Case Information
*1 ***********************************************
The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. ***********************************************
ELIZABETH SPALTER IINO DIANE ROGERS SPALTER, EXECUTRIX (ESTATE OF HAROLD SPALTER) (AC 40574) Elgo, Bright and Beach, Js.
Syllabus The plaintiff sought to recover compensatory and punitive damages from
the defendant executrix of the estate of the decedent for, inter alia, intentional sexual assault in connection with the decedent’s sexual abuse of the plaintiff. The plaintiff alleged that her father, the decedent, had sexually abused her repeatedly in Connecticut from when she was six years old until she was seventeen, that she suffered extreme trauma, mental anguish and psychological injuries as a result of the decedent’s sexual abuse and that her injuries were permanent. The defendant filed a motion to dismiss for lack of personal jurisdiction, which the trial court denied. Thereafter, the defendant filed a motion in limine to preclude evidence of other wrongs or acts of verbal and physical abuse committed by the decedent against the plaintiff, her brothers and the family dog. The court denied the motion in limine but stated that it was reserving judgment on specific objections to such evidence until the evidenсe was offered at trial. Following the trial, the jury found in favor of the plaintiff and returned a verdict awarding her $15 million in compensatory damages. The jury also found that the plaintiff was entitled to an award of punitive damages, but it was not asked to determine the amount of the punitive damages to be awarded. Thereafter, the trial court denied the defendant’s motion to set aside the verdict and rendered judgment in accordance with the verdict, reserving to itself the finding as to the amount of the punitive damages award, which would be determined later. On the defendant’s appeal to this court, held :
1. The trial court properly denied the defendant’s motion to dismiss; contrary
to the defendant’s claim that that court’s assertion of personal jurisdic- tion over her violated her right to due process because she personally had no minimum contacts with Connecticut, because the court could have exercised jurisdiction over the decedent pursuant to this state’s long arm statute (§ 52-59b) for the tortious acts he committed while in this state, it properly exercised jurisdiction over the defendant, who, as executrix of the decedent’s estate, had stepped into his shoes for purposes of this action. 2. The defendant could not prevail on her claim that the trial court improperly
admitted certain evidence, as any purported error in the admission of the evidence was harmless: a. The defendant’s claim that the trial court erred in admitting evidence of other wrongs or acts of verbal and physical abuse committed by the decedent against the plaintiff, her brothers and the family dog was unavailing: the record revealed that when the court denied the defen- dant’s motion in limine to preclude the subject evidence, it clearly stated that it was reserving judgment on specific objections to such evidence until it was offered at trial and that it would not recognize a standing objection to evidence on the issue, and, therefore, to preserve her objec- tions, the defendant needed to object each time evidence was offered on the issue, which she failed to do; moreover, the testimony to which the defendant did object to at trial was merely cumulative of other similar testimony to which she did not object, and, therefore, even if this court assumed that the trial court’s rulings were improper, the defendant failed to show that they likely аffected the outcome of the trial. b. The defendant’s claim that the trial court improperly admitted certain photocopied excerpts from the plaintiff’s 1997 journal, which was inad- vertently discarded during the course of the litigation, under the state of mind exception to the hearsay rule set forth in the applicable provision (§ 8-3 [4]) of the Connecticut Code of Evidence was unavailing; even if the subject excerpts were admitted improperly, the evidence merely was cumulative of a considerable amount of other evidence, and, there- fore, the defendant failed to prove that the claimed improper admission *3 of the excerpts likely affected the outcome of the trial.
3. The jury’s determination that the plaintiff was entitled to common-law punitive damages was a final judgment for purposes of appeal because
it did not constitute a supplemental postjudgment award, despite the fact that the trial court reserved the determination of the precise amount of those damages to a time postjudgment. 4. The trial court improperly permitted the jury to find the defendant liable for common-law punitive damages without evidence as to the plaintiff’s
litigation expenses and improperly reserved for its own consideration the specific amount of common-law punitive damages to be awarded; because the defendant properly and timely requested that the question of the amount of punitive damages be decided by the jury, she had the right to have the jury determine that issue, and because the plaintiff admittedly submitted no evidence of her litigation expenses, the matter should not have gone to the jury, as there was no evidence to support the plaintiff’s claim for punitive damages. 5. The trial court did not abuse its discretion in denying the defendant’s motion to set aside the verdict, in which she alleged that there was
insufficient evidence that the plaintiff suffers from post-traumatic stress disorder and other psychological trauma and injuries; there was ample evidence that the plaintiff suffers from psychological trauma caused by the childhood sexual abuse of the decedent, as the plaintiff submitted factual evidence as to what the decedent did to her and the impact his actions have had on her emotional and psychological well-being, and she submitted expert testimony regarding the symptoms typically dis- played by victims of sexual abusе, and it was within the province of the jury to conclude, on the basis of all of the evidence it heard, that the plaintiff’s evidence regarding the emotional and psychological injuries inflicted on her by the decedent was credible and that her injuries were worthy of compensation.
Argued April 16—officially released September 10, 2019
Procedural History Action to recover damages for, inter alia, intentional sexual assault, and for other relief, brought to the Supe- rior Court in the judicial district of Stamford-Norwalk, where the court, Lee , J ., denied the defendant’s motion to dismiss; thereafter, the court denied the defendant’s motion to preclude certain evidence; subsequently, the matter was tried to the jury; verdict for the plaintiff; thereafter, the court denied the defendant’s motion to set aside the verdict and rendered judgment in accor- dance with the verdict, from which the defendant appealed to this court. Reversed in part ; judgment directed in part .
Alexander Copp , with whom were David B. Zabel and, on the brief, Barbara M. Schellenberg , for the appellant (defendant).
Hugh D. Hughes , for the appellee (plaintiff). *4 Opinion BRIGHT, J. The defendant, Dianne Rogers Spalter, executrix of the estate of Harold Spalter, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Elizabeth Spalter Iino, the biological daughter of Harold Spalter, the decedent (decedent). On appeal, the defendant claims that the trial court improperly (1) denied her motion to dismiss for lack of personal jurisdiction, (2) admitted certain evidence, (3) permitted the jury to find her liable for punitive damages without evidence as to the plaintiff’s litigation expenses and reserved to itself the issue of the amount of punitive damages to be awarded, and (4) denied her motion to set aside the verdict, which alleged that there was insufficient evidence that the plaintiff suffers from psychological trauma caused by childhood sexual abuse. We agree with the defendant’s third claim. Accordingly, we affirm in part and reverse in part the judgment of the trial court.
The following procedural history provides a sufficient foundation for our analysis. Following the death of the decedent, the plaintiff brought a two count complaint against the defendant executrix of the decedent’s New York estate, alleging that the decedent repeatedly had sexually abused her in Connecticut from the time she was six years old until she reached the age of seventeen. She claimed extreme trauma, mental anguish and psy- chological injuries, and that such injuries were perma- nent. The first count of her complaint alleged inten- tional sexual abuse, and the second count alleged reckless sexual abuse. The plaintiff requested compen- satory damages and punitive damages. Following a trial, the jury found in favor of the plaintiff on the first count of her complaint, and it returned a verdict awarding her $15 million in compensatory damages. [1] The jury also found that the plaintiff was entitled to an award of punitive damages, but it was not asked to determine the amount of the punitive damages to be awarded. The court rendered judgment in accordance with the jury’s verdict, reserving to itself a finding as to the amount of punitive damages, to be determined later. The relevant facts and additional procedural history will be set forth as necessary throughout this opinion.
I The defendant claims that the trial court improperly denied her motion to dismiss for lack of personal juris- diction. She argues that the court’s denial of her motion to dismiss was improper because ‘‘asserting jurisdiction over a New York executrix with absolutely no ties to Connecticut . . . violate[s] due process.’’ She con- tends that, despite its agreement that the defendant ‘‘had no appreciable contacts in Connecticut . . . the trial court denied the motion to dismiss on the ground that [the decedent’s] contacts with Connecticut were *5 sufficient to support jurisdiction. . . . The trial court erred by failing to base its decision on [the] defendant’s complete lack of contacts with this state.’’ We disagree.
The standard of review for a court’s decision on a
motion to dismiss is well settled. ‘‘A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . [O]ur review of the
court’s ultimate legal conclusion and resulting [determi-
nation] of the motion to dismiss [is] de novo.’’ (Internal
quotation marks omitted.)
Cogswell American Tran-
sit Ins. Co
.,
Although, ‘‘[a]s a general matter, the burden is placed on the defendant to disprove personal jurisdiction . . . [i]f the defendant challenging the court’s personal juris- diction is a foreign corporation or a nonresident individ- ual, it is the plaintiff’s burden to prove the court’s juris- diction.’’ (Citations omitted; internal quotation marks omitted.) Id., 515. ‘‘When a defendant challenges per- sonal jurisdiction in a motion to dismiss, the court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. The trial court must first decide whether the applicable state’s long-arm statute authorizes the assertion of juris- diction over the [defendant]. If the statutory require- ments [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defen- dant] would violate constitutional principles of due pro- cess.’’ (Internal quotation marks omitted.) Id., 514–15. Thus, on the basis of the facts in the record, this court must determine whether our long arm statute, General Statutes § 52-59b, [2] properly applies to the defendant and, if that statutory threshold is met, whether the defendant, acting as executrix of the estate of the dece- dent, has the requisite minimum contacts with this state sufficient to satisfy constitutional due process con- cerns. See id.
In the present case, the defendant does not contest
that the statutory threshold has been met. Indeed, she
never cites § 52-59b in her primary appellate brief or
in her reply brief. Rather, the defendant argues that her
right to due process of law has been violated by the
court’s assertion of jurisdiction over her because she,
personally, has no minimum contacts with our state.
Specifically, she argues that ‘‘[a]lthough a long arm stat-
ute may change [the common-law rule regarding juris-
diction over a nonresident defendant] as a matter of
state law, it does not alter the minimum contacts
requirement under the United States constitution,
which require[s] analysis into [the] [
d
]
efendant’s
con-
tacts with the forum state.’’ (Emphasis in original.)
Accordingly, we consider whether the exercise of per-
sonal jurisdiction over the defendant is proper under
the due process clause of the fourteenth amendment
to the federal constitution; see U.S. Const., amend. XIV,
§ 1; which limits the jurisdiction of state courts called
*6
on to render judgments against nonresident defendants.
See
Samelko
v.
Kingstone Ins. Co.
,
‘‘In the past, common law directed that an executor
could only be sued in the state in which he was
appointed. See
Martel
[v.
Stafford
,
‘‘In deciding whether an executor is subject to suit
in a particular jurisdiction, a [federal] district court
looks to the law of the forum state. Many state long-
arm [statutes] include the executor, administrator, or
other personal representative of a person within the
long-arm jurisdiction of a state as also being within the
long-arm jurisdiction. It has generally been held that
such [statutes] are constitutional even though оnly the
decedent, and not his or her representative, had any
contact with the forum jurisdiction . . . .’’ (Footnotes
omitted.) 28 Fed. Proc., L. Ed. § 65:23 (June 2019
Update); see
Rosenfeld
v.
Hotel Corp. of America
, 20
N.Y.2d 25,
The defendant relies on three cases to support her
contention that she, personally, must have sufficient
minimum contacts with this state to support the court’s
exercise of jurisdiction over her. Specifically, she cites
Walden
v.
Fiore
,
In the present case, the action brought by the plaintiff could have been brought against the decedent for the tortious acts he committed while in this state . The action names the defendant, not because of any act or failure to act on her part, but because she is standing in the shoes of the decedent. See 2 Restatement (Second), supra, § 358; id., comment (d), pp. 422–23; id., reporter’s note to comment (d), pp. 425–26, and cases сited therein. Given the well established precedent on the constitutionality of a court’s exercise of long arm juris- diction in accordance with its statutory authority, we conclude that the court in the present case did not violate the defendant’s right to due process of law by exercising jurisdiction over her because she had stepped into the shoes of the decedent when she became the executrix of his estate. Accordingly, the court properly denied the defendant’s motion to dismiss.
II The defendant claims that the trial court improperly admitted certain evidence, which she claims was highly prejudicial and likely affected the outcome of the trial. Specifically, she argues that the court erred in (1) admit- ting ‘‘evidence of verbal and physical abuse allegedly perpetrated by [the decedent] on [the] plaintiff and [on] third parties,’’ and (2) admitting ‘‘hearsay evidence [3] pur- porting to be from a 1997 journal, the original of which was discarded by [the] plaintiff’s attorney during the course of [the] litigation.’’ (Footnote added.) After set- ting forth our standard of review, we will consider each of these in turn.
‘‘To the extent [that] a trial court’s admission of evi-
dence is based on an interpretation of the Code of
Evidence, our standard of review is plenary. For exam-
ple, whether a challenged statement properly may be
classified as hearsay and whether a hearsay exception
properly is identified are legal questions demanding
plenary review. . . . We review the trial court’s deci-
sion to admit [or exclude] evidence, if premised on
a correct view of the law, however, for an abuse of
discretion. . . . Additionally, [b]efore a party is enti-
tled to a new trial because of an erroneous evidentiary
ruling, he or she has the burden of demonstrating that
the error was harmful. . . . The harmless error stan-
dard in a civil case is whether the improper ruling would
*9
likely affect the result.’’ (Internal quotation marks omit-
ted.)
LM Ins. Corp. Connecticut Dismanteling, LLC
,
A The defendant claims that the court erred in admitting evidence of verbal and physical abuse committed by the decedent and that such evidence was highly prejudicial, likely affecting the outcome of the trial. She argues that she ‘‘filed a motion in limine seeking to preclude evidence of claimed verbal and physical abuse of [the] plaintiff’s brothers (Jonathan [Spalter], Alan [Spalter], and Michael Spalter) on the ground thаt such evidence was not relevant and constituted improper character and/or propensity evidence, particularly because it effectively allowed statutorily time-barred claims of third parties to be brought before the jury. . . . The trial court denied the motion in limine . . . . The trial court erred by admitting this evidence.’’ (Citation omitted.)
The plaintiff argues that the evidence was relevant to explain the plaintiff’s fear of the decedent and why she delayed reporting his sexual abuse, and that the defendant failed to object to much of the testimony that she now claims was admitted improperly. The plaintiff contends that the defendant’s motion in limine did not serve to preserve her objections to each and every bit of testimony related to the decedent’s verbal and physical abuse of the plaintiff and her brothers because the court stated that it was delaying its ruling on the admissibility of this evidence until it was offered at trial, thereby necessitating that the defendant object to the specific evidence as it was being offered. The plaintiff also argues that any improper admission by the trial court was harmless.
The following additional facts inform our review. The defendant filed a motion in limine to ‘‘preclude evidence of alleged other crimes, wrongs, or bad acts’’ committed by the decedent, including alleged physical or emotional abuse by the decedent against the family dog, the plain- tiff, and the plaintiff’s brothers, on the ground that it was ‘‘improper character and/or propensity evidence.’’ She also argued that the evidence was not relevant and that its prejudicial effect significantly would outweigh its probative value. The court held a hearing on the defendant’s motion, and other items, on February 7, 2017, at which the court explained, ‘‘Connecticut Code of Evidence [§ 4-5] [4] appl[ies] to both civil and criminal cases. . . . So, what this means, to the extent evidence of [the decedent’s] abuse of other people and the dog . . . are offered, I will need to do a two part test before I can admit it. I have to make a determination as to relevance, and I also have to weigh the probative value of the evidence against the prejudicial effect of the evidence, and that needs to be done . . . out of the hearing of the jury.’’ (Footnote added.) Consistent with *10 this explanation, the court, also on February 7, 2017, issued a short written ruling denying the motion in limine because ‘‘[e]vidence of other wrongs and acts is admissible for certain purposes pursuant to [§] 4-5 (c) of the Connecticut Code of Evidence, provided it is relevant and that its probative value outweighs any prejudicial effect.’’
The record reflects that the defendant clearly was told that the court, although denying the motion in limine, was reserving judgment on specific objections to evidence of other wrongs or acts until the evidence was offered at trial. Later in the February 7, 2017 hear- ing, the parties were discussing the admissibility of portions of depositions regarding allegations of physical and emotional abuse committed by the decedent to which the defendant objected. The plaintiff’s attorney told the court that he would be telling the jury during opening argument that the plaintiff was terrified of the decedent because of his sexual abuse and his violent acts toward her, her brothers, and her dog. He also stated that he would explain to the jury that this is why she waited until he died to disclose this abuse publicly and file this action; it helped to explain her fearful state of mind during his lifetime. The defendant’s attorney responded: ‘‘The fact that opposing counsel wants to make some statements in opening argument about evi- dence that may or may not come in is his choice. The court doesn’t have before it the information at this point in time sufficient to rule [on] whether . . . the evi- dence that will be offered comes in under [§ 4-5 (c) of the Connecticut Code of Evidence]. There are signifi- cant issues about that evidence. We would be severely prejudiced by the introduction of evidence. . . . And so, if counsel wants to make statements in opening argument, he can state whatever he wants to, but, as [with] any opening argument, Your Honor, you take the chance if you want to make statements about evidence that may or may not come in; that’s their choice. The court should not make rulings on evidence at this point in time based upon what [the] plaintiff’s counsel says he wants to say in opening argument.’’ The court responded: ‘‘All right then. What I understand you [to] say is you would object to my ruling, but not to him raising these, these concepts.’’
The following day, February 8, 2017, when the plain- tiff was on the witness stand, she brought up an incident involving the decedent and her brothers, and the follow- ing colloquy occurred:
‘‘[The Defendant’s Attorney]: Your Honor, may I state my objectiоn for the record?
‘‘The Court: Sure. . . . Yes, go ahead.
‘‘[The Defendant’s Attorney]: Okay. And so I would object and move to strike that response to the extent that, again, Your Honor, it seems to have been nonre- *11 sponsive to the question that I understood [the plain- tiff’s attorney to be] asking, which was directed at an incident of alleged sexual abuse. And we claim that objection based on the fact that we have a pending objection to incidents of physical abuse.
‘‘The Court: Well, let’s be clear about that. I don’t acknowledge a pending objection. [5] There is—you [filed] a motion in limine, and I said we would take it in turn, as necessary. But I do not—pending objections are not favored in Connecticut practice, and I don’t [favor them] either. So, and it hasn’t stopped you from raising objec- tions when you felt it appropriate. And, so that’s the status of that. In terms of this one, I’ll reserve [ruling] pending connection to the witness.
‘‘[The Defendant’s Attorney]: Thank you, Your Honor. And I understand that, thank you.’’
The defendant now argues that her motion in limine preserved her objections to every instance of evidence regarding allegations that the decedent committed acts of physical, verbal, or emotional abuse. [6] We disagree. The court explained to the parties during the hearing on the defendant’s motion in limine that its denial of the defendant’s motion was only a preliminary ruling, because it thought that some of the evidence likely would be admissible at trial. Additionally, the court clearly reiterated, the following day, that the defendant was required to object to specific evidence at the time it was offered, and it told the defendant that it would not recognize a standing objection to evidence on this issue; the defendant’s attorney then told the court that he understood.
We conclude, therefore, that in order to preserve her
objections, the defendant needed to object each time
evidence was offered on the issue so that the court
could consider the evidence in the context for which
it was being offered. See
Birkhamshaw Socha
, 156
Conn. App. 453, 468,
In response to the plaintiff’s revised complaint, the defendant filed five special defenses, including a defense that ‘‘[t]he plaintiff’s claims are barred or dimin- ished to the extent she failed to take proper and reason- able steps to avoid or mitigate damages.’’ The plaintiff denied each of the special defenses. As explained pre- viously in this opinion, the plaintiff’s attorney told the court that he would be telling the jury during his opening *12 statement that the plaintiff was terrified of the decedent because of his sexual abuse and his violent acts toward her, her brothers, and her dog, and that this was why she waited until he died to disclose this abuse and file this action. He said this information would be used to explain her fearful state of mind during the decedent’s lifetime and her inability to bring an action before his death. The defendant’s attorney responded by saying that counsel could argue whatever he wanted during his opening statement but that it did not mean the evidence of which he spoke would be admissible.
During opening argument, the plaintiff’s attorney argued, in part, that he believed that the evidence would show that the decedent ‘‘serially and repeatedly abused [the plaintiff] sexually for his own gratification from the time she was six years old to the time she was seventeen, [and] that he kept her in abject fear of him for his entire life by his acts and his violence that she witnessed as a child . . . .’’ The defendant’s attorney argued: ‘‘[W]e expect that [the plaintiff] will come into court and take the [witness] stand and testify that she was afraid to bring this suit or to bring a suit during [the decedent’s] lifetime. In fact, we expect [the plaintiff] to come in and testify that she thought about suing [the decedent] . . . for years and that she even thought about it as far back as the 1990s, but that she couldn’t bring herself to do it. She only found the courage after [the decedent] died. But, we think that once you’ve heard everything, once you’ve listened to the testimony, once you’ve seen the record, the evidence that comes in, that [the] evidence will tell a very different story. And that story . . . is that [the decedent’s] death is actually the reason for this lawsuit, because when [the decedent died] . . . he left a will. And [the decedent’s] will favors his wife . . . .’’ The defendant’s attorney also argued that the evidence would show that the plain- tiff maintained a close affectionate relаtionship with the decedent up until the time of his death but that, when the decedent died, and his will was disclosed, ‘‘that’s when things change[d]. And we think the evi- dence in this case will show that that is the reason for this lawsuit . . . .’’
The defendant now claims that all of the testimony from the plaintiff and her brothers regarding the dece- dent’s violent and physically abusive behavior should have been excluded by the court. The plaintiff argues that this evidence was necessary because the defense sought to attack the plaintiff’s motivation for filing the action after the decedent’s death, and the evidence, therefore, was necessary to explain why she delayed her action. The plaintiff also contends that the defendant raised objections to approximately one half of the testi- mony concerning the violence of the decedent and that some of the objections were on grounds other than improper character evidence. Accordingly, the plaintiff argues that any impropriety by the court in overruling *13 the defendant’s limited objections was harmless in light of the overwhelming additional evidence to which there was no objection. We agree with the plaintiff.
In her appellate brief, the defendant cites several instances of testimony given by the plaintiff and her brothers. We will look at each of these instances, as well as other cumulative testimony by these witnesses to which the defendant did not object or that was brought out during the defendant’s cross-examination.
At the start of the plaintiff’s testimony, her attorney asked what her earliest recollection was of the dece- dent. The plaintiff stated that she remembered a very violent man. The defendant objected and asked that the response be stricken, but the court allowed the testimony to continue. The plaintiff then explained to the jury that the decedent would ‘‘hit, scream, punch, kick, [and] spit . . . .’’ The defendant again objected, and the court overruled the objection stating that the testimony went to explain the state of mind of the plaintiff. The plaintiff continued: ‘‘I saw [the decedent] punching, screaming, hitting my brothers on a regular basis. He would slap me and punch—punch me and pull my—pull me and throw me, and he also punched and kicked my dog. And he would scream, and he looked like a monster, you know, spitting and beady eyes, and that’s what I observed.’’
The defendant also points to additional testimony by the plaintiff regarding the decedent having an ulcer and his anger. Specifically, the plaintiff testified: ‘‘[T]here was an incident where [the decedent]—I was about nine. . . . [He] had an ulcer and the violence was— [he] would get so angry.’’ The defendant objected, and the court overruled the objection.
During cross-examination, however, the defendant’s attorney asked the plaintiff if she thought the decedent was a ‘‘monster’’ because she ‘‘saw him do things regu- larly such as punch and kick and scream and spit,’’ to which the plaintiff responded in the affirmative. When questioning the plaintiff about her decision to associate with the decedent in 2004, the defendant’s attorney also asked: ‘‘And in fact, you were in fear of [the decedent] throughout your childhood because of his anger and volatility?’’ The plaintiff answered, ‘‘Yes.’’ Counsel then asked: ‘‘Okay. And you were in fear of him because of the physical violence that he displayed in front of you . . . and you were in fear of him because of his physical abuse of your brothers that you witnessed . . . ?’’ The plaintiff, again, responded in the affirmative. Counsel then asked, ‘‘But still you chose to associate with him in 2004?’’ The plaintiff answered, ‘‘I did.’’
The defendant also argues that the court improperly admitted the following testimony by Alan Spalter: ‘‘Our house in Connecticut was a house filled [with] basically fear and terror. It was a house that we had a daily, *14 almost daily verbal abuse and physical abuse. Verbal abuse in terms of being yelled at, screamed at. . . . Physical abuse by [the decedent] included kicking, punching, and hitting. These are all based on the fact that [the decedent] was really a powder keg waiting to go off at any moment for any type of indiscretion, any kind of—if we displeased him in any way, there were consequences. He ruled the house as a dictator. And, if we did anything to displease him, there were conse- quences. . . . Back in the day when there were no sprinkler systems, underground sprinkler systems, we had to move the hose from one end of the lawn to the other, and I was doing that, and I sprayed [the plaintiff] playfully with the sprinkler, and I . . . got [the dece- dent] wet . . . . He enraged, got out of his chair, ran after me, tackled me to the ground, put his knee on my back, arm on my head, buried it into the ground, and yelled at me, apologize.’’ This testimony, however, was presented at trial without objection by the defendant.
The defendant also argues that certain testimony of Jonathan Spalter improperly was admitted. Specifically, she argues: ‘‘Jonathan Spalter testified that on one occa- sion, [the decedent] punched him in the stomach, grabbed him by the hair, and threw him down on the ground. . . . He then testified as to several more sup- posed incidences of violence, including [the decedent’s] purportedly hitting him and [the] plaintiff while in the car, a separate claimed road rage incident, and an addi- tional incident involving alleged physical abuse of his brother, Michael Spalter.’’ [7] The defendant, however, raised no objection to that testimony when it was offered at trial.
The defendant also argues: ‘‘Over objection of defense counsel, Jonathan Spalter testified: ‘[The plain- tiff], my brother Alan, my brother Michael, and myself were in a horror house’ . . . . He later testified, also over objection, that he ‘wanted [the decedent] to know how gravely hurt I’ve remained by all of the abuse, myself, and my brother, and [the plaintiff], particularly [the plaintiff], endured at his hands . . . .’ ’’
A review of the transcripts also reveals that during cross-examination by the defendant’s attorney, Jona- than Spalter was asked about his anger toward the decedent, and he replied in relevant part: ‘‘I was angry at [the decedent] for many things. The most important thing that I’ve been angry at [him] at that time was about the fact that he had admitted to me that he sexu- ally abused [the plaintiff] and the years of abuse, verbal and physical, that I, and my brother Alan, and my brother Michael suffered.’’ Jonathan Spalter also testi- fied during cross-examination, when asked about an e-mail sent to him by the decedent, alleging that he had engaged in personal attacks against the decedent: ‘‘No, I never made attacks at [the decedent]. I told him the plain truth as I knew the truth to be, that I was hurt *15 and my family was hurt because of the years of abuse that he perpetrated physically, emotionally, and sexu- ally against [the plaintiff]. These were not attacks. These were shining a mirror at [the decedent] and letting him know how sad and how much he’s impacted me, and particularly [the plaintiff] through his life, and also reg- istering my deep disappointment and my protected instinct for my children, my sweet children, that this is a man who didn’t have the basic human decency to be even remotely close to treating grandchildren as they should be treated, which is having some level of communication with them.’’
On the basis of the record and the objections voiced by the defendant’s attorney to some оf the testimony, as specifically set forth in this opinion, we conclude that even if we were to agree that the court improperly overruled each of those objections, the defendant has not established that the error was harmful. There simply was a mound of similar testimony to which the defen- dant did not object, much of which was much more in- depth than that to which she did object during trial.
‘‘When a court commits an evidentiary impropriety,
we will reverse the trial court’s judgment only if we
conclude that the trial court’s improper ruling harmed
[a party]. . . . In a civil case, a party proves harm by
showing that the improper evidentiary ruling likely
affected the outcome of the proceeding. . . . It is well
established that if erroneously admitted evidence is
merely cumulative of other evidence presented in the
case, its admission does not constitute reversible error.
. . . In determining whether evidence is merely cumu-
lative, we consider the nature of the evidence and
whether any other evidence was admitted that was pro-
bative of the same issue as the evidence in controversy.’’
(Citations omitted; internal quotation marks omitted.)
DeNunzio DeNunzio
,
As previously discussed in this opinion, the defendant objected to some of the plaintiff’s testimony wherein she described the decedent’s violence against his chil- dren and the plaintiff’s dog. She also objected to some of the testimony of Jonathan Spalter wherein he testi- fied that they had lived in a ‘‘horror house’’ and that he wanted the decedent to know that he and his siblings were hurt by the decedent’s abuse.
The defendant then cross-examined the plaintiff on those issues. Additionally, during the defendant’s cross- examination of Jonathon Spalter, he was asked about his anger toward the decedent, which elicited a response about the physical and verbal abuse perpe- trated by the decedent. He also was questioned about an e-mail sent to him by the decedent, which elicited further testimony about the years of abuse. Alan Spalter also testified on direct examination, without objection, about the daily physical and verbal abuse perpetrated *16 by the decedent, and he referenced a specific violent event that had been witnesses by the plaintiff; he also testified, without objection, that their Connecticut home was filled with ‘‘fear and terror.’’ The record reveals that the testimony to which the defendant objеcted merely was cumulative of other similar testi- mony to which she did not object. Accordingly, she has failed to show that the trial court’s rulings, even if we assume that they were improper, likely affected the outcome of the trial. [8]
B The defendant also claims that the ‘‘trial court com- mitted reversible error by admitting hearsay evidence purporting to be from a 1997 journal, the original of which was discarded by plaintiff’s attorney during the course of litigation.’’ She argues that the court improp- erly admitted the entries under the state of mind excep- tion to the hearsay rule; see § 8-3 (4) of the Connecticut Code of Evidence; [9] and that the court should have excluded the journal entries because the original jour- nal was discarded by the plaintiff’s ‘‘attorney.’’ We are not persuaded.
The following additional facts inform our review. After the discovery deadline had passed, the plaintiff disclosed the existence of a 1997 journal, which her attorney represented recently had been discovered among the plaintiff’s possessions kept in a storage facil- ity, and a copy was provided to the defendant and the court. After some time had passed and the plaintiff had failed to produce the original journal, the defendant filed a motion for sanctions, and the court ordered the plaintiff to produce the original journal. At a subsequent status conference, the plaintiff’s attorney explained to the court that after the plaintiff found the journal in a storage facility, she made a photocopy of its pages so that she could e-mail them to him, as she had done with previous documents. Her attorney further explained that there had been a mix-up concerning whether the original journal had been included in the items placed in a shipping crate to be returned to Aus- tria, where the plaintiff was living. Eventually, however, the plaintiff came to believe that the original journal inadvertently had been thrown away by the plaintiff’s cousin, Laura Phillips, with whom the plaintiff was stay- ing when she discovered the journal. The court requested an affidavit from Phillips, which she provided the following day.
In her affidavit, Phillips averred, among other things, that she is an attorney licensed to practice law in New York; she had not worked with the plaintiff’s attorneys of record on this case; she and the plaintiff are cousins, and they have a close relationship; the plaintiff had stayed with her for approximately one month in July and August, 2016, while visiting here from Austria; dur- ing the plaintiff’s visit, they had retrieved approximately *17 fifty boxes of belongings from the plaintiff’s storage unit; she and the plaintiff sorted through the boxes and reduced them to approximately eighteen boxes that they shipped to the plaintiff’s home in Austria; many of the items set aside to be discarded included papers, notebooks, books, etc., which were strewn about Phil- lips’ apartment; the plaintiff also had set aside a stack of papers to be kept at Phillips’ apartment; Phillips told the plaintiff that she would discard the items left over from the storage unit; and although Phillips remem- bered seeing the journal, which had Spanish writing on the cover, she thought she may have inadvertently thrown it away believing it was her daughter’s old notes from Spanish class.
The defendant then renewed her motion for sanc- tions, alleging discovery misconduct and destruction of evidence. The court denied the motion, finding no evidence of wilful misconduct, but it did permit further deposition questioning.
During the trial, the plaintiff’s attorney sought to introduce into evidence the photocopy pages from the 1997 journal. The defendant objected on the grounds of spoliation and lack of authentication. The court over- ruled the objection, opining that the ‘‘absence of the original was adequately explained.’’ The defendant then objected to the introduction of all of the excerpts of the journal that the plaintiff sought to introduce on the grounds of hearsay and undue prejudice. Outside the presence of the jury, the court went through each excerpt, listened to the argument of counsel, and deter- mined that the excerpts were admissible.
The defendant now claims that the court miscon- strued the state of mind exception to the hearsay rule; see § 8-3 (4) of the Connecticut Code of Evidence; lead- ing to its improper admittance of certain excerpts of the plaintiff’s journal. She argues, ‘‘[t]he admission of the self-serving hearsay statements is especially trou- bling in a case with no living first-hand witnesses who could confirm or deny the alleged abuse, no contempo- raneous written records corroborating [the] plaintiff’s account of events, and very little written corroboration of events at any time prior to the [the] plaintiff’s filing of the instant lawsuit.’’ (Emphasis in original.)
The defendant in her appellate brief specifically addresses two excerpts from the journal, which she argues improperly were admitted into evidence by the court. The first excerpt cited by the defendant is as follows: ‘‘All day I have been thinking about the sick- ening stuff that [the decedent] does. It is so dis- turbing.’’ [10] The second excerpt from the journal con- tains a letter that the plaintiff wrote to [the decedent], which she never sent. Specifically, the defendant objects to the following portions: ‘‘You fondled my geni- talia. . . . I always pretended to be asleep. . . . You recall only one incident. So one of us is inaccurate. I *18 swear on my mother’s grave and on my nephews’ lives I know the incest you did actions to be true. . . . I see you screaming and beating up your children as using poor judgment.’’ [11] (Internal quotation marks omitted.) Immediately after the introduction of these excerpts, the court gave a limiting instruction: ‘‘So now, ladies and gentlemen, once again, this is admitted to show [the plaintiff’s] state of mind at the time she wrote this and is not for proof of any of the events that she discusses there. It’s to show you what was going on in her mind at the time.’’ The defendant also asserts in passing that the court’s limiting instruction to the jury was insufficient to limit ‘‘the impact of the self-serving accusatory statements . . . .’’
The plaintiff responds that the journal excerpts were
necessary to provide proof of her claim for emotional
damages. She also argues that the defendant ‘‘cherry
picks objectionable sentences [from the excerpts] when
[she] made only a general objection in the trial court
to the entire thing.’’ Furthermore, she argues, the preju-
dicial impact of the journal excerpts caused by any
statements concerning abuse contained therein was
minimal and cumulative in light of all the other evidence
at trial. We conclude that even if these excerpts improp-
erly were admitted, the evidence merely was cumulative
of considerable other evidence, and the defendant has
failed to prove that the improper admission of the
excerpts likely affected the outcome of the trial. See
Fink Golenbock
,
At trial, the plaintiff testified extensively about the decedent’s sexual abuse. Jonathan Spalter testified about seеing the decedent naked in the plaintiff’s bed- room. He also testified, in response to questioning from the defendant’s attorney, that the decedent admitted to sexually assaulting the plaintiff once. Additionally, as fully explained in part II A of this opinion, there was other evidence of physical and emotional abuse, as well. Alan Spalter testified, without objection , that the family home was filled with ‘‘fear and terror . . . [and] almost daily verbal abuse and physical abuse . . . [that] included kicking, punching, and hitting.’’ Jonathan Spalter also testified, without objection , about specific instances of physical violence committed by the dece- dent. Finally, the defendant did not object during trial to the admission of other journal excerpts written by the plaintiff in 1995 and 1996. Those excerpts included several references to incest, including a statement by the plaintiff that ‘‘[she] was incested at [eleven] years old by [the decedent].’’ Because the jury was privy to this evidence, it is not reasonable to conclude that the excerpts from the 1997 journal likely affected the ver- *19 dict. We cannot conclude, therefore, that any purported error in their admission was harmful.
III The defendant claims that the trial court improperly permitted the jury to find her liable for punitive damages without evidence of the plaintiff’s litigation expenses and that the court improperly reserved to itself the issue of the amount of punitive damages to be awarded. Specifically, she argues: ‘‘During the charging confer- ence . . . defense counsel objected to the trial court charging the jury on the issue of punitive damages on the grounds that the amount of common-law punitive damages is an issue for the jury, and because there was no evidence upon which the jury could base such an award. . . . The trial court disagreed based on its past practices, instructing the jury to determine whether punitive damages should be awarded, and that the court would later determine the amount of such damages. . . . This was error.’’ (Citations omitted; footnote omitted.)
The plaintiff argues that there is no final judgment on the issue of punitive damages, and, therefore, we are unable to review this claim. In the alternative, she argues that the court properly ruled that it would reserve the amount of punitive damages for its own consideration, after the jury determined whether the defendant was liable for such damages. Furthermore, the plaintiff argues, even if it were impropеr for the court not to let the jury decide the amount of punitive damages, we should remand the matter for a hearing limited to that issue. We begin with the complicated issue of whether there is a final judgment as to puni- tive damages.
A ‘‘The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law [and, therefore] our review is plenary. . . .
‘‘Neither the parties nor the trial court . . . can con- fer jurisdiction upon [an appellate] court. . . . The right of appeal is accorded only if the conditions fixed by statute and the rules of court for taking and prosecut- ing the appeal are met. . . . It is equally axiomatic that, except insofar as the legislature has specifically pro- vided for an interlocutory appeal or other form of inter- locutory appellate review . . . appellate jurisdiction is limited to final judgments of the trial court. . . .
‘‘It is well settled that a judgment rendered only upon
the issue of liability without an award of damages is
interlocutory in character and not a final judgment from
which an appeal lies.
.
.
. Nevertheless, [under the
bright line rule announced in
Paranteau DeVita
, 208
Conn. 515,
In
Ledyard
, the defendant had appealed from the
summary judgment rendered in favor of the plaintiff,
as to liability only, with respect to certain attorney’s
fees that had been incurred by the plaintiff. See
Ledyard
v.
WMS Gaming, Inc.
,
In
Ledyard
, our Supreme Court began its final judg-
ment analysis by discussing
Paranteau
. Id., 84–87. The
court explained that, in
Paranteau
, ‘‘[b]y opting for a
bright line rule, [it had] implicitly recognized that there
would be some cases . . . in which the application of
the bright line [rule] would mean that an attorney’s fees
award that would othеrwise be considered integral to
the judgment on the merits would nevertheless be sever-
able from that judgment for purposes of finality.’’ (Inter-
nal quotation marks omitted.) Id., 87. It is noteworthy
to mention that the court in
Paranteau
, however, also
issued a caveat to the bright line rule by explaining, in
footnote 11 that ‘‘[a] supplemental postjudgment award
of attorney’s fees becomes final and appealable, how-
ever, not when there is a finding of liability for such
fees, but when the amount of fees are conclusively
determined. A finding as to liability only, prior to a
determination on the issue of damages, is not a final
judgment from which an appeal lies.
.
.
. Further-
more, a timely appeal from a supplemental postjudg-
ment award of attorney’s fees may challenge not only
the amount awarded, but the underlying recoverability
of such fees as well.’’ (Citation omitted.)
Paranteau
v.
DeVita
, supra,
The court in
Ledyard
then went on to discuss
Hylton
v.
Gunter
,
In
Hylton
, our Supreme Court also overruled this
court’s decision in
Lord
v.
Mansfield
, 50 Conn. App.
21,
After discussing
Hylton
, our Supreme Court, in
Led-
yard
, returned to
Paranteau
and further limited the
application of footnote 11 of that decision: ‘‘Footnote
11 of
Paranteau
can be explained as part of an effort
to save jurisdiction over that appeal given the facts of
that particular case, which predated our clarification
in
Ambroise
v.
William Raveis Real Estate, Inc.
, 226
Conn. 757, 762–63,
In conducting our final judgment rule analysis, we
next review a recent case in which our Supreme Court
denied a motion to dismiss that had been filed by the
defendant in error in that case, who had sought dis-
missal on final judgment grounds of a writ of error. See
Maurice
v.
Chester Housing Associates Ltd. Partner-
ship
,
This court explained the issue regarding whether the
appeal was taken from a final judgment as follows: ‘‘On
September 4, 2018, prior to oral argument of this case
before this court, our Supreme Court released its deci-
sion in
Ledyard
v.
WMS Gaming
, Inc., [supra, 330 Conn.
75]. In
Ledyard
, the Supreme Court ruled that the Appel-
late Court wrongly dismissed, for lack of a final judg-
ment, an appeal taken from a judgment that determined
only that the defendant was liable for attorney’s fees.
The Supreme Court ruled that the trial court’s determi-
nation that the defendant was liable for attorney’s fees
was an appealable final judgment, despite the fact that
the amount of those fees had not yet been determined.
The Supreme Court found that, in dismissing the appeal,
the Appellate Court had wrongly relied on a footnote
in
Paranteau DeVita
, [supra,
‘‘Here, the order that Williams be sanctioned and that he pay attorney’s fees is a final judgment under Ledyard —notwithstanding the fact that the trial court has yet to determine the amount of those fees—because it does not constitute a supplemental postjudgment award of attorney’s fees.’’ Maurice v. Chester Housing Associates Ltd. Partnership , supra, 188 Conn. App. 25 n.5.
Presumably then, Williams could file
an appeal
after
the trial court orders the specific amount of fees for
which he will be liable, contesting the reasonableness
of the amount. See id. As explained by Attorneys Wesley
W. Horton and Kenneth J. Bartschi, ‘‘
Paranteau
has
been extended to a strict foreclosure case in
Benvenuto
v.
Mahajan
, [supra,
As we attempt to reconcile all of these cases and arrive at a workable final judgment rule, we conclude as follows: a judgment that includes an award of attorney’s fees, even when those fees are integral to the judgment, as with an award of common-law punitive damages, is an appealable final judgment despite the fact that the amount of those fees has not yet been determined; implicit in this rule is that once the amount of those fees has been determined postjudgment, that postjudgment determination will be a separately appealable final judg- ment as to the reasonableness of the fees awarded.
On the basis of the foregoing, we conclude that the jury’s determination that the plaintiff is entitled to com- mon-law punitive damages is a final judgment for pur- poses of appeal because it does not constitute a supple- mental postjudgment award, despite the fact that the trial court reserved a determination of the precise amount of those damages to a time postjudgment.
B We next consider the merits of the defendant’s claim that the trial court improperly permitted the jury to find her liable for punitive damages without evidence as to the plaintiff’s litigation expenses, and that the court improperly reserved to itself the issue of the amount of punitive damages to be awarded.
The following facts assist with our review. Before *24 the plaintiff began her presentation of evidence, the defendant submitted to the court a request to charge and her proposed jury interrogatories. She requested, in part, that, if the court were to permit a consideration of punitive damages in this case, it submit the question of punitive damages and the amount of those damages to the jury. Then, during the charging conference, which was held after the close of evidence, the defendant asked the court not to charge the jury on punitive dam- ages because the plaintiff had failed to put forth any evidence of her litigation expenses, and she, again, told the court that, if the issue of punitive damages went to the jury, the court must have the jury determine the amount of those damages. The plaintiff argued that, although the liability for punitive damages is a jury question, the amount of the award is a question for the court, to be determined after the jury issued its verdict. She expressed to the court that there would be no way to ‘‘know the cost of litigation until we are done with the trial.’’ The court agreed with the plaintiff, stating that this was its past practice when common-law punitive damages were involved, and it stated that it would deter- mine the amount of damages if the jury found that the defendant was liable for punitive damages. The defen- dant, following the court’s charge to the jury, also took an exception to the court instructing the jury on punitive damages. On appeal, the defendаnt claims that the court improperly permitted the jury to find her liable for com- mon-law punitive damages without evidence as to the plaintiff’s litigation expenses, and that the court improp- erly reserved for its own consideration the specific amount of common-law punitive damages to be awarded. We agree with the defendant.
The defendant asks that we apply a plenary standard
of review to her claim. We agree that this is the appro-
priate standard of review. ‘‘A challenge to the validity
of jury instructions presents a question of law. Our
review of this claim, therefore, is plenary.
.
.
. We
must decide whether the instructions, read as a whole,
properly adapt the law to the case in question and
provide the jury with sufficient guidance in reaching a
correct verdict. . . . [T]he test of a court’s charge is
. . . whether it fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law.’’ (Citation omitted;
internal quotation marks omitted.)
Green
v.
H.N.S Man-
agement Co.
,
The precise issue presented by this claim does not
appear to have been addressed squarely by an appellate
court in Connecticut, at least in quite some time. We
are aware, however, of at least one Connecticut case
*25
in which this issue squarely was raised on appeal on
constitutional grounds, but our Supreme Court did not
decide the issue because it was unpreserved before the
trial court. See
Berry
v.
Loiseau
,
We also are aware that this issue has surfaced in at least two cases from the United States Court of Appeals for the Second Circuit. In Gagne v. Enfield , 734 F.2d 902 (2d Cir. 1984), the plaintiff brought a 42 U.S.C. § 1983 claim and a state law negligence claim in the United States District Court for the District of Connecti- cut. The District Court instructed the jury that if it found the defendants liable for punitive damages, ‘‘the judge . . . will award the plaintiff an amount equal to his reasonable costs in bringing this lawsuit.’’ Id., 904. Dur- ing the trial, however, the plaintiff had ‘‘offered no evi- dence of the cost of litigating his claims.’’ Id., 903. The defendants objected to the court’s submission of the issue of punitive damages to the jury. Id. In its verdict, the jury found that punitive damages should be awarded but, in accordance with the judge’s instruction, did not specify an amount. Id., 904. The District Court, there- after, held a posttrial hearing, and it awarded the plain- tiff $21,336.40 in punitive damages on his state law negligence claim. Id. On appeal to the Second Circuit, that court reversed the judgment as to the award of punitive damages, and it remanded the case with direc- tion to vacate the punitive damages award. Id., 905. Specifically, the Second Circuit held that, because the plaintiff failed to offer any evidence of his litigation costs at trial before the jury, he was not entitled to punitive damages under Connecticut law, and there was ‘‘an insufficient evidentiary basis to submit the question of punitive damages to the jury.’’ Id., 905. The Second Circuit also held that ‘‘[u]nder the Seventh Amendment, the determination of the amount of such damages is a legal claim and for the jury . . . .’’ Id.
Then, in
Wolf Yamin
,
In
Wolf
, the Second Circuit discussed
Gagne
at length,
calling into question its continued viability in light of
more recent Connecticut case law. Id., 308–311.
[13]
The
Second Circuit, in
Wolf
, opined that the rule in Connecti-
cut had been clear that, unless agreed otherwise by the
parties, evidence as to the amount of punitive damages
must be offered
during trial
to warrant such a claim
going to the jury. Id., 309. The court relied, in part, on
Venturi
v.
Savitt, Inc.
,
In its determination that our law no longer was clear,
the Second Circuit relied on two more recent cases,
namely,
Kenny
v.
Civil Service Commission
, 197 Conn.
270,
‘‘Seven years later, the Connecticut Supreme Court decided Berry . In that case, the plaintiff sued his former employer and others, alleging wrongful termination of his employment and other causes of action, and defen- *27 dants counterclaimed on various theories. The trial court submitted interrogatories to the jury, asking whether punitive damages were warranted on either the plaintiff’s claim or the defendants’ counterclaim. . . . The court made clear to the jury that if [it] found that punitive damages were warranted, the court would determine the amount thereof. No exception was taken to the charge. The jury responded in the affirmative on both claims for punitive damages. . . . After a hearing before the judge, at which the parties submitted evi- dence of their litigation expenses, the trial court awarded punitive damages awards to both the plaintiff ($16,667) and the defendants ($50,000). . . .
‘‘Both parties appealed. [The] [р]laintiff challenged the restrictive Connecticut rule limiting punitive dam- ages to the costs of litigation. [The] [p]laintiff also argued [in part] that the trial court . . . improperly denied him his right under the Connecticut constitution to have the jury determine the amount of his punitive damages, [and] . . . improperly applied a Connecticut contingency fee limitation statute to limit his punitive damages . . . . Defendants, on their appeal, claimed, among other things, the trial judge improperly awarded the plaintiff punitive damages when there was no evi- dence at trial to support such an award. . . .
‘‘On the plaintiff’s appeal, the Connecticut Supreme Court rejected the general attack on Connecticut’s restrictive punitive damages rule. . . . Next, the Court held that it would not consider the claim that [the] plaintiff had been denied his constitutional right to have a jury determine the amount of his punitive damages award, due to his failure to take a timely exception when the jury instructions on punitive damages were given. . . . Regarding [the] plaintiff’s argument that the trial court improperly limited the plaintiff’s punitive damages based on the Connecticut contingency fee lim- itation statute, the Court concluded that the trial court had improperly applied the statute, and reversed and remanded for a new hearing before the judge on puni- tive damages. . . .
‘‘On the defendants’ appeal, the Connecticut Supreme Court rejected the argument that there was no evidence to support [the] plaintiff’s punitive damages award. The Court stated evidence of wanton behavior on the part of [the] defendants justified an allowance of punitive damages . . . and that [i]n the present case, the jury could reasonably have found from the evidence pre- sented at the trial that [the defendant] subjected the plaintiff to physical abuse, in reckless disregard of the consequences of his actions. Accordingly, we are per- suaded that the trial court properly allowed the jury to decide whether the plaintiff was entitled to punitive damages. . . .
‘‘In this discussion, the Court did not mention whether [the] plaintiff had presented evidence of litiga- *28 tion costs during the jury trial.
‘‘In Berry , two judges concurred in an opinion of the court, two judges concurred in the result only and one judge concurred in a separate opinion, stating that he would not address the issue . . . in the majority opin- ion concerning the rule limiting punitive damages to the party’s litigation costs. . . .
‘‘It is unclear whether the holdings in Kenny and Berry conflict with earlier Connecticut cases on puni- tive damages. It is true that Kenny was a bench trial with no jury, so that the post-trial hearing allowed the same trier of fact to determine punitive damages, while the case now before us was before a jury, so that the judge was not the trier of fact. Still, the Connecticut Supreme Court in Kenny suggested that a post-trial procedure be used by the trial court to determine the amount of punitive damages, rather than holding that the failure to present evidence of litigation costs at trial barred punitive damages.
‘‘The Connecticut Supreme Court’s decision in
Berry
provides further evidence of ambiguity in Connecticut
law on punitive damages, especially in light of the vari-
ous concurrences in that case. In
Berry
, the Court again
ordered a post-trial hearing (apparently by the court)
to determine punitive damages, this time after a jury
trial.
Berry
therefore also suggests that Connecticut
law does not require a plaintiff to offer evidence of
litigation costs at trial. We believe that these two cases,
Kenny
and
Berry
, appear to make Connecticut law
on punitive damages ambiguous.’’ (Citations omitted;
emphasis omitted; footnotes omitted; internal quotation
marks omitted).
Wolf
v.
Yamin
, supra,
We next consider the Second Circuit’s statement that
Kenny
and
Berry
‘‘appear to make Connecticut law on
punitive damages ambiguous.’’ Id., 311. As noted by the
Second Circuit,
Kenny
was a trial to the court, and the
remand from our Supreme Court was to the trial court
for a hearing in damages. See
Kenny Civil Service
Commission
, supra,
In
Berry
, our Supreme Court was called upon to
determine, inter alia, whether there was evidence to
support an award of punitive damages.
Berry
v.
Loiseau
, supra,
In the plaintiff’s separate appeal in Berry , he claimed that the trial court, in relevant part, improperly had ‘‘(1) denied him his constitutional right to have the jury determine the amount of his punitive damages award; [and] (2) applied General Statutes § 52–251c to limit the amount of punitive damages awarded him to one third of his recovery on the intentional infliction of emotional distress count . . . .’’ Id., 822–23. Our Supreme Court concluded that the plaintiff had waived his constitutional claim by failing to preserve it; id., 827–28; but it agreed with the plaintiff’s second claim, reversed the judgment as to the amount of punitive damages, and remanded the case for a new hearing on punitive damages. Id., 829. The fact that our Supreme Court remanded the case for a hearing on punitive dam- ages, presumably before the trial court, does not indi- cate to us anything more than that the plaintiff had waived any purported right to have that issue decided by a jury. In the present case, the defendant clearly did not waive any rights she may have had to have the jury decide the amount of punitive damages. Accordingly, we conclude that both Kenny and Berry are distinguish- able from the present case and do not address the resolution of claims for common-law punitive damages submitted to a jury.
In Connecticut, common-law punitive damages, also
called exemplary damages, primarily are compensatory
in nature. See
Bodner
v.
United Services Auto. Assn.
,
Juries in Connecticut have been awarding punitive
damages for ‘‘wanton or malicious injuries’’ for more
than two hundred years. See, e.g.,
Linsley
v.
Bushnell
,
That juries are to determine the amount of common- law punitive damages is confirmed also by our state statutes. General Statutes § 52-215 provides in relevant part: ‘‘The following-named classes of cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days after the return day . . . civil actions involving such an issue of fact as, prior to January 1, 1880, would not present a question properly cognizable in equity . . . . All issues of fact in any such case shall be tried by the jury, provided the issues agreed by the parties to be tried by the court may be so tried. . . .’’ See also Practice Book § 14-10.
Additionally, pursuant to General Statutes § 52-216: ‘‘The court shall decide all issues of law and all ques- tions of law arising in the trial of any issue of fact; and, in committing the action to the jury, shall direct them to find accordingly. The court shall submit all questions *31 of fact to the jury, with such observations on the evi- dence, for their information, as it thinks proper, without аny direction as to how they shall find the facts. After the action has been committed to the jury, no pleas, arguments or evidence may be received before the ver- dict is returned into court and recorded.’’ See also Prac- tice Book § 16-9.
As noted, claims for common-law punitive damages were recognized and submitted to juries for the determi- nation as to the amount of such damages long before 1880. In the present case, the defendant repeatedly told the court and the plaintiff that she wanted the jury to determine the amount of punitive damages. The plaintiff was on notice of this before she put on any evidence in the case, when, on February 6, 2017, the defendant filed her preliminary request to charge the jury and her proposed jury interrogatories. The plaintiff called the first witness on February 8, 2017. There is no indication that the plaintiff filed a motion requesting the court to opine on whether she needed to produce evidence in her case-in-chief as to the amount of her punitive damages. When the defendant again raised this issue during the March 9, 2017 charging conference, which occurred after the close of evidence, the plaintiff did not request to open the evidence to allow her to submit evidence on the amount of punitive damages. The defendant again objected, in the form of an exception, after the court charged the jury on the issue of punitive damages when there had been no evidence as to the amount of those damages. The issue certainly was well preserved.
Because the defendant properly and timely requested
that the question of the amount of punitive damages
be decided by the jury, it was incumbent on the plaintiff
to submit evidence supporting her claim to such dam-
ages in her case. It is undisputed that she did not do
so. We conclude, on the basis of the foregoing, that the
court improperly charged the jury on punitive damages
when there was no evidence of damages to support
that charge. See
Venturi
v.
Savitt, Inc.
, supra, 191 Conn.
592–93 (‘‘it is essential for the plaintiff to offer evidence
of what those [punitive] damages are’’; ‘‘punitive dam-
ages are not properly recoverable in the absence of
evidence as to the elements entering into their determi-
nation’’);
Chykirda
v.
Yanush
, supra,
IV The defendant’s final claim is that the trial court improperly denied her motion to set aside the verdict, which alleged that there was insufficient evidence that the plaintiff suffers from post-traumatic stress disorder and other psychological trauma and injuries. She argues that the ‘‘plaintiff offered no competent and sufficient evidence to establish that she actually suffered from the medical and/or psychological conditions she claimed, or that those conditions were caused by child- hood sexual abuse.’’
The following additional facts and procedural history assist with our review. In her complaint, the plaintiff claimed in count one that the decedent had committed intentional sexual assault against her. She claimed, inter alia, that ‘‘[a]s a result of said sexual abuse, sexual assault and sexual exploitation, the plaintiff has suf- fered extreme trauma, mental anguish and psychologi- cal injury, which is permanent in nature.’’ Following the plaintiff’s case-in-chief, the defendant filed a motion for a directed verdict on the ground that ‘‘the plaintiff ha[d] failed to present any competent and sufficient evidence to establish that she in fact suffers from any of the various medical/psychological conditions that she claims in the harm that was inflicted on her as a result of childhood sexual abuse by [the decedent], or that any such harm was caused by the alleged childhood sexual abuse.’’ The court reserved judgment on that motion.
At the conclusion of the trial, the jury found in favor of the plaintiff on the first count of her complaint, and it returned a damages award of $15 million, as follows: Mental anguish and emotional distress $5 million; psy- chological trauma and injuries $5 million; permanency of injuries $3 million; and inability to pursue life’s enjoy- ment $2 million. The defendant thereafter filed a motion to set aside the verdict and for a judgment notwithstand- ing the verdict. In a corrected memorandum of decision, the trial court denied that motion. The defendant claims that this was error. Additional facts will be set forth as necessary.
‘‘Our standard of review of the court’s refusal to grant
[motions for directed verdicts and to set aside verdicts]
requires us to consider the evidence in the light most
favorable to the prevailing party, according particular
weight to the congruence of the judgment of the trial
judge and the jury, who saw the witnesses and heard
their testimony. . . . The verdict will be set aside and
judgment directed only if we find that the jury could
*33
not reasonably and legally have reached [its] conclu-
sion. . . . While it is the jury’s right to draw logical
deductions and make reasonable inferences from the
facts proven . . . it may not resort to mere conjecture
and speculation. . . . If the evidence would not reason-
ably support a finding of the particular issue, the trial
court has a duty not to submit it to the jury. . . . Our
standard of review, where the trial court’s action on a
motion to set aside a verdict is challenged, is whether
the trial court clearly abused its discretion. . . . The
decision to set aside a verdict is a matter within the
broad legal discretion of the trial court and it will not
be disturbed unless there has been a clear abuse of
that discretion.’’ (Internal quotation marks omitted.)
Kosiorek Smigelski
,
The defendant contends that the plaintiff offered no competent medical or psychological evidence to sup- port her claims that she suffers from psychological injuries or that those injuries will continue in the future. She argues that the plaintiff’s expert witness, Dawn Hughes, a clinical and forensic psychologist, opined that childhood sexual abuse can result in harmful effects, but she did not draw any conclusions with respect to the plaintiff or her alleged injuries. Further- more, the defendant argues, no medical professionals with whom the plaintiff previously may have treated testified that she ever suffered from emotional or psy- chological trauma, or that she will continue in the future to suffer from such trauma. Accordingly, the defendant argues that the court erred in denying her motion to set aside the verdict. The plaintiff argues that the court properly denied the defendant’s motion because there was ample evidence of the plaintiff’s injuries. We agree with the plaintiff.
The plaintiff testified during trial about her emotional and psychological trauma. She testified that the dece- dent began abusing her sexually when she was approxi- mately six years old but that she did not understand that this was sexual abuse, and, in fact, she ‘‘thought he was maybe cuddling [her] but it also hurts.’’ She testified about the hair on his arms, his breath, his saliva on her neck, and his smell. She testified that this abuse happened on a regular basis until she was seventeen years old and that she tried to distract herself while it was occurring, attempting to focus on other things.
The plaintiff also testified that at age nine, she was ‘‘very popular,’’ that she ‘‘felt like [she] was the teacher’s pet . . . [and that] all the girls wanted to be [her] friend. [She] was doing . . . really well, amazingly well academically . . . [that she] was put into the highest math class . . . [and that she] felt . . . very confident and okay.’’ The plaintiff said, however, that this all changed as she began to reach puberty, around the age *34 of ten, and that the abuse became more intense after that. She stated that at that time she came to realize that what the decedent was doing was sexual. She testi- fied that she ‘‘became absolutely consumed with shame and . . . felt so dirty. [She] felt really guilty because [she] felt like [she] was doing something bad to [her] mom. [She] couldn’t sleep because [she] was afraid [the decedent] would come in, and [she] started withdraw- ing.’’ She also testified that she stopped doing well in school, stopped socializing with friends, and experi- enced binge eating, and that she wanted to die. She also stated that she wanted to gain weight so that she would be unattractive to the decedent.
The plaintiff testified that by the time she was in high school, she ‘‘considered [her]self to be fat and [she] felt ugly and unattractive . . . .’’ She also stated that she had low self-esteem and that, in her junior year of high school, she received several grades of ‘‘D.’’
The plaintiff told the jury about her prior drug abuse, her alcohol abuse, and her sexual promiscuity, and she stated that she did things because she ‘‘was trying to just not be here, just go someplace away from reality because [she] had felt so much shame about [her]self.’’ She testified about her experiences with psychother- apy, cognitive behavioral therapy, and an incest group that was made up of women who had been victims of childhood sexual abuse. She testified about dealing with ‘‘the trauma and the flashbacks, the intrusive memories, thе panic, the anxiety, [and] the sadness . . . .’’ She detailed how those issues still continue and discussed her depression, insomnia, sadness, and belief that nearly every decision she makes in her life is shaped by the abuse she suffered. She testified about her difficulty being around aggressive, strong, or professional men, who remind her of the decedent, and how she can’t function in their presence. The plaintiff also testified about her husband and some of the marital issues they have experienced related to sexual intimacy. She explained that although she has been in therapy for years, she still feels dirty and ashamed, but that she tries to take one day at a time by concentrating on being healthy that day. Some of the plaintiff’s other witnesses also substantiated portions of the plain- tiff’s testimony. [17]
The plaintiff also called Dr. Hughes to testify as an expert. Hughes testified that she specializes in ‘‘inter- personal violence and traumatic stress . . . [which] covers childhood abuse, childhood sexual abuse, rape, sexual assault, domestic violence . . . and single assaults.’’ She explained that children who experience sexual abuse often do not report the abuse and that they may be afraid. She also stated that the children may be unaware of what is happening to them and that they may feel dirty and a tremendous amount of shame and embarrassment.
Hughes testified that ‘‘when we look at the effects of childhood sexual abuse, we see that there’s a higher degree of likelihood of a number of disorders and diffi- culties. So, we see post-traumatic stress disorder. We see depressive disorders; we see anxiety disorders. We see suicidality. We see sleep difficulties. We also see a host of . . . problems in living, interpersonal difficul- ties, difficulties trusting others, still struggling immensely with guilt, and shame, and embarrassment, even years later.’’
Hughes also stated: ‘‘So, when an individual who has been sexually abused as a child . . . they learn the wrong things. Basically, they learn that someone who loves you and is supposed to take care of you, also can harm you and abuse you. . . . So, when [these chil- dren] go out into the world, they often have trust diffi- culties . . . . They don’t really know if they can trust people. They often have difficulties with people in authority because people who were above them . . . abused that power and sexually abused them. They often have difficulty with their . . . own sense of value. Having been abused makes one feel . . . dirty and damaged . . . and ashamed. . . . [A] lot of abuse vic- tims . . . find themselves closed in and not offering much of themselves. As a result, then they tend to feel very disconnected in this world . . . .’’
Hughes discussed that victims of childhood sexual abuse often have problems having healthy sexual rela- tionships because of the nature of their trauma. She explained that post-traumatic stress disorder (PTSD) ‘‘is a disorder that arises when somebody has been exposed to a traumatic stressor. . . . [T]he brain remembers. So, the memories continue. Sometimes, we say, the trauma ends and the nightmare begins. . . . [W]hen the memories of the abuse come into their mind, they’re psychologically distressed. So then they have accompanying symptoms of sadness, of guilt, of anger, of rage, of embarrassment, that continue to linger. Sometimes they have dreams about abusive episodes or themes of abuses as well. The next thing they try to do . . . is avoid. That’s a second symptom . . . of PTSD, the intrusion, then the avoidance. They try to push . . . it away. They try not to think about it. We try not to feel it. Those are the avoidance clusters.’’
Hughes then talked about the ‘‘hyperarousal’’ response that PTSD sufferers also may experience. She stated that they often are ‘‘quite jumpy.’’ They experi- ence a ‘‘sense of hypervigilance . . . scanning the envi- ronment to make sure you’re safe.’’ She stated that this ‘‘disrupts concentration and attention, our ability to . . . sleep . . . .’’ Hughes then explained: ‘‘And then the . . . fourth cluster of symptoms is . . . changes in your thoughts and feelings. It changes the way you view the world. . . . [T]he world is not safe . . . . Also, I am not worthy. You know, I am disgusting. These *36 sort of . . . fundamental changes in the way someone views the world.’’
Hughes also opined that ‘‘depressive disorders have been associated with individuals who have been abused as children. It actually is one of the most robust findings, the depressive disorders, even sometimes above and beyond PTSD . . . . People can have depression that doesn’t rise to a level of a disorder, but once it gets to a disorder, the definition includes impairment and functioning. . . . So depression certainly . . . is related—has been shown to be related to childhood sexual abuse and can also interfere with people’s every- day functioning.’’
The defendant contends that this evidence was insuf- ficient to support the plaintiff’s claim for psychological damages. She argues that the plaintiff needed compe- tent medical or psychological evidence to support her claims that she suffers from psychological injuries or that those injuries will continue in the future. We con- clude that the evidence was sufficient.
In
Braun
v.
Edelstein
,
In the present case, the plaintiff submitted factual evidence as to what the decedent did to her and the *37 impact his actions have had on her emotional and psy- chological well-being. She also submitted expert testi- mony, through Hughes, regarding the symptoms typi- cally displayed by victims of sexual abuse and sexual assault. It was in the province of the jury to conclude, on the basis of all of the evidence it heard, that the plaintiff’s evidence regarding the emotional and psycho- logical injuries inflicted on her at the hands of the dece- dent was credible and that her injuries were worthy of compensation. We conclude, therefore, on the basis of the evidence presented, that there was ample proof to support the jury’s verdict and, therefore, that the court did not abuse its discretion when it denied the defen- dant’s motion to set aside that verdict.
In conclusion, the court properly denied the plaintiff’s motion to dismiss, concluding that it had personal juris- diction over the estate; the defendant failed to prove that she was harmed by any purported impropriety in the court’s admission of certain evidence; the court improperly sent to the jury the question of the plaintiff’s entitlement to punitive damages when the plaintiff had failed to submit evidence at trial of her litigation expenses; and the court did not abuse its discretion in denying the defendant’s motion to set aside the verdict because there was ample evidence that the plaintiff suffers from psychological trauma caused by the child- hood sexual abuse of the decedent.
The judgment is reversed only as to the defendant’s liability for punitive damages and the case is remanded with direction to vacate the jury’s finding in that regard; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
[1]
The jury was instructed not to return a verdict on the second count of
the plaintiff’s complaint if it returned a verdict in her favor on the first count.
[2]
General Statutes § 52-59b (a) provides: ‘‘As to a cause of action arising
from any of the acts enumerated in this section,
a court may exercise
personal jurisdiction over any nonresident individual
, foreign partnership
or foreign voluntary association,
or over the executor or administrator
of such nonresident individual
, foreign partnership or foreign voluntary
association,
who in person or through an agent
: (1) Transacts any business
within the state; (2)
commits a tortious act within the state
, except as to
a cause of action for defamation of character arising from the act; (3)
commits a tortious act outside the state causing injury to person or property
within the state, except as to a cause of action for defamation of character
arising from the act, if such person or agent (A) regularly does or solicits
business, or engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services rendered,
in the state, or (B) expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue from interstate
or international commerce; (4) owns, uses or possesses any real property
situated within the state; or (5) uses a computer, as defined in subdivision
(1) of subsection (a) of section 53-451, or a сomputer network, as defined
in subdivision (3) of subsection (a) of said section, located within the state.’’
(Emphasis added.)
while testifying at the proceeding, offered in evidence to establish the truth
[3]
‘‘Hearsay [refers to] a statement, other than the one made by the declarant
of the matter asserted. Conn. Code Evid. § 8-1 (3). Hearsay is inadmissible,
except as provided in the Code, the General Statutes or the Practice Book.
Conn. Code Evid. § 8-2.’’ (Internal quotation marks omitted.)
Miron Uni-
versity of New Haven Police Dept.
,
from her, did not seek her help to protect her. I felt telling her would cause
her too much pain. How much it would hurt her to know that your actions
were the source of incredible pain for me.
‘‘I invested much energy and gave up a lot of soothing and endured
humiliation and pain for years by not telling mom. This was a choice I made
to protect her. Not me, but mom.
‘‘You say mean, hurtful things to me. You say I killed mom. I cannot forget
that. I perceive you saying that as perverse and bizarre. Many agree with
me. I see you bring up your marriage at Jon’s wedding as using really poor
judgement. I think you use poor judgement about a lot of things. It is clear
to me you have a distorted understanding of reality. I see you screaming
and beating up your children as using poor judgement.
to make such conclusions.’’ (Emphasis in original.)
‘‘You told me you dislike me. I don’t believe you know me well enough
[12]
Justice McDonald, joined by Justice Zarella, authored a strong dissent
in
Hylton
, opining that
Lord
had been decided correctly by this court.
Hylton
v.
Gunter
, supra,