___ A.3d ___ (Conn. 2014), SC 18793, Kortner v. Martise

Docket Nº:SC 18793
Citation:___ A.3d ___, 312 Conn. 1
Opinion Judge:EVELEIGH, J.
Attorney:Christopher C. Burdett, for the appellant-appellee (plaintiff). Philip Russell, with whom, on the brief, was Steven Hartong, certified legal intern, for the appellee-appellant (defendant). Royal J. Stark and Jean M. Aranha filed a brief for Connecticut Legal Services, Inc., as amicus curiae. Dani...
Judge Panel:Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, McDonald and Vertefeuille, Js. In this opinion ROGERS, C.J, and NORCOTT and ZARELLA, Js, concurred. PALMER, J., concurring. McDONALD, J., concurring and dissenting. VERTEFEUILLE, J., concurring and dissenting.
Case Date:June 10, 2014
Court:Supreme Court of Connecticut

Page ___

___ A.3d ___ (Conn. 2014)

312 Conn. 1




No. SC 18793

Supreme Court of Connecticut

June 10, 2014

Argued March 13, 2013

[312 Conn. 4] Christopher C. Burdett, for the appellant-appellee (plaintiff).

Philip Russell, with whom, on the brief, was Steven Hartong, certified legal intern, for the appellee-appellant (defendant).

Royal J. Stark and Jean M. Aranha filed a brief for Connecticut Legal Services, Inc., as amicus curiae.

Daniel J. Klau filed a brief for the Connecticut Probate Assembly et al. as amici curiae.

Kirk W. Lowry and Sally Zanger filed a brief for the Connecticut Legal Rights Project as amicus curiae.

Sandra L. Sherlock-White, Alexander J. Cuda and Michael S. Schenker filed a brief for the Connecticut Bar Association as amicus curiae.

Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, McDonald and Vertefeuille, Js.[*]



The plaintiff, Mary H. Kortner, the administratrix of the estate of her daughter, Caroline Kendall Kortner (Kendall), 1 appeals from the judgment [312 Conn. 5] of the trial court, rendered after a jury trial, in favor of the defendant, Craig L. Martise. 2 On appeal, the plaintiff claims that the trial court improperly denied her motion to set aside the verdict and for a new trial because a document that was not properly admitted into evidence mistakenly was given to the jury during its deliberations and had the potential to have a highly prejudicial impact on the jury. For the reasons stated in this opinion, we agree with the plaintiff and, accordingly, reverse the judgment of the trial court. We address the plaintiff’s additional claim that the trial court improperly denied her motion to strike and motion in limine regarding Kendall’s ability to consent to sexual conduct and the defendant’s claims, raised in his cross appeal, 3 that the trial court improperly instructed the jury to consider Kendall’s status as a conserved person when determining her capacity to consent to sexual conduct, and that the trial court improperly submitted interrogatories asking the jury to determine whether the defendant showed Kendall pornographic photographs and videos, because these issues are likely to arise again on remand and are adequately briefed. 4 We answer these additional questions in the negative.

[312 Conn. 6] The record reveals the following facts, which the jury reasonably could have found, and the following procedural history. Kendall was born on July 21, 1970. Throughout her life, Kendall struggled with a severe eating disorder and other psychological issues, which required repeated hospitalizations. During her lifetime, she was diagnosed with clinical depression, borderline personality disorder, obsessive compulsive disorder, anorexia nervosa, bulimia nervosa, and periodic dystonia and catatonia. In 1994, at the recommendation of one of the physicians treating Kendall for her eating disorder, the plaintiff filed the initial application to be appointed as the conservator of Kendall’s person. The court granted the plaintiff’s application on the ground that Kendall was unable to manage her own affairs. 5

In 1999, Kendall was living in an apartment in Stamford. She received the help of an aide, who attended to her on a daily basis, and oversight from the plaintiff. One of Kendall’s treating physicians arranged for Kendall to receive a computer and instruction on how to use it in an effort to enrich her life. At that time, Kendall began reading Internet sites for women suffering from eating disorders and posted a profile on the Internet indicating that she was interested in helping people deal with eating disorders. The profile also indicated where Kendall lived.

Shortly thereafter, Kendall received her first instant message, which was from the defendant. Kendall did not know the defendant at the time, but in the message he explained that he had dated a girl with an eating [312 Conn. 7] disorder while in college and that he was curious about them. The defendant only identified himself by his first name. Kendall did not respond at first. Then, the defendant proceeded to send approximately ten more instant messages to Kendall. After these additional messages, Kendall responded and they began communicating by instant messages.

The defendant was a computer programmer, and he helped Kendall learn how to use her computer. The relationship between Kendall and the defendant continued exclusively online for several years. During this time, Kendall revealed details of her life to the defendant, including the sexual abuse she had suffered as a child and in college, her psychological problems, her many hospitalizations for her eating disorder and the fact that the plaintiff had been appointed as her conservator. They never exchanged last names, never spoke on the telephone and never met in person. Their only form of communication was by email and instant messages. During this time, Kendall was not aware that the defendant was married and had four children.

In May, 2001, Kendall suffered a stroke, which resulted in a lengthy hospitalization, during which she suffered failure of multiple organs and underwent numerous medical procedures. After her hospitalization, she underwent extensive physical therapy and rehabilitation. After the stroke, Kendall suffered some paralysis, which affected, among other things, her ability to walk without the use of a walker or other device.

In late November, 2002, after the plaintiff had begun transitioning back to her apartment, Kendall reconnected with the defendant and they began to communicate by email and instant messages again. Sometime in late December, 2002, the defendant and Kendall began talking on the telephone.

[312 Conn. 8] After several requests by the defendant, in February, 2003, the defendant and Kendall met for the first time at her apartment. At first, the defendant and Kendall developed a platonic relationship—the defendant helped her with the computer, and they would watch movies and talk. Eventually, their relationship became sexual and developed into a sadomasochistic sexual relationship.

In August, 2003, the plaintiff became aware of Kendall’s sexual relationship with the defendant when she noticed a change in Kendall’s behavior and saw bruising on her body. The plaintiff then made an appointment for Kendall to see her physician and psychiatrist. At the advice of her physician, Kendall discontinued the relationship with the defendant. Thereafter, Kendall filed a complaint with the Stamford Police Department.

In 2006, the plaintiff, as conservator of the person of Kendall, filed a three count complaint against the defendant, which was subsequently amended, alleging that the defendant committed sexual battery, civil assault and intentional infliction of emotional distress. The plaintiff sought compensatory and punitive damages.

The matter was tried to a jury over ten days in December, 2009. The jury returned a verdict for the defendant on all three counts of the complaint. Thereafter, the plaintiff filed a motion in arrest of judgment, to set aside the verdict and for a new trial on the ground that a document identified as ‘‘plaintiff’s exhibit 7’’ had been improperly sent to the jury, despite never being admitted into evidence at trial. The trial court denied the plaintiff’s motion and rendered judgment in accordance with the verdict. The plaintiff appealed and the defendant cross appealed. 6

[312 Conn. 9] I

We begin with the threshold jurisdictional question of whether the plaintiff, as conservator of Kendall’s person, had standing to bring the present action in which damages were sought for alleged intentional torts committed against Kendall by the defendant. 7 The plaintiff asserts that she had standing to bring the present action as conservator of the person of Kendall under General Statutes §§ 45a-650 and 45a-656 as they existed at the time this action was brought in 2006. Specifically, the plaintiff asserts that, under the prior versions of §§ 45a-650 and 45a-656, the powers and duties of the conservator were unlimited except when the order appointing the conservator limited them, and that the order appointing the plaintiff as Kendall’s conservator in the present case contained no limitation. The defendant asserts that the plaintiff did not have standing to bring the present claim because the powers of a conservator are limited and the conservatorship in the present case did not grant the plaintiff the authority to bring a claim on Kendall’s behalf. We conclude that, even assuming, arguendo, that the plaintiff did not have standing to bring this action in 2006, any defect was cured when she was substituted as administratrix of Kendall’s estate pursuant to General Statutes § 52-109.

[312 Conn. 10] With respect to the applicable legal principles, we have explained that ‘‘[s]tanding is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.’’ (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).

Nevertheless, ‘‘[s]tanding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot...

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