovery deadline had passed, the plaintiff
disclosed the existence of a 1997 journal, which her
attorney represented recently had been discovered
among the plaintiff’s possessions kept in a storage facil-
ity, and a copy was provided to the defendant and the
court. After some time had passed and the plaintiff had
failed to produce the original journal, the defendant
filed a motion for sanctions, and the court ordered the
plaintiff to produce the original journal. At a subsequent
status conference, the plaintiff’s attorney explained to
the court that after the plaintiff found the journal in a
storage facility, she made a photocopy of its pages so
that she could e-mail them to him, as she had done
with previous documents. Her attorney further
explained that there had been a mix-up concerning
whether the original journal had been included in the
items placed in a shipping crate to be returned to Aus-
tria, where the plaintiff was living. Eventually, however,
the plaintiff came to believe that the original journal
inadvertently had been thrown away by the plaintiff’s
cousin, Laura Phillips, with whom the plaintiff was stay-
ing when she discovered the journal. The court
requested an affidavit from Phillips, which she provided
the following day.
In her affidavit, Phillips averred, among other things,
that she is an attorney licensed to practice law in New
York; she had not worked with the plaintiff’s attorneys
of record on this case; she and the plaintiff are cousins,
and they have a close relationship; the plaintiff had
stayed with her for approximately one month in July
and August, 2016, while visiting here from Austria; dur-
ing the plaintiff’s visit, they had retrieved approximately
fifty boxes of belongings from the plaintiff’s storage
unit; she and the plaintiff sorted through the boxes and
reduced them to approximately eighteen boxes that
they shipped to the plaintiff’s home in Austria; many
of the items set aside to be discarded included papers,
notebooks, books, etc., which were strewn about Phil-
lips’ apartment; the plaintiff also had set aside a stack
of papers to be kept at Phillips’ apartment; Phillips told
the plaintiff that she would discard the items left over
from the storage unit; and although Phillips remem-
bered seeing the journal, which had Spanish writing
on the cover, she thought she may have inadvertently
thrown it away believing it was her daughter’s old notes
from Spanish class.
The defendant then renewed her motion for sanc-
tions, alleging discovery misconduct and destruction
of evidence. The court denied the motion, finding no
evidence of wilful misconduct, but it did permit further
deposition questioning.
During the trial, the plaintiff’s attorney sought to
introduce into evidence the photocopy pages from the
1997 journal. The defendant objected on the grounds
of spoliation and lack of authentication. The court over-
ruled the objection, opining that the ‘‘absence of the
original was adequately explained.’’ The defendant then
objected to the introduction of all of the excerpts of
the journal that the plaintiff sought to introduce on the
grounds of hearsay and undue prejudice. Outside the
presence of the jury, the court went through each
excerpt, listened to the argument of counsel, and deter-
mined that the excerpts were admissible.
The defendant now claims that the court miscon-
strued the state of mind exception to the hearsay rule;
see § 8-3 (4) of the Connecticut Code of Evidence; lead-
ing to its improper admittance of certain excerpts of
the plaintiff’s journal. She argues, ‘‘[t]he admission of
the self-serving hearsay statements is especially trou-
bling in a case with no living first-hand witnesses who
could confirm or deny the alleged abuse, no contempo-
raneous written records corroborating [the] plaintiff’s
account of events, and very little written corroboration
of events at any time prior to the [the] plaintiff’s filing
of the instant lawsuit.’’ (Emphasis in original.)
The defendant in her appellate brief specifically
addresses two excerpts from the journal, which she
argues improperly were admitted into evidence by the
court. The first excerpt cited by the defendant is as
follows: ‘‘All day I have been thinking about the sick-
ening stuff that [the decedent] does. It is so dis-
turbing.’’10 The second excerpt from the journal con-
tains a letter that the plaintiff wrote to [the decedent],
which she never sent. Specifically, the defendant
objects to the following portions: ‘‘You fondled my geni-
talia. . . . I always pretended to be asleep. . . . You
recall only one incident. So one of us is inaccurate. I
swear on my mother’s grave and on my nephews’ lives
I know the incest you did actions to be true. . . . I see
you screaming and beating up your children as using
poor judgment.’’11 (Internal quotation marks omitted.)
Immediately after the introduction of these excerpts,
the court gave a limiting instruction: ‘‘So now, ladies
and gentlemen, once again, this is admitted to show
[the plaintiff’s] state of mind at the time she wrote
this and is not for proof of any of the events that she
discusses there. It’s to show you what was going on in
her mind at the time.’’ The defendant also asserts in
passing that the court’s limiting instruction to the jury
was insufficient to limit ‘‘the impact of the self-serving
accusatory statements . . . .’’
The plaintiff responds that the journal excerpts were
necessary to provide proof of her claim for emotional
damages. She also argues that the defendant ‘‘cherry
picks objectionable sentences [from the excerpts] when
[she] made only a general objection in the trial court
to the entire thing.’’ Furthermore, she argues, the preju-
dicial impact of the journal excerpts caused by any
statements concerning abuse contained therein was
minimal and cumulative in light of all the other evidence
at trial. We conclude that even if these excerpts improp-
erly were admitted, the evidence merely was cumulative
of considerable other evidence, and the defendant has
failed to prove that the improper admission of the
excerpts likely affected the outcome of the trial. See
Fink v. Golenbock, 238 Conn. 183, 211, 680 A.2d 1243
(1996) (‘‘[i]t is well recognized that any error in the
admission of evidence does not require reversal of the
resulting judgment if the improperly admitted evidence
is merely cumulative’’ [internal quotation marks
omitted]).
At trial, the plaintiff testified extensively about the
decedent’s sexual abuse. Jonathan Spalter testified
about seeing the decedent naked in the plaintiff’s bed-
room. He also testified, in response to questioning from
the defendant’s attorney, that the decedent admitted to
sexually assaulting the plaintiff once. Additionally, as
fully explained in part II A of this opinion, there was
other evidence of physical and emotional abuse, as well.
Alan Spalter testified, without objection, that the family
home was filled with ‘‘fear and terror . . . [and] almost
daily verbal abuse and physical abuse . . . [that]
included kicking, punching, and hitting.’’ Jonathan
Spalter also testified, without objection, about specific
instances of physical violence committed by the dece-
dent. Finally, the defendant did not object during trial
to the admission of other journal excerpts written by
the plaintiff in 1995 and 1996. Those excerpts included
several references to incest, including a statement by
the plaintiff that ‘‘[she] was incested at [eleven] years
old by [the decedent].’’ Because the jury was privy to
this evidence, it is not reasonable to conclude that the
excerpts from the 1997 journal likely affected the ver-
dict. We cannot conclude, therefore, that any purported
error in their admission was harmful.
III
The defendant claims that the trial court improperly
permitted the jury to find her liable for punitive damages
without evidence of the plaintiff’s litigation expenses
and that the court improperly reserved to itself the
issue of the amount of punitive damages to be awarded.
Specifically, she argues: ‘‘During the charging confer-
ence . . . defense counsel objected to the trial court
charging the jury on the issue of punitive damages on
the grounds that the amount of common-law punitive
damages is an issue for the jury, and because there was
no evidence upon which the jury could base such an
award. . . . The trial court disagreed based on its past
practices, instructing the jury to determine whether
punitive damages should be awarded, and that the court
would later determine the amount of such damages.
. . . This was error.’’ (Citations omitted; footnote
omitted.)
The plaintiff argues that there is no final judgment
on the issue of punitive damages, and, therefore, we
are unable to review this claim. In the alternative, she
argues that the court properly ruled that it would
reserve the amount of punitive damages for its own
consideration, after the jury determined whether the
defendant was liable for such damages. Furthermore,
the plaintiff argues, even if it were improper for the
court not to let the jury decide the amount of punitive
damages, we should remand the matter for a hearing
limited to that issue. We begin with the complicated
issue of whether there is a final judgment as to puni-
tive damages.
A
‘‘The lack of a final judgment implicates the subject
matter jurisdiction of an appellate court to hear an
appeal. A determination regarding . . . subject matter
jurisdiction is a question of law [and, therefore] our
review is plenary. . . .
‘‘Neither the parties nor the trial court . . . can con-
fer jurisdiction upon [an appellate] court. . . . The
right of appeal is accorded only if the conditions fixed
by statute and the rules of court for taking and prosecut-
ing the appeal are met. . . . It is equally axiomatic that,
except insofar as the legislature has specifically pro-
vided for an interlocutory appeal or other form of inter-
locutory appellate review . . . appellate jurisdiction is
limited to final judgments of the trial court. . . .
‘‘It is well settled that a judgment rendered only upon
the issue of liability without an award of damages is
interlocutory in character and not a final judgment from
which an appeal lies. . . . Nevertheless, [under the
bright line rule announced in Paranteau v. DeVita, 208
Conn. 515, 544 A.2d 634 (1988)] a judgment on the
merits is final for purposes of appeal even though the
recoverability or amount of attorney’s fees for the litiga-
tion remains to be determined.’’ (Citations omitted;
internal quotation marks omitted.) Ledyard v. WMS
Gaming, Inc., 330 Conn. 75, 84, 191 A.3d 983 (2018).
In Ledyard, the defendant had appealed from the
summary judgment rendered in favor of the plaintiff,
as to liability only, with respect to certain attorney’s
fees that had been incurred by the plaintiff. See Ledyard
v. WMS Gaming, Inc., 171 Conn. App. 624, 625, 157
A.3d 1215 (2017), rev’d, 330 Conn. 75, 191 A.3d 983
(2018). This court concluded that the trial court’s deci-
sion rendering summary judgment, as to liability only,
with regard to the attorney’s fees at issue was not an
appealable final judgment because the amount of dam-
ages had not been determined at the time the appeal
was filed. Id., 625. Following the granting of certification
to appeal, our Supreme Court reversed this court’s deci-
sion, concluding that there was a final judgment, despite
the fact that the trial court had not yet determined
the amount of attorney’s fees that would be awarded.
Ledyard v. WMS Gaming, Inc., supra, 330 Conn. 90.
In Ledyard, our Supreme Court began its final judg-
ment analysis by discussing Paranteau. Id., 84–87. The
court explained that, in Paranteau, ‘‘[b]y opting for a
bright line rule, [it had] implicitly recognized that there
would be some cases . . . in which the application of
the bright line [rule] would mean that an attorney’s fees
award that would otherwise be considered integral to
the judgment on the merits would nevertheless be sever-
able from that judgment for purposes of finality.’’ (Inter-
nal quotation marks omitted.) Id., 87. It is noteworthy
to mention that the court in Paranteau, however, also
issued a caveat to the bright line rule by explaining, in
footnote 11 that ‘‘[a] supplemental postjudgment award
of attorney’s fees becomes final and appealable, how-
ever, not when there is a finding of liability for such
fees, but when the amount of fees are conclusively
determined. A finding as to liability only, prior to a
determination on the issue of damages, is not a final
judgment from which an appeal lies. . . . Further-
more, a timely appeal from a supplemental postjudg-
ment award of attorney’s fees may challenge not only
the amount awarded, but the underlying recoverability
of such fees as well.’’ (Citation omitted.) Paranteau v.
DeVita, supra, 208 Conn. 524 n.11.
The court in Ledyard then went on to discuss Hylton
v. Gunter, 313 Conn. 472, 487, 97 A.3d 970 (2014). See
Ledyard v. WMS Gaming, Inc., supra, 330 Conn. 87–90.
In Hylton, our Supreme Court, relying on Paranteau,
had explained that it could not conceive of a reason
‘‘why the benefits of the bright line rule articulated
in Paranteau do not apply equally in the context of
common-law punitive damages, which are limited under
Connecticut law to litigation expenses, such as attor-
ney’s fees less taxable costs. . . . The assessment a
court is required to make in order to award punitive
damages is identical to the assessment required in any
other matter involving a common-law, contractual, or
statutory basis for departure from the American rule
. . . . Indeed, common-law punitive damages are akin
to statutorily authorized attorney’s fees in practicality
and purpose, insofar as both provide the same relief
and serve the same function . . . namely, fully com-
pensating injured parties. . . . Thus, our practical
approach to the matter suggests that what is of impor-
tance here is not preservation of conceptual consis-
tency in the status of a particular fee authorization as
merits or nonmerits, but rather preservation of opera-
tional consistency and predictability in the overall appli-
cation of [the final judgment rule]. . . . Accordingly,
we conclude that an appealable final judgment existed
when all that remained for the trial court to do was
determine the amount of the attorney’s fees comprising
the common-law punitive damages that it previously
had awarded.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) Hylton v. Gunter,
supra, 484–87.
In Hylton, our Supreme Court also overruled this
court’s decision in Lord v. Mansfield, 50 Conn. App.
21, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d
321 (1998). Hylton v. Gunter, supra, 313 Conn. 487–88.
In Lord, this court held that the judgment that had been
rendered on the defendant’s counterclaim for inten-
tional infliction of emotional distress had not been final
for purposes of appeal because the plaintiff’s claim on
appeal concerned the amount of the damages awarded
on that counterclaim and the trial court had not deter-
mined the amount of common-law punitive damages
that were due as part of the compensation to the defen-
dant on that counterclaim. Lord v. Mansfield, supra,
24, 25 n.3, 28. In Hylton, our Supreme Court determined
that ‘‘Lord was wrongly decided because, among other
reasons, it [was] inconsistent with . . . Paranteau
. . . which adopted the bright line rule that a judgment
on the merits is final for purposes of appeal even though
the recoverability or amount of attorney’s fees for the
litigation remains to be determined.’’ (Citation omitted;
internal quotation marks omitted.) Hylton v. Gunter,
supra, 474–75.12
After discussing Hylton, our Supreme Court, in Led-
yard, returned to Paranteau and further limited the
application of footnote 11 of that decision: ‘‘Footnote
11 of Paranteau can be explained as part of an effort
to save jurisdiction over that appeal given the facts of
that particular case, which predated our clarification
in Ambroise v. William Raveis Real Estate, Inc., 226
Conn. 757, 762–63, 628 A.2d 1303 (1993), that the twenty
day time limitation for filing an appeal set forth in Prac-
tice Book § 63-1 (a) is not subject matter jurisdictional.
See Benvenuto v. Mahajan, [245 Conn. 495, 503–505
and n.4, 715 A.2d 743 (1998)]. Nevertheless, footnote
11 is in tension with Paranteau’s bright line rule as it
has been extended in Benvenuto and Hylton. Although
the Appellate Court has dismissed several appeals fol-
lowing the rationale of Paranteau’s footnote 11 . . .
we observe that the footnote must be considered in the
context of this court’s subsequent decisions in Benven-
uto and Hylton, which emphasize the importance of
the bright line rule with respect to attorney’s fees
awards that are not rendered postjudgment.’’ (Citation
omitted.) Ledyard v. WMS Gaming, Inc., supra, 330
Conn. 91 n.5.
In conducting our final judgment rule analysis, we
next review a recent case in which our Supreme Court
denied a motion to dismiss that had been filed by the
defendant in error in that case, who had sought dis-
missal on final judgment grounds of a writ of error. See
Maurice v. Chester Housing Associates Ltd. Partner-
ship, 188 Conn. App. 21, 24 n.5, 204 A.3d 71, cert. denied,
331 Conn. 923, 206 A.3d 765 (2019). In Maurice, the
plaintiff in error, Douglas Williams, who was the general
and managing partner of one of the defendants in the
underlying case, but not a party himself, had been sanc-
tioned and ordered to pay the attorney’s fees of the
plaintiff. Id., 22. Williams filed a writ of error in our
Supreme Court before the trial court had determined
the amount of the fees for which Williams would be
liable. Id., 24 n.5. The plaintiff, who was the defendant
in error on appeal, filed a motion to dismiss on the
ground that the writ was not taken from a final judgment
because the trial court had yet to determine the amount
of fees for which Williams would be responsible. Id.
Our Supreme Court denied the motion to dismiss and
transferred the writ to this court to be considered on
the merits. Id.
This court explained the issue regarding whether the
appeal was taken from a final judgment as follows: ‘‘On
September 4, 2018, prior to oral argument of this case
before this court, our Supreme Court released its deci-
sion in Ledyard v. WMS Gaming, Inc., [supra, 330 Conn.
75]. In Ledyard, the Supreme Court ruled that the Appel-
late Court wrongly dismissed, for lack of a final judg-
ment, an appeal taken from a judgment that determined
only that the defendant was liable for attorney’s fees.
The Supreme Court ruled that the trial court’s determi-
nation that the defendant was liable for attorney’s fees
was an appealable final judgment, despite the fact that
the amount of those fees had not yet been determined.
The Supreme Court found that, in dismissing the appeal,
the Appellate Court had wrongly relied on a footnote
in Paranteau v. DeVita, [supra, 208 Conn. 524 n.11],
for the proposition that a trial court does not render a
final judgment as to attorney’s fees until it conclusively
determines the amount of those fees. The Supreme
Court held that the language in Paranteau applies only
to ‘supplemental postjudgment awards of attorney’s
fees.’ Ledyard v. WMS Gaming, Inc., supra, 90.
‘‘Here, the order that Williams be sanctioned and
that he pay attorney’s fees is a final judgment under
Ledyard—notwithstanding the fact that the trial court
has yet to determine the amount of those fees—because
it does not constitute a supplemental postjudgment
award of attorney’s fees.’’ Maurice v. Chester Housing
Associates Ltd. Partnership, supra, 188 Conn. App.
25 n.5.
Presumably then, Williams could file an appeal after
the trial court orders the specific amount of fees for
which he will be liable, contesting the reasonableness
of the amount. See id. As explained by Attorneys Wesley
W. Horton and Kenneth J. Bartschi, ‘‘Paranteau has
been extended to a strict foreclosure case in Benvenuto
v. Mahajan, [supra, 245 Conn. 495], which rejects the
contrary result in Connecticut Nat[ional]. Bank v. L &
R Realty, 40 Conn. App. 492, 671 A.2d 1315 (1996); to
a case in which the right to punitive damages has been
determined but the amount has not; Hylton v. Gunter,
[supra, 313 Conn. 472], overruling Lord v. Mansfield,
[supra, 50 Conn. App. 21]; and even to a case when the
attorneys’ fee award is integral rather than collateral
to the underlying award. Ledyard v. WMS Gaming,
Inc., [supra, 330 Conn. 75].’’ W. Horton & K. Bartschi,
Connecticut Practice Series: Connecticut Rules of
Appellate Procedure (2018-2019 Ed.) § 61-1, authors’
comments, p. 68.
As we attempt to reconcile all of these cases and
arrive at a workable final judgment rule, we conclude as
follows: a judgment that includes an award of attorney’s
fees, even when those fees are integral to the judgment,
as with an award of common-law punitive damages, is
an appealable final judgment despite the fact that the
amount of those fees has not yet been determined;
implicit in this rule is that once the amount of those fees
has been determined postjudgment, that postjudgment
determination will be a separately appealable final judg-
ment as to the reasonableness of the fees awarded.
On the basis of the foregoing, we conclude that the
jury’s determination that the plaintiff is entitled to com-
mon-law punitive damages is a final judgment for pur-
poses of appeal because it does not constitute a supple-
mental postjudgment award, despite the fact that the
trial court reserved a determination of the precise
amount of those damages to a time postjudgment.
B
We next consider the merits of the defendant’s claim
that the trial court improperly permitted the jury to find
her liable for punitive damages without evidence as to
the plaintiff’s litigation expenses, and that the court
improperly reserved to itself the issue of the amount
of punitive damages to be awarded.
The following facts assist with our review. Before
the plaintiff began her presentation of evidence, the
defendant submitted to the court a request to charge
and her proposed jury interrogatories. She requested,
in part, that, if the court were to permit a consideration
of punitive damages in this case, it submit the question
of punitive damages and the amount of those damages
to the jury. Then, during the charging conference, which
was held after the close of evidence, the defendant
asked the court not to charge the jury on punitive dam-
ages because the plaintiff had failed to put forth any
evidence of her litigation expenses, and she, again, told
the court that, if the issue of punitive damages went to
the jury, the court must have the jury determine the
amount of those damages. The plaintiff argued that,
although the liability for punitive damages is a jury
question, the amount of the award is a question for the
court, to be determined after the jury issued its verdict.
She expressed to the court that there would be no way
to ‘‘know the cost of litigation until we are done with
the trial.’’ The court agreed with the plaintiff, stating that
this was its past practice when common-law punitive
damages were involved, and it stated that it would deter-
mine the amount of damages if the jury found that the
defendant was liable for punitive damages. The defen-
dant, following the court’s charge to the jury, also took
an exception to the court instructing the jury on punitive
damages. On appeal, the defendant claims that the court
improperly permitted the jury to find her liable for com-
mon-law punitive damages without evidence as to the
plaintiff’s litigation expenses, and that the court improp-
erly reserved for its own consideration the specific
amount of common-law punitive damages to be
awarded. We agree with the defendant.
The defendant asks that we apply a plenary standard
of review to her claim. We agree that this is the appro-
priate standard of review. ‘‘A challenge to the validity
of jury instructions presents a question of law. Our
review of this claim, therefore, is plenary. . . . We
must decide whether the instructions, read as a whole,
properly adapt the law to the case in question and
provide the jury with sufficient guidance in reaching a
correct verdict. . . . [T]he test of a court’s charge is
. . . whether it fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law.’’ (Citation omitted;
internal quotation marks omitted.) Green v. H.N.S Man-
agement Co., 91 Conn. App. 751, 757–58, 881 A.2d 1072
(2005), cert. denied, 277 Conn. 909, 894 A.2d 990 (2006).
‘‘It is established law that it is error for a court to submit
to the jury an issue which is wholly unsupported by
the evidence.’’ Novak v. Anderson, 178 Conn. 506, 508,
423 A.2d 147 (1979).
The precise issue presented by this claim does not
appear to have been addressed squarely by an appellate
court in Connecticut, at least in quite some time. We
are aware, however, of at least one Connecticut case
in which this issue squarely was raised on appeal on
constitutional grounds, but our Supreme Court did not
decide the issue because it was unpreserved before the
trial court. See Berry v. Loiseau, 223 Conn. 786, 822,
614 A.2d 414 (1992) (plaintiff failed to preserve claim
that he had constitutional right to have jury determine
amount of punitive damage award, not just plaintiff’s
entitlement thereto).
We also are aware that this issue has surfaced in at
least two cases from the United States Court of Appeals
for the Second Circuit. In Gagne v. Enfield, 734 F.2d
902 (2d Cir. 1984), the plaintiff brought a 42 U.S.C.
§ 1983 claim and a state law negligence claim in the
United States District Court for the District of Connecti-
cut. The District Court instructed the jury that if it found
the defendants liable for punitive damages, ‘‘the judge
. . . will award the plaintiff an amount equal to his
reasonable costs in bringing this lawsuit.’’ Id., 904. Dur-
ing the trial, however, the plaintiff had ‘‘offered no evi-
dence of the cost of litigating his claims.’’ Id., 903. The
defendants objected to the court’s submission of the
issue of punitive damages to the jury. Id. In its verdict,
the jury found that punitive damages should be awarded
but, in accordance with the judge’s instruction, did not
specify an amount. Id., 904. The District Court, there-
after, held a posttrial hearing, and it awarded the plain-
tiff $21,336.40 in punitive damages on his state law
negligence claim. Id. On appeal to the Second Circuit,
that court reversed the judgment as to the award of
punitive damages, and it remanded the case with direc-
tion to vacate the punitive damages award. Id., 905.
Specifically, the Second Circuit held that, because the
plaintiff failed to offer any evidence of his litigation
costs at trial before the jury, he was not entitled to
punitive damages under Connecticut law, and there was
‘‘an insufficient evidentiary basis to submit the question
of punitive damages to the jury.’’ Id., 905. The Second
Circuit also held that ‘‘[u]nder the Seventh Amendment,
the determination of the amount of such damages is a
legal claim and for the jury . . . .’’ Id.
Then, in Wolf v. Yamin, 295 F.3d 303, 312 (2d Cir.
2002), the Second Circuit was faced with a similar ques-
tion regarding whether the amount of common-law
punitive damages is a jury question when the defendant
so demands, and it certified the following question to
our Supreme Court: ‘‘[U]nder Connecticut law on puni-
tive damages, is a plaintiff who does not offer any evi-
dence of litigation costs at trial before a jury barred
from recovering any punitive damages? (This question
assumes there has been no agreement by the parties
to a bifurcation of the punitive damages determination
between the jury/trier of fact as to liability and the judge
as to amount).’’ (Emphasis in original.) As in the present
case, the plaintiff in Wolf also argued that if the District
Court had acted improperly in reserving the question
of the amount of damages for a later hearing before
the court, then the Second Circuit should remand the
matter ‘‘for the sole purpose of a [p]unitive damages
hearing before a jury.’’ (Internal quotation marks omit-
ted.) Id., 307.
In Wolf, the Second Circuit discussed Gagne at length,
calling into question its continued viability in light of
more recent Connecticut case law. Id., 308–311.13 The
Second Circuit, in Wolf, opined that the rule in Connecti-
cut had been clear that, unless agreed otherwise by the
parties, evidence as to the amount of punitive damages
must be offered during trial to warrant such a claim
going to the jury. Id., 309. The court relied, in part, on
Venturi v. Savitt, Inc., 191 Conn. 588, 593, 468 A.2d
933 (1983) (plaintiff failed to prove claim for punitive
damages, due in part to failure to offer any evidence
of expenses of litigation at trial), and Chykirda v.
Yanush, 131 Conn. 565, 567–69, 41 A.2d 449 (1945)
(plaintiff cannot recover punitive damages without evi-
dence of those amounts being presented at trial, ‘‘except
for those items of taxable costs of which the trial court
can take judicial notice’’), to support that opinion. Wolf
v. Yamin, supra, 295 F.3d 308–309.
In its determination that our law no longer was clear,
the Second Circuit relied on two more recent cases,
namely, Kenny v. Civil Service Commission, 197 Conn.
270, 496 A.2d 956 (1985), and Berry v. Loiseau, supra,
223 Conn. 786. The Second Circuit explained those
cases as follows: ‘‘Kenny was an action for wrongful
termination of employment in which [the] plaintiff
sought compensatory and exemplary damages. After a
bench trial, the trial court found [the] defendant liable
for, among other things, exemplary damages in the
amount of [the] plaintiff’s litigation expenses. . . . At
trial, the court did not take any evidence as to the actual
costs of the litigation, and no post-trial damages hearing
was held. . . . On appeal, defendant argued in part that
since the plaintiff offered no evidence of the cost of
litigation at trial, exemplary damages were not recover-
able. . . . The Connecticut Supreme Court held: While
it concededly is true that [n]o award for an attorney’s
fee may be made when the evidence is insufficient . . .
it is equally clear that liability for attorney’s fees can
be placed in the absence of any evidence of the cost
of the work performed. In this case the trial court found
the defendants liable for exemplary damages based on
sufficient evidence of discrimination. It merely failed
to set the amount of the award. The proper remedy
under these circumstances, and the one which we order,
is that the case be remanded to the trial court for a
hearing to determine the amount of exemplary damages
awarded. . . .
‘‘Seven years later, the Connecticut Supreme Court
decided Berry. In that case, the plaintiff sued his former
employer and others, alleging wrongful termination of
his employment and other causes of action, and defen-
dants counterclaimed on various theories. The trial
court submitted interrogatories to the jury, asking
whether punitive damages were warranted on either
the plaintiff’s claim or the defendants’ counterclaim.
. . . The court made clear to the jury that if [it] found
that punitive damages were warranted, the court would
determine the amount thereof. No exception was taken
to the charge. The jury responded in the affirmative on
both claims for punitive damages. . . . After a hearing
before the judge, at which the parties submitted evi-
dence of their litigation expenses, the trial court
awarded punitive damages awards to both the plaintiff
($16,667) and the defendants ($50,000). . . .
‘‘Both parties appealed. [The] [p]laintiff challenged
the restrictive Connecticut rule limiting punitive dam-
ages to the costs of litigation. [The] [p]laintiff also
argued [in part] that the trial court . . . improperly
denied him his right under the Connecticut constitution
to have the jury determine the amount of his punitive
damages, [and] . . . improperly applied a Connecticut
contingency fee limitation statute to limit his punitive
damages . . . . Defendants, on their appeal, claimed,
among other things, the trial judge improperly awarded
the plaintiff punitive damages when there was no evi-
dence at trial to support such an award. . . .
‘‘On the plaintiff’s appeal, the Connecticut Supreme
Court rejected the general attack on Connecticut’s
restrictive punitive damages rule. . . . Next, the Court
held that it would not consider the claim that [the]
plaintiff had been denied his constitutional right to have
a jury determine the amount of his punitive damages
award, due to his failure to take a timely exception
when the jury instructions on punitive damages were
given. . . . Regarding [the] plaintiff’s argument that
the trial court improperly limited the plaintiff’s punitive
damages based on the Connecticut contingency fee lim-
itation statute, the Court concluded that the trial court
had improperly applied the statute, and reversed and
remanded for a new hearing before the judge on puni-
tive damages. . . .
‘‘On the defendants’ appeal, the Connecticut Supreme
Court rejected the argument that there was no evidence
to support [the] plaintiff’s punitive damages award. The
Court stated evidence of wanton behavior on the part
of [the] defendants justified an allowance of punitive
damages . . . and that [i]n the present case, the jury
could reasonably have found from the evidence pre-
sented at the trial that [the defendant] subjected the
plaintiff to physical abuse, in reckless disregard of the
consequences of his actions. Accordingly, we are per-
suaded that the trial court properly allowed the jury to
decide whether the plaintiff was entitled to punitive
damages. . . .
‘‘In this discussion, the Court did not mention
whether [the] plaintiff had presented evidence of litiga-
tion costs during the jury trial.
‘‘In Berry, two judges concurred in an opinion of the
court, two judges concurred in the result only and one
judge concurred in a separate opinion, stating that he
would not address the issue . . . in the majority opin-
ion concerning the rule limiting punitive damages to
the party’s litigation costs. . . .
‘‘It is unclear whether the holdings in Kenny and
Berry conflict with earlier Connecticut cases on puni-
tive damages. It is true that Kenny was a bench trial
with no jury, so that the post-trial hearing allowed the
same trier of fact to determine punitive damages, while
the case now before us was before a jury, so that the
judge was not the trier of fact. Still, the Connecticut
Supreme Court in Kenny suggested that a post-trial
procedure be used by the trial court to determine the
amount of punitive damages, rather than holding that
the failure to present evidence of litigation costs at trial
barred punitive damages.
‘‘The Connecticut Supreme Court’s decision in Berry
provides further evidence of ambiguity in Connecticut
law on punitive damages, especially in light of the vari-
ous concurrences in that case. In Berry, the Court again
ordered a post-trial hearing (apparently by the court)
to determine punitive damages, this time after a jury
trial. Berry therefore also suggests that Connecticut
law does not require a plaintiff to offer evidence of
litigation costs at trial. We believe that these two cases,
Kenny and Berry, appear to make Connecticut law
on punitive damages ambiguous.’’ (Citations omitted;
emphasis omitted; footnotes omitted; internal quotation
marks omitted). Wolf v. Yamin, supra, 295 F.3d 309–11.
Two months after the Second Circuit certified its ques-
tion to our Supreme Court, the request for certification
was withdrawn, leaving the question unanswered, and
the matter was voluntarily dismissed at the Second
Circuit.
We next consider the Second Circuit’s statement that
Kenny and Berry ‘‘appear to make Connecticut law on
punitive damages ambiguous.’’ Id., 311. As noted by the
Second Circuit, Kenny was a trial to the court, and the
remand from our Supreme Court was to the trial court
for a hearing in damages. See Kenny v. Civil Service
Commission, supra, 197 Conn. 278–79. That, in and of
itself, distinguishes Kenny from the cases in which the
matter is tried to a jury, and the jury is released from
its service after issuing its verdict. We also are unable
to discern from the decision, which stated in part, ‘‘the
court took no evidence as to the actual costs of the
ligation, and no posttrial hearing in damages was ever
held,’’ whether the trial court made the decision before
or during trial that it did not want to take evidence as
to the costs of litigation until after it rendered judgment.
See id., 278.
In Berry, our Supreme Court was called upon to
determine, inter alia, whether there was evidence to
support an award of punitive damages. Berry v.
Loiseau, supra, 223 Conn. 811. The court held that ‘‘the
jury could reasonably have found from the evidence
presented at the trial that [the defendant] subjected the
plaintiff to physical abuse, in reckless disregard of the
consequences of his actions. Accordingly, [it was] per-
suaded that the trial court properly allowed the jury to
decide whether the plaintiff was entitled to punitive
damages on the sixth count of the complaint.’’ Id.,
811–12.
In the plaintiff’s separate appeal in Berry, he claimed
that the trial court, in relevant part, improperly had ‘‘(1)
denied him his constitutional right to have the jury
determine the amount of his punitive damages award;
[and] (2) applied General Statutes § 52–251c to limit
the amount of punitive damages awarded him to one
third of his recovery on the intentional infliction of
emotional distress count . . . .’’ Id., 822–23. Our
Supreme Court concluded that the plaintiff had waived
his constitutional claim by failing to preserve it; id.,
827–28; but it agreed with the plaintiff’s second claim,
reversed the judgment as to the amount of punitive
damages, and remanded the case for a new hearing on
punitive damages. Id., 829. The fact that our Supreme
Court remanded the case for a hearing on punitive dam-
ages, presumably before the trial court, does not indi-
cate to us anything more than that the plaintiff had
waived any purported right to have that issue decided
by a jury. In the present case, the defendant clearly did
not waive any rights she may have had to have the jury
decide the amount of punitive damages. Accordingly,
we conclude that both Kenny and Berry are distinguish-
able from the present case and do not address the
resolution of claims for common-law punitive damages
submitted to a jury.
In Connecticut, common-law punitive damages, also
called exemplary damages, primarily are compensatory
in nature. See Bodner v. United Services Auto. Assn.,
222 Conn. 480, 492, 610 A.2d 1212 (1992) (in Connecti-
cut, common-law punitive damages ‘‘are limited to the
plaintiff’s attorney’s fees and nontaxable costs, and thus
serve a function that is both compensatory and puni-
tive’’); see also Hylton v. Gunter, supra, 313 Conn. 493
(McDonald, J., dissenting) (common-law punitive dam-
ages are compensatory in nature, but also serve ‘‘a puni-
tive and deterrent function’’). ‘‘To furnish a basis for
recovery of punitive damages, the pleadings must allege
and the evidence must show wanton or wilful malicious
misconduct, and the language contained in the plead-
ings must be sufficiently explicit to inform the court
and opposing counsel that such damages are being
sought. . . . If awarded, [common-law] punitive dam-
ages are limited to the costs of litigation less taxable
costs, but, within that limitation, the extent to which
they are awarded is in the sole discretion of the trier.
. . . Limiting punitive damages to litigation expenses,
including attorney’s fees, fulfills the salutary purpose
of fully compensating a victim for the harm inflicted
. . . while avoiding the potential for injustice which
may result from the exercise of unfettered discretion
by a jury. . . . We have long held that in a claim for
damages, proof of the expenses paid or incurred affords
some evidence of the value of the services . . . . Label
Systems Corp. v. Aghamohammadi, 270 Conn. 291,
335–36, 852 A.2d 703 (2004); but cf. Berry v. Loiseau,
supra, 223 Conn. 827 (common-law punitive damages,
when viewed in the light of the increasing costs of
litigation, also [serve] to punish and deter wrongful
conduct).’’ (Emphasis added; internal quotation marks
omitted.) Hylton v. Gunter, supra, 313 Conn. 486 n.14.
Juries in Connecticut have been awarding punitive
damages for ‘‘wanton or malicious injuries’’ for more
than two hundred years. See, e.g., Linsley v. Bushnell,
15 Conn. 225, 235 (1842), and cases cited therein. More
recently, in Bifolck v. Philip Morris, Inc., 324 Conn. 402,
451, 152 A.3d 1183 (2016), our Supreme Court confirmed
that, in a jury trial, the question of the amount of puni-
tive damages is for the jury, not the court, when the
parties do not agree to have the court decide that issue.
As our Supreme Court explained: ‘‘Indeed, it was pre-
cisely because juries assessed the amount of punitive
damages that this court was motivated to adopt the
common-law rule, limiting the exercise of the jury’s
discretion by tying such damages to litigation
expenses.’’14 Id. In reaching this conclusion, the court
distinguished common-law punitive damages from the
award of punitive damages or attorney’s fees under
certain statutory causes of action that specifically pro-
vide that the court, not the jury, is to determine the
amount to be awarded. Id., 449–51.15
That juries are to determine the amount of common-
law punitive damages is confirmed also by our state
statutes. General Statutes § 52-215 provides in relevant
part: ‘‘The following-named classes of cases shall be
entered in the docket as jury cases upon the written
request of either party made to the clerk within thirty
days after the return day . . . civil actions involving
such an issue of fact as, prior to January 1, 1880, would
not present a question properly cognizable in equity
. . . . All issues of fact in any such case shall be tried
by the jury, provided the issues agreed by the parties
to be tried by the court may be so tried. . . .’’ See also
Practice Book § 14-10.
Additionally, pursuant to General Statutes § 52-216:
‘‘The court shall decide all issues of law and all ques-
tions of law arising in the trial of any issue of fact; and,
in committing the action to the jury, shall direct them
to find accordingly. The court shall submit all questions
of fact to the jury, with such observations on the evi-
dence, for their information, as it thinks proper, without
any direction as to how they shall find the facts. After
the action has been committed to the jury, no pleas,
arguments or evidence may be received before the ver-
dict is returned into court and recorded.’’ See also Prac-
tice Book § 16-9.
As noted, claims for common-law punitive damages
were recognized and submitted to juries for the determi-
nation as to the amount of such damages long before
1880. In the present case, the defendant repeatedly told
the court and the plaintiff that she wanted the jury to
determine the amount of punitive damages. The plaintiff
was on notice of this before she put on any evidence
in the case, when, on February 6, 2017, the defendant
filed her preliminary request to charge the jury and her
proposed jury interrogatories. The plaintiff called the
first witness on February 8, 2017. There is no indication
that the plaintiff filed a motion requesting the court to
opine on whether she needed to produce evidence in her
case-in-chief as to the amount of her punitive damages.
When the defendant again raised this issue during the
March 9, 2017 charging conference, which occurred
after the close of evidence, the plaintiff did not request
to open the evidence to allow her to submit evidence on
the amount of punitive damages. The defendant again
objected, in the form of an exception, after the court
charged the jury on the issue of punitive damages when
there had been no evidence as to the amount of those
damages. The issue certainly was well preserved.
Because the defendant properly and timely requested
that the question of the amount of punitive damages
be decided by the jury, it was incumbent on the plaintiff
to submit evidence supporting her claim to such dam-
ages in her case. It is undisputed that she did not do
so. We conclude, on the basis of the foregoing, that the
court improperly charged the jury on punitive damages
when there was no evidence of damages to support
that charge. See Venturi v. Savitt, Inc., supra, 191 Conn.
592–93 (‘‘it is essential for the plaintiff to offer evidence
of what those [punitive] damages are’’; ‘‘punitive dam-
ages are not properly recoverable in the absence of
evidence as to the elements entering into their determi-
nation’’); Chykirda v. Yanush, supra, 131 Conn. 568–69
(‘‘[p]unitive damages are limited to the costs of litigation
less taxable costs, but within that limitation the extent
to which they are awarded is in the discretion of the
trier’’; ‘‘punitive damages are not properly recoverable
in the absence of evidence as to the elements entering
into a determination of them’’); see also Green v. H.N.S.
Management Co., supra, 91 Conn. App. 758 (‘‘[t]he trial
court has a duty not to submit any issue to the jury
upon which the evidence would not support a finding’’
[internal quotation marks omitted]). Accordingly, the
judgment as to the defendant’s liability for punitive
damages must be reversed. The defendant had the right
to have the issue of the amount of punitive damages
determined by the jury. In light of the fact that the
plaintiff admittedly submitted no evidence of her litiga-
tion expenses, the matter should not have gone to
the jury.16
IV
The defendant’s final claim is that the trial court
improperly denied her motion to set aside the verdict,
which alleged that there was insufficient evidence that
the plaintiff suffers from post-traumatic stress disorder
and other psychological trauma and injuries. She argues
that the ‘‘plaintiff offered no competent and sufficient
evidence to establish that she actually suffered from
the medical and/or psychological conditions she
claimed, or that those conditions were caused by child-
hood sexual abuse.’’
The following additional facts and procedural history
assist with our review. In her complaint, the plaintiff
claimed in count one that the decedent had committed
intentional sexual assault against her. She claimed, inter
alia, that ‘‘[a]s a result of said sexual abuse, sexual
assault and sexual exploitation, the plaintiff has suf-
fered extreme trauma, mental anguish and psychologi-
cal injury, which is permanent in nature.’’ Following
the plaintiff’s case-in-chief, the defendant filed a motion
for a directed verdict on the ground that ‘‘the plaintiff
ha[d] failed to present any competent and sufficient
evidence to establish that she in fact suffers from any
of the various medical/psychological conditions that
she claims in the harm that was inflicted on her as a
result of childhood sexual abuse by [the decedent], or
that any such harm was caused by the alleged childhood
sexual abuse.’’ The court reserved judgment on that
motion.
At the conclusion of the trial, the jury found in favor
of the plaintiff on the first count of her complaint, and
it returned a damages award of $15 million, as follows:
Mental anguish and emotional distress $5 million; psy-
chological trauma and injuries $5 million; permanency
of injuries $3 million; and inability to pursue life’s enjoy-
ment $2 million. The defendant thereafter filed a motion
to set aside the verdict and for a judgment notwithstand-
ing the verdict. In a corrected memorandum of decision,
the trial court denied that motion. The defendant claims
that this was error. Additional facts will be set forth
as necessary.
‘‘Our standard of review of the court’s refusal to grant
[motions for directed verdicts and to set aside verdicts]
requires us to consider the evidence in the light most
favorable to the prevailing party, according particular
weight to the congruence of the judgment of the trial
judge and the jury, who saw the witnesses and heard
their testimony. . . . The verdict will be set aside and
judgment directed only if we find that the jury could
not reasonably and legally have reached [its] conclu-
sion. . . . While it is the jury’s right to draw logical
deductions and make reasonable inferences from the
facts proven . . . it may not resort to mere conjecture
and speculation. . . . If the evidence would not reason-
ably support a finding of the particular issue, the trial
court has a duty not to submit it to the jury. . . . Our
standard of review, where the trial court’s action on a
motion to set aside a verdict is challenged, is whether
the trial court clearly abused its discretion. . . . The
decision to set aside a verdict is a matter within the
broad legal discretion of the trial court and it will not
be disturbed unless there has been a clear abuse of
that discretion.’’ (Internal quotation marks omitted.)
Kosiorek v. Smigelski, 138 Conn. App. 695, 707–708, 54
A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d
287 (2013).
The defendant contends that the plaintiff offered no
competent medical or psychological evidence to sup-
port her claims that she suffers from psychological
injuries or that those injuries will continue in the future.
She argues that the plaintiff’s expert witness, Dawn
Hughes, a clinical and forensic psychologist, opined
that childhood sexual abuse can result in harmful
effects, but she did not draw any conclusions with
respect to the plaintiff or her alleged injuries. Further-
more, the defendant argues, no medical professionals
with whom the plaintiff previously may have treated
testified that she ever suffered from emotional or psy-
chological trauma, or that she will continue in the future
to suffer from such trauma. Accordingly, the defendant
argues that the court erred in denying her motion to
set aside the verdict. The plaintiff argues that the court
properly denied the defendant’s motion because there
was ample evidence of the plaintiff’s injuries. We agree
with the plaintiff.
The plaintiff testified during trial about her emotional
and psychological trauma. She testified that the dece-
dent began abusing her sexually when she was approxi-
mately six years old but that she did not understand
that this was sexual abuse, and, in fact, she ‘‘thought
he was maybe cuddling [her] but it also hurts.’’ She
testified about the hair on his arms, his breath, his saliva
on her neck, and his smell. She testified that this abuse
happened on a regular basis until she was seventeen
years old and that she tried to distract herself while it
was occurring, attempting to focus on other things.
The plaintiff also testified that at age nine, she was
‘‘very popular,’’ that she ‘‘felt like [she] was the teacher’s
pet . . . [and that] all the girls wanted to be [her]
friend. [She] was doing . . . really well, amazingly well
academically . . . [that she] was put into the highest
math class . . . [and that she] felt . . . very confident
and okay.’’ The plaintiff said, however, that this all
changed as she began to reach puberty, around the age
of ten, and that the abuse became more intense after
that. She stated that at that time she came to realize
that what the decedent was doing was sexual. She testi-
fied that she ‘‘became absolutely consumed with shame
and . . . felt so dirty. [She] felt really guilty because
[she] felt like [she] was doing something bad to [her]
mom. [She] couldn’t sleep because [she] was afraid [the
decedent] would come in, and [she] started withdraw-
ing.’’ She also testified that she stopped doing well in
school, stopped socializing with friends, and experi-
enced binge eating, and that she wanted to die. She
also stated that she wanted to gain weight so that she
would be unattractive to the decedent.
The plaintiff testified that by the time she was in high
school, she ‘‘considered [her]self to be fat and [she] felt
ugly and unattractive . . . .’’ She also stated that she
had low self-esteem and that, in her junior year of high
school, she received several grades of ‘‘D.’’
The plaintiff told the jury about her prior drug abuse,
her alcohol abuse, and her sexual promiscuity, and she
stated that she did things because she ‘‘was trying to
just not be here, just go someplace away from reality
because [she] had felt so much shame about [her]self.’’
She testified about her experiences with psychother-
apy, cognitive behavioral therapy, and an incest group
that was made up of women who had been victims of
childhood sexual abuse. She testified about dealing with
‘‘the trauma and the flashbacks, the intrusive memories,
the panic, the anxiety, [and] the sadness . . . .’’ She
detailed how those issues still continue and discussed
her depression, insomnia, sadness, and belief that
nearly every decision she makes in her life is shaped by
the abuse she suffered. She testified about her difficulty
being around aggressive, strong, or professional men,
who remind her of the decedent, and how she can’t
function in their presence. The plaintiff also testified
about her husband and some of the marital issues they
have experienced related to sexual intimacy. She
explained that although she has been in therapy for
years, she still feels dirty and ashamed, but that she
tries to take one day at a time by concentrating on
being healthy that day. Some of the plaintiff’s other
witnesses also substantiated portions of the plain-
tiff’s testimony.17
The plaintiff also called Dr. Hughes to testify as an
expert. Hughes testified that she specializes in ‘‘inter-
personal violence and traumatic stress . . . [which]
covers childhood abuse, childhood sexual abuse, rape,
sexual assault, domestic violence . . . and single
assaults.’’ She explained that children who experience
sexual abuse often do not report the abuse and that
they may be afraid. She also stated that the children
may be unaware of what is happening to them and that
they may feel dirty and a tremendous amount of shame
and embarrassment.
Hughes testified that ‘‘when we look at the effects
of childhood sexual abuse, we see that there’s a higher
degree of likelihood of a number of disorders and diffi-
culties. So, we see post-traumatic stress disorder. We
see depressive disorders; we see anxiety disorders. We
see suicidality. We see sleep difficulties. We also see a
host of . . . problems in living, interpersonal difficul-
ties, difficulties trusting others, still struggling
immensely with guilt, and shame, and embarrassment,
even years later.’’
Hughes also stated: ‘‘So, when an individual who has
been sexually abused as a child . . . they learn the
wrong things. Basically, they learn that someone who
loves you and is supposed to take care of you, also can
harm you and abuse you. . . . So, when [these chil-
dren] go out into the world, they often have trust diffi-
culties . . . . They don’t really know if they can trust
people. They often have difficulties with people in
authority because people who were above them . . .
abused that power and sexually abused them. They
often have difficulty with their . . . own sense of value.
Having been abused makes one feel . . . dirty and
damaged . . . and ashamed. . . . [A] lot of abuse vic-
tims . . . find themselves closed in and not offering
much of themselves. As a result, then they tend to feel
very disconnected in this world . . . .’’
Hughes discussed that victims of childhood sexual
abuse often have problems having healthy sexual rela-
tionships because of the nature of their trauma. She
explained that post-traumatic stress disorder (PTSD)
‘‘is a disorder that arises when somebody has been
exposed to a traumatic stressor. . . . [T]he brain
remembers. So, the memories continue. Sometimes, we
say, the trauma ends and the nightmare begins. . . .
[W]hen the memories of the abuse come into their mind,
they’re psychologically distressed. So then they have
accompanying symptoms of sadness, of guilt, of anger,
of rage, of embarrassment, that continue to linger.
Sometimes they have dreams about abusive episodes
or themes of abuses as well. The next thing they try to
do . . . is avoid. That’s a second symptom . . . of PTSD,
the intrusion, then the avoidance. They try to push . . .
it away. They try not to think about it. We try not to
feel it. Those are the avoidance clusters.’’
Hughes then talked about the ‘‘hyperarousal’’
response that PTSD sufferers also may experience. She
stated that they often are ‘‘quite jumpy.’’ They experi-
ence a ‘‘sense of hypervigilance . . . scanning the envi-
ronment to make sure you’re safe.’’ She stated that this
‘‘disrupts concentration and attention, our ability to
. . . sleep . . . .’’ Hughes then explained: ‘‘And then
the . . . fourth cluster of symptoms is . . . changes
in your thoughts and feelings. It changes the way you
view the world. . . . [T]he world is not safe . . . .
Also, I am not worthy. You know, I am disgusting. These
sort of . . . fundamental changes in the way someone
views the world.’’
Hughes also opined that ‘‘depressive disorders have
been associated with individuals who have been abused
as children. It actually is one of the most robust findings,
the depressive disorders, even sometimes above and
beyond PTSD . . . . People can have depression that
doesn’t rise to a level of a disorder, but once it gets
to a disorder, the definition includes impairment and
functioning. . . . So depression certainly . . . is
related—has been shown to be related to childhood
sexual abuse and can also interfere with people’s every-
day functioning.’’
The defendant contends that this evidence was insuf-
ficient to support the plaintiff’s claim for psychological
damages. She argues that the plaintiff needed compe-
tent medical or psychological evidence to support her
claims that she suffers from psychological injuries or
that those injuries will continue in the future. We con-
clude that the evidence was sufficient.
In Braun v. Edelstein, 17 Conn. App. 658, 661–62,
554 A.2d 1102, cert. denied, 211 Conn. 803, 599 A.2d
1136 (1989), this court considered and rejected a claim
that is similar to the one raised by the defendant. In
that case, the defendant, Edelstein, had argued that the
plaintiff needed to call her treating psychiatrist to testify
that the assault by the defendant had caused the plain-
tiff’s emotional injury. Id. Specifically, this court
explained: ‘‘[E]xpert testimony is not required in order
to prevail on a claim for mental suffering. A plaintiff
may recover damages in a personal injury action for
pain and suffering even when such pain and suffering
is evidenced exclusively by the plaintiff’s subjective
complaints. . . . A plaintiff need only establish a claim
for mental or emotional distress by a fair preponderance
of the evidence. . . . The defendant does not demon-
strate that the plaintiff failed to meet this burden. Our
function is to decide whether the decision of the trial
court was clearly erroneous in view of the evidence
and pleadings in the whole record . . . . Weighing the
evidence and judging the credibility of the witnesses is
the function of the trier of fact and this court will not
usurp that role.’’ (Citations omitted; internal quotation
marks omitted.) Id., 662; see Giordano v. Giordano, 39
Conn. App. 183, 184–85, 207–208, 664 A.2d 1136 (1995)
(in action alleging six counts of sexual abuse and emo-
tional distress against grandfather, court found testi-
mony of grandchildren sufficient to support award of
prejudgment remedy, holding ‘‘[p]laintiffs claiming
damages as a result of emotional distress are not
required to present expert medical testimony . . . to
substantiate their claims of noneconomic damages such
as pain and suffering’’ [emphasis omitted]).
In the present case, the plaintiff submitted factual
evidence as to what the decedent did to her and the
impact his actions have had on her emotional and psy-
chological well-being. She also submitted expert testi-
mony, through Hughes, regarding the symptoms typi-
cally displayed by victims of sexual abuse and sexual
assault. It was in the province of the jury to conclude,
on the basis of all of the evidence it heard, that the
plaintiff’s evidence regarding the emotional and psycho-
logical injuries inflicted on her at the hands of the dece-
dent was credible and that her injuries were worthy of
compensation. We conclude, therefore, on the basis of
the evidence presented, that there was ample proof to
support the jury’s verdict and, therefore, that the court
did not abuse its discretion when it denied the defen-
dant’s motion to set aside that verdict.
In conclusion, the court properly denied the plaintiff’s
motion to dismiss, concluding that it had personal juris-
diction over the estate; the defendant failed to prove
that she was harmed by any purported impropriety in
the court’s admission of certain evidence; the court
improperly sent to the jury the question of the plaintiff’s
entitlement to punitive damages when the plaintiff had
failed to submit evidence at trial of her litigation
expenses; and the court did not abuse its discretion in
denying the defendant’s motion to set aside the verdict
because there was ample evidence that the plaintiff
suffers from psychological trauma caused by the child-
hood sexual abuse of the decedent.
The judgment is reversed only as to the defendant’s
liability for punitive damages and the case is remanded
with direction to vacate the jury’s finding in that regard;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The jury was instructed not to return a verdict on the second count of
the plaintiff’s complaint if it returned a verdict in her favor on the first count.
2
General Statutes § 52-59b (a) provides: ‘‘As to a cause of action arising
from any of the acts enumerated in this section, a court may exercise
personal jurisdiction over any nonresident individual, foreign partnership
or foreign voluntary association, or over the executor or administrator
of such nonresident individual, foreign partnership or foreign voluntary
association, who in person or through an agent: (1) Transacts any business
within the state; (2) commits a tortious act within the state, except as to
a cause of action for defamation of character arising from the act; (3)
commits a tortious act outside the state causing injury to person or property
within the state, except as to a cause of action for defamation of character
arising from the act, if such person or agent (A) regularly does or solicits
business, or engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services rendered,
in the state, or (B) expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue from interstate
or international commerce; (4) owns, uses or possesses any real property
situated within the state; or (5) uses a computer, as defined in subdivision
(1) of subsection (a) of section 53-451, or a computer network, as defined
in subdivision (3) of subsection (a) of said section, located within the state.’’
(Emphasis added.)
3
‘‘Hearsay [refers to] a statement, other than the one made by the declarant
while testifying at the proceeding, offered in evidence to establish the truth
of the matter asserted. Conn. Code Evid. § 8-1 (3). Hearsay is inadmissible,
except as provided in the Code, the General Statutes or the Practice Book.
Conn. Code Evid. § 8-2.’’ (Internal quotation marks omitted.) Miron v. Uni-
versity of New Haven Police Dept., 284 Conn. 35, 50–51, 931 A.2d 847 (2007).
4
Section 4-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) General Rule. Evidence of other crimes, wrongs or acts of a person
is inadmissible to prove the bad character, propensity, or criminal tendencies
of that person except as provided in subsection (b).
‘‘(b) When Evidence of other sexual misconduct is admissible to prove
propensity. Evidence of other sexual misconduct is admissible in a criminal
case to establish . . . .
‘‘(c) When evidence of other crimes, wrongs or acts is admissible. Evidence
of other crimes, wrongs or acts of a person is admissible for purposes other
than those specified in subsection (a), such as to prove intent, identity,
malice, motive, common plan or scheme, absence of mistake or accident,
knowledge, a system of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.
‘‘(d) Specific instances of conduct when character in issue. In cases in
which character or a trait of character of a person in relation to a charge,
claim or defense is in issue, proof shall be made by evidence of specific
instances of the person’s conduct.’’
5
We understand the court’s reference to pending objections to be to what
are more commonly referred to as ‘‘standing objections’’ or ‘‘continuing
objections,’’ meaning ‘‘[a] single objection to all the questions in a given
line of questioning’’; Black’s Law Dictionary (7th Ed. 1999), p. 1011; rather
than objections interposed on a question by question basis. See id.
6
The defendant also argues that insofar as the court refused ‘‘to acknowl-
edge a ‘pending objection,’ ’’ this was error, in violation of Practice Book
§ 60-5, which provides in relevant part: ‘‘In jury trials, where there is a
motion, argument, or offer of proof or evidence in the absence of the jury,
whether during trial or before, pertaining to an issue that later arises in the
presence of the jury, and counsel has fully complied with the requirements
for preserving any objection or exception to the judge’s adverse ruling
thereon in the absence of the jury, the matter shall be deemed to be distinctly
raised at the trial for purposes of this rule without a further objection or
exception provided that the grounds for such objection or exception, and
the ruling thereon as previously articulated, remain the same. . . .’’
We disagree with the defendant’s contention. The portion of Practice
Book § 60-5 on which the defendant relies specifically states that an objection
is preserved if ‘‘counsel has fully complied with the requirements for preserv-
ing any objection . . . to the judge’s adverse ruling . . . .’’ In this case, the
court’s denial of the defendant’s motion in limine was not a definitive adverse
ruling. Instead, the court specifically required counsel to voice an objection
at the appropriate times during trial because the court believed that some
of the evidence on the issue of the decedent’s physical, verbal, and emotional
abuse could be admissible. Accordingly, in order to preserve an objection,
the defendant was required to object and give the court the opportunity to
rule on the objection.
7
The defendant cites only a small portion of this testimony; the complete
testimony was as follows: ‘‘There was . . . one instance where [the dece-
dent]—I must have been fourteen or fifteen—came in naked into [the plain-
tiff’s] room. She and I—in Connecticut. We were talking and playing on her
bed. She immediately rolled off the bed and tried to hide underneath the
bed. And I was really concerned about [her], but also really worried about
what was going on, and I stood up to [the decedent] in front of him. I said,
why are you—why are you in [the plaintiff’s] room without any clothes on?
She’s obviously scared. And as he’s done many times, he hit me and—in
the stomach. And I remember doubling over. He grabbed my hair and threw
me on the floor and he said, never question me.
‘‘That is a memory that I have but it’s not the only one. We were—when
we would come back from Connecticut, where we lived significant amounts
of our time in our house there, when we were talking too loud in the car
coming back home on the highway, it didn’t even matter who was doing
the loud talking. Even when he was driving in the car, he’d turn around and
start to hit us. [The plaintiff] was in the car. She was just a little girl.
‘‘Another road rage incident, my parents both smoked cigarettes, and it
was really difficult for me, even as a teenager, to sit in the car with cigarette
smoke. And I remember telling [the decedent] to please put their cigarettes
out because the smoke was really bothering me, and his response was to
roll up the windows and say, you’re just going to have to live with it.
‘‘I started yelling, stop; I don’t want to sit in a car with all of this smoke,
it’s hard to breathe. And I remember him veering over on the highway from
the left lane because he always drove really quickly, veering over on the
highway, screeching this car to a stop, getting out of the car and insisting
that I get out. And I knew what was coming, but I didn’t want to. And he
started screaming, get out of the car, get out of the car now, and I didn’t
want to. And the kids, my brothers and sister were crying. And he kept on
screaming get out of the car. And I knew that if I didn’t get out of the car
that we all would probably suffer, so I got out of the car, and he just wacked
me with the back of his hand. I was thirteen or fourteen.
‘‘The night before I went to college, we were in Connecticut. I was proud
because I was about to become a young man leaving home. [The decedent]
started drinking. There was yelling going on. There was constantly yelling
in the house. He saw that Michael also—my younger brother—took a drink
because he was upset, and I observed [the decedent] grab my brother, and
[the plaintiff] was right there in the room right next door. He pulled him
up the stairs literally by his shirt, almost trying to drag him up the stairs,
shoved him into our second floor bathtub in Connecticut, literally just—
and I was watching because I was trying to stop him put his head into the
bathtub, turn on cold water, and then started hitting him like this. [The
plaintiff] was screaming. She came in. He pushed me away. This was my
moment before I was going to college. They drove me and dropped me at
the train station with all of my bags, and I went up to college alone the
next day.’’
8
The defendant also makes a passing claim that the court’s limiting instruc-
tion was insufficient. She argues: ‘‘The highly inflammatory nature of the
evidence and repetition by several witnesses could not logically be separated
from the claims of sexual abuse as the trial judge instructed. Additionally
the trial court instructed the jury that it could properly consider ‘what effect,
if any, such conduct had on the plaintiff,’ thereby ultimately undercutting
its own limiting instruction.’’ We are not persuaded by the defendant’s
argument, especially in light of the fact that her own supplemental and
amended proposed jury instructions contained the exact phrase that she
now contends was improper.
9
Section 8-3 (4) of the Connecticut Code of Evidence, setting forth the
state of mind exception to the hearsay rule, provides: ‘‘A statement of
the declarant’s then existing mental or emotional condition, including a
statement indicating a present intention to do a particular act in the immedi-
ate future, provided that the statement is a natural expression of the condi-
tion and is not a statement of memory or belief to prove the fact remembered
or believed.’’
10
The defendant cites only a portion of this excerpt, the entirety of which
is as follows: ‘‘I am really looking forward to seeing the [Fifth] Element this
afternoon at 5 p.m. All day I have been thinking about the sickening stuff
that [the decedent] does. It is so disturbing. It is so hard for me to stay
present. I’m in this great city for God’s sake.’’
11
On appeal, the defendant cites to only a portion of this excerpt. The
entirety of the excerpt to which she objected during trial is as follows: ‘‘Dear
Dad, after much thought, in fact [seven] years of thought, I have concluded
that no emotions, act or word is in reality a black or white entity. For as
there are as many angles at looking at a thing, there are also as many
perceptions of what is being studied. You are a scientist, and have shown
to me that you have the ability to think like a scientist—logically, I’m sure
you would agree. Only by looking at all angles intensely, thoroughly, can
one eventually understand the organism as a whole.
‘‘For many years now I have committed to myself a pursuit to better
understand myself, from all angles. After much thought, empirical experi-
ence, and thousands upon thousands of pages of research to support my
point of view, I believe that the interfamilial relationships play a huge role
in the development and perception of the self in all its manifestations. Call
them what you will—ego, id, super ego, self efficacy, self esteem. This
development is especially touched by the parent-child relationship.
‘‘And so, I have examined our relationship. And I know of times you
helped bolster my sense of worth, where you acted as often fathers do with
love, selflessness, support and guidance.
‘‘I also have examined times when you acted with immaturity, insolence,
greed and violence. You fondled my genitalia! I always pretended to be
asleep. I told my friends about these things then, I told my brother about
these things when I was [sixteen]. I saw a therapist about it in college, and
wrote about it in my journal from ages [eleven] to today. You recall only
one incident. So one of us is inaccurate. I swear on my mother’s grave and
on my nephews lives I know the incest you did actions to be true.
‘‘So, in my pursuit to better understand myself, I wrote in a journal, wrote
letters not meant to be sent, which explored all angles of my feelings to
better understand myself. I also attended at least [five] incest support groups,
did workbooks, etc.
‘‘It is unfortunate that mom read my papers. I had kept much of my pain
from her, did not seek her help to protect her. I felt telling her would cause
her too much pain. How much it would hurt her to know that your actions
were the source of incredible pain for me.
‘‘I invested much energy and gave up a lot of soothing and endured
humiliation and pain for years by not telling mom. This was a choice I made
to protect her. Not me, but mom.
‘‘You say mean, hurtful things to me. You say I killed mom. I cannot forget
that. I perceive you saying that as perverse and bizarre. Many agree with
me. I see you bring up your marriage at Jon’s wedding as using really poor
judgement. I think you use poor judgement about a lot of things. It is clear
to me you have a distorted understanding of reality. I see you screaming
and beating up your children as using poor judgement.
‘‘You told me you dislike me. I don’t believe you know me well enough
to make such conclusions.’’ (Emphasis in original.)
12
Justice McDonald, joined by Justice Zarella, authored a strong dissent
in Hylton, opining that Lord had been decided correctly by this court. Hylton
v. Gunter, supra, 313 Conn. 489 (McDonald, J., dissenting). Specifically,
Justice McDonald stated that Lord was correct because ‘‘punitive damages,
unlike attorney’s fees, are always integral to the judgment on the merits.
Moreover, no . . . case-by-case inquiry would be necessary . . . if this
court were to adopt Lord, because it effectively adopted a bright line final
judgment rule for punitive damages.’’ (Emphasis added.) Id., 489–90.
13
The court, however, made no mention of a federal constitutional ques-
tion, but it considered the issue solely as a matter of Connecticut law. See
Wolf v. Yamin, 295 F.3d 308–11. We are unable to determine from the court’s
decision whether the defendant had raised a constitutional claim or whether
the court, unlike the court in Gagne, had concluded that this was not a
constitutional issue. See id. In any event, in the present case, the defendant
has not argued a violation of a constitutional right, either under the federal
constitution or the state constitution, and we, therefore, consider any consti-
tutional claim waived. See Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 162 n.33, 84 A.3d 840 (2014)
(appellate courts not required to review issues of possible constitutional
error if not raised by appellant).
14
Connecticut Civil Jury Instructions 3.4-4 offers the following jury instruc-
tion for cases involving punitive damages: ‘‘In addition to seeking compensa-
tory damages, the plaintiff seeks an award of punitive damages. Punitive
damages are damages awarded not to compensate the plaintiff for any injury
or losses but to punish the defendant for outrageous conduct and to deter
(him/her) and others like (him/her) from similar conduct in the future.
Punitive damages may be awarded for conduct that is outrageous, because
of the defendant’s reckless indifference to the rights of others or an inten-
tional and wanton violation of those rights. You may award punitive damages
only if you unanimously find, from facts established by a preponderance of
the evidence, that the conduct of the defendant was, in fact, outrageous.
‘‘The law does not require you to award punitive damages. It is, instead,
a matter for your sound discretion. An award of punitive damages must not
reflect bias, prejudice or sympathy with respect to any party. It must instead
be fairly based on the evidence in the case.
‘‘There is no exact standard for fixing the amount of punitive damages.
The amount awarded, if any, should be the amount you unanimously find
necessary for achieving the objectives of punitive damages that I have
described. You should consider the degree of reprehensibility of the defen-
dant’s misconduct and the actual or potential harm suffered by the plaintiff.’’
Connecticut Civil Jury Instructions 3.4-4, available at https://www.jud.ct.gov/
JI/Civil/Civil.pdf (last visited September 5, 2019).
In the notes that follow the model instruction, the following is offered:
‘‘With respect to common-law causes of action, the final paragraph of the
suggested charge should be replaced by the following language: ‘Punitive
damages are limited to the costs of litigation, including attorney’s fees, less
taxable costs. Within that limitation, the extent to which they are awarded
is within your sole discretion.’ . . . ‘[T]here is an undisputed requirement
that the reasonableness of attorney’s fees and costs must be proven by an
appropriate evidentiary showing.’ . . .
‘‘With respect to common-law causes of action, it may be prudent to have
the jury find whether an award of punitive damages is appropriate and to
have the court subsequently determine the amount of such award.’’ (Citations
omitted.) Id., notes. The final suggestion, however, does not address what
the court should do if the defendant objects to that procedure.
15
In a footnote, the Supreme Court stated: ‘‘We note that, despite repeated
statements in the past that ‘the extent to which exemplary damages are to
be awarded ordinarily rests in the discretion of the trier of the facts’; Gion-
friddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 295, 472 A.2d 306
(1984); several more recent decisions reflect a trend toward having the trial
court determine the amount of common-law punitive damages following a
jury trial, thus implicitly limiting this statement to a determination of the
entitlement to such damages. See Harris v. Bradley Memorial Hospital &
Health Center, Inc., 306 Conn. 304, 313, 50 A.3d 841 (2012), cert. denied,
569 U.S. 918, 133 S. Ct. 1809, 185 L. Ed. 2d 812 (2013); Nelson v. Tradewind
Aviation, LLC, 155 Conn. App. 519, 530, 111 A.3d 887, cert. denied, 316
Conn. 918, 113 A.3d 1016 (2015); R.I. Pools, Inc. v. Paramount Concrete,
Inc., 149 Conn. App. 839, 873–74, 89 A.3d 993, cert. denied, 312 Conn. 920,
94 A.3d 1200 (2014); Metcoff v. NCT Group, Inc., 137 Conn. App. 578, 582,
49 A.3d 282 (2012); Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn.
App. 99, 165–66, 30 A.3d 703, cert. granted, 303 Conn. 904, 31 A.3d 1179
(2011) (appeal withdrawn January 27, 2012), cert. granted, 303 Conn. 905,
31 A.3d 1180 (2011) (appeal withdrawn January 26, 2012).’’ Bifolck v. Philip
Morris, Inc., supra, 324 Conn. 450 n.24. None of the cases cited by the court
in Bifolck, however, involved matters in which there had been a jury trial
and the defendant had objected to the trial court reserving the issue of the
amount of the punitive damages to itself; they all appear to be cases in
which the parties either agreed that the court, rather than the jury, would
determine the amount to be awarded after the jury found the plaintiff liable,
or they involved trials to the court.
16
We also are unpersuaded by the plaintiff’s argument that, because the
case was not completely over when she rested, it was not possible for her
to submit evidence of her litigation expenses to the jury. There are numerous
examples of this court and our Supreme Court reviewing common-law puni-
tive damages awards made by juries on the basis of the plaintiff’s evidence
of litigation expenses. See, e.g., Matthiessen v. Vanech, 266 Conn. 822, 826,
836 A.2d 394 (2003) (jury awarded $118,000 in common-law punitive
damages).
17
For example, Jonathan Spalter testified that he ‘‘observed [the plaintiff]
being transformed and when she was a little girl . . . she was . . . the
light of our life . . . she had so many friends. She . . . really was this
joyful little girl, so smart, so curious. She would come and help me with
my own homework. I would bring her in and she just was exuberant. And
by the time she turned . . . maybe eight years old . . . I noticed things
like she just started becoming a little more withdrawn. . . . I remember
. . . coming in late at night into the kitchen and seeing [her] . . . on the
floor eating . . . ice cream, the whole half gallon thing of ice cream. She
was a little girl. And she started to gain weight. . . . And in the next couple
of years . . . this once happy-go-lucky girl, who was so curious about things,
had so many friends, just the lights went off. . . . She became withdrawn,
and morose, and sad . . . . [W]hen she . . . [was] a junior or senior in
high school, this really became a more of her permanent state.’’ Alan Spalter
testified to similar changes in the plaintiff’s behavior and personality.