author: MIHALAKOS, J.

text:
    JACALYN MACY v. KEITH LUCAS ET AL.
    (AC 17020)
    Foti, Mihalakos and Daly, Js.

      Argued May 30
    officially released September 3, 2002

      Alan Scott Pickel, for the appellant (plaintiff).

      Karen L. Karpie, for the appellee (defendant).

       This appeal was argued before a panel comprised of Judges Foti, Mihalakos and Daly. Although Judge Daly agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render a decision.

   Opinion

MIHALAKOS, J.

In this negligence action, the plaintiff, Jacalyn Macy, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, Keith Lucas and Davis Waste Management, Inc. (Davis). On appeal, the plaintiff claims that the court improperly (1) denied her motion to set aside the verdict and (2) instructed the jury on how to arrive at a verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 26, 1991, the plaintiff was driving her motor vehicle west on West Putnam Avenue near its intersection with Livingston Place in Greenwich. Driving on an uphill incline, she slowed to turn right into the lot of a car dealership and activated her turn signal. At that time, a Mack truck owned by Davis and operated by Lucas struck the rear of the plaintiff’s vehicle.

The plaintiff sustained no injuries from the collision and exited her vehicle on her own. She also spoke to Lucas, walked into the nearby car dealership, spoke to people inside and called the police. The plaintiff then returned to the scene of the accident and waited for the police to arrive. Although she spoke with the responding police officer, she did not report any injuiy to the officer. The plaintiff also gave a brief business presentation to the dealership. Soon thereafter, she drove her vehicle from the accident scene to her office. The vehicle had not been damaged to the point of requiring that it be towed.

At the suggestion of her employer, Edward Eglowsky, the plaintiff and Eglowsky went to the Greenwich Hospital emergency room, where a physician examined her and X rays were taken after she reported neck and shoulder discomfort. After the examination, the attending physician noted that the plaintiff had a muscle sprain in her neck, and instructed her to use a cervical collar and to see a private physician if necessary. Despite her alleged injuries, she returned to work for the day. The plaintiffs medical treatment at the emergency room, however, was not causally related to the June 26, 1991 accident. Rather, her various ailments and the medical treatment she received for them stemmed from preexisting medical conditions and other unrelated stresses and factors, including accidents in which she previously had been involved.

The following procedural history also is relevant to the plaintiffs appeal. On August 19, 1992, the plaintiff initiated this action to recover damages allegedly related to the accident. On June 3, 1996, she filed an amended complaint, which alleged that as a result of the accident caused by Lucas’ negligence, she suffered numerous severe, painful and permanent injuries, continuing physical, emotional and mental pain and anguish, and considerable financial loss. In their answer to the amended complaint, the defendants admitted that Lucas had operated a truck that was owned by Davis, that while Lucas drove the truck, it collided with the plaintiffs vehicle and that the “collision was caused by the negligence of the defendant Keith Lucas in that he failed to keep a proper and reasonable lookout for other vehicles upon the roadway . . . .” Within the same answer, the defendants denied that the plaintiff suffered any injuries from the collision or that Lucas was in any other way negligent or careless.

The court instructed the jury and, without objection from the plaintiffs counsel, provided it with both a plaintiffs verdict form and a defendants’ verdict form. The jury returned a verdict in favor of the defendants on ail issues. The plaintiff then filed a motion to set aside the verdict and for a new trial, which was denied. She also filed a second motion to set aside the verdict and a motion for an additur. In an April 14,1997 memorandum of decision, the court denied both of those motions.

In that memorandum, the court ruled that the jury reasonably could have rejected entirely the injury aspect of the plaintiffs claims because the jury was entitled to determine which conflicting evidence it believed concerning those claims. Further, the court stated that the jury, very likely following the court’s instructions closely, unambiguously awarded no damages to the plaintiff and found for the defendants. The court also stated that it might once have felt compelled to set aside the verdict and to order an additur due to the defendants’ admission of negligence. Nonetheless, the court held that after further analysis, it no longer felt such a compulsion because it became clear that certain evidence related to the cost of repairing the plaintiffs vehicle was “not a claim for damages at all, but more correctly [should] be seen as evidence intended to merely tend to show heavy impact. ” Finally, the court noted that whether the plaintiff should have been awarded a verdict with certain nominal damages was academic because the jury returned a defendants’ verdict, and the “submission of the defendants’ verdict forms to the jury was not excepted to postcharge and was agreed to precharge.” This appeal followed. Additional facts and procedural history will be provided as necessary.

I

The plaintiff first claims that that the court improperly denied her motion to set aside the verdict. In support of that claim, she argues that because the court explained in its memorandum of decision that it initially would have felt compelled to set aside the verdict had the repairs to her vehicle been a cost to her, the court could not legally and logically do otherwise with regard to certain economic damages. Further, the plaintiff asserts that the defendants’ admission of negligence necessitated setting aside the verdict and rendering judgment in her favor because an admission of negligence includes an admission of all of the elements of a cause of action in negligence, including causation and actual injury. The plaintiff also contends that the defendants made a judicial admission of actual injury during their closing argument to the jury. Finally, the plaintiff argues that the jury’s verdict should be set aside because it shocks the sense of justice in that not even nominal damages were awarded despite the admission of liability. We disagree with each of those supporting contentions and, therefore, the overarching claim as well.

Our standard of review for a challenge to a denial of a motion to set aside a verdict is well established. “The evidence must be considered, along with reasonable inferences, in the light most favorable to the parties who were successful at trial with weight given to the judgments of the judge and jury. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. ... A trial court may set aside or direct a verdict on a finding that the verdict is manifestly unjust because the jury, on the basis of the evidence presented, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case can be applied. . . . While we do not attempt to substitute our judgment for that of the trial judge, we must determine whether the jury award was such that the trial judge could have properly substituted his judgment for that of the jury. ... To determine whether the trial court abused its legal discretion, this court must consider the entire record and all of the evidence. ... A trial court’s ruling to set aside the verdict will not be overturned on appeal unless the trial court abused its discretion. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . [Moreover, we do not] determine whether a conclusion different from the one reached could have been reached.” (Citations omitted; internal quotation marks omitted.)Krondes v. O'Boy, 69 Conn. App. 802, 806-807, 796 A.2d 625 (2002). With those principles in mind, we address each of the plaintiffs arguments in support of her claim.

A

The plaintiff first argues that because the court explained in its memorandum of decision that it initially would have felt compelled to set aside the verdict had the repairs to her vehicle been a cost to her, the court could not legally and logically refuse to set aside the verdict and that economic damages should have been awarded on the basis of certain of her medical bills. As the plaintiff has misread the court’s memorandum of decision, we cannot agree.

By way of explanation, the court stated that it initially would have had the compulsion to set aside the verdict on the basis of what it believed to be evidence of damages. The court then stated, however, that this was a misconception on its part and that the evidence in question, the cost of repairs to the plaintiffs vehicle, had been offered only to demonstrate the severity of the impact in the accident. That explanation is not legally and logically inconsistent with the court’s denial of the plaintiffs motion to set aside the verdict. In fact, quite the contrary is true. Were the court to have explained its reasoning in the same way and then set aside the verdict as well, it would have acted illogically. Further, as the court noted and as the record reflects, the plaintiffs counsel acknowledged that the cost of repair evidence was not offered to demonstrate damages. Similarly, the plaintiffs attempt to apply the court’s analysis to a claim for damages related to her emergency room bills equally is unavailing because although evidence of such costs was presented, it was for the jury to determine whether those costs causally were related to the accident; see Mack v. LaValley, 55 Conn. App. 150, 163-64, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999); and, therefore, whether to award damages. See Hunte v. Amica Mutual Ins. Co., 68 Conn. App. 534, 541-42, 792 A.2d 132 (2002). Accordingly, after carefully reviewing the entire record, we fail to see how the court acted in abuse of its discretion relative to the plaintiffs claim.

B

Next, we turn to the plaintiffs argument that the defendants’ admission of negligence necessitated setting aside the verdict because that admission constituted an admission of all the elements of a cause of action in negligence. “[T]he interpretation of pleadings is always a question of law for the court .... We have pointed out that [t]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty; and for that purpose [the pleaders] were allowed to use their own language. Whenever that language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.” (Internal quotation marks omitted.) Gould v. Hall, 64 Conn. App. 45, 53, 779 A.2d 208 (2001). A proper reading of the defendants’ answer, in conjunction with the plaintiffs amended complaint, can be that the defendants admitted to having caused only the collision, but that they denied that there was a causal relationship between that wrongful conduct and the plaintiffs claimed injuries. In other words, the defendants admitted to owing a duty and to having breached that duty, specifically, by failing to keep a proper and reasonable lookout for other motor vehicles on the roadway, but they did not admit to the causation or to the actual injury elements of a cause of action in negligence. To read the answer in any other way would permit recoveiy in all actions in which the defendants admit that they caused an accident. Such a reading, of course, would yield an untenable result.

Here, then, the burden remained on the plaintiff to “demonstrate that the defendants’ negligence was the proximate cause of her injuries.” Mack v. LaValley, supra, 55 Conn. App. 162; see also Clay v. Teach, 37 Conn. App. 556, 559, 656 A.2d 1065 (“ ‘[e]ven though the defendants were found liable . . . the burden of proof as to the amount of damages sustained was upon the plaintiff ”), cert. denied, 234 Conn. 902, 659 A.2d 1205 (1995). The plaintiff apparently failed to carry her burden in the eyes of the jurors, who were the ultimate arbiters of that disputed issue. See Mack v. LaValley, supra, 162; see also Clay v. Teach, supra, 560. Accordingly, that aspect of the plaintiffs claim is unavailing and does not lead us to conclude that the court abused its discretion in denying her motion to set aside the verdict.

C

We next address the plaintiffs proposition that the court improperly denied her motion to set aside the verdict because the defendants had made a judicial admission of actual injury during their closing argument to the jury. Specifically, the plaintiff asserts that during their closing argument, the defendants admitted that an accident occurred and that she suffered whiplash, muscle spasms and sprain or strain of the cervical spine as a result. That claim is without merit.

The following additional procedural history is relevant to our disposition of the plaintiffs proposition. During closing argument, the defendants admitted that it was “undisputed that an accident occurred on June 26, 1991 ... in Greenwich . . . and, yes, it was a Mack truck that hit the plaintiffs car.” The defendants strongly challenged the credibility of the plaintiff and her witnesses throughout their closing argument, however, by rebutting certain evidence that had been admitted at trial. The defendants questioned the veracity of a certain physician’s diagnosis of whiplash. Similarly, the defendants discussed the plaintiffs claimed muscle spasm injury and attacked her claim of having sustained a sprain or strain injury.

“Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings.” (Internal quotation marks omitted.) LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn. App. 824, 829-30, 798 A.2d 445 (2002). No reasonable view of the defendants’ closing argument favors the plaintiff’s claim that the defendants made a judicial admission through their statements. Indeed, viewed in their proper context, the defendants’ statements flatly contest that the plaintiff suffered any injuries whatsoever. Accordingly, we conclude that the court did not abuse its discretion when it denied the plaintiffs motion to set aside the verdict.

D

The plaintiff next argues that the court should have set aside the jury’s verdict because it shocks the sense of justice in that not even nominal damages were awarded despite the defendants’ admission of liability. That argument easily may be disposed of because we have addressed it before. In Clay v. Teach, supra, 37 Conn. App. 560, we stated: “[T]he fact that a technical legal injury ha[s] been done ... to the plaintiff . . . entitle [s] the plaintiff to at least nominal damages. . . . Thus, the jury’s failure to award at least nominal damages, and the return of a verdict for the defendants on the issue of damages, is technically incorrect. Nevertheless, we will not ordinarily reverse and grant a new trial for the mere failure to award nominal damages. . . . The difference between no damages and nominal damages does not shock the sense of justice and automatically mandate a new trial. This is especially true when the plaintiff has consented to the submission of the defendants’ verdict form to the jury.” (Citations omitted; internal quotation marks omitted.) Here, we face a similar, if not identical, situation in that the defendants admitted to having caused the collision, the parties agreed to the submission to the jury of a defendants’ verdict form and a plaintiff’s verdict form, and the jury, evidently choosing not to believe the plaintiff, returned a defendants’ verdict. We conclude, therefore, that the court did not abuse its discretion in denying the plaintiffs motion to set aside the verdict.

II

Finally, the plaintiff contends that the court improperly instructed the jury. In support of that assertion, the plaintiff argues that the court improperly instructed the jury on the law of judicial admissions by using permissive rather than mandatory language regarding the defendants’ admission of negligence in their answer. Further, the plaintiff asserts that the court’s instruction regarding the verdict forms constituted plain error because it was confusing, ambiguous and prejudicial. We cannot agree.

The following additional procedural history is relevant in our determination of the plaintiffs claim. Prior to the court’s instruction, the plaintiff presented the court with both a plaintiffs verdict form and a defendants’ verdict form. Soon thereafter, the court inquired of the parties as follows: “So, there is no problem with this, with there being the notion overall of a defendants’ verdict?” Neither party objected. Following closing arguments, the court instructed the jurors with regard to judicial admissions and the use of the two verdict forms that had been submitted to them. At the end of the court’s instruction, the plaintiff took one unrelated exception, which has not been claimed on appeal, but did not address an exception to the court’s instruction on judicial admissions or the use of the verdict forms.

A

The plaintiff first argues that the court improperly instructed the jury on the law of judicial admissions by using permissive rather than mandatory language. As we stated in part I C, the plaintiff requested in her proposed charge that the court instruct the jury regarding the effect of admissions and concessions by the opposing party. See footnote 9. As such, we deem that aspect of her claim to have been preserved properly. Our standard of review for claims of instructional error is well established. “[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error.” (Internal quotation marks omitted.) State v. Solek, 66 Conn. App. 72, 87-88, 783 A.2d 1123, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). “Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but 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. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Id., 88.

As we stated in part I B, the only proper reading of the defendants’ answer was that it constituted an admission that the defendants had caused the collision, but that it was not an admission that they had caused the plaintiffs actual injuries. The court’s instruction, when read as a whole, reflected that reading of the defendants’ answer and impressed upon the jury, despite other permissive language, that it was “unnecessary” for the juiy to determine whether the defendants had caused the collision. The court’s instruction focused the jury on the central issue of the case, namely, whether the plaintiff proved that the defendants had “proximately caused damages” to her in the accident. Further, the plaintiff ignores several portions of the instruction that firmly establish those two points. Accordingly, and after a thorough review of the whole instruction, we conclude that it is not reasonably probable that the jury was misled by the court’s instruction and that it provided the jury with sufficient guidance in reaching a correct verdict.

B

The plaintiff finally asserts that the court’s instruction regarding the verdict forms constituted plain error because it was confusing, ambiguous and prejudicial. We decline to review that claim.

As we often have stated, “[p]lain error review is reserved for truly extraordinary situations . . . and is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Smith, 70 Conn. App. 393, 400, 797 A.2d 1190 (2002). This case does not present such a rar e event, especially in light of the fact that the parties had agreed to submit to the jury both verdict forms, the use of which necessarily implies the strong possibility of the result achieved here, namely, that the jury might return a verdict for the defendants and that the plaintiff would be awarded no damages. Moreover, “[ojur Supreme Court has made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial. . . . This same principle requires parties to raise an objection, if possible, when there is still an opportunity for the trial court to correct the proposed error. . . . When we speak of correcting the claimed error, we mean when it is possible during that trial, not by ordering a new trial. We do not look with favor on parties requesting, or agreeing to, an instruction or a procedure to be followed, and later claiming that that act was improper.” (Citations omitted; internal quotation marks omitted.) Powers v. Farricelli, 43 Conn. App. 475, 478, 683 A.2d 740, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996). We therefore do not reach the merits of the plaintiffs claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       From the record, it appears that Lucas died in 1995 and that Elva Jess, the executrix of Lucas’ estate, thereafter was substituted as a defendant. For convenience, we refer to Lucas as a defendant.

       We decline to review the plaintiffs claim that the court improperly denied her motion for an additur because she has failed to brief the issue adequately. In her appellate brief, the plaintiff makes the bare assertion, in her statement of the issue only, that the motion for an additur improperly was denied. She then makes no reference, relative to that issue, to the facts of the case or to applicable law. Indeed, the plaintiff frames her entire discussion in that portion of her brief around her claim that the court improperly denied her motion to set aside the verdict. Accordingly we deem abandoned her claim concerning the motion for an additur. See State v. Thompson, 71 Conn. App. 8, 23, 799 A.2d 1126 (2002) (“ ‘[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court’ ”).

       The court also noted that according to the plaintiffs testimony, the defendants had paid those costs before the trial commenced. Further, the court noted that the plaintiffs counsel expressly stated that two unpaid bills were not offered into evidence to show damages.

       It appears from the plaintiffs appellate brief that she is appealing from the denial of her second motion to set aside the verdict. Except for her request in her first motion that a new trial be ordered, the denial of which is not at issue here, the two motions were identical.

       “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” (Internal quotation marks omitted.) Bonan v. Goldring Home Inspections, Inc., 68 Conn. App. 862, 871, 794 A.2d 997 (2002).

       The plaintiffs amended complaint states in relevant part:
      “2. [A] 1979 Mack truck owned by the defendant, Davis Waste Management, Inc., and operated by the defendant, Keith Lucas . . . collided with the rear of the plaintiffs vehicle causing the plaintiff, Jaealyn Macy, to sustain the injuries and other losses hereinafter set forth. . . .
      “4. The aforesaid collision was caused by the negligence and carelessness of the defendant, Keith Lucas, in one or more of the following respects . . .
      “(d) In that he failed to keep a proper and reasonable lookout for other motor vehicles upon the highway ....
      “5. As a result of the negligence and carelessness of the defendant, Keith Lucas, the plaintiff, Jaealyn Macy, sustained . . . severe, painful and permanent injuries . . . .”
      Paragraphs six through eleven of the amended complaint alleged further injuries and losses.
      The defendants’ answer states in relevant part:
      “2. So much of paragraph 2 as alleges that at said time and place a 1979 Mack Truck owned by the defendant, Davis Waste Management, Inc. and operated by the defendant, Keith Lucas . . . collided with the rear of the plaintiffs vehicle is admitted. The remaining allegations of paragraph 2 are denied. . . .

      “4. So much of paragraph 4 as alleges that the aforesaid collision was caused by the negligence of the defendant Keith Lucas in that he failed to keep a proper and reasonable lookout for other motor vehicles upon the roadway is admitted. The remaining allegations of said paragraph 4 are denied.

      ‘‘5-11. Paragraphs 5 through 11, inclusive, are denied.” (Emphasis added.)

       We note that the plaintiff also claims that the defendants made a judicial admission of actual injuries via their admission of negligence in their answer. We already have disposed of that claim in part IB regarding the interpretation of the pleadings, namely, that the defendants admitted in their answer to having caused only the collision, but not to having caused actual injury.

       Although the plaintiff sought in her request to charge to have the court instruct the jury that it was entitled to take admissions or concessions as true, she never requested that the court consider those particular statements as judicial admissions. Nonetheless, we review the plaintiffs claim in that regard as it relates to her overall claim that the court abused its discretion in denying her motion to set aside the verdict.

       The defendants’ counsel, in closing argument, with regard to whiplash, stated in relevant part: “Now, then the plaintiff goes to see [her physician, Peter A. McCroskeiy] a few days after the accident and, according to his notes, she had a stiff neck, and you’ll recall she had a stiff neck before the accident. . . . [H]is note indicates no loss of consciousness, no headaches. ... No double vision. And he testified that there was no evidence of any head injury. There were no bruises and, also, he said she never told him she was thrown around in the vehicle . . . and then this is the visit where he asks her to squeeze his hand and he said he didn’t think she was trying hard enough, and Dr. McCroskery’s testimony was that there was no evidence of neurologic symptoms on that visit. And what was his diagnosis? Whiplash. That is what we are talking about. Whiplash." (Emphasis added.)

       The defendants’ counsel, in closing argument, with regard to muscle spasm injury, stated in relevant part: “Now, you’ll recall that I asked [the plaintiff s neurological surgeon, J. Syed Shahid] when he was testifying here whether or not muscle spasms can cause tingling and numbness that was mentioned in the records, and his response was, Tt can come from muscle spasm, absolutely.’ That’s what we have, muscle spasm.” (Emphasis added.)
      We note that moments before making that statement, the defendants’ counsel more closely called into question the postaccident diagnosis of muscle spasm by arguing that the plaintiff “had muscle spasm a month before the accident.”

       The defendants’ counsel stated in closing argument, with respect to that aspect of the plaintiffs claim: “Another claim. Sprain, strain of cervical spine. You may feel that she strained her neck in this accident, that she had a whiplash. And that’s the only thing that you may believe. And if you believe that she had this sprain or strain, you should give her fair compensation for a whiplash injury. But the judge is going to tell you [that] you also have another option, and you may believe that the plaintiff was not injured at all in this accident, that the symptoms she had after the accident were the same as what she had before the accident.” (Emphasis added.)

       The court instructed in relevant part: “Now, in this case it’s unnecessary for you to decide [whether] the defendants [were] negligent .... Counsel for the defendants amended the defendants’ answer in the spring of 1996 and in said answer they made certain admissions. When a plaintiff claims and alleges that a certain thing is true and a defendant, files a pleading called an answer, which admits that certain of the things were true, then you may take that as a proven fact. In this case, there are admissions, then, which permit you to take as a proven fact the defendants’ negligence. Keith Lucas and Davis Waste Management may be deemed by you to be negligent in the June 26, 1991 collision between a car operated by Ms. Macy and a truck operated by Mr. Lucas and owned by Davis Waste Management.
      “That is to say, the defendants admit the allegation of the plaintiff that, quoting the plaintiffs complaint, ‘[t]hat the collision was caused by the negligence of defendant Keith Lucas in that he failed to keep a proper and reasonable lookout for other vehicles lawfully on the highway.’
      “It has also been admitted that defendant Davis Waste Management, Inc., was the employer of Mr. Lucas and the owner of the truck, with Mr. Lucas being within his employment and operating the truck. Under either of these circumstances, either as employer of the gentleman, Mr. Lucas, or as owner of the truck, Davis Waste Management would be liable. Therefore, in this particular case, if there should be a verdict for the plaintiff on the damages issues, which you will be determining, it should be brought in against both defendants.
      “Conversely, if you should find that the plaintiff has proven no proximately caused damages, then your verdict should be for both defendants simply because there is no reason for you to distinguish between the two defendants in this case. They will either jointly succeed or fail together.”

       Although the standard under which the plaintiff pursues this claim was left unclear in her appellate brief, the plaintiff clarified at oral argument her belief that the court’s instruction regarding the verdict forms constituted plain error. We note as well that the plain error standard is appropriate because the plaintiff failed to request a charge concerning the verdict forms and failed to take exception to the given instruction. See Practice Book § 16-20 et seq.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    DONALD A. MITCHELL v. GUARDIAN SYSTEMS, INC.
    (AC 21974)
    Foti, Sehaller and Flynn, Js.

      Argued May 6
    officially released September 10, 2002

      Michael S. Lynch, for the appellant (defendant).

      Donald A. Mitchell, pro se, the appellee (plaintiff).
   Opinion

SCHALLER, J.

In this breach of contract action for failure to pay attorney’s fees, the defendant, Guardian Systems, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiff, Donald A. Mitchell. On appeal, the defendant claims that the court improperly (1) rendered judgment in accordance with the conclusion of attorney trial referee (referee) that the cause of action was not barred by the statute of limitations, (2) adopted the referee’s conclusion that evidence should not allowed concerning the second special defense because it was improperly pleaded and (3) awarded prejudgment interest on the plaintiffs claim. We affirm, in part, and reverse, in part, the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. In May, 1987, the defendant hired the plaintiff, an attorney, to represent it in a cause of action. The parties orally agreed that the defendant would pay $150 per hour for the plaintiffs services. The legal services that the plaintiff provided to the defendant included preparation for and representation during a four day trial. That trial resulted in a judgment against the defendant. The plaintiff, on behalf of the defendant, thereafter filed a motion to set aside the jury verdict, which had not been decided at the time of the hearing before the referee in the present case. The plaintiff provided to the defendant an accounting of the amount due in attorney’s fees. The defendant failed to pay the amount owing. The plaintiff filed a motion to withdraw his appearance. On July 29, 1991, the court granted the plaintiffs motion.

On July 28, 1997, the plaintiff brought an action against the defendant to recover fees for services rendered while representing the defendant from May 20, 1987, to July 29, 1991. The plaintiff claimed that the parties had an agreement that the plaintiff would perform legal services for $150 per hour, plus disbursements and incidental expenses, and that the defendant would pay the plaintiff the amount due. The plaintiffs prayer for relief included the amount he claimed was owed by the defendant. The defendant denied the allegations of the plaintiffs complaint and alleged by way of special defense that (1) the statute of limitations barred the plaintiffs claim and (2) the plaintiff had breached the agreement by not properly representing its interest in the 1987 action.

The case was referred to the referee pursuant to the fact-finding program provided by General Statutes § 52-459n. On March 24, 2000, the matter was heard by the referee. On May 25, 2000, the parties filed simultaneous supplemental briefs, which included the plaintiffs request for prejudgment interest. On September 21, 2000, the referee filed with the court her report in which she found that the plaintiff had continued to represent the defendant until July 29, 1991, the date when the court in the 1987 action granted the plaintiffs motion to withdraw as counsel. The referee further found that the statute of limitations did not begin to run until after representation was terminated, which she found had occurred on July 30, 1991, the day after the plaintiff was allowed to withdraw. The referee concluded that the plaintiffs cause of action to recover his fees was commenced timely on July 28, 1997. The referee also found that the defendant had not presented evidence to support its second special defense, which alleged that the plaintiff had breached the parties’ contract. On the basis of those findings, the referee concluded that the plaintiffs cause of action was not barred by the statute of limitations and recommended that judgment enter in favor of the plaintiff for $23,998.20. See footnote 1. The referee also recommended that the defendant have an opportunity to respond to the plaintiffs request for prejudgment interest, which had been raised for the first time in the parties’ supplemental briefs.

Both parties filed objections to the referee’s report. Neither party sought oral argument. The defendant argued that the referee improperly concluded that the plaintiff’s claim was not barred by the statute of limitations and improperly failed to allow the defendant to introduce evidence in support of its second special defense. The court adopted the referee’s report and rendered judgment in favor of the plaintiff. The court awarded prejudgment interest to the plaintiff. Additional facts will be provided as necessary.

We first recite our well settled standard of review. “A reviewing authority may not substitute its own findings for those of the Superior Court reviewing the findings of an attorney trial referee. . . . An attorney trial referee’s determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment. . . . The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Holt v. People’s Bank, 62 Conn. App. 561, 564-65, 771 A.2d 266, cert. denied, 256 Conn. 917, 773 A.2d 944 (2001). “Attorney [referees] are empowered to hear and decide issues of fact. ... It is axiomatic that a reviewing authority may not substitute its findings for those of the trier of the facts. . . . The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney [referee]. . . . Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney referee].” (Internal quotation marks omitted.) Gardner v. Pilato, 68 Conn. App. 448, 452, 791 A.2d 707, cert. denied, 260 Conn. 908, 795 A.2d 544 (2002).

I

The defendant first claims that the court improperly rendered judgment in accordance with the referee’s conclusion that the plaintiffs cause of action was not barred by the statute of limitations. In support of its claim, the defendant actually makes a second claim challenging the referee’s finding that the statute of limitations began to run on July 30, 1991, the day after the plaintiff was relieved of his obligation to represent the defendant. We are not persuaded.

“While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action.” (Internal quotation marks omitted.) Wynn v. Metropolitan Property & Casualty Ins. Co., 30 Conn. App. 803, 807-808, 623 A.2d 66 (1993), aff'd, 228 Conn. 436, 635 A.2d 814 (1994). “When the claim for attorneys’ fees is based upon continuous legal representation, the statute of limitations does not begin to run until the legal services are complete. . . . The statute of limitations is tolled during the pendency of the continuous representation.” (Citations omitted.) Doe v. State, 216 Conn. 85, 91-92, 579 A.2d 37 (1990). “Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client.” Rules of Professional Conduct 1.3, commentary. Rule 1.16 of the Rules of Professional Conduct provides that an attorney continues to represent a client until he is discharged or the court has granted him permission to withdraw. An attorney may withdraw if “[t]he client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled . . . .” Rules of Professional Conduct 1.16 (b) (4).

We conclude that the court properly rendered judgment in accordance with the referee’s conclusion that the cause of action was not barred by the statute of limitations because the statute of limitations did not begin to run until the plaintiff was relieved of his obligation to represent the defendant. After the trial in the 1987 action in which the plaintiff had represented the defendant, the plaintiff filed a motion to set aside the verdict. Unless the relationship had terminated, the plaintiff still was obligated to pursue the motion. Although there was evidence that the defendant may have discharged the plaintiff prior to the filing of the motion to withdraw, the referee found that the plaintiff had continued to represent the defendant’s interests until his motion to withdraw was granted. We cannot conclude that the referee’s findings were clearly erroneous and, therefore, the court’s adoption of the referee’s findings was proper, and the court’s the legal conclusion was legally and logically correct. Because the plaintiff continued to represent the defendant until his motion to withdraw was granted, we conclude that the court properly calculated the six year statute of limitations and concluded that the plaintiffs cause of action was not barred.

II

The defendant next claims that the court improperly adopted the referee’s conclusion that evidence should not be allowed concerning the second special defense because it was not properly pleaded. Specifically, the defendant characterizes its second special defense as a claim of “setoff’ against the amounts requested by the plaintiff. The defendant argues, therefore, that the referee improperly refused to allow it to submit evidence concerning the breach of contract alleged in the second special defense as a way to “set off’ any damages.

The following additional facts apply to the defendant’s claim. The defendant’s second special defense asserted that the plaintiff had breached the contract by not properly representing the defendant’s interest in the 1987 action, Guardian Systems, Inc. v. National Guardian, Superior Court, Docket No. CV-87-0292300S. During the hearing before the referee, the defendant attempted to cross-examine the plaintiff regarding his competence in representing it and, during direct examination of the defendant, offered testimony concerning what it claimed was inadequate representation. The plaintiff objected, arguing that the questioning was improper because the issue was whether the defendant had failed to pay for the plaintiffs services as contracted. The defendant argued that the questioning was to prove his second special defense that the plaintiff had breached the contract by not representing its interests properly in the 1987 action. The referee sustained the plaintiffs objection to any questioning regarding the plaintiffs competence or adequacy of representation, concluding that the second special defense was improperly pleaded and constituted a separate cause of action that should have been pleaded as a counterclaim. The defendant thereafter filed with the court an objection to the referee’s report, claiming that the referee’s conclusion was improper.

The court agreed with the referee and concluded that the defendant’s breach of contract claim was not an appropriate special defense. The court further concluded that the evidence sought to be introduced appeared to be in the nature of an attempt to establish attorney incompetence or malpractice, which required expert testimony.

“As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.” Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994). “No facts may be proved under either a general or special denial except such as to show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. . . .” Practice Book § 10-50. If a party seeks to introduce evidence under a denial “which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the ‘new matter’ must be affirmatively pleaded as a special defense.” Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973).

We conclude that the court properly adopted the referee’s conclusion that evidence should not be allowed concerning the second special defense because it was improperly pleaded. Practice Book § 10-50 required the defendant’s special defense to be consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff had no cause of action. In the defendant’s second special defense, it failed to allege facts that were consistent with the plaintiffs complaint to show that the plaintiff had no cause of action. The facts alleged in the defendant’s second special defense are not the same facts as that alleged in the plaintiffs complaint. The defendants’ second special defense therefore was legally insufficient. We conclude therefore that the court’s conclusion affirming the referee’s decision was legally and logically correct.

Ill

The defendant’s final claim is that the court improperly awarded prejudgment interest on the plaintiffs claim. The defendant argues that the award of prejudgment interest was improper because no claim for interest was contained in the complaint or the prayer for relief, and no evidence was offered in the hearing. We conclude that the court improperly found that the plaintiff was entitled to prejudgment interest.

We first note that “[t]he decision to award interest is to be made in view of the demands of justice rather than through the application of any arbitrary rule. . . . The real question in each case is whether the detention of the money is or is not wrongful under the circumstances. . . . The person best able to make this equitable determination is the attorney referee who heard the case and thus is most familiar with the facts.” (Citation omitted; internal quotation marks omitted.) Pilato v. Kapur, 22 Conn. App. 282, 284, 576 A.2d 1315, cert. granted on other grounds, 216 Conn. 813, 580 A.2d 59 (1990) (appeal withdrawn). As an element of damages, the decision as to “whether interest should be awarded is within the province of the trier of fact.” Id., 283-84.

We conclude that the court improperly awarded prejudgment interest on the plaintiffs claim. The plaintiff requested prejudgment interest in his supplemental brief, which was presented to the referee approximately two months after the matter came before the referee. In response to that request, the referee recommended only that “[t]he defendant should have an opportunity to respond to the requested interest, which was raised for the first time in the brief.” The referee did not make any specific finding as to prejudgment interest.

The court, however, determined that the defendant’s failure to pay the plaintiff was wrongful and that the plaintiff was entitled to prejudgment interest. That was improper because, as our case law states, the trier of fact, here, the referee, is the person who must determine whether interest should be awarded. Although the court properly could determine that the failure to pay was wrongful, it could not award the prejudgment interest. Rather, the court could have considered remanding the case to the referee for a decision on the interest issue on the basis of a ruling that the failure to pay was wrongful. We cannot order such a remand at this point in the proceedings, however, because the referee did not make a specific finding as to prejudgment interest and because the court did not address the recommendation. In light of those facts, to order a remand now would be tantamount to allowing the plaintiff to have a second chance to litigate the prejudgment interest issue.

The judgment is reversed only as to the award of prejudgment interest and the case is remanded with direction to modify the judgment by vacating the award of prejudgment interest. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       In his complaint, the plaintiff sought $27,202.80. During the hearing before the referee, however, he conceded that the amount owed was $23,998.20.

       General Statutes § 52-549n provides in relevant part: “[T]he judges of the Superior Court may malee such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to a fact-finder for proceedings authorized pursuant to this chapter, any contract action pending in the Superior Court, except claims under insurance contracts for uninsured and or underinsured motorist coverage, in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in controversy is less than fifty thousand dollars exclusive of interest and costs. . . .”

       General Statutes § 52-581 provides a three year statute of limitations for executory oral contracts. Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 714, 638 A.2d 44 (1994). All other contracts are governed by a six year- statute of limitations pursuant to General Statutes § 52-576. Connecticut Bank & Trust Co., N.A. v. Reckert, supra, 714. We note that the court properly determined that the applicable statute of limitations here was six years pursuant to § 52-576 because the contract had been performed.

       The plaintiff actually filed a motion to correct the report of the referee pursuant to Practice Book § 19-12, which was repealed effective January 1, 2000. Although procedurally improper, the court treated the plaintiff’s motion as an objection to the referee’s report pursuant to Practice Book § 23-57 because the plaintiff’s motion sought additional findings of fact and conclusions of law. The court adopted the plaintiff’s findings to the extent that the fact finder’s report was deficient in setting forth individual findings of fact.

       The defendant raises several arguments with regard to when the cause of action accrued. Specifically, it argues that the cause of action accrued on either (1) February 4, 1991, the last date of entry for fees, (2) February 22, 1997, when the last payment was made or (3) April 10, 1991, because the court awarded statutory interest commencing on that date. In light of our conclusion that it was not clearly erroneous for the referee to have found that the statute of limitations did not begin to run until the plaintiff was relieved of his obligation to represent the defendant, it is not necessary to discuss those arguments.

       We note that pursuant to Practice Book § 10-54, the defendant’s second special defense that the plaintiff breached the contract would have been properly pleaded as a counterclaim rather than as a special defense.

       The defendant also argued that the court improperly awarded prejudgment interest on the plaintiffs claim because the referee prevented the defendant from producing any evidence pursuant to its second special defense, which would have demonstrated that there was good and justifiable reasons for the defendant’s withholding of payment. In light of our conclusion on the second claim, that argument has no merit.


author: HENNESSY, J.

text:
    JEFFREY WHITE v. TOWN OF WESTPORT ET AL.
    (AC 21402)
    Lavery, C. J., and Schaller and Hennessy, Js.

      Argued June 10
    officially released September 10, 2002

      John T. Loforese, for the appellant (plaintiff).

      James E. Coyne, with whom, on the brief, was Colleen D. Fries, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiff, Jeffrey White, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant town of Westport. The plaintiff brought a one count action pursuant to General Statutes § 13a-149, the highway defect statute. On appeal, the plaintiff claims (1) that the court improperly excluded certain evidence, (2) that the court improperly denied his motion to set aside the verdict and (3) that the jury improperly found that the defendant did not have a reasonable time to repair the highway defect. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 5, 1994, the plaintiff operated his motorcycle eastbound on Beachside Avenue, a public road in Westport. As the plaintiff began to cross a bridge, he lost control of his motorcycle as a result of sand on the roadway. The plaintiff sustained injuries when his motorcycle went off the road and slid into a stone wall.

The plaintiff thereafter brought an action against the defendant for allegedly failing to maintain the roadway in a safe condition. During the trial, the court declined to admit certain evidence. Specifically, the court excluded, as irrelevant, the testimony of a woman who lived near the site of the accident and who would have testified about the general condition of the road near the accident site and about a letter she had written to the defendant in 1990 describing the presence of sand on Beachside Avenue, and the testimony of a town employee describing the presence of sand on sidewalks near the accident site.

The jury returned a verdict for the defendant. The jury, in answering interrogatories, found that the presence of sand on Beachside Avenue constituted a defect and that the defendant had notice of that specific defect. It also determined that the defendant did not have a reasonable opportunity after notice of the specific defect to remove it. The court denied the plaintiffs motion to set aside the verdict and rendered judgment for the defendant. The plaintiff now appeals. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly excluded certain evidence. Specifically, the plaintiff argues that the court improperly excluded as irrelevant (1) the testimony of Carol C. Johnson, which was offered to describe the sand on the road near the accident site, (2) the 1990 letter written by Johnson describing that sand generally existed on Beachside Avenue four years prior to the plaintiffs accident and (3) the testimony of the defendant’s director of public works, Stephen Edwards, which would have described the presence of sand on the sidewalks. We disagree.

Initially, we set forth the applicable standard of review. “It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [Its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Emphasis in original; internal quotation marks omitted.) Van Nest v. Kegg, 70 Conn. App. 191, 201, 800 A.2d 509 (2002).

As an preliminary step to determining the admissibility of evidence, the trial court must find that the offered evidence is relevant. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.” (Internal quotation marks omitted.) Boretti v. Panacea Co., 67 Conn. App. 223, 227, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002). “Conversely, ‘evidence that is not relevant is inadmissible.’ Conn. Code Evid. § 4-2.” State v. Sanchez, 69 Conn. App. 576, 584, 795 A.2d 597 (2002); C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.2.3, p. 204.

The pleadings of the parties frame the issues that are relevant during the trial. To bring a successful claim under § 13a-149, the plaintiff must prove “(1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.” (Internal quotation marks omitted.) Prato v. New Haven, 246 Conn. 638, 642, 717 A.2d 1216 (1998); Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

Our Supreme Court has stated that “[t]he notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient.” (Emphasis in original; internal quotation marks omitted.) Prato v. New Haven, supra, 246 Conn. 642.

A

The defendant claims that the court improperly excluded the testimony of Johnson. We disagree. Johnson, a resident of Westport who lived near the accident site, testified during the plaintiffs offer of proof regarding the presence of sand on the roads in Westport during the spring and summer months. She stated that the defendant did not adequately remove the sand after the winter months. She was not, however, able to testify as to the location of the accident or whether sand was present at the site of the accident. She could state only that she had observed sand in the general area of the accident. Consequently, the court ruled that her testimony was not relevant and therefore not admissible.

The plaintiff relies on Ormsby v. Frankel, 255 Conn. 670, 768 A.2d 441 (2001), to support his argument that Johnson’s testimony was relevant as evidence of constructive notice. In Ormsby, the plaintiff drove over an ice patch and lost control of her motor vehicle. Id., 674-75. The court permitted the plaintiff to provide evidence of the existence of previous and recurring icing conditions “at the same location where the plaintiff's accident occurred . . . .” (Emphasis added.) Id., 677. Our Supreme Court affirmed that ruling. Id., 681.

The facts of the present case are distinguishable from those in Ormsby. Johnson could not testify as to the presence of sand at the actual accident site, but only as to sand in the general area of Beachside Avenue. The presence of sand in the general area, however, is not relevant to the plaintiffs claim. The general presence of sand on Beachside Avenue was not an issue in the case, and therefore Johnson’s testimony was irrelevant to the plaintiffs claim.

Additionally, Johnson could not identify the specific location where the accident occurred. The plaintiff, to successfully bring his claim pursuant to § 13a-149, must prove a specific defect. Id., 676. Johnson lacked personal knowledge of the actual site of the plaintiffs accident. She knew only of the presence of sand in the general area where the plaintiffs accident occurred. Absent personal knowledge of the conditions at the specific accident site, Johnson could not testify about those conditions. See Gray v. Mossman, 91 Conn. 430, 437-38, 99 A. 1062 (1917). We conclude, therefore, that it was not an abuse of the court’s discretion to exclude Johnson’s testimony.

B

The court also ruled that the letter written by Johnson in 1990 was irrelevant. In the letter, she notified the defendant of the volume and speed of traffic on Beachside Avenue. She also noted her concerns about the general presence of sand on Beachside Avenue. The court ruled that the letter was inadmissible because it did not contain information regarding sand at the specific accident site and described only the general presence of sand on Beachside Avenue in a prior year.

Absent information concerning sand at the location of the plaintiffs accident, evidence of the presence of sand on Beachside Avenue in 1990 was irrelevant to the plaintiffs claim. The letter did not provide any link between the presence of sand on Beachside Avenue in 1990 and the sand that caused the plaintiffs accident in 1994. We conclude, therefore, that it was not an abuse of the court’s discretion to exclude Johnson’s letter as irrelevant.

C

The plaintiffs final claim of an improper evidentiary ruling concerns the deposition testimony of Edwards, the director of public works for the defendant. During his deposition, Edwards described how the defendant’s street sweepers who cleaned the roads did not remove sand from the elevated sidewalks near the accident site. The court ruled that this portion of Edwards’ testimony was irrelevant because the plaintiff failed to offer evidence that sand from the sidewalk moved onto Beachside Avenue at the location of the plaintiffs accident.

The plaintiff failed to provide evidence connecting the sand located on the sidewalk to the sand at the site where the accident occurred. Sand on the sidewalk was not an issue in the case. Edwards’ testimony, therefore, was not relevant to the plaintiffs claim. We conclude that the court did not abuse its discretion in excluding that testimony.

II

The plaintiff next claims that the court improperly denied his motion to set aside the verdict. The plaintiff timely filed a motion to set aside the verdict, seeking either the entry of a plaintiffs verdict or, in the alternative, a new trial. We disagree with the plaintiffs claim.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Hackling v. Casbro Construction of Rhode Island, 67 Conn. App. 286, 289, 786 A.2d 1214 (2001). “A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 773, 717 A.2d 150 (1998).

Because we conclude in part III that sufficient evidence existed for the jury reasonably to find that the defendant did not have a reasonable time to repair the defect, we cannot say, after viewing the evidence in the light most favorable to sustaining the verdict, that the court abused its discretion when it denied the plaintiffs motion to set aside the verdict.

Ill

The plaintiffs final claim is that the jury could not reasonably have found that the defendant did not have a reasonable time to remove the sand from the roadway. We disagree.

Initially, we set forth the applicable standard of review. “Appellate courts ordinarily do not disturb the facts as found by a jury unless it appears that the evidence furnished no reasonable basis for the jury’s conclusions. . . . The evidence is given the most favorable construction to which it is reasonably entitled in support of the verdict.” (Citations omitted; internal quotation marks omitted.) Holbrook v. Casazza, 204 Conn. 336, 343, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). “A jury’s finding of fact cannot be clearly erroneous if there is evidence to support that finding.” Puchalsky v. Rappa- hahn, 63 Conn. App. 72, 81, 774 A.2d 1029, cert. denied, 256 Conn. 931, 776 A.2d 1147 (2001).

The plaintiff argues that because the jury found that the sand on Beachside Avenue constituted a defect and that the defendant had notice of the defect, the only conclusion the jury could reach was that the defendant had a reasonable opportunity to remove the defect. The plaintiff bases his argument on his assumption that the jury found that the defendant had created, through its use of sand during the winter months, the specific defect that caused the accident, and that the defendant had notice no later than April 4, 1994, the last date that the defendant’s records indicate that the road was swept. Those assumptions ignore other evidence in the record and eliminate the third element of the plaintiff’s cause of action under § 13a-149, namely, that the defendant had failed to remove the sand within a reasonable time period.

The defendant produced evidence of beaches located near the accident site. “[I]t is the jury’s province to decide which evidence is more credible, and the court’s authority to nullify a jury’s finding is limited.” Hackling v. Casbro Construction of Rhode Island, supra, 67 Conn. App. 294. We will not speculate as to the fact-finding process of the jury. We will not reverse a finding of fact by a jury unless it was clearly erroneous. In this case, evidence existed to support the jury’s finding; therefore, its finding cannot be clearly erroneous. Accordingly, we cannot say that the court abused its discretion when it denied the plaintiffs motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The town clerk of the town of Westport also was named as a defendant. We refer in this opinion to the town of Westport as the defendant.

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the parly bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       In accordance with the instructions on the jury interrogatory form, the jury did not answer the fourth question, which asked whether the plaintiff had proved that he exercised due care at the time of the accident.

       Although Ormsby v. Frankel, supra, 255 Conn. 670, is distinguishable on its facts, the trial court’s reasoning in that case is instructive. The court stated: “[The] issue of the prior awareness of similar defects does not prove knowledge of this particular defect . . . but I think it’s relevant to the issue of notice and relevant to the issue of the time period as argued.” (Internal quotation marks omitted.) Id., 680.

       See also Ormsby v. Frankel, 54 Conn. App. 98, 734 A.2d 575 (1999), aff'd, 255 Conn. 670, 768 A.2d 441 (2001).

       The court, limited questions regarding the presence of a specific defect to the time period of 1994 to the date of the accident.


author: DRANGINIS, J.

text:
    CARLO VONA ET AL. v. EDWARD N. LERNER ET AL.
    (AC 20823)
    Foli, Dranginis and Stoughton, Js.
    Argued March 26
    officially released September 10, 2002

      Thomas E. Minogue, Jr., with whom, on the brief, were Jonathan D. Elliot and Sabato P. Fiano, for the appellants (plaintiffs).

      Mark J. Bunim, with whom were Maria J. Rivera and, on the brief, Daniel P. Waxman and Linda H. Kolodny, for the appellee (defendant Edward N. Lerner).

      Mary A. Gambardella, with whom, on the brief, were Mark J. Goldberg and Steven J. Younes, for the appellee (defendant Brown, Paindiris and Zarella, LLP).
   Opinion

DRANGINIS, J.

The principal issue in this professional negligence action against a lawyer, his partners and their law firm is whether the trial court properly directed a verdict for the defendants where the plaintiff presented no expert testimony as to the defendants’ alleged breach of the standard of care that proximately caused the plaintiffs’ alleged loss or damages. We conclude that, in the absence of such testimony, the court may properly direct a verdict in favor of the defendants. See Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990).

The claims of the plaintiffs, Carlo Vona (Vona) and his wife, Grace Vona, arise out of a real estate transaction in which the defendant Edward N. Lemer, an attorney licensed in Connecticut, represented them in the acquisition of certain real property in Greenwich in 1989. Following the presentation of the plaintiffs’ case, the defendants filed a motion for a directed verdict that was granted by the court. On appeal, the plaintiffs claim that the court improperly (1) directed the verdict, (2) found that the plaintiffs had unclean hands and based the directed verdict on that finding, and (3) interpreted and applied case law. We affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs’ appeal. Vona is a masonry contractor and real estate developer who, with his wife, over time, acquired a number of rental properties, primarily in Norwalk. The plaintiffs attended real estate closings with respect to the properties they acquired and were familiar with mortgages. At different times, they retained the services of a variety of lawyers, including Lerner, to represent them when they acquired real property. At the time in question, the plaintiffs had assets in excess of $20 million.

In the 1970s, through his masonry business, Vona met Gene L. Simms, a real estate developer who built speculative houses. The two men developed close personal and professional relationships. Vona referred to Simms as “pop,” and the two men spoke to one another daily. They formed Simms-Vona Partnership through which they acquired, developed and sold real property. The two men were known to conduct their real estate business on a handshake. Simms found real estate with investment potential, and Vona provided the financial support needed to make the investment. Occasionally, Simms and Vona borrowed money to finance their real estate purchases and signed mortgage notes.

In the early 1980s, Simms retained Lerner to be his personal attorney. In 1986, Simms introduced Vona to Lerner. Subsequently, Lerner provided legal services, jointly and individually, for both Simms and Vona in regard to various partnerships and real estate transactions. He also represented Simms in business transactions that did not involve Vona.

Simms had another business partner by the name of Peter M. Gandolfo (together sellers). In the early 1980s, the sellers acquired land at 961 North Street in Greenwich (property) on which they constructed a speculative luxury house of contemporary design. Lerner represented the sellers when they obtained construction financing for the property. The construction was finished in the mid-1980s, and the property was listed for sale at $2.6 million. The sellers were not able to sell the property, which was encumbered by two mortgages in the principal amount of $1,735,000. In 1989, the sellers were no longer able to meet the monthly mortgage payments and other costs related to the property. Furthermore, the second, smaller mortgage in the principal amount of $235,000 was due to mature in January, 1990.

During the summer of 1989, Simms proposed to Vona that Vona obtain $2 million in financing from a bank (Vona mortgage), take title to the property and sell it. As consideration for title to the property, Vona would forgive certain business debts that Simms owed him. According to their plan, Vona would not have to expend any of his own funds on the transaction or the property. The sellers intended to use part of the $2 million loan to pay off the existing mortgages and the remaining cash to pay the debt service on the Vona mortgage until Vona was able to sell the property. Vona was willing to accept Simms’ proposal because Simms was his friend and he naturally would do a favor for his friend. He had lent him money in the past. In addition, Vona thought that he would make a profit reselling the property, recoup the money Simms owed him and obtain tax benefits from the mortgage.

Vona and Simms both wanted to use Lemer as their attorney for the transaction and communicated as much to him in August, 1989. They also wanted Lemer to help them secure financing for the transaction. If Lemer was unable to secure financing from a financial institution, the sellers would give Vona a purchase money mortgage so that the transaction could be completed. Lemer was reluctant to represent both Simms and Vona, although they were both his clients. He advised them to get separate counsel to avoid any potential conflict of interest. Simms and Vona, however, insisted on using Lerner and agreed to sign a waiver of the potential conflict of interest. Lerner never drafted a purchase and sale agreement or memorialized the agreement between Vona and Simms.

Lerner communicated with personnel at People’s Bank (bank) to help Vona secure a mortgage in September, 1989. Vona never submitted a written mortgage application, as the bank already had financial information about him from a recent previous transaction that did not materialize. Berkow, Vona’s accountant, had provided information for the failed transaction and provided the bank with additional information on September 14, 1989. Vona received a copy of Berkow’s letter. The bank obtained an independent appraisal of the property establishing its fair market value as $2.55 million. The bank approved Vona’s application for a $2 million mortgage loan on September 20, 1989, and so notified him in writing. According to Vona, however, he does not read his mail. Lerner advised Vona of the approval two days before the title closing and that the bank wanted a deposit relationship with him of at least $100,000.

The closing took place at the bank’s Stamford branch on September 22,1989. The plaintiffs attended the closing along with Lerner, Simms and a bank representative. Although they testified at trial that they did not know that they were attending a closing that day and that they never knew that they needed to make a $100,000 deposit, Grace Vona just happened to have a $100,000 check from her father in her handbag. The sellers had signed a warranty deed to Vona on September 15,1989, in the amount of $2.55 million. Grace Vona was a guarantor of the note. Simms and Vona also signed a waiver of conflict letter with respect to Lemer. Following the sale, Simms continued to use and control the property as he had previously.

The sellers paid all of the closing costs and taxes from the loan, paid off the preexisting mortgages and used the balance to pay the monthly payments on the Vona mortgage until March, 1990. At that time, the sellers no longer had funds from the Vona mortgage. Thereafter, Vona paid the monthly payments. Although Vona testified at trial that Lemer had told him that he was only doing Simms a favor, that he never really owned the property and that Simms would take the property back if he no longer was able to pay the Vona mortgage and other costs, Vona continued to pay the mortgage. He never asked Simms to take the property back, and he did not ask the bank to take the property in payment of the mortgage. In 1991, Vona went to the bank with Lemer and Simms to refinance the mortgage. Vona refinanced the property yet again in 1993 without Lemer’s assistance. The plaintiffs had assets with which they could have paid off the mortgage at any time.

Throughout the early 1990s, the real estate market in Connecticut declined, and Vona was unable to sell the property until 1996 at the price of $1.25 million. According to Vona’s testimony at trial, he participated in the transaction because Lemer asked him to do a favor for Simms, and he understood that the property would never present a financial risk to him. Lemer testified that he knew of no agreement between Simms and Vona that Vona would take title to the property without incurring financial obligations, that the sellers would carry the debt service on the Vona mortgage or that the sellers would take the property back at any time.

In 1989, in addition to his financial difficulties related to the property, Simms was engaged in a dispute with another of his business partners, Dale Stein. Stein had invested in another speculative home in Greenwich that Simms was developing. Stein had threatened to place a hen on the property and, prior to September, 1989, commenced legal action against Simms. In February, 1990, Stein impleaded Vona in his action against Simms, claiming that the property had been fraudulently transferred by the sellers to avoid attachment. One of Lerner’s partners in the firm defended Vona against the Stein action, which was settled without any contribution from Vona.

In the late spring of 1994, the plaintiffs brought this action against Lemer, his law partners and their firm, alleging negligence, breach of contract and breach of fiduciary duty. Each of the causes of action alleged by the plaintiffs flows from their principal allegations that Lemer was negligent in that he represented both the sellers and the plaintiffs in the transaction related to the property, failed to disclose adequately the conflict of interest inherent in representing both parties in a real estate transaction, failed to obtain the plaintiffs’ informed consent before undertaking to represent them, failed to ensure that the sellers legally were obligated to pay the debt service on the Vona mortgage and the expenses of maintaining the property, failed to perform due diligence as to the sellers, misrepresented to the plaintiffs that they could convey the property to the bank at any time to satisfy the Vona mortgage, represented the interests of the sellers over the interests of the plaintiffs, failed to structure the transaction so the plaintiffs had no direct financial obligation with respect to the property and failed to secure a voluntary waiver of the conflict of interest. The plaintiffs claimed that as a result of Lemer’s negligence, they suffered financial losses due to carrying the debt service on the property, maintaining the property and selling it for less than the purchase price.

The case was tried before a jury. After the plaintiffs had presented their case, including expert testimony, the defendants filed a motion for a directed verdict, which the court granted. The court articulated its reasons for directing the verdict in a lengthy oral decision. The plaintiffs appealed, claiming that the court improperly granted the motion for a directed verdict.

The standards for reviewing a challenge to a directed verdict are well known. Generally, litigants have a constitutional right to have factual issues resolved by the jury. Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988). “Directed verdicts [therefore] are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion.” (Internal quotation marks omitted.) Domogala v. Molin, 57 Conn. App. 525, 527, 749 A.2d 676 (2000). “We review atrial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. . . . A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict. ” (Internal quotation marks omitted.) Johnson v. North Branford, 64 Conn. App. 643, 645-46, 781 A.2d, 346, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).

“If the evidence in a case presents such a situation that the minds of fair and reasonable [jurors] could therefrom reach but one conclusion, there is no question for a jury. The case should be decided by the judge as essentially a question of law, and he may direct a verdict. Lombardi v. J.A. Bergren Dairy Farms, Inc., 153 Conn. 19, 23, 213 A.2d 449 [1965].” Terminal Taxi Co. v. Flynn, 156 Conn. 313, 317, 240 A.2d 881 (1968). “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 reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.” (Internal quotation marks omitted.) Sheridan v. Desmond, 45 Conn. App. 686, 691, 697 A.2d 1162 (1997).

The case before us concerns claims of negligence against a lawyer in the conduct of his profession. “[Professional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services.” (Emphasis in original; internal quotation marks omitted.) Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 357-58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).

“In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages. 4 R. Mallen & J. Smith, Legal Malpractice (4th Ed. 1996) § 32.9, pp. 172-74.” Mayer v. Biafore, Florek & O’Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998).

“As a general rule, for a plaintiff to prevail in a legal malpractice case in Connecticut, he must present expert testimony to establish the standard of proper professional skill or care. Dunham v. Dunham, 204 Conn. 303, 317, 528 A.2d 1123 (1987); Pearl v. Nelson, 13 Conn. App. 170, 173, 534 A.2d 1257 (1988); Bent v. Green, 39 Conn. Sup. 416, 420, 466 A.2d 322 (1983). The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard. Fitzmaurice v. Flynn, 167 Conn. 609, 617, 356 A.2d 887 (1975); Decho v. Shutkin, 144 Conn. 102, 106, 127 A.2d 618 (1956); Bent v. Green, supra.” Davis v. Margolis, supra, 215 Conn. 416. “The true test for the admissibility of expert testimony is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.” (Internal quotation marks omitted.) Caron v. Adams, 33 Conn. App. 673, 690, 638 A.2d 1073 (1994), quoting Puro v. Henry, 188 Conn. 301, 309, 449 A.2d 176 (1982).

The following additional facts are necessary for our resolution of the plaintiffs’ claims. At trial, Barry Hawkins, an attorney licensed to practice in Connecticut, testified as the plaintiffs’ expert witness as to the standard of care applicable to a lawyer conducting a real estate transaction at the time in question. Prior to granting the defendants’ motion for a directed verdict, the court obtained and reviewed copies of the transcript of Hawkins’ testimony. The court did not address the elements relating to the standard of care in such circumstances or whether Lerner had breached the standard of care. The court confined its decision to whether there was expert testimony to prove that there was a breach of the standard of care that proximately caused the damages claimed by the plaintiffs. The court specifically found that a number of questions concerning damages were asked of Hawkins, but that he had provided no responses that connected a breach of the standard of care with the damages the plaintiffs claimed.

The other elements of a malpractice action notwithstanding, the plaintiffs’ claim here is that the court improperly determined, as a matter of law, that there was insufficient evidence for the jury to conclude that the manner in which Lerner represented the plaintiffs with respect to their purchase of the property was the proximate cause of their alleged financial loss. “To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries. ... As [our Supreme Court] observed . . . [l]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . .

“The second component of legal cause is proximate cause, which [our Supreme Court has] defined as [a]n actual cause that is a substantial factor in the resulting harm .... The proximate cause requirement tempers the expansive view of causation [in fact] ... by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty.” (Internal quotation marks omitted.) Craig v. Driscoll, 64 Conn. App. 699, 711, 781 A.2d 440, cert. granted on other grounds, 258 Conn. 931, 785 A.2d 228 (2001). “[T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection.” (Internal quotation marks omitted.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 182, 646 A.2d 195 (1994).

On the basis of our review of Hawkins’ testimony, we conclude that the court properly granted the defendants’ motion for a directed verdict. All of Hawkins’ responses to the hypothetical questions asked of him with respect to the proximate cause of the plaintiffs’ alleged damages were based on his personal belief, as opposed to the standard of care, and were conditional or speculative. As we noted in discussing the standard of review applicable to challenges to directed verdicts, a trial court should direct a verdict in the defendants’ favor where there is insufficient evidence to support a verdict favorable to the plaintiffs. See Johnson v. North Branford, supra, 64 Conn. App. 645-46. In this case, there was no expert testimony that Lemer’s alleged negligence was the proximate cause of the plaintiffs’ claimed damages. Hawkins did not connect the services Lemer rendered with respect to the transfer of the property to any of the financial losses the plaintiffs alleged they sustained after they took title to the property, regardless of their reasons for doing so. The jury therefore could have reached no other conclusion than to find in favor of the defendants.

Furthermore, we agree with the court that the plaintiffs suffered no damages as a result of Lemer’s representing them in the transactions regarding the property. He did what the plaintiffs asked of him, i.e., to acquire title to the property for them. At the time of the closing, the property was valued by an independent appraiser as having a fair market value of $2.55 million. The corrected deed indicated that the value given for the prop: erty was $2.25 million, the consideration being the $2 million Vona mortgage plus $250,000 of forgiven debts Simms owed Vona and his corporation totaling $2.25 million. The court correctly pointed out that at the time the plaintiffs acquired title to the property, they sustained a $300,000 profit.

To compute damages, if any, the court must value the property at the time it vested in the plaintiffs. See First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 610-11, 724 A.2d 497 (1999); Tuthill Finance v. Greenlaw, 61 Conn. App. 1, 7, 762 A.2d 494 (2000). The evidence clearly shows that the plaintiffs made a profit when they purchased the property. Once the plaintiffs had title to the property, they alone had authority to decide what to do with it. For all of the forgoing reasons, we conclude that the court properly granted the defendants’ motion for a directed verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendant is the law firm Brown, Paindiris and Zarella, LLP (firm), of which Lemer was a partner at the time of his allegedly improper actions. The plaintiffs also named the individual partners of the firm. The third party defendants, Neil Berkow and Berkow Schecter and Company, are not parties to this appeal.

       Because we conclude that the court properly directed the verdict due to the absence of expert testimony that the defendants’ actions were the proximate cause of the plaintiffs’ alleged loss and damages, we need not reach the plaintiffs’ other claims.

       Apparently, at some time after the events giving rise to this action, Simms and Vona had a parting of the ways.

       The plaintiffs first included payments on the Vona mortgage in their tax returns in October, 1989.

       Sometime after the closing, Vona and Simms met with Lemer to prepare a corrected deed in the amount of $2,250,000. The difference between $2.55 million and $2.25 million apparently was due to a disparity in the amount of debt Simms owed Vona.

       Lemer had discussed the conflict issue with his partners, who agreed that Vona and Simms should sign a waiver letter. The partners were aware of the manner in which Simms and Vona conducted their affairs.

       Beginning in October, 1989, the plaintiffs included the monthly mortgage payments on their personal income tax returns.

       The complaint was in six counts, three counts against Lemer individually, and three corresponding counts against the partners and the firm.

       The court signed the transcript of its decision in keeping with Practice Book § 64-1 (a).

       The following portions of the transcript contain the salient portions of Hawkins’ testimony with respect to a causal relationship between Lemer’s alleged negligence and the plaintiffs’ alleged damages. On direct examination by the plaintiffs’ counsel, the following occurred:
      “[Plaintiffs’ Counsel]: . . . What damages do you believe flow from Mr. Lemer’s representation of the Vonas in that conflicted setting?
      “[The Witness]: He has a real problem that I described earlier when we were talking generically about conflicts, that one of his clients or two of them, in this case Gandolfo and Simms, want to sell a piece of property and the other clients, the Vonas, are being asked to purchase a piece of property. The analysis that I look at is what would be the perspective if they had separate lawyers, if I were the lawyer representing only the Vonas or if [Jonathan D. Elliot] was the lawyer representing only the Vonas, what would be the type of analysis and representation that would be done by a lawyer that was looking out only for their interests. And, if I am representing only the Vonas, I would certainly not be trying to persuade them that it was a good idea or a safe idea to purchase a piece of property that they did not intend to purchase. I wouldn’t have any motivation or desire to do that.
      “On the other hand, I would have a lot of motivation and desire to try and find out and counsel my clients, why do you want to buy this property if you . . . didn’t really want to own and try and ascertain and represent them to find out what was the motivation.
      “That’s in direct conflict if I have another set of clients in the same transaction that want that result to happen because my duty to that other set of clients would be to make sure that the transaction happened, to give as much possible benefit as I could to making the transaction come together and make sure that the house in 1his hypothetical got sold.
      “[Plaintiffs' Counsel]: Now, whal sort of damages would result from their entry into the transaction in that situation?
      “[The Witness]: If it turned out not to be a good idea to own this house, then the damages would be whatever comes from the fact that they bought the house or accepted title to the house in a situation where they might have otherwise been counseled not to do it. I have no problem, with the fact that the transaction might have turned out to be a good idea. I don’t know from the hypothetical that has been described, 1 don’t know whether it is a, good idea to own the house, whether it turned out to be a benefit or it turned, out to be a loss. But, if it turned out to be a loss, if it turned out to have adverse consequences for the person who took title, then I think those consequences are what flow as damages from the purchase of a property in circumstances where if they were counseled by a lawyer looking out only for them, they might not have purchased it.”
      “[Plaintiffs’ Counsel]: What type of harm results to the Vonas as a result of that kind of an agreement not being in writing?
      “[The Witness]: Under those circumstances, they would be subjected to a couple of different risks, the most serious of which would be, if it is, should have been covered by the statute of frauds and is not enforceable because it is not in writing . . . .”
      On cross-examination of Hawkins by Lerner’s counsel, the following occurred:
      “[Defendant Lerner’s Counsel]: And do you have any reason to believe based upon your knowledge that had there been full disclosure or what you believe to be full disclosure prior to the signing of this document that Mr. Vona would not have bought 961 North Street? . . .
      “[The Witness]: I have no basis for knmving what Mr. Vona would, do or not do under any particular set, of cinyumstatnces. . . .

      “[Defendant, Lerner’s Counsel]: By Mr. Lemer having represented both Mr. Vona, Mr. Simms, Mr. Gandolfo, Mrs. Vona at the transaction, did that cause the Vonas any damages?
      “[The Witness]: I stated that it could cause them damage.

      “[Defendant Lemer’s Counsel]: Did it cause them damage based on what you know?
      “[The Witness]: I have no idea.” (Emphasis added.)