Hall v. Bergman
| Decision Date | 01 April 2008 |
| Docket Number | Nos. 26856, 26858, 27011.,s. 26856, 26858, 27011. |
| Citation | 106 Conn.App. 660,943 A.2d 515 |
| Court | Connecticut Court of Appeals |
| Parties | L. Lynne HALL v. Stanley BERGMAN et al. |
Susan M. Phillips, for the appellant in AC 27856 and the appellee in AC 26858 and AC 27011 (plaintiff).
Rene Gerard Martineau, Wallingford, for the appellant in AC 26858 and AC 27011 (defendant Stuart Cohn) and for the appellees in AC 26856 (substitute defendant Betsey Henley Cohn et al.).
McLACHLAN, HARPER and LAVINE, Js.
In these appeals, the plaintiff, L. Lynne Hall, appeals from the judgment rendered, following a jury trial, in favor of the defendant Rhoda Cohn,1 and the defendant Stuart Cohn2 appeals from the judgment to the extent that it set aside the verdict as to him and ordered a new trial.3 In her appeal (AC 26856), the plaintiff claims that (1) there was insufficient evidence to establish the special defense of reliance on the advice of counsel with respect to the vexatious litigation count and (2) the court improperly failed to set aside the verdict in favor of Rhoda Cohn. In his appeals (AC 26585 and AC 27011), Stuart Cohn claims that the court improperly consulted handwritten notations on jury forms when setting aside the verdict as to him and ordered a new trial. We affirm the judgment of the trial court.
The following procedural history is relevant to the parties' appeals. The plaintiff commenced this action on December 6, 2000, against Stanley Bergman, trustee, Rhoda Cohn, Stuart Cohn and The Joel Cohn Revocable Trust (trust).4 Bergman and Rhoda Cohn were trustees of the trust, and Stuart Cohn is the beneficiary of the trust. At all times relevant, the trust was the owner of a condominium known as 16-18-20 Temple Court in New Haven (condominium), which is handicapped accessible and equipped. The second amended complaint, which is the operative complaint, contained five counts. Count one alleged unjust enrichment against the defendants; count two alleged vexatious litigation against Rhoda Cohn; count three alleged negligent infliction of emotional distress and physical harm against the defendants; and count four alleged intentional infliction of emotional distress and physical harm against the defendants. Count five alleged a violation of the Connecticut Unfair Trade Practices Act; General Statutes § 42-110a et seq.; but that count was withdrawn at trial. The plaintiff sought damages of at least $3,708,000.
The factual allegations of the plaintiff's complaint follow.5 In May, 1995, Rhoda Cohn approached the plaintiff and informed her that Stuart Cohn, her son, and his wife were divorcing and vacating the condominium. Because the condominium had been constructed to accommodate a person with physical impairments, the plaintiff alleged that Rhoda Cohn thought that the condominium would be suitable for the plaintiff, who suffered from a physical disability. The plaintiff alleged that in August, 1995, she entered into a long-term lease agreement for the condominium with Stuart Cohn, who was acting as agent for the trust. Approximately two years later, Rhoda Cohn, acting as trustee, decided to sell the condominium and engaged Stuart Cohn to approach the plaintiff with an offer to purchase the condominium. According to the plaintiff's allegations, when she refused to purchase the condominium, Rhoda Cohn instituted a summary process action against her, which was dismissed. Thereafter, Stuart Cohn commenced a second summary process action to evict the plaintiff from the condominium. The plaintiff alleged, among other things, that Stuart Cohn threatened her, violated court orders with respect to her, sexually assaulted her, sabotaged assistive technology devices, misappropriated her personal and professional identity, and in the summer of 1999 permitted a family of a different race to live in the condominium to compel the plaintiff to purchase the premises. The plaintiff also alleged that the defendants had been unjustly enriched because she had made certain improvements to the condominium.6
The jury initially returned verdict forms that did not comply with the court's instructions. The typewritten form concerning Rhoda Cohn stated: "We, the jury, find in favor of defendant Rhoda Cohn in the above-captioned case." It also contained the following words in script:
The jury also initially returned two verdict forms concerning Stuart Cohn. One of the forms contained the following typewritten statement: "We, the jury, find in favor of defendant Stuart Cohn in the above captioned case," but, it also contained the handwritten words, "Count One: Unjust Enrichment." The second verdict form contained typewritten language with handwritten figures: The verdict form also contained the following handwritten language:
Following a sidebar conversation with counsel, the court informed the jury that the verdict forms did not comply with the court's instructions, which were to return one verdict with respect to each defendant.8 The court asked the foreperson if he understood the instructions, and the foreperson responded that he did. The court then sent the jury back into the jury room with a clean set of jury forms and instructions to write out any questions the jury may have with respect to completing the verdict forms.
Thereafter, the jury returned its verdict a second time. The jury found in favor of Rhoda Cohn. It found Stuart Cohn liable to the plaintiff but awarded neither economic nor noneconomic damages. The court accepted the jury's verdict. Counsel for the plaintiff stated that the verdict with respect to Stuart Cohn was inconsistent because the jury found in favor of the plaintiff but awarded her no damages. He stated that the plaintiff was entitled to nominal damages, at least. The court ordered the plaintiff to submit a motion to that effect within ten days. The defendants' counsel also made an oral motion for a mistrial, which the court denied.
On May 27, 2005, the plaintiff filed a motion to set aside the verdict as to Rhoda Cohn. The court denied the motion. The plaintiff also filed a motion for additur and, in the alternative, a motion to set aside the verdict and for a new trial as to Stuart Cohn. On July 6, 2006, the court ordered an additur of $2000, which the plaintiff rejected.9 On August 3, 2005, the court set aside the jury's verdict as to Stuart Cohn and ordered a new trial as to both liability and damages. These appeals followed. Additional facts will be discussed as necessary.
In her appeal, the plaintiff claims that the court improperly (1) gave an instruction on the special defense of reliance on the advice of counsel and (2) failed to declare a mistrial or set aside the verdict as to Rhoda Cohn. We disagree.
The plaintiff's first claim is that the court improperly gave an instruction on the advice of counsel special defense asserted by Rhoda Cohn in response to the plaintiff's claim of vexatious litigation10 because there was insufficient evidence to warrant the giving of such a charge.11 The executors12 argue that the claim is not reviewable because the plaintiff did not preserve the claim at trial. We agree with the executors.
In her principal brief, the plaintiff failed to note that she had not preserved the claim at trial, and she did not request that the claim be reviewed pursuant to any doctrine in exception to the preservation rule. In their brief, the executors note that the plaintiff failed to preserve the issue for appeal by submitting a request to charge on the issue of advice of counsel or by objecting to the charge as given. See Practice Book § 16-20. They also note that the plaintiff failed to ask for a directed verdict on the issue of the special defense.13 The executors opine that this court's review is limited to the plain error rule.14 See Practice Book § 60-5.
In her reply brief, the plaintiff acknowledges that the claim was not preserved pursuant to our rules of practice but asks this court to consider her claim pursuant to the plain error doctrine.15 She concedes, however that it is the policy of our appellate courts not to consider plain error when it is raised for the first time in a reply brief. See, e.g., Embalmers' Supply Co. v. Giannitti, 103 Conn. App. 20, 61, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007). The plaintiff's concession is appropriate, and for that reason, we decline to review the claim.
The plaintiff's second claim is that the court improperly denied her motion to set aside the verdict in favor of Rhoda Cohn on the basis of inconsistent jury forms. We disagree.
The following facts are relevant to the plaintiff's claim. The jury returned seriatim two sets of verdict forms. After the jury returned its first set, the court addressed the jury:16 The foreman responded in the affirmative. The court reminded the jury that its instructions were in the copy of the court's charge, which the jury...
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...later on appeal argue that the path he rejected should now be open to him.” (Internal quotation marks omitted). Hall v. Bergman, 106 Conn.App. 660, 672–73, 943 A.2d 515 (2008), aff'd, 296 Conn. 169, 994 A.2d 666 (2010). Finally, Maturo was decided after the judgment of dissolution was rende......
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Argentinis v. Fortuna, No. 33045.
...error is so obvious that it affects the integrity of and the public's confidence in the judicial system.” Hall v. Bergman, 106 Conn.App. 660, 668 n. 14, 943 A.2d 515 (2008), aff'd, 296 Conn. 169, 994 A.2d 666 (2010). 14. “ Ventres v. Goodspeed Airport, LLC, [supra, 275 Conn. at 158–61, 881 ......
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Argentinis v. Fortuna, AC 33045
...error is so obvious that it affects the integrity of and the public's confidence in the judicial system.'' Hall v. Bergman, 106 Conn. App. 660, 668 n.14, 943 A.2d 515 (2008), aff'd, 296 Conn. 169, 994 A.2d 666 (2010). 14. ''Ventres v. Goodspeed Airport, LLC, [supra, 275 Conn. 158-61], raise......