First American Title Ins. Co. v. 273 Water Street, LLC

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FIRST AMERICAN TITLE INSURANCE COMPANY
v. 273 WATER STREET, LLC, ET AL.
(AC 35882)
Lavine, Beach and Keller, Js.
Argued October 23, 2014—officially released May 5, 2015
(Appeal from Superior Court, judicial district of
Hartford, Peck, J. [motion to dismiss]; Vacchelli, J.
[motion in limine; judgment; motions to set aside verdict
and for remittitur]).
Courtney G. Saleski, pro hac vice, with whom were
Benjamin Berger and, on the brief, David R. Makare-
wicz and Richard M. Kremen, pro hac vice, for the
appellant (plaintiff).
Wesley W. Horton, with whom were Brendon P. Lev-
esque and, on the brief, Karen L. Dowd, for the appel-
lees (defendants).
Opinion
BEACH, J. In this declaratory judgment action, the
plaintiff, First American Title Insurance Company,
appeals from the judgment, rendered after a jury trial,
in favor of the defendant developers, 273 Water Street,
LLC, and Fenwick Acquisition, LLC. The plaintiff claims
that (1) the defendants lacked standing to pursue, and
the trial court lacked subject matter jurisdiction to hear,
their counterclaims; (2) the trial court abused its discre-
tion with respect to several evidentiary rulings; and (3)
the court abused its discretion in denying its motion to
set aside or to reduce the verdict. We affirm the judg-
ment of the trial court.
The following facts, which reasonably could have
been found by the jury, and procedural history are rele-
vant. On September 27, 2004, the defendants purchased
the subject property for $6 million. The property, con-
sisting of approximately 3.5 acres, had been the
beachfront summer home of actress Katharine Hep-
burn. The property was located in the town of Old
Saybrook and the Borough of Fenwick (borough). The
property had 600 feet of frontage on Long Island Sound
and was bordered on one side by a pond and on another
by a land trust. The subject property previously had
been larger, but prior to the sale of the property to the
defendants, the Hepburn estate donated the eastern
portion of the property to a land trust.
When the defendants purchased the property, they
also purchased a title insurance policy (policy) from
the plaintiff. The defendants subdivided the property
into three lots. The house was on the center lot. There
had been plans to build smaller houses on the easterly
and westerly lots to create a family compound. The
three lots were on the market at the time of trial for a
total asking price of $30 million.
Shortly after the defendants began renovating the
property, an official from the borough notified the
defendants, by letter dated February 18, 2005, that the
borough claimed ownership of a thirty foot wide discon-
tinued road. The road ran from Mohegan Avenue,
through part of the property’s driveway, over a portion
of the lawn, and ended at a waterfront rock jetty. The
parties agreed that February 18, 2005, constituted the
date of loss under the title insurance policy.
On August 15, 2007, the defendants submitted a claim
to the plaintiff title insurance company. The plaintiff
approved the claim and issued a check to the defendants
in the amount of $17,000 on October 8, 2008. The defen-
dants refused to accept the check because, in the defen-
dants’ opinion, the loss amounted to approximately
$5 million.
In November, 2008, the plaintiff initiated this action
seeking a declaratory judgment of its rights and obliga-
plaintiff sought a declaration that its obligations under
the policy would be satisfied by a payment of $40,000
or less. The defendants filed a counterclaim alleging
breach of contract and breach of the implied covenant
of good faith and fair dealing, and sought a counter-
declaratory judgment without a limit on the amount
of recovery.
During the course of litigation, in March, 2010, the
parties negotiated with the borough and reached an
accommodation regarding the road. The borough
agreed to convey fee title to the thirty foot discontinued
road to the defendants, who in turn conveyed to the
borough a limited six foot wide easement in the same
area. The easement allowed access residents of the
borough by foot and by bicycle between the hours of
5 a.m. and midnight. Running along the eastern side of
the east lot next to the land donated to the land trust,
the easement was approximately eighty yards from the
house. It was a footpath that was not marked, main-
tained or advertised, but was used by some people.
The case was tried. A jury returned a verdict in favor
of the defendants on their counterclaim for breach of
contract and for a declaratory judgment. The jury
awarded the defendants $2.2 million in damages. The
jury found against the plaintiff on its request for a
declaratory judgment and found against the defendants
on their counterclaim alleging breach of the implied
covenant of good faith and fair dealing. The plaintiff
filed a motion to set aside or to reduce the verdict,
which the trial court denied. The court rendered judg-
ment in accordance with the jury’s verdict, plus costs.
This appeal followed. Additional facts will be set forth
as necessary.
I
The plaintiff first claims that the defendants lacked
standing to pursue, and thus the trial court lacked sub-
ject matter jurisdiction to hear, their counterclaims. It
argues that the court erred in denying its motion to
dismiss, which claimed lack of standing. We disagree.
‘‘It is well established that [i]f a party is found to lack
standing, the court is without subject matter jurisdic-
tion to determine the cause. . . . A determination
regarding a trial court’s subject matter jurisdiction is a
question of law. When . . . the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record. . . . [S]tanding is the legal right to set judicial
machinery in motion. One cannot rightfully invoke the
jurisdiction of the court unless he [or she] has, in an
individual or representative capacity, some real interest
in the cause of action, or a legal or equitable right, title
or interest in the subject matter of the controversy.’’
(Citation omitted; internal quotation marks omitted.)
Perry v. Perry, 312 Conn. 600, 626–27, 95 A.3d 500(2014). ‘‘A determination regarding a trial court’s sub-
ject matter jurisdiction is a question of law. When . . .
the trial court draws conclusions of law, our review is
plenary and we must decide whether its conclusions
are legally and logically correct and find support in the
facts that appear in the record.’’ (Internal quotation
marks omitted.) Fairchild Heights Residents Assn.,
Inc. v. Fairchild Heights, Inc., 310 Conn. 797, 821, 82
A.3d 602 (2014). ‘‘The issue of standing implicates sub-
ject matter jurisdiction and is therefore a basis for grant-
ing a motion to dismiss. Practice Book § [10-30 (a)].’’
(Internal quotation marks omitted.) McWeeny v. Hart-
ford, 287 Conn. 56, 63, 946 A.2d 862 (2008).
The following additional undisputed facts and proce-
dural history are relevant. On May 23, 2011, the defen-
dants transferred the easterly portion of the property,
which contained the easement, by quitclaim deed to A
Piece of Paradise, LLC (Paradise).1 The plaintiff moved
to dismiss the defendants’ counterclaims on the ground
that the defendants lacked standing, because the por-
tion of the property containing the easement (easterly
lot) had been transferred to a third party, Paradise,
thereby terminating the policy as to that portion of the
property. The court denied the motion to dismiss and
concluded that the defendants had standing to bring
their counterclaims. The court noted that, pursuant to
the unambiguous language of the policy, relevant cover-
age ended on May 23, 2011, when the defendants con-
veyed title to the easterly lot to Paradise. The
defendants submitted the claim to the plaintiff in
August, 2007. The court reasoned that the policy was
ambiguous as to the intention of the parties concerning
preexisting claims for damages allegedly incurred prior
to the termination of the policy, and any ambiguity was
to be resolved in favor of the insured. Claims arising
during the policy period, then, were not necessarily
defeated by a subsequent transfer of property to a
third party.
Paragraph 7 of the policy provided: ‘‘This policy is a
contract of indemnity against actual monetary loss or
damage sustained or incurred by the insured claimant
who has suffered loss or damage by reason of matters
insured against by this policy . . . .’’ The policy pro-
vided for title insurance coverage against ‘‘loss or dam-
age . . . incurred by the insured by reason of . . . any
defect in or lien or encumbrance on the title . . . .’’
Paragraph 2 provided: ‘‘The coverage of this policy shall
continue in force as of the Date of Policy in favor of
an Insured only so long as the Insured retains an estate
or interest in the land . . . .’’ The policy defined
‘‘insured’’ as ‘‘the Insured named in Schedule A, and,
subject to any rights or defenses the Company would
have had against the named insured, those who succeed
to the interest of the named insured by operation of
law as distinguished from purchase including, but not
limited to, heirs, distributes, devisees, survivors, per-
sonal representatives, next of kin, or corporate fidu-
ciary successors.’’ Schedule A named the defendants
as the insureds.
It is undisputed that policy coverage as to the lot
encumbered by the easement ended when the defen-
dants conveyed title to the easterly lot to Paradise on
May 23, 2011, and as of that date the defendants no
longer ‘‘retain[ed] an estate or interest in the land’’
under paragraph 2. The policy provided for coverage
to the insured defendants for ‘‘actual monetary loss or
damage . . . incurred by the insured by reason of . . .
any defect in . . . title’’ during the policy period. It is
also undisputed that the defendants, who purchased
the policy in September, 2004, were covered by the
policy when the plaintiff was notified, on February 18,
2005, that the borough claimed ownership to the thirty
foot wide discontinued road on the easterly side of the
property. The parties dispute whether, in this scenario,
the defendants suffered an ‘‘actual loss’’ within the pol-
icy period, and, thus, whether they were harmed such
that they had standing to pursue a counterclaim for
damages.
The plaintiff contends that the policy unambiguously
provided that the insured must ‘‘sustain or incur’’
‘‘actual monetary loss or damage’’ during the policy
period in order to recover under the policy. The plaintiff
argues that the defendants had transferred the easterly
portion to Paradise before they sustained an actual
monetary loss or damage as a result of the six foot
easement, and thus did not have standing to assert
counterclaims against the plaintiff.
In their counterargument, the defendants maintain
that the court found, in its decision on the plaintiff’s
motion to set aside the verdict, that the parties had
agreed that February 18, 2005, was the date of loss.
This fact was also found by the court in its ruling on
the motion to dismiss. In its reply brief, the plaintiff
argues that it did not waive its claim concerning stand-
ing by stipulating as to date of loss. It argues that it
never stipulated that there was an actual monetary loss,
but, rather, it was ‘‘forced to proceed’’ with litigating
the case after the trial court denied its motion to dis-
miss, and thus it ‘‘was necessary to determine the date
that the jury would use to monetize the diminution in
value of the property—i.e., the legal date of loss—if
and only if the jury found that there was a loss at all.’’
The plaintiff argues that the defendants did not lose
ownership of the land comprising the discontinued road
on February 18, 2005, but rather the letter from the
borough notified the defendants of an alleged title
defect on that date.
We do not disagree with the plaintiff as to its denial
of waiver. We hold, however, that the plaintiff cannot
prevail on its contention that the defendants lack stand-
ing on the ground that they did not suffer a monetary
loss under the insurance policy on February 18, 2005,
because the defendants asserted in their counterclaims
a colorable claim of direct injury. The plaintiff argues
that the defendants’ assertion in their counterclaim that
they ‘‘have been and continue to be financially harmed
in an amount to be determined at trial’’ is speculative
and does not amount to an actual loss. The defendants,
however, were not required to prove their claim in order
to establish standing, but, rather, were required to make
a colorable claim. See Perry v. Perry, supra, 312 Conn.
627 (‘‘[S]tanding is not a . . . a test of substantive
rights. Rather it is a practical concept designed to
ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented. . . . These two objectives are
ordinarily held to have been met when a complainant
makes a colorable claim of direct injury he has suffered
or is likely to suffer, in an individual or representative
capacity. Such a personal stake in the outcome of the
controversy . . . provides the requisite assurance of
concrete adverseness and diligent advocacy.’’ [Citation
omitted; internal quotation marks omitted.]). The defen-
dants alleged colorable claims for all of the counter-
claims: breach of contract, breach of the implied
covenant of good faith and fair dealing, and a declara-
tory judgment. They alleged a defect in title and diminu-
tion in value of the property because of the borough’s
assertion of ownership of a strip of the property. The
amount of the loss suffered, if any, under the policy
was a question of fact to be resolved by the jury at trial.
The jury ultimately found that the defendants suffered
a loss under the insurance policy.
The plaintiff argues that the present case is indistin-
guishable in any material way from Gebhardt Family
Investment, LLC v. Nations Title Ins. of New York,
Inc., 132 Md. App. 457, 752 A.2d 1222, cert. denied, 360
Md. 486, 759 A.2d 231 (2000) (Gebhardt). In Gebhardt,
the individual plaintiffs purchased more than thirty
acres of land and, at the same time, purchased title
insurance from the defendant insurer. Id., 459. A few
years later, the individual plaintiffs discovered that
another entity was paying property taxes on 4.75 acres
of the property. Id. The individual plaintiffs reported
the cloud on title to the defendant and demanded that
the defendant obtain a quitclaim deed to the 4.75 acres
from the third party in favor of the plaintiffs. Id. Before
the matter was resolved, the plaintiffs transferred the
entire property to a limited liability company, of which
the plaintiffs were the sole members. Id., 460. Following
the transfer, the individual plaintiffs and their limited
liability company sued the defendant for breach of con-
tract for failing to resolve the cloud on title. Id. The
trial court determined that the plaintiffs’ coverage under
the policy terminated with the transfer of the property
to the limited liability company and rendered judgment
in favor of the defendant. Id., 461. The judgment was
affirmed on appeal. Id., 466. The court noted that the
plaintiffs had admitted in their brief that there had not
yet been a monetary loss and reasoned that if any loss
were to be suffered, it would be suffered by the limited
liability company. Id. In Gebhardt, then, the insured
admitted that there had been no monetary loss during
the policy period. Although the court determined,
because of the admission by the insureds, that they
suffered no monetary loss and thus could not recover,
the issue of standing to bring a claim under the policy,
alleging monetary loss in such a situation, was not
raised. Gebhardt, then, does not hold that a transfer of
the property necessarily prevents the transferor from
recovering against its insurer and does not specifically
address the situation in which a loss of property value
has been caused while the insured owns the affected
premises.
The plaintiff in the present case does not claim that
a subsequent termination of the policy defeats an
insured’s ability to maintain a claim for actual monetary
loss that occurs during the policy period, but, rather,
agrees that an insured ‘‘clearly can so recover.’’ We
agree as well. The policy itself also does not state that
the ability to claim a loss terminates with the transfer
of ownership; rather, it unambiguously provides for
title insurance coverage against ‘‘loss or damage . . .
incurred by the insured by reason of . . . any defect
in or lien or encumbrance on the title.’’ Coverage for
loss occurring after the transfer of ownership, however,
is terminated by the transfer of ownership. The policy
provides: ‘‘The coverage of this policy shall continue
in force as of the Date of Policy in favor of an Insured
only so long as the Insured retains an estate or interest
in the land . . . .’’
The case of Centennial Development Group, LLC v.
Lawyer’s Title Ins. Corp., 233 Ariz. 147, 310 P.3d 23(App. 2013), review denied, Arizona Supreme Court,
Docket No. CV-13-0354-PR (April 22, 2014) (Centen-
nial), involved similar facts and contract language. In
that case, the plaintiff purchased seventy-five acres of
land and obtained title insurance from the defendant.
Id., 148. Approximately one year after the closing date,
the plaintiff discovered a roadway and utility easement
across its property that the defendant had not disclosed.
Id. The plaintiff reconveyed all but one acre back to
the prior owner; the easement did not burden the one
acre the plaintiff retained. Id. The plaintiff sued the
defendant for negligence and breach of contract. Id.
The trial court granted summary judgment in favor of
the defendant as to both counts. Id. The policy in Cen-
tennial insured the plaintiff ‘‘ ‘against loss or damage
. . . sustained or incurred . . . by reason of . . .
[a]ny defect in or lien or encumbrance on the title’ ’’
subject to the following condition: ‘‘ ‘The coverage of
this policy shall continue in force as of Date of Policy
in favor of an insured only so long as the insured retains
an estate or interest in the land.’ ’’ Id., 150. The Arizona
appellate court determined that the defendant refer-
enced ‘‘no policy language that requires [that] the
insured own the affected property at the time it makes
a claim. While the policy makes plain that coverage
continues only so long as the insured owns the property,
it contains no similar restriction on when an insured
may file a claim. See Burke, Law of Title Insurance
§ 5.02 (3d. ed. Supp. 2012) (‘post-coverage claim’ may
be made on a title insurance policy ‘so long as the
damages were sustained during coverage’).’’ Centen-
nial Development Group, LLC v. Lawyer’s Title Ins.
Corp., supra, 151.
The court in Centennial continued: ‘‘[T]he loss [the
plaintiff] alleges was sustained when it discovered the
defect in title, at a time when it owned all 75 acres.
Because [the plaintiff] owned the property at the time
it allegedly incurred the loss, its damage claim is not
barred by the ‘continuation in force’ provision of the
policy. See generally Sandler v. New Jersey Realty Title
Ins. Co., 36 N.J. 471, 178 A.2d 1, 6 (1962) (‘Where the
insured had an insurable interest at the time of making
the contract, a change of title to the property insured
does not automatically void the policy, if at the time
of loss the insured has such an insurable interest. Such
a result is attained only by a policy provision to that
effect’). . . . We hold that under the ‘continuation of
insurance’ provision of the policy, [the plaintiff’s] sale
of the affected property does not bar its claim for dam-
ages it alleges it incurred prior to the sale.’’ (Citations
omitted.) Centennial Development Group, LLC v. Law-
yer’s Title Ins. Corp., supra, 233 Ariz. 152; see also
Chicago Title Ins. Co. v. 100 Investors Ltd. Partner-
ship, 355 F.3d 759, 763 (4th Cir. 2004) (when same tract
of land was conveyed to insured and to third party,
Fourth Circuit determined, applying Maryland law, that
insurance company had duty to defend insured against
third party’s claim of trespass where actual loss
occurred during policy period and prior to termination
of policy despite fact that insured had subsequently
conveyed the property to another, but insurance com-
pany had no duty to reimburse insured for moneys spent
in repurchasing the land after policy had terminated);
Joyce D. Palomar, 1 Title Insurance Law § 8:22 (2014-
15 Ed.) (‘‘[w]hile a transfer of title terminates future
coverage, so long as the insured held title at the time
of its loss, the insured’s subsequent transfer of title
does not terminate its pre-existing claim’’ [emphasis
omitted]).
In the present case, the alleged loss of property value
occurred during the policy period. The defendants,
then, have standing to assert their counterclaims
despite the fact that the policy was terminated as to
that property subsequent to the loss because of the
transfer of the relevant portion of the property to a
third party.
II
The plaintiff next claims that the court abused its
discretion in making several evidentiary rulings that
substantially prejudiced the plaintiff. We disagree.
We first set forth our standard of review. ‘‘The trial
court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s
discretion. . . . [E]videntiary rulings will be over-
turned on appeal only where there was an abuse of
discretion and a showing by the defendant of substantial
prejudice or injustice.’’ (Internal quotation marks omit-
ted.) Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 489,
958 A.2d 1195 (2008).
A
The plaintiff claims that the court erred in admitting
into evidence opinion testimony of Frank Farricker,
a witness for the defendants, regarding his theory of
‘‘celebrity enhancement.’’ It argues that the court should
have conducted a Porter2 hearing and should have
excluded Farricker’s testimony because it was based
on ‘‘junk science.’’ The plaintiff argues, alternatively,
that Farricker’s celebrity enhancement testimony
should have been excluded by the trial court because
it was more prejudicial than probative. We disagree.
Prior to trial, the court heard arguments on the plain-
tiff’s motion in limine, filed pursuant to Practice Book
§ 15-3, to preclude the testimony of Farricker. At the
hearing, the plaintiff’s counsel argued that Farricker
should have been precluded from testifying as to his
celebrity enhancement theory because it was not the
type of expert analysis that has been recognized to be
proper under Porter. It further argued that Farricker,
a licensed real estate broker, was not qualified to testify
as an expert in celebrity enhancement. The court stated:
‘‘And I assume you’re requesting a Porter hearing
regarding this, and this is your Porter hearing. Am I
correct?’’ The plaintiff’s counsel replied: ‘‘If Your Honor
feels this is necessary under the motion in limine, it’s
my understanding that . . . we certainly are prepared
to proceed if need be.’’ The defendants’ counsel argued
that Farricker’s testimony contemplated his opinion as
to real estate values rather than to arcane, scientific
matters, and therefore neither a Porter hearing nor pre-
clusion was required. The court denied the plaintiff’s
motion. The court stated: ‘‘I don’t think it is necessary
to hold a Porter hearing in this case. . . . We let prop-
erty owners give a value for their own property, and
. . . there is certainly nothing scientific about that and
this is far removed from that, comparable to an
appraiser, and we will have appraisers testifying in this
case. And I think he can testify on the same basis. Now
that’s not to say that there are not credibility issues here,
and fertile grounds for cross-examination concerning
possibly his qualifications and the validity of his conclu-
sions, but that doesn’t go to whether this must be
excluded under Porter. So I won’t preclude him from
testifying.’’
Farricker was found to be qualified as an expert wit-
ness on the subject of real estate values, and he testified
that celebrity status of a property ‘‘can greatly affect
its value.’’ He further testified that the celebrity status
of the Hepburn home enhanced the property’s value,
so that its market value was greater than its value as
determined by standard methods of appraisal.
‘‘Our standard for admitting expert testimony is well
established. In Porter, our Supreme Court explicitly
adopted the Daubert3 test to determine the admissibility
of scientific evidence . . . [but it] did not explicitly
overrule Connecticut precedent regarding the evidence
to which such a test should apply. . . . Courts apply
the Daubert standard only when such testimony
involves innovative scientific techniques . . . .’’ (Foot-
note added; internal quotation marks omitted.) State v.
Campbell, 149 Conn. App. 405, 429, 88 A.3d 1258, cert.
denied, 312 Conn. 907, 93 A.3d 157 (2014). ‘‘In Daubert,
the United States Supreme Court charged federal trial
judges to act as gatekeepers regarding the reasoning
or methodology behind scientific evidence so as to
exclude from admission any unreliable evidence and
related expert testimony. . . . [In Porter, our]
Supreme Court adopted the Daubert approach regard-
ing the threshold admissibility of scientific evidence.
. . . Although federal courts have applied the Daubert
gatekeeping function as to the admission of all expert
testimony, not just testimony based in science . . .
Connecticut has never adopted that expansion of the
Daubert holding.’’ (Citations omitted; internal quotation
marks omitted.) Banco Popular North America v. Du’G-
lace, LLC, 146 Conn. App. 651, 658, 79 A.3d 123 (2013).
The plaintiff argues that a Porter hearing was neces-
sary because Farricker’s testimony was based on an
innovative scientific technique. The plaintiff further
contends that because Farricker’s testimony on celeb-
rity enhancement theory constituted ‘‘junk science’’ it
should have been excluded. We disagree.
Farricker’s proposed testimony concerned a real
estate appraisal. ‘‘[A] real estate appraisal is not scien-
tific evidence . . . .’’ Id. His testimony was premised
on a human factor that was readily observable and
understandable. State v. Vumback, 68 Conn. App. 313,
330, 791 A.2d 569 (2002) (‘‘[i]f an expert’s testimony
concerns a method, the understanding of which is
accessible to the [trier of fact] . . . the testimony is
not scientific . . .’’ [internal quotation marks omitted]),
aff’d, 263 Conn. 215, 819 A.2d 250 (2003). It was not the
type of potentially misleading evidence contemplated
in Porter to be subject to the Daubert test. See id.Accordingly, a hearing as to the admissibility of the
evidence was not required by Porter, and the trial court
did not improperly refuse to exclude the evidence on
the ground that a Porter hearing should have been held.
The plaintiff argues in the alternative that the court
erred in failing to exclude Farricker’s celebrity enhance-
ment testimony because it was more prejudicial than
probative. It argues that the celebrity enhancement tes-
timony aroused the emotions of the jury and left the
jury with the impression that the value of the property
was enhanced by ‘‘some amorphous amount.’’ We are
not persuaded.
‘‘Although relevant, evidence may be excluded by the
trial court if the court determines that the prejudicial
effect of the evidence outweighs its probative value.
. . . Of course, [a]ll adverse evidence is damaging to
one’s case, but it is inadmissible only if it creates undue
prejudice so that it threatens an injustice were it to be
admitted. . . . The test for determining whether evi-
dence is unduly prejudicial is not whether it is damaging
[to the party seeking its exclusion] but whether it will
improperly arouse the emotions of the jur[ors].’’ (Inter-
nal quotation marks omitted.) State v. Kalil, 314 Conn.
529, 548, 107 A.3d 343 (2014).
A real estate appraisal based in part on a celebrity
enhancement theory is not likely improperly to arouse
the emotions of the jury. It was not likely to arouse in
the jury feelings of hostility or sympathy, nor did it
reflect unfavorably on the plaintiff. It concerned only
the value of the property, which, of course, was at issue
in the case. Further, the plaintiff was able to cross-
examine Farricker on his method and conclusions, and
the court sustained the plaintiff’s objection to Farrick-
er’s giving his opinion as to the amount by which the
value of the property was enhanced because of its for-
mer celebrity ownership. Accordingly, the court did not
abuse its discretion in admitting the testimony.
B
The plaintiff claims that the court erred by excluding
evidence of a claimed admission regarding the value of
the property after the title defect had been reduced
from the thirty foot discontinued road to a limited six
foot easement. We are not persuaded that any error
was harmful.
Frank Sciame, the owner of the defendants and, thus,
indirectly of the property, also owned a construction
company specializing in ‘‘very challenging, difficult
projects’’ such as renovating and preserving sensitive
historic properties. Sciame testified that he purchased
the property for $6 million in 2005. He said he ‘‘got a
great buy here because of the circumstances. It was a
great opportunity to use the skill sets the company had.
. . . I would believe it was worth the $12 million they
originally asked for it.’’ He further testified that at the
time of purchase the house was in disrepair: it had flood
damage and mold, had sunk in the ground and was
leaning. He purchased it for half the original list price
and did not subject the purchase to an engineer’s inspec-
tion ‘‘[b]ecause if anyone had bought that house and
an engineer went in there, with the leaning and in the
hole and then the flooding, they probably would fail
the inspection, so I made it not subject to an engineer’s
inspection and they accepted the offer.’’ The parties
stipulated that at the time of trial in 2013 the property
was on the market for $30 million.
During cross-examination of Sciame, the plaintiff
sought to introduce as a full exhibit a letter from Sciame
to the residents of the borough, dated June 6, 2011. In
that letter, Sciame informed the residents of the listing
of the property for sale, in the event that any resident
had an interest in purchasing the property. Sciame
informed the residents that he and his wife would be
offering the 1.47 acre parcel on which the Hepburn
home was located for $18 million, the westerly lot for
$4.5 million and the easterly lot for $5.5 million. Counsel
for the defendants objected to the letter on the ground
of relevancy. The defendants’ counsel argued that the
parties had agreed that ‘‘the house’’ was, as of the time
of trial, in March, 2013, listed for sale at $30 million,
and that the letter, which was dated June 6, 2011, was
not relevant because it included contemplated sale
prices that did not reflect the actual then-current listing
price. The plaintiff’s counsel argued that the letter was
relevant to the valuation of the property because Sciame
admitted in the letter that the value of the easterly lot
was $5.5 million, even though it was burdened by the
easement, and it tended to discredit Sciame’s claim that
the easterly lot had suffered a diminution in value of
$4 to $5 million by virtue of the title defect, as amelio-
rated by the substitution of the easement. The plaintiff’s
counsel argued that the letter was relevant ‘‘to the credi-
bility of the claim’’ because Sciame was claiming dam-
ages of $4 to $5 million at trial, yet two years earlier
the easterly lot was being marketed for $5 million. In
sustaining the objection by the defendants’ counsel, the
court stated: ‘‘well, if it [is] a credibility issue, it is a
collateral topic.’’
‘‘Evidence is relevant if it has any tendency to make
the existence of any fact that is material to the determi-
nation of the proceeding more probable or less probable
than it would be without the evidence. Conn. Code Evid.
§ 4-1. Relevant evidence is evidence that has a logical
tendency to aid the trier in the determination of an
issue. . . . One fact is relevant to another if in the
common course of events the existence of one, alone
or with other facts, renders the existence of the other
either more certain or more probable. . . . Evidence
is not rendered inadmissible because it is not conclu-
sive. All that is required is that the evidence tend to
support a relevant fact even to a slight degree, [as] long
as it is not prejudicial or merely cumulative.’’ (Internal
quotation marks omitted.) Reville v. Reville, 312 Conn.
428, 461, 93 A.3d 1076 (2014).
‘‘[T]he basic measure of damages . . . to real prop-
erty is the resultant diminution in value. . . . In order
to assess the diminution in value, however, the [trier
of fact] must first determine the value of the property,
both before and after the injury has occurred. . . . [N]o
one method of valuation is controlling . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.)
Ratner v. Willametz, 9 Conn. App. 565, 584, 520 A.2d
621 (1987). ‘‘It is undisputed that homeowners are quali-
fied to testify as to their personal opinion regarding
the value, or diminution in value, of their properties.’’
Tessmann v. Tiger Lee Construction Co., 228 Conn. 42,
47, 634 A.2d 870 (1993). ‘‘Furthermore, [b]efore a party
is entitled to a new trial because of an erroneous eviden-
tiary ruling, he or she has the burden of demonstrating
that the error was harmful. . . . The harmless error
standard in a civil case is whether the improper ruling
would likely affect the result. . . . When judging the
likely effect of such a trial court ruling, the reviewing
court is constrained to make its determination on the
basis of the printed record before it. . . . In the
absence of a showing that the [excluded] evidence
would have affected the final result, its exclusion is
harmless.’’ (Internal quotation marks omitted.) Desro-
siers v. Henne, 283 Conn. 361, 366, 926 A.2d 1024 (2007).
The plaintiff argues that the letter would have pro-
vided the jury with Sciame’s view of the value of the
property, including the easterly lot, after the title defect
had been mitigated. The evidence would have been
relevant to a material issue in the case—the diminution
in the value of the easterly lot due to the limited six
foot easement. The plaintiff’s counsel stated at trial that
it was also relevant because it affected the credibility
of Sciame’s trial testimony regarding damages.
Although the letter was relevant, the plaintiff cannot
prevail on its claim because it has not shown that the
exclusion of the letter from evidence was harmful.
The diminution in value caused by the easement was
a central issue in the case. The letter, however, does
not contain specifically an admission regarding market
value, but rather includes Sciame’s asking price in 2011.
To the extent that the asking price was relevant, the
failure of the court to admit the exhibit was not harmful.
The jury had before it, in any event, the 2013 asking
price of $30 million, which was $2 million more than
the $28 million total asking price referenced in Sciame’s
letter in 2011. Both the 2011 and 2013 asking prices
were for the whole property burdened by only the ease-
ment. The plaintiff argues that the letter was ‘‘directly
relevant to the central issue of the case’’ and that coun-
sel sought to admit the letter into evidence as a full
exhibit ‘‘to combat [Sciame’s] valuation of the property
subject to the limited six foot easement at $18 million
(a figure which he calculated by reducing his valuation
of the property at $24 million by 25 percent).’’ Sciame
testified on redirect examination that in January, 2009,
he believed that the house was worth $24 million after
renovations and that the diminution in value caused by
the title defect was between 20 to 30 percent of the
unencumbered value, or about $6 million. This testi-
mony, which was admitted at trial after the plaintiff’s
counsel sought to introduce the letter as a full exhibit,
related to a valuation of the property in January, 2009,
which was after notification of the discontinued road,
but before the negotiation of the easement. The jury
was instructed to determine the diminution in value
caused by the easement. The jury had before it evidence
that the plaintiff, in 2013, was asking $30 million for
the entire property,4 as encumbered by the easement.
The letter stated that Sciame anticipated placing the
easterly lot on the market for $5.5 million. The fact that
the jury did not have this evidence before it was not
likely to have affected the result in light of other evi-
dence presented to the jury regarding the valuation of
the property as a result of the easement. In closing
arguments, the parties focused on the expert appraisers
and the issue of privacy. Evidence of Sciame’s proposed
asking price in 2011, as opposed to market value, was
not central to the issues before the jury. The jury had
before it evidence from the plaintiff’s expert, Albert
Franke, that the thirty foot discontinued road caused
a diminution in value of $40,000, but that the limited
six foot easement caused no diminution in value to
the property. Robert Nocera, the defendants’ expert
witness, testified that the diminution in value to the
property as a result of the road was approximately $4.1
million. He further testified that, although the impact
of the easement was not ‘‘reflected necessarily in [his]
analysis,’’ the easement ‘‘diminishes, substantially, the
uniqueness, the exclusivity, the privacy of this property
to the point where major damages occur.’’ For the fore-
going reasons, we conclude that the failure of the court
to admit the letter as a full exhibit was not harmful,
because it was cumulative of other evidence and not
directly material, because it was a suggestion of an
asking price rather than a statement of actual market
value.
C
The plaintiff next claims that the court abused its
discretion in ‘‘excessively limiting’’ the testimony of a
real estate appraiser, Marc Nadeau. We do not agree.
Nadeau was hired by the plaintiff to assess the
amount of the loss after the defendants filed their claim;
Nadeau concluded that the amount of the loss was
$17,000. Nadeau testified that he was a certified
appraiser and that he provided the plaintiff with an
appraisal regarding the diminution in value of the prop-
erty as a result of the discovery that the borough owned
the discontinued road. He was asked on direct examina-
tion about an appraisal he performed regarding one of
the subdivided lots at 10 Mohegan Avenue, at which
point the defendants’ counsel objected. The court
excused the jury. The plaintiff’s counsel withdrew
Nadeau as an expert. The following colloquy occurred:
‘‘The Court: So he is not going to be giving any opinion
about what the value of anything is?
‘‘[The Plaintiff’s Counsel]: He is going to give an opin-
ion—he’s going to defend his appraisal is what he is
going to do. And there was value in his appraisal. He’s
not going to opine on his appraisal, he’s going to explain
what he did . . .
‘‘The Court: Okay. Well, if he is not going to be giving
an opinion about what the loss is, he’s just going to be
a fact witness stating what he did.
‘‘[The Plaintiff’s Counsel]: Well, he is going to be
giving—
‘‘The Court: —then I don’t see any relevancy [to]
all this other material. I thought you were building a
background laying a foundation for his skill and capac-
ity and knowledge of the area that he used in coming
to his opinions.
‘‘[The Plaintiff’s Counsel]: But I am.
‘‘The Court: But if he is not an opinion witness and
he’s not going to be giving an opinion, all that is not
relevant.
‘‘[The Plaintiff’s Counsel]: But he will be giving an
opinion.
‘‘[The Defendants’ Counsel]: He can’t. You withdrew
him as an expert. He can’t give an opinion. He can only
testify that he did an appraisal and here it is. . . . He
can testify to the fact that [the plaintiff] asked him to
do an appraisal and that he submitted it. He can’t testify
to anything else.
‘‘The Court: That’s what a fact witness would give,
just the fact that he did it.
‘‘[The Plaintiff’s Counsel]: So he can’t explain what
he did in the undertaking the appraisal?
‘‘The Court: Not unless he’s been identified as an
expert, and everyone knows he’s going to be giving
expert testimony.
‘‘[The Plaintiff’s Counsel]: But we are not proffering
him as an expert, Your Honor.
‘‘The Court: So he’s just a fact witness, so objec-
tion sustained.’’
After the jury returned to the courtroom, Nadeau
then testified that a representative of the plaintiff asked
him to appraise the loss in the value of the property
caused by the borough’s claim of ownership of the
discontinued road. He testified about the process he
used to appraise the property. When asked whether the
claim of the borough to the discontinued road would
affect the owner’s ability to subdivide the parcel, the
defendants’ counsel objected on the ground that
Nadeau was not an expert, but a fact witness. The court
sustained the objection and stated that because Nadeau
was not offered as an expert witness, ‘‘all he can testify
about is . . . the fact of what he did.’’ The plaintiff’s
counsel asked ‘‘if he is not allowed to explain what he
does, does that mean that his appraisal will be immune
from being criticized?’’ The court explained ‘‘Well, I
guess if he is not giving any opinion, any hypotheticals
to change his opinion would not be relevant or wouldn’t
be available either . . . to challenge his opinion.’’ The
court then said that expert testimony attacking
Nadeau’s appraisal would be admissible. The plaintiff’s
counsel asked: ‘‘But then could I bring him back to
defend his own appraisal?’’ The court responded that
‘‘he would need to be an expert to do that. . . . [He]
could explain what he did, but he wouldn’t be able to
explain [whether] it’s shoddy or not.’’ When asked by
the plaintiff’s counsel if the witness could explain his
work, the court stated: ‘‘I’ll have to . . . see the con-
text. But if this witness is not offered as an expert, all
I can see if he would testify about what he did; and is
that your report? Yes, it is. Is that your signature? Yes,
it is. That’s the end of his . . . reasons for testifying.’’
The plaintiff argues that the court erred in precluding
Nadeau from explaining the methodology underlying
his appraisal on the ground that he was not offered as
an expert. The plaintiff contends that these limitations
on Nadeau’s testimony were ‘‘excessive’’ and its exclu-
sion was prejudicial.
‘‘Opinion evidence generally is inadmissible unless
the witness is an expert.’’ Message Center Management,
Inc. v. Shell Oil Products Co., 85 Conn. App. 401, 418,
857 A.2d 936 (2004). But ‘‘under prescribed circum-
stances, a lay witness may be competent to offer an
opinion.’’ State v. Finan, 82 Conn. App. 222, 228, 843
A.2d 630 (2004), rev’d on other grounds, 275 Conn. 60,
881 A.2d 187 (2005). Section 7-1 of the Connecticut
Code of Evidence provides: ‘‘If a witness is not testifying
as an expert, the witness may not testify in the form
of an opinion, unless the opinion is rationally based on
the perception of the witness and is helpful to a clear
understanding of the testimony of the witness or the
determination of a fact in issue.’’ ‘‘Section 7-1 is based
on the traditional rule that witnesses who did not testify
as experts generally were required to limit their testi-
mony to an account of the facts and, with but a few
exceptions, could not state an opinion or conclusion.’’
(Internal quotation marks omitted.) Message Center
Management v. Shell Oil Products Co., supra, 85 Conn.
App. 419; see also State v. Finan, 275 Conn. 60, 65–66,
881 A.2d 187 (2005) (‘‘[b]ecause of the wide range of
matters on which lay witnesses are permitted to give
their opinion, the admissibility of such evidence rests
in the sound discretion of the trial court, and the exer-
cise of that discretion, unless abused, will not constitute
reversible error’’ [internal quotation marks omitted]).
‘‘Thus, to be admissible, lay opinion testimony must
meet two criteria: It must rationally be based on percep-
tion, and it must be helpful.’’ State v. Finan, supra, 82
Conn. App. 228.
The court permitted Nadeau to testify as to his valua-
tion, but stated that he would not be permitted to testify
about the validity of his methodology. The court did
not allow Nadeau to testify about his opinion as to the
effect of the discontinued road on the property owners’
ability to subdivide the property. This inquiry quite
clearly concerned an area beyond the knowledge of the
ordinary juror, and there was no abuse of discretion in
disallowing the testimony. The court did not preclude
the plaintiff from offering additional experts to testify to
the validity of Nadeau’s methodology. Because Nadeau
was not an expert witness, we conclude that the court
did not abuse its wide discretion in limiting his testi-
mony to factual matters under § 7-1 of the Code of
Evidence.
D
The plaintiff next claims that the court abused its
discretion in admitting into evidence hearsay testimony
by Sciame. On cross-examination, the plaintiff’s counsel
questioned Sciame regarding a property disclosure form
shown to potential buyers in which he stated that the
property was encumbered by an easement. The plain-
tiff’s counsel asked: ‘‘And is that the easement that
we’ve been discussing in this case?’’ To which question
Sciame answered: ‘‘That is the easement we’ve been
discussing in this case, and that is at the crux of the
issue. You’re required to disclose any easements. And
actually, this, in talking to real estate brokers, could be
why we have not gotten a single offer on the property.
In that small universe of people that are interested, this
jumps out—’’ The plaintiff’s counsel objected on the
grounds that the answer constituted hearsay and was
unresponsive. The court overruled the objection.
‘‘An out-of-court statement offered to prove the truth
of the matter asserted is hearsay and is generally inad-
missible . . . .’’ State v. Hines, 243 Conn. 796, 803, 709
A.2d 522 (1998); see also Conn. Code Evid. § 8-1.
Perhaps because Sciame’s statement about the inabil-
ity to sell occurred in the course of a narrative and
was not subjected to rigorous analysis, its evidentiary
foundation is unclear. To the extent that his testimony
was a report of out-of-court statements by real estate
brokers, offered for the truth of the statements, this
testimony was hearsay and should not, to that extent,
have been admitted.
‘‘[A]n evidentiary ruling will result in a new trial only
if the ruling was both wrong and harmful. . . . [T]he
standard in a civil case for determining whether an
improper ruling was harmful is whether the . . . ruling
[likely] would [have] affect[ed] the result. . . . A deter-
mination of harm requires us to evaluate the effect of
the evidentiary impropriety in the context of the totality
of the evidence adduced at trial. . . . Thus, our analy-
sis includes a review of: (1) the relationship of the
improper evidence to the central issues in the case,
particularly as highlighted by the parties’ summations;
(2) whether the trial court took any measures, such as
corrective instructions, that might mitigate the effect
of the evidentiary impropriety; and (3) whether the
improperly admitted evidence is merely cumulative of
other validly admitted testimony. . . . The overriding
question is whether the trial court’s improper ruling
affected the jury’s perception of the remaining evi-
dence.’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Duncan v. Mill Management
Co. of Greenwich, Inc., 308 Conn. 1, 20, 60 A.3d 222(2013).
Sciame’s testimony was not harmful. At first blush,
the testimony appears to be harmful: the existence of
the easement prevented a sale. Analytically, however,
the testimony means a great deal less: putative buyers
would not want to pay the asking price for the property
because of the easement. There of course was a great
deal of evidence on this point, such that a casual
restatement by Sciame was of little importance. Accord-
ingly, because the testimony was cumulative at best, it
was not likely that the admission of the testimony
affected the jury’s perception of the remaining evi-
dence. The ‘‘overriding question’’ posed in Duncan
results in a conclusion of harmlessness.
III
The plaintiff last claims that the court erred in deny-
ing its motion to set aside or to reduce the verdict.
We disagree.
In its motion to set aside the verdict, the plaintiff
argued, inter alia, that the verdict lacked evidentiary
support. In denying the motion, the court concluded
that there was evidence before the jury from which it
could have found $2.2 million in damages in favor of
the defendants.
‘‘[T]he decision to set aside a verdict entails the exer-
cise of a broad legal discretion . . . that, in the absence
of clear abuse, we shall not disturb.’’ (Internal quotation
marks omitted.) Rossman v. Morasco, 115 Conn. App.
234, 241, 974 A.2d 1, cert. denied, 293 Conn. 923, 980
A.2d 912 (2009). ‘‘[A]lthough the trial court has a broad
legal discretion in this area, it is not without its limits
. . . . Litigants have a constitutional right to have fac-
tual issues resolved by the jury. . . . This right
embraces the determination of damages when there is
room for a reasonable difference of opinion among
fair-minded persons as to the amount that should be
awarded. . . . The amount of a damage award is a
matter peculiarly within the province of the trier of fact,
in this case, the jury. . . . Similarly, [t]he credibility
of witnesses and the weight to be accorded to their
testimony lie within the province of the jury. . . . Fur-
thermore, [t]he size of the verdict alone does not deter-
mine whether it is excessive. The only practical test to
apply to [a] verdict is whether the award falls some-
where within the necessarily uncertain limits of just
damages or whether the size of the verdict so shocks
the sense of justice as to compel the conclusion that
the jury was influenced by partiality, prejudice, mistake
or corruption.’’ (Citations omitted; internal quotation
marks omitted.) Johnson v. Chaves, 78 Conn. App. 342,
346, 826 A.2d 1286, cert denied, 266 Conn. 911, 832 A.2d
70 (2003).
‘‘Thus, [i]n ruling on the motion for remittitur, the
trial court was obliged to view the evidence in the light
most favorable to the plaintiff in determining whether
the verdict returned was reasonably supported thereby.
. . . A conclusion that the jury exercised merely poor
judgment is an insufficient basis for ordering a remitti-
tur. . . . The fact that the jury returns a verdict in
excess of what the trial judge would have awarded does
not alone establish that the verdict was excessive. . . .
[T]he court should not act as the seventh juror with
absolute veto power. Whether the court would have
reached a different [result] is not in itself decisive. . . .
The court’s proper function is to determine whether
the evidence, reviewed in a light most favorable to the
prevailing party, reasonably supports the jury’s verdict.
. . . In determining whether the court abused its dis-
cretion, therefore, we must examine the evidential basis
of the verdict itself. . . . [T]he court’s action cannot
be reviewed in a vacuum. The evidential underpinnings
of the verdict itself must be examined.’’ (Citations omit-
ted; internal quotation marks omitted.) Saleh v. Ribeiro
Trucking, LLC, 117 Conn. App. 821, 827–28, 982 A.2d
178 (2009), aff’d, 303 Conn. 276, 32 A.3d 318 (2011).
The plaintiff argues that the $2.2 million verdict was
not supported by the evidence. It contends that only
Franke proffered an opinion as to the diminution in
value of the property as a result of the six foot easement,
and he concluded that there was no diminution in value.
There was no other relevant expert opinion before the
jury, according to the plaintiff. We are not persuaded.
The jury was not bound to consider only Franke’s
opinion, but was entitled to weigh all the evidence.
There was a great deal of evidence relevant to value
before the jury. Franke, the plaintiff’s expert, testified
that the diminution in value of the limited six foot ease-
ment was zero. He noted that the footpath had ‘‘very
little impact’’ and that he ‘‘had a difficult time’’ finding
the footpath and that it was ‘‘highly unlikely’’ that any-
one would use the footpath. Nocera, an expert called
by the defendants, testified that the diminution in value
to the property as a result of the road was approximately
$4.1 million and that, although the impact of the ease-
ment was not ‘‘reflected necessarily in [his] analysis,’’
the easement ‘‘diminishes, substantially, the unique-
ness, the exclusivity, the privacy of this property to the
point where major damages occur.’’
Farricker, another expert called by the defendants,
testified that the celebrity status of the Hepburn home
imparted value in excess of the value reached by stan-
dard methods of appraisal. There was evidence that
Sciame purchased the property for $6 million and, after
performing renovations, had listed the property, at the
time of trial, for $30 million. Sciame also testified that
in 2009, after the discovery of the discontinued road,
he believed that the house was worth $24 million as
finished and that the diminution in value was between
20 to 30 percent of that value, which was $6 million.
Although this calculation did not relate specifically to
the easement, it was, nonetheless, relevant to the con-
sideration of value. Sciame also testified as to the loss
of privacy due to the easement. He indicated that he had
seen people walk on the lawn, that from his bedroom he
could see people walk across the easement and that
they ‘‘get a good view of the house’’ from the end of
the easement. He testified that the ‘‘loss of privacy and
control has significantly affected the value of the prop-
erty’’ because ‘‘people that are going to buy this type
of house . . . generally they want exclusivity, and they
want privacy.’’
There was evidence before the jury as to the value
of the property, ranging from $6 million to $30 million,
the degree to which the easement was used, and the
loss of privacy because of the easement. Although the
$6 million estimate assumed that the road encumbered
the property, rather than the easement, that value none-
theless could have assisted the jury in determining the
diminution in value caused by the easement, which was
more limited. The size of the verdict, which was less
than the amount sought by the defendant, does not so
shock the sense of justice as to compel the conclusion
that the jury was influenced by partiality, prejudice,
mistake or corruption. Construing the evidence in the
light most favorable to sustaining the verdict, we do
not conclude that the verdict had had no foundation in
the evidence. Accordingly, the court did not abuse its
discretion in denying the plaintiff’s motion to set aside
or to reduce the verdict.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Paradise was owned by Frank Sciame, who also owned the defendant
entities.
2
State v. Porter, 241 Conn. 57, 80–90, 698 A.2d 739 (1997) (en banc), cert.
denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).
3
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
4
As noted previously, the loss caused by the defect occurred in 2005,
when the borough asserted its claim. The loss was mitigated in March, 2010,
by the conversion of the discontinued road to a less cumbersome easement.
The transfer of the easterly portion to Paradise occurred on May 23, 2011.
The ultimate issue was the loss of value to the whole property caused by
the encumbrance of the easement. Evidence regarding the eastern portion
alone is relevant to the ultimate issue of market value of the entire property.