Vaicunas v. Gaylord

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DAVID VAICUNAS ET AL. v. REGINA
R. GAYLORD ET AL.
(AC 42251)
Lavine, Alvord and Keller, Js.
Syllabus
The plaintiffs, V and K, brought an action claiming, inter alia, that the
defendants exerted undue influence on H to amend her trust, and a
claim of adverse possession by V, against the defendants, M’s heirs and
R. H and her husband, F, owned four lots of certain real property,
numbered 34 through 37. Their residence was located on lots 34 and
35. V’s property abutted lot 37, which he used to store vehicles and to
garden. V and K were F’s and H’s nephews and R was H’s niece. After
F died in 1998, H executed a trust whereby lots 34 through 36 were to
be given to K and lot 37 was to be given to V. In 2003, H met M, and
became close friends with M and his family. In 2010, H amended the
trust and removed the provisions devising her real property to the plain-
tiffs and, instead, provided that the corpus of the trust, including lots
34 through 37, were to be distributed in equal shares to R and M.
Following H’s death, the plaintiffs became aware of the amended trust,
and commenced the present action. V claimed that he gained title to
lot 37 through adverse possession. The jury found in favor of the defen-
dants as to the counts of undue influence and tortious interference, and
in favor of V as to the count of adverse possession. Subsequently, the
trial court set aside the verdict as to the count of adverse possession.
On appeal, the plaintiffs claim, inter alia, that the trial court improperly
set aside the jury verdict as to the count of adverse possession and
abused its discretion in declining to admit the plaintiffs’ offer of evidence
as to H’s character. Held:
1. The trial court did not abuse its discretion in setting aside the jury’s
verdict in favor of V as to the count of adverse possession because the
verdict was unsupported by the evidence; contrary to the plaintiffs’
claim, the trial court did not consider V’s familial relationship with H
and F to be determinative of V’s lack of adverse possession but, relying
on relevant case law, recognized that it was an important factor to be
considered with other elements, the record sufficiently demonstrated
that F and H knew of V’s use of the lot and granted him permission for
such use and that V failed to demonstrate that he prevented F and H
from using the lot, and V’s belief that he would inherit the land in the
future did not support his claim that he possessed the land to the
exclusion of the true owners and, therefore, V did not prove that he
occupied the property under a claim of right, a required element on a
claim of adverse possession.
2. The trial court did not abuse its discretion in denying evidence as to
H’s character in the form of V’s opinion testimony in determining H’s
tendencies to take certain actions: the plaintiffs failed to provide any
case law to support their proposition that a person’s character was
relevant if she was the subject of an undue influence claim and, even
if H’s character was relevant under the applicable provision (§ 4-5 (d))
of the Connecticut Code of Evidence, the appropriate method to prove
undue influence would have been through the presentation of specific
instances of her character, the plaintiff’s reliance on the applicable
provision (§ 4-4 (a) (2)) of the Connecticut Code of Evidence, which
permits character evidence of a deceased person in a homicide case in
which the accused claims self-defense, was also misplaced, as § 4-4 (a)
(2) did not apply to the present matter; furthermore, even if the court
improperly excluded V’s opinion testimony, such error was harmless
as the evidence would have been cumulative of other properly admit-
ted testimony.
3. The plaintiffs could not prevail on their claim that the trial court improperly
charged the jury as to the count of undue influence on the basis that
the court improperly placed emphasis on the causation element; the
portion of the charge in question merely summarized the plaintiffs’
burden of proof with respect to the undue influence claim, was proper
and founded in controlling case law, and did not mislead or misguide
the jury, and, although the plaintiffs claimed that the jury charge language
was not supported by case law, the plaintiffs did not cite to any case
law to support their claim.
Argued December 2, 2019—officially released April 7, 2020
Procedural History
Action to recover damages for, inter alia, undue influ-
ence, and for other relief, brought to the Superior Court
in the judicial district of Hartford and tried to the jury
before Scholl, J.; thereafter, the court directed a ver-
dict for the defendants on the count of breach of fidu-
ciary duty; verdict in part for the named plaintiff and in
part for the defendants; thereafter, the court, Scholl, J.,
granted the defendants’ motion to set aside the verdict
for the named plaintiff as to the count of adverse posses-
sion, and rendered judgment for the defendants, from
which the plaintiffs appealed to this court. Affirmed.
Stuart G. Blackburn, for the appellants (plaintiffs).
Edward G. McAnaney, for the appellees (defen-
dants).
Opinion
KELLER, J. The plaintiffs, David Vaicunas and Joseph
Kobos, appeal from the judgment rendered by the trial
court in favor of the defendants, Regina R. Gaylord,
Kevin McGuire, Deborah Foster, John McGuire, and
Scott McGuire, on the count of the complaint alleg-
ing undue influence exerted on Helen Rachel in amend-
ing The Helen K. Rachel Revocable Trust Indenture.
The plaintiffs also appeal from the judgment of the
trial court rendered after it granted the motion by the
defendants to set aside the jury’s verdict in favor of
Vaicunas on the count for adverse possession of certain
real property owned by Helen Rachel. On appeal, Vaicu-
nas claims that the court improperly set aside the jury
verdict with respect to adverse possession, and both
plaintiffs claim that the court (1) abused its discretion
by declining to admit the plaintiffs’ offer of evidence
as to the character of Helen Rachel, which was relevant
to their claim for undue influence and (2) improperly
charged the jury on the law of undue influence. We con-
clude that the trial court properly set aside the verdict
on the claim for adverse possession and, as to the plain-
tiffs’ claim of undue influence, we reject their assertions
of evidentiary and instructional error on the part of the
court. Accordingly, we affirm the judgment of the trial
court.
The following facts and procedural history are rele-
vant to our consideration of the plaintiffs’ appeal. Frank
Rachel and Helen Rachel (Rachels), who were hus-
band and wife, owned four lots of real property on
Webb Street in Windsor Locks. The lots are numbered
34, 35, 36, and 37, running east to west on the north
side of Webb Street. The Rachels’ residence was located
on lots 34 and 35. Lots 34, 35, 36, and 37 are known as
60 Webb Street. Vaicunas’ residence was located on
lots 38 and 39 (known as 68 Webb Street), and his
property abutted lot 37. Vaicunas and Kobos were the
Rachels’ nephews. Gaylord was the Rachels’ niece.
Gaylord had a close relationship with the Rachels,
which included assisting them with shopping, bank-
ing, and arranging their financial and legal affairs. After
Frank Rachel’s death, Gaylord continued to assist Helen
Rachel with such affairs.
Vaicunas also had a close relationship with the
Rachels for much of their lives. He and his wife, Doreen
Pilotte, lived next door to the Rachels from 1988 until
their deaths. Vaicunas visited regularly with the Rachels
during this time period.
Frank Rachel died in 1998. On March 24, 1999, Helen
Rachel, with the assistance of her attorney, George
Bickford, executed The Helen K. Rachel Revocable
Trust Indenture (1999 trust). The 1999 trust designated
Gaylord as successor trustee. Helen Rachel placed the
title to her real property in the 1999 trust and, pursuant
to the trust, lots 34, 35, and 36 on Webb Street in Windsor
Locks were to be given to Kobos upon Helen Rachel’s
death. The 1999 trust also provided that lot 37 was to
be given to Vaicunas upon Helen Rachel’s death if he
survived her and if he still owned 68 Webb Street (lots
38 and 39), at the time of her death. If either of those
conditions were not met, the trust provided that lot 37
was to be given to Kobos. The 1999 trust also left all
personal property,1 the balance of the trust corpus, and
any accumulated income to Gaylord.
Helen Rachel met Gary McGuire2 in 2003. McGuire
drove a van for the senior center frequented by Helen
Rachel. Helen Rachel became close friends with McGu-
ire and his family, as she began to attend holiday and
family gatherings at McGuire’s residence. Helen Rachel
referred to McGuire as the son she never had, and she
treated McGuire’s grandchildren as if they were her
own grandchildren. Helen Rachel divulged to members
of the McGuire family that she was not happy with her
nephew, Vaicunas.
Helen Rachel suffered a stroke on October 20, 2009.
As a result of the stroke, Helen Rachel experienced
expressive aphasia, which manifested as a loss of the
ability to speak. Helen Rachel also lost most of her
motor skills on the right side of her body, which affected
her ability to write. Helen Rachel continued, however,
to communicate after her stroke by nodding or shaking
her head in response to questions.
On February 11, 2010, Helen Rachel, with the assis-
tance of Bickford, executed the first amendment to the
1999 trust (2010 trust). The 2010 trust removed the
provisions devising Helen Rachel’s real property to
Vaicunas and Kobos and, instead, provided that the
balance of the trust corpus, including lots 34, 35, 36,
and 37, be distributed in equal shares to Gaylord and
McGuire. Prior to executing the 2010 trust, Bickford
communicated with Helen Rachel and confirmed that
she was aware of the changes and that the changes
were being made at her direction. Bickford met with
Helen Rachel on three occasions before she executed
the changes and communicated with her at each meet-
ing. Bickford communicated with Helen Rachel by ask-
ing her questions and eliciting yes or no responses, until
he arrived at an answer. At one of the meetings, Helen
Rachel communicated to Bickford that she had been
intending to make these changes to her trust for three
years. Neither the plaintiffs nor the defendants were
present at the meetings between Bickford and Helen
Rachel.
In December, 2010, Vaicunas initiated a conserva-
torship proceeding in Probate Court with the goal of
becoming Helen Rachel’s conservator. The court denied
Vaicunas’ petition and the proceedings terminated on
March 24, 2011.
McGuire’s friendship with Helen Rachel continued
after her stroke. Helen Rachel continued to celebrate
with the McGuires at holiday and family gatherings.
Similarly, Gaylord continued to assist Helen Rachel
with her legal, medical, and personal affairs following
her stroke. McGuire died on August 3, 2013. After McGu-
ire’s death, members of the McGuire family continued
to maintain a relationship with Helen Rachel. Helen
Rachel eventually was moved to a nursing home where
she remained until her death on May 26, 2014.
Following Helen Rachel’s death, the plaintiffs learned
of the 2010 trust and initiated the present action against
the defendants. The plaintiffs filed a complaint on Sep-
tember 11, 2014, sounding in two counts: undue influ-
ence brought against all defendants and breach of fidu-
ciary duty brought against Gaylord. On April 16, 2015,
the plaintiffs filed an amended complaint, adding a
count of tortious interference with an expectation of
inheritance brought against Gaylord. On September 28,
2016, the plaintiffs filed an additional amended com-
plaint adding a count of adverse possession by Vaicunas
alone. A jury trial was held on October 10, 11 and 12,
2018. Following the presentation of evidence, and prior
to the jury’s deliberations, counsel for the defendants
moved for a directed verdict on all four counts. The
court granted the motion for a directed verdict only as
to the count alleging breach of fiduciary duty. The jury
then found in favor of the defendants as to the counts
of undue influence and tortious interference, and in
favor of Vaicunas as to the count of adverse possession.
On October 25, 2018, the defendants moved to set aside
the jury’s verdict as to the count of adverse possession,
arguing that the verdict was contrary to the law and
unsupported by the evidence. On November 2, 2018,
the court heard arguments from the parties on the
motion. On December 7, 2018, the court granted the
defendants’ motion to set aside the jury’s verdict on
the count of adverse possession and ordered that judg-
ment on that count be directed for the defendants. This
appeal followed. Additional facts will be set forth as
necessary.
I
The plaintiffs first claim that the court improperly
set aside the jury verdict on the count of adverse posses-
sion. We disagree.
The record reveals evidence of the following rele-
vant facts. From approximately 1989 through the time
of the trial, Vaicunas used lot 37 on a daily basis. Spe-
cifically, he parked vehicles, split, stacked, and stored
firewood, gardened, mowed the grass, and tended to
snow removal.
Vaicunas, however, was not the only individual to
use lot 37 during the relevant time period. When Vaicu-
nas and Pilotte lived next door to the Rachels, ‘‘[they]
just were always together. [They] crossed lots all the
time, [Helen Rachel] or [Vaicunas and Pilotte].’’ Further,
Frank Rachel and Vaicunas gardened together on lot
37 before Frank Rachel’s death in 1998. Helen Rachel
also traversed lot 37 to pick tomatoes from the garden.
Additionally, in 2009, Helen Rachel hired a landscaper,
Kevin McGinnis, to tend to her Webb Street property.
From 2009 until the time of trial, McGinnis mowed lot
37 on a biweekly basis during the growing season and
performed fall and spring cleanup. Helen Rachel paid
McGinnis for the landscaping services until her death,
whereupon Gaylord, as the executrix to Helen Rachel’s
estate, began paying McGinnis. McGinnis mowed the
grass on lot 37, going as far onto the lot as was possible
due to the location of the garden and the vehicles that
Vaicunas had parked on the property. On occasion,
Vaicunas would come out of his residence, which was
adjacent to lot 37, and observe McGinnis mowing the
grass on lot 37. Vaicunas never spoke to McGinnis nor
erected any fences or barriers to prevent McGinnis from
tending to lot 37.
After Frank Rachel’s death, Charles Gaylord, Gay-
lord’s son, helped Helen Rachel clean up the Rachels’
property and take some items to the dump. Charles Gay-
lord saw some items in the backyard and asked Helen
Rachel if he should take them to the dump as well. Helen
Rachel told him that the possessions belonged to Vaicu-
nas and that Frank Rachel had permitted him to keep
them on lot 37. She seemed to imply that she would simi-
larly allow Vaicunas to keep the items on lot 37. Frank
Rachel was ‘‘okay’’ with Vaicunas’ use of lot 37 and both
Frank Rachel and Helen Rachel agreed to the use.
On multiple occasions, Vaicunas discussed with Frank
Rachel and Helen Rachel the distribution of lots 34
through 37 on Webb Street after their deaths. As a result
of these discussions, Vaicunas understood that the
Rachels would distribute lots 34, 35, and 36 to Kobos,
and lot 37 to Vaicunas. Prior to Helen Rachel’s death,
Vaicunas also saw testamentary documents which
directed distribution of her property.
On the motion to set aside the verdict in favor of
Vaicunas as to the adverse possession claim, the defen-
dants argued that Vaicunas failed to present evidence
as to a number of the elements of adverse possession.
In particular, they argued that Vaicunas did not prove
that his use of the property was exclusive, that he ousted
the Rachels from the property, that his use of the prop-
erty was without permission, or that he occupied the
property under a claim of right. The court, after review-
ing the evidence, agreed with the defendants and
authored a memorandum of decision setting aside the
jury verdict in favor of Vaicunas as to the adverse pos-
session claim. The grounds on which the court granted
the motion mirrored the arguments set forth by the
defendants.
We begin by setting forth the applicable standard of
review. ‘‘The proper appellate standard of review when
considering the action of a trial court in granting or
denying a motion to set aside a verdict is the abuse of
discretion standard. . . . In determining whether there
has been an abuse of discretion, every reasonable pre-
sumption should be given in favor of the correctness
of the court’s ruling. . . . Reversal is required only
[when] an abuse of discretion is manifest or [when]
injustice appears to have been done. . . . [T]he role
of the trial court on a motion to set aside the jury’s
verdict is not to sit as [an added] juror . . . but, rather,
to decide whether, viewing the evidence in the light
most favorable to the prevailing party, the jury could
reasonably have reached the verdict that it did. . . .
In reviewing the action of the trial court in denying [or
granting a motion] . . . to set aside the verdict, our
primary concern is to determine whether the court
abused its discretion. . . . The trial court’s decision is
significant because the trial judge has had the same
opportunity as the jury to view the witnesses, to assess
their credibility and to determine the weight that should
be given to [the] evidence. Moreover, the trial judge can
gauge the tenor of the trial, as [this court], on the written
record, cannot, and can detect those factors, if any, that
could improperly have influenced the jury.’’ (Citations
omitted; internal quotation marks omitted.) Hall v.
Bergman, 296 Conn. 169, 179, 994 A.2d 666 (2010).
‘‘The essential elements of adverse possession are
that the owner shall be ousted from possession and
kept out uninterruptedly for fifteen years under a claim
of right by an open, visible and exclusive possession of
the claimant without license or consent of the owner.’’
(Internal quotation marks omitted.) Kramer v. Petisi,
53 Conn. App. 62, 67, 728 A.2d 1097, cert. denied, 249
Conn. 919, 733 A.2d 229 (1999). Further, the plaintiff
bears the burden of proving adverse possession ‘‘by
clear and convincing evidence.’’ (Internal quotation
marks omitted.) Id.
After conducting a careful review of the evidence
produced at trial, we agree with the trial court that the
evidence was insufficient to support the jury’s finding
that Vaicunas acquired title to lot 37 through adverse
possession.
In setting aside the verdict, the court relied, in part,
on the familial relationship between Helen Rachel and
Vaicunas. In order to obtain property through adverse
possession, the possession must be hostile, which is the
absence of consent, license, or permission. See Wood-
house v. McKee, 90 Conn. App. 662, 672, 879 A.2d 486
(2005). Further, the possession of the property in ques-
tion must be hostile from its inception. Id. ‘‘In determin-
ing what amounts to hostility, the relation that the
adverse possessor occupies with reference to the owner
is important. If the parties are strangers and the posses-
sion is open and notorious, it may be deemed to be hos-
tile. However if the parties are related, there may be
a presumption that the use is permissive. . . . It is
a general principle that members of a family may not
acquire adverse possession against each other in the
absence of a showing of a clear, positive, and continued
disclaimer and disavowal of title . . . . The existence
of a family relationship between the parties will prevent
or rebut a presumption of adverse holding.’’ (Citation
omitted; internal quotation marks omitted.) Id., 673.
‘‘Historically, the existence of a familial relationship
between claimants has been [only] a factor in determin-
ing whether possession of land is adverse. . . . A fam-
ily relationship between parties is only one of the facts
to be considered [with other facts]. . . . [A] family rela-
tionship without more is insufficient to support a find-
ing that the use at the time was with permission. . . .
[S]tanding alone a familial relationship neither puts an
end to the inquiry regarding permissive use nor shifts
the burden of proof. . . . Nevertheless, the familial
relationship may be an important factor when evaluated
in the context of all the other relevant factors guiding
the [c]ourt in its resolution of the . . . claim.’’ (Cita-
tions omitted; internal quotation marks omitted.) Mulle
v. McCauley, 102 Conn. App. 803, 814–15, 927 A.2d 921,
cert. denied, 284 Conn. 907, 931 A.2d 265 (2007).
Here, the court did not, as the plaintiffs claim in their
brief, consider the familial relationship to be determina-
tive of Vaicunas’ lack of adverse possession of the prop-
erty but, rather, relying on the relevant case law, recog-
nized that it was an ‘‘important factor’’ to be considered
in conjunction with the other elements of an adverse
possession claim.
In addition to the presumption of permissive use,
which arose by virtue of the familial relationship, the
court also looked to direct evidence that supported the
fact that Vaicunas occupied the property with license
or consent of the owners. Both the plaintiffs and the
defendants presented evidence demonstrating that
Frank Rachel and Helen Rachel knew of Vaicunas’ use
of lot 37 and, in fact, granted him permission for such
use. Charles Gaylord testified that Frank Rachel
allowed Vaicunas to keep his possessions on lot 37,
and that Helen Rachel implied that she would allow the
same use. Additionally, Kobos testified at his deposition
that Frank Rachel was ‘‘okay’’ with Vaicunas’ use of
the property and that Helen Rachel agreed to the use
as well.
‘‘Although possession that is originally permissive
may become hostile, it does so only if [the permission]
is clearly repudiated by the occupant. . . . Such repu-
diation must be shown by some clear, positive, and
unequivocal act brought home to the owner or the use
will be presumed to be permissive.’’ (Citations omitted;
internal quotation marks omitted.) Woodhouse v.
McKee, supra, 90 Conn. App. 675. Here, the evidence
did not show that Vaicunas repudiated the permission
granted to him by Frank Rachel and Helen Rachel to
occupy lot 37. Therefore, Vaicunas’ use of the property
is presumed to have been permissive and at no point
in time became hostile.
The evidence presented at trial also was insufficient
to support the jury’s finding that the Rachels were
ousted from the property and that Vaicunas used lot
37 exclusively during the relevant time period. The
plaintiffs merely presented evidence that Vaicunas used
lot 37 on a daily basis from 1989 through the time of
trial. The plaintiffs, however, in no way refuted the
evidence presented by the defendants that demon-
strated that during that time period Frank Rachel gar-
dened on lot 37 until his death in 1998, Helen Rachel
crossed lot 37 and went onto the lot to gather tomatoes
from the garden, and that Helen Rachel directed and
paid a landscaper, McGinnis, to tend to that particular
lot. Further, Vaicunas did not erect any fences or physi-
cal barriers in an effort to keep the Rachels out of
possession of the property. The fact that the Rachels
used lot 37 throughout the time period that Vaicunas
claims to have used the property exclusively defeats
his claim of adverse possession.
Further, the evidence was insufficient to prove that
Vaicunas occupied the property under a claim of right.
In Brander v. Stoddard, 173 Conn. App. 730, 745–48,
164 A.3d 889, cert. denied, 327 Conn. 928, 171 A.3d 456
(2017), this court upheld the decision of the trial court
that ‘‘[t]he possession of one who recognizes or admits
title in another, either by declaration or conduct, is not
adverse to the title of such other. . . . Occupation
must not only be hostile in its inception, but it must
continue hostile, and at all times during the required
period of fifteen years challenge the right of the true
owner, in order to found title by adverse use upon it.
. . . Such an acknowledgement of the owner’s title
terminates the running of the statutory period. . . .
The plaintiff’s belief that he would inherit the land in
the future does not support a belief that he presently
possessed the land to the exclusion of the true owners
. . . .’’ (Citations omitted; internal quotation marks
omitted.)
Similarly, in the present case, as a result of discus-
sions that Vaicunas had with Frank Rachel and Helen
Rachel, he understood that lot 37, ‘‘which was in [Frank
Rachel’s and Helen Rachel’s names],’’ would be distrib-
uted to him upon their deaths. Vaicunas’ clear acknowl-
edgement of Frank Rachel’s and Helen Rachel’s title to
lot 37 and his expected inheritance of the property,
contradicts his assertion that he possessed the land to
the exclusion of the true owners. Therefore, Vaicunas
did not prove that he occupied the property under a
claim of right, as is required to prevail on an adverse
possession claim.
On the basis of the foregoing, we conclude that the
trial court did not abuse its discretion in setting aside
the jury’s verdict in favor of Vaicunas as to the count
of adverse possession because that verdict was unsup-
ported by the evidence.
II
Next, the plaintiffs claim that the court abused its
discretion by declining to admit the plaintiffs’ offer of
evidence as to the character of Helen Rachel.
The following additional facts are relevant to this
claim. During the direct examination of Vaicunas, the
plaintiffs’ counsel sought to elicit testimony from Vaicu-
nas regarding the character of Helen Rachel. Specifi-
cally, counsel for the plaintiffs asked the following ques-
tion with regard to the 2010 amendment Helen Rachel
made to her trust:
‘‘Q. Would making a change like this—based on your
knowledge of your aunt and your dealings with her over
the years, would making a change like this be something
she would do out of her free will?’’
Counsel for the defendants objected to this question
and the court heard argument from counsel outside the
presence of the jury. Counsel for the plaintiffs argued
that ‘‘[Helen] Rachel’s character and her tendencies that
she may have [had] for taking certain actions are really
at the heart of a number of these issues in this case
and I believe someone as familiar with her character
and her traits as . . . Vaicunas should be permitted to
testify concerning them in whether these actions are
consistent or inconsistent with that character.’’ Specifi-
cally, counsel for the plaintiffs argued that Helen
Rachel’s character was at issue because of the undue
influence claim. Counsel for the defendants argued that
Helen Rachel’s character was not at issue and that to
permit Vaicunas to testify as to whether, in his opinion,
the 2010 trust amendment was something she would
do of her own free will would allow the plaintiffs to
impermissibly introduce an opinion. The court agreed
with the defendants and sustained the objection. Similar
to the arguments that the plaintiffs advanced before
the trial court, the plaintiffs claim before this court that
‘‘Helen Rachel’s character was relevant to the jury’s
determination of whether she was unduly influenced.’’
In particular, the plaintiffs argue before this court that
‘‘[t]he jury was entitled to hear the opinions of her rela-
tives about whether [Helen] Rachel was susceptible to
influence and whether changing the trust documents
was consistent with her character.’’ The plaintiffs sub-
mit, therefore, that the court improperly excluded char-
acter evidence of Helen Rachel in the form of Vaicu-
nas’ opinion.
We begin by setting forth the applicable standard of
review. ‘‘The trial court’s ruling on the admissibility of
evidence is entitled to great deference. . . . [T]he trial
court has broad discretion in ruling on the admissibility
. . . of evidence . . . [and its] ruling on evidentiary
matters will be overturned only upon a showing of a
clear abuse of the court’s discretion. . . . We will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest
abuse of discretion. . . . Moreover, evidentiary rulings
will be overturned on appeal only where there was an
abuse of discretion and a showing by the [appellant]
of substantial prejudice or injustice. . . . Additionally,
even when an evidentiary ruling is improper, the [appel-
lant] bears the burden of demonstrating that the error
was harmful. . . . One factor to be considered in
determining whether an improper ruling on evidence
is a harmless error is whether the [evidence] was cumu-
lative . . . .’’ (Citation omitted; internal quotation
marks omitted.) Anderson v. Poirier, 121 Conn. App.
748, 751, 997 A.2d 604, cert. denied, 298 Conn. 904, 3
A.3d 68 (2010).
Having examined the plaintiffs’ claim, we conclude
that the court properly declined to admit Vaicunas’ testi-
mony as to Helen Rachel’s character. Pursuant to § 4-
4 of the Connecticut Code of Evidence, the general rule
is that ‘‘[e]vidence of a trait of character of a person is
inadmissible for the purpose of proving that the person
acted in conformity with the character trait on a particu-
lar occasion . . . .’’3 Section 4-5 (d) of the Connecticut
Code of Evidence, however, permits character evidence
in the form of specific instances of a person’s conduct
‘‘[i]n cases in which character or a trait of character of
a person in relation to a charge, claim or defense is in
issue . . . .’’
At trial, counsel for the plaintiffs seemed to conflate
the manner in which character evidence can be pre-
sented under §§ 4-4 and 4-5 of the Connecticut Code
of Evidence. He argued that the undue influence claim
put Helen Rachel’s character at issue, and, therefore,
‘‘one of the methods that I can prove character or repu-
tation when character is an issue is by a personal opin-
ion of someone who is familiar enough with the person.’’
In their brief, the plaintiffs did not cite to a single case
to support the proposition that a person’s character is
relevant if he or she is the subject of an undue influence
claim. It appears to us that the plaintiffs were, in reality,
attempting to describe Helen Rachel’s personality trait
of being a person susceptible to easy influence, rather
than adduce evidence of her character. However, even
if Helen Rachel’s character were relevant, under § 4-5
(d) the appropriate method to prove such character
would be through the presentation of evidence of spe-
cific instances of her character, not by the presentation
of opinion testimony, as counsel for the plaintiffs was
attempting to do.
In their brief, the plaintiffs rely solely on State v.
Maxwell, 29 Conn. App. 704, 618 A.2d 43 (1992), cert.
denied, 225 Conn. 904, 621 A.2d 287, cert. denied, 509
U.S 930, 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993), for
the proposition that the character of a deceased per-
son may be proved by opinion testimony. The plain-
tiffs’ reliance is misplaced, however, because Maxwell
involves one of the exceptions4 in § 4-4 of the Connecti-
cut Code of Evidence, and stands for the proposition
that, ‘‘in a homicide prosecution where the accused has
claimed self-defense, the accused may show that the
deceased was the aggressor by proving the deceased’s
alleged character for violence. The deceased’s charac-
ter may be proved by reputation testimony [or] by opin-
ion testimony . . . .’’ (Internal quotation marks omit-
ted.) Id., 713. Maxwell clearly does not apply to the
present case because § 4-4 (a) (2) is not applicable and,
therefore, the plaintiffs’ reliance on this case in no way
furthers the plaintiffs’ argument that the court should
have admitted evidence in the form of opinion testi-
mony.
Further, even if the court improperly excluded Vaicu-
nas’ opinion of Helen Rachel, such error was harm-
less. One factor that affects our harmless error analysis
is whether the excluded evidence was cumulative of
other properly admitted evidence. See State v. Eleck,
314 Conn. 123, 129, 100 A.3d 817 (2014). Here, counsel
for the plaintiffs elicited testimony from Vaicunas,
which made the excluded evidence cumulative. Specifi-
cally, the following exchange occurred between coun-
sel for the plaintiffs and Vaicunas during the direct
examination of Vaicunas:
‘‘Q. Did she have any tendencies to believe people?
‘‘A. If you told her something, she believed it; doesn’t
matter what you told her.
‘‘Q. Was she easily persuaded?
‘‘A. Very easy. . . . [W]hen [Frank Rachel] was still
alive if something was said she would always rely on
[Frank Rachel] for a decision. But after he wasn’t there
she was on her own so very easy to persuade her to
do just about anything.’’ Given the similar nature of the
aforementioned testimony and the excluded evidence
in question, the court’s decision to exclude the evi-
dence, even if improper, was harmless because it would
have been cumulative of other properly admitted tes-
timony.
In light of the broad discretion possessed by the trial
court in admitting evidence, we conclude that the court
did not abuse its discretion in excluding character evi-
dence as to Helen Rachel in the form of Vaicunas’ opin-
ion testimony.
III
Finally, the plaintiffs claim that the court improperly
charged the jury on the law of undue influence. The
plaintiffs argue that the jury charge on the claim of
undue influence included a sentence that was improper
and possibly misleading to the jury. We disagree.
The following additional facts are relevant to the
plaintiffs’ claim. On October 17, 2018, the court deliv-
ered the charge to the jury on the plaintiffs’ three
remaining counts.5 After the court delivered the charge,
counsel for the plaintiffs took exception to the last
sentence of the undue influence charge, in which the
court stated: ‘‘There must be proof not only of undue
influence but that its operative effect was to cause
[Helen] Rachel to make a trust [that] did not express her
actual desires.’’ Specifically, counsel for the plaintiffs
questioned whether the sentence in question was sup-
ported by case law and argued that it was duplicative
of other portions of the charge. Counsel for the plain-
tiffs also noted that, prior to the delivery of the charge,
he had raised a similar concern regarding the language
in question in chambers. The court responded that the
relevant portion of the charge merely summarized an
undue influence claim and that the court would not
give any further instructions.
‘‘Our standard of review concerning claims of instruc-
tional error is well settled. [J]ury instructions must be
read as a whole and . . . are not to be judged in artifi-
cial isolation from the overall charge. . . . The whole
charge must be considered from the standpoint of its
effect on the jurors in guiding them to a proper ver-
dict. . . . The trial court must adapt its instructions to
the issues raised in order to give the [jurors] reason-
able guidance in reaching a verdict and not mislead
them.’’ (Internal quotation marks omitted.) Champeau
v. Blitzer, 157 Conn. App. 201, 211, 115 A.3d 1126, cert.
denied, 317 Conn. 909, 115 A.3d 1105 (2015). ‘‘Therefore,
[o]ur standard of review on this claim is whether it is
reasonably probable that the jury was misled.’’ (Internal
quotation marks omitted.) Farmer-Lanctot v. Shand,
184 Conn. App. 249, 255, 194 A.3d 839 (2018).
In their brief, the plaintiffs argue that, by including
the final sentence of the jury charge applicable to the
undue influence claim, the court placed emphasis on
the causation element and potentially misled the jury
and misguided their determination of this claim. We
agree with the court that the portion of the charge in
question merely summarized the plaintiffs’ burden of
proof with respect to the undue influence claim, and
that it in no way misled or misguided the jury. As part
of their argument in opposition to the language of the
instruction, counsel for the plaintiffs argued before the
trial court, and in the plaintiffs’ appellate brief, that the
language is not supported by case law. The plaintiffs,
however, fail to present a single case in support of this
proposition. To the contrary, the questioned instruc-
tional language was taken almost verbatim from Con-
necticut case law governing claims of undue influence.
Specifically, this court, in Bassford v. Bassford, 180
Conn. App. 331, 355, 183 A.3d 680 (2018), stated, ‘‘[t]here
must be proof not only of undue influence but that its
operative effect was to cause the testator to make a will
which did not express his actual testamentary desires.’’
Accordingly, we conclude that the court delivered a
charge that was proper and founded in controlling case
law, and that it was not reasonably probable that the
jury was misled by such charge.
The judgment is affirmed.
In this opinion, the other judges concurred.
1
The 1999 trust provided that Helen Rachel’s personal property was to
be distributed by the trustee to Gaylord, after first adhering to any
attached memorandum.
2
Gary McGuire died prior to the commencement of the underlying action.
The named defendants are McGuire’s heirs. Subsequent references in this
opinion to ‘‘McGuire’’ are to Gary McGuire.
3
There are several exceptions to § 4-4 of the Connecticut Code of Evi-
dence, none of which applies to the testimony that counsel for the plaintiffs
sought to elicit. The exceptions are as follows:
‘‘(1) Character of the accused. Evidence of a specific trait of character
of the accused relevant to an element of the crime charged offered by
an accused, or by the prosecution to rebut such evidence introduced by
the accused.
‘‘(2) Character of the victim in a homicide or criminal assault case. Evi-
dence offered by an accused in a homicide or criminal assault case, after
laying a foundation that the accused acted in self-defense, of the violent
character of the victim to prove that the victim was the aggressor, or by
the prosecution to rebut such evidence introduced by the accused.
‘‘(3) Character of a witness for truthfulness or untruthfulness. Evidence
of the character of a witness for truthfulness or untruthfulness to impeach
or support the credibility of the witness.
‘‘(4) Character of a person to support a third-party culpability defense.’’
Conn. Code Evid. § 4-4 (a) (1) through (4).
Under these exceptions, ‘‘in which evidence of a trait of character of a
person is admissible to prove that the person acted in conformity with the
character trait, proof may be made by testimony as to reputation or in the
form of an opinion.’’ Conn. Code Evid. § 4-4 (b).
4
In Maxwell, the applicable exception was § 4-4 (a) (2) of the Connecticut
Code of Evidence, which states: ‘‘Character of the victim in a homicide or
criminal assault case. Evidence offered by an accused in a homicide or
criminal assault case, after laying a foundation that the accused acted in
self-defense, of the violent character of the victim to prove that the victim
was the aggressor, or by the prosecution to rebut such evidence introduced
by the accused.’’ Conn. Code Evid. § 4-4 (a) (2).
5
The following portion of the jury charge is relevant to the claim of undue
influence: ‘‘In the first count of their complaint, the plaintiffs claim that the
2010 amended trust was executed as a result of undue influence by the
defendant, Regina Gaylord or Gary McGuire, over the will of [Helen] Rachel.
The burden of proof of undue influence is on the plaintiffs. They must show
by a fair preponderance of the evidence, as I have explained that phrase to
you, that the influence was undue. Direct evidence of undue influence is
often not available and you may rely on circumstantial evidence as I have
instructed you earlier. But the plaintiffs’ suspicions alone are not enough.
Influence or fair persuasion of Helen Rachel by Gaylord or McGuire is
acceptable.
‘‘Undue influence is the exercise of sufficient control over a person whose
acts are brought into question in an attempt to destroy her free agency and
constrain her to do something other than she would do under normal control.
There are four elements of undue influence: one, a person who is subject
to influence; two, an opportunity to exert undue influence; three, a disposi-
tion to exert undue influence; and, four, a result indicating undue influence.
‘‘Relevant factors you can consider include [Helen] Rachel’s age and
physical and mental condition, whether she had independent or disinterested
advice in the transaction, whether she was under any distress, her predisposi-
tion to make the transfer in question, the extent of the transfer in relation
to her whole worth, active solicitations and persuasions by the other party,
and the relationship of the parties. There must be proof not only of undue
influence but that its operative effect was to cause [Helen] Rachel to make
a trust which did not express her actual desires.’’