author: DRANGINIS, J.

text:
    PAUL D. SHAPERO v. FRANK MERCEDE, JR.
    (AC 21230)
    Schaller, Dranginis and Bishop, Js.

    Argued February 18
    officially released June 17, 2003

      Brenden P. Leydon, for the appellant (plaintiff).

      Anthony J. LaBella, with whom, on the brief, was Neal L. Moskow, for the appellee (defendant).

       The original panel of judges included Judge Schaller, Judge Mihalakos and Judge O’Connell. Due to a change in the composition of the court by the time the remand was issued, the appeal was reargued before a new panel.

   Opinion

DRANGINIS, J.

This case returns to us on remand from our Supreme Court. Shapero v. Mercede, 262 Conn. 1, 11, 808 A.2d 666 (2002). In reversing the prior decision of this court, our Supreme Court remanded the case to us “for consideration of the plaintiffs claim on cross appeal regarding the propriety of the $5000 [credit].” Id. Before turning to the merits of the claim that we must consider on remand, we first set forth some of the relevant facts and procedural history of this case.

“In May, 1995, the defendant [Frank Mercede, Jr.] hired the plaintiff [Paul D. Shapero], an attorney, to represent him in a tax appeal to reduce the assessment on two commercial properties owned by the defendant. On May 17, 1995, the defendant paid the plaintiff a $5000 retainer and entered into an agreement to pay the plaintiff on a contingency fee basis. In May, 1997, the defendant discharged the plaintiff and hired substitute counsel on an hourly basis. Within four months, substitute counsel had successfully concluded the defendant’s appeal. . . . The defendant paid substitute counsel $15,000 for services rendered in resolving the matter.

“On February 8, 1998, the plaintiff filed an action against the defendant to recover legal fees under causes of action sounding in quantum meruit, breach of contract, unjust enrichment, violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and fraud. The defendant thereafter alleged two special defenses: (1) that the plaintiff was paid for his work, and (2) that the plaintiff breached the standard for professional conduct within the legal community. On December 28, 1999, the matter was heard by [an attorney trial] referee. During the hearing, the plaintiff presented no evidence relating to the hourly rate that he charged the defendant. The plaintiff testified that he had reasonably spent 100 hours on the defendant’s case.

“On May 31, 2000, the referee filed a report recommending judgment for the plaintiff in the amount of $27,500 with $5000 credited against the retainer. The referee arrived at those figures by calculating the plaintiffs hourly rate at $275 multiplied by 100 hours. . . . On July 11, 2000, the court, Karazin, J., accepted the referee’s report .... On October 2, 2000, the plaintiff filed a motion for articulation. In response, the court on November 6, 2000, filed a memorandum of decision upholding the referee’s findings and her crediting of the $5000 retainer against the amount of the judgment.” (Internal quotation marks omitted.) Shapero v. Mercede, supra, 262 Conn. 3-4.

The defendant appealed to this court, claiming, inter alia, that the trial , court “improperly (1) awarded the plaintiff damages on his claim for nonpayment of legal fees when the . . . referee . . . had found that no evidence as to the value of the plaintiffs services had been introduced at the hearing . . . .” Shapero v. Mercede, 66 Conn. App. 343, 344, 784 A.2d 435 (2001), rev’d, 262 Conn. 1, 808 A.2d 666 (2002). The plaintiff made various arguments in response and also filed a cross appeal, maintaining that the court improperly permitted the defendant to obtain a credit of $5000 when the defendant had not pleaded it as a special defense or setoff. Id. We agreed with the defendant with regard to his first claim and, therefore, declined to address his other claims. Id., 346. We did not reach the plaintiffs claim on the cross appeal. Id., 353. Consequently, we reversed the court’s judgment and remanded the case with direction to render judgment for the defendant. Id.

Our Supreme Court granted the plaintiffs petition for certification to appeal; see Shapero v. Mercede, 258 Conn. 944, 786 A.2d 430 (2001); reversed our decision; see footnote 2; and remanded the case to this court “for consideration of the plaintiffs claim on cross appeal regarding the propriety of the $5000 [credit].” Shapero v. Mercede, supra, 262 Conn. 11. We conclude that the trial court properly credited the $5000 retainer amount paid by the defendant against the amount of the damages awarded to the plaintiff. Accordingly, we affirm the judgment of the trial court.

Our standard of review in cases referred to attorney trial referees is well settled. “A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . [Attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.

“[B]ecause the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment. . . . 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 . . . referee.” (Citations omitted; internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 201-202, 819 A.2d 227 (2003).

The plaintiff claims that because the defendant did not plead a special defense or setoff regarding the $5000 credit, the court improperly accepted the referee’s recommendation to credit the $5000 retainer payment against the amount of the damages awarded to the plaintiff. The plaintiff does not contest the referee’s factual finding that the defendant paid him the $5000 retainer. Rather, the plaintiff maintains that the $5000 credit recommended by the referee was improper as a matter of law, as the defendant did not plead a special defense or setoff. The plaintiff argues that regardless of whether the $5000 credit is characterized as a defense of payment or as a setoff, it should have been affirmatively pleaded as such, in accordance with Practice Book §§ 10-50 or 10-54. The plaintiff contends that by crediting the $5000 retainer payment against the other damages in the absence of such an affirmative pleading by the defendant, the court improperly founded its judgment on facts or issues outside of those raised in the pleadings. We disagree.

At the outset, we note that “[p]leadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.” (Internal quotation marks omitted.) Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 200, 756 A.2d 309 (2000). The purpose of a complaint, special defense or counterclaim is to limit the issues at trial, and such pleadings are calculated to prevent surprise. See id.; New Milford Savings Bank v. Roina, 38 Conn. App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). “It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading]. . . . Facts found but not averred cannot be made the basis for a recovery. ” (Internal quotation marks omitted.) Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., supra, 200; see also Westfall v. Westfall, 46 Conn. App. 182, 185, 698 A.2d 927 (1997) (“judgment cannot be founded on a finding of facts not in issue, although they may have been shown in evidence to which no proper objection was taken”).

Thus, it is clear that “[t]he court is not permitted to decide issues outside of those raised in the pleadings.” Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., supra, 59 Conn. App. 200. “It is equally clear, however, that the court must decide those issues raised in the pleadings.” Moulton Bros., Inc. v. Lemieux, 74 Conn. App. 357, 361, 812 A.2d 129 (2002).

The sixth count of the plaintiffs complaint sounds in quantum meruit, and, in that count, the plaintiff himself raises facts relating to the retainer as the predicate for his claim. Our Supreme Court has explained that “[t]he measure of damages in quantum meruit is the value of the services rendered. . . . Quantum meruit literally means as much as he has deserved . . . .” (Citation omitted; emphasis added; internal quotation marks omitted.) Shapero v. Mercede, supra, 262 Conn. 7; see Cole v. Myers, 128 Conn. 223, 230, 21 A.2d 396 (1941).

“[Qjuantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement. . . . Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receives a reasonable sum for those services.” (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001). Quantum meruit damages provide restitution for amounts not previously paid. See United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506, 511—12, 802 A.2d 901 (2002); see also Gagne v. Vaccaro, supra, 401; Sidney v. DeVries, 215 Conn. 350, 351-52 n.1, 575 A.2d 228 (1990); Burns v. Koellmer, supra, 11 Conn. App. 375, 383-85, 527 A.2d 1210 (1987); 66 Am. Jur. 2d 634-36, Restitution and Implied Contracts § 38 (2001). It is axiomatic that the equitable doctrine of quantum meruit may not be invoked to permit parties to retain or to recover “undeserved windfalls.” See 27A Am. Jur. 2d 586, 588, Equity §§ 99, 102 (1996).

As previously set forth, the plaintiff specifically raised, in his complaint, facts and issues relating to the retainer. Furthermore, at the hearing before the referee, the plaintiff testified that he had entered into a retainer agreement with the defendant and introduced the agreement into evidence. The agreement called for payments to be made to the plaintiff on a contingency fee basis and for the payment of a $5000 retainer. In responding to the plaintiffs case-in-chief, the defendant took the witness stand and, over the plaintiffs objection, testified that he had paid the plaintiff the $5000 retainer. In addition, the defendant introduced into evidence a letter he received from the plaintiff, which recites that the defendant paid the plaintiff $5000. The defendant testified that the $5000 payment recited in the letter referred to his $5000 retainer payment.

By alleging a cause of action sounding in quantum meruit, the plaintiff asked the court to evaluate the equities and to award him a reasonable sum for services rendered to the defendant. The extent to which the plaintiff already had been paid by the defendant for the services rendered, specifically, the $5000 retainer payment, was an appropriate factor for the court to consider in determining that reasonable sum. If the court had not credited the $5000 retainer payment against the damages awarded to the plaintiff, then the plaintiff would have been paid twice for the same work: First, in May, 1995, and second, in collecting a $27,500 judgment. Such a double recovery of the retainer fee had not been earned by the plaintiff, would furnish the plaintiff with an undeserved windfall and would be inequitable to the defendant.

Thus, we disagree with the plaintiffs contention that the court improperly founded its judgment on facts or issues outside of those raised in the pleadings by crediting the $5000 retainer payment against the other damages. Because quantum meruit is a doctrine that provides restitution for amounts not previously paid; see United Coastal Industries, Inc. v. Clearheart Construction Co., supra, 71 Conn. App. 511-12; it contemplates consideration of prior payments without the necessity of their having been pleaded. In other words, by alleging a cause of action in quantum meruit, the plaintiff asked the court to award him a reasonable sum for services rendered and for which payment had not been made previously. In fact, in the quantum meruit count of his complaint, he expressly sought to recover the reasonable value of the services he “performed . . . to [his] financial detriment.” See footnote 9.

Contrary to the plaintiffs assertions, the defendant’s failure to plead payment of the $5000 retainer either as a special defense pursuant to Practice Book § 10-50 or as a setoff pursuant to Practice Book § 10-54 does not render the $5000 credit improper as a matter of law under the circumstances of this case. “The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway. . . . Whether facts must be specially pleaded depends on the nature of those facts in relation to the contested issues.” (Citations omitted; internal quotation marks omitted.) Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994).

In arguing that the $5000 retainer payment should have been made the subject of a special defense, the plaintiff relies on the language contained in Practice Book § 10-50, which provides in relevant part that “payment (even though nonpayment is alleged by the plaintiff) . . . must be specially pleaded . ...” In the quantum meruit count of his complaint, however, he alleged, inter alia, that “the defendant terminated the [parties’] legal fee agreement so as to avoid paying a contingent legal fee to the [p]laintiff,” and further, that “[t]he [p]laintiff is entitled to the reasonable value of services he performed ... to [Ms] financial detriment.” (Emphasis added.) Because the plaintiff expressly sought recoveiy in quantum meruit for the services he “performed ... to [his] financial detriment,” the parties and the court had ample notice that an issue at trial would be the reasonable value of the services rendered by the plaintiff for which he had not been paid. Consequently, in the circumstances presented here, the defendant’s failure to plead payment of the $5000 retainer as a special defense did not preclude the court from considering the amount of that payment in its calculation of the plaintiffs award.

Furthermore, the defendant’s failure to plead payment of the $5000 retainer as a setoff does not render the $5000 credit improper as a matter of law. Setoff is the “right to cancel or offset mutual debts or cross demands . . . .” (Internal quotation marks omitted.) OCI Mortgage Corp. v. Marchese, 255 Conn. 448, 464-65, 774 A.2d 940 (2001). “The concept of setoff allows [parties] that owe each other money to apply their mutual debts against each other, thus avoiding the absurdity of making A pay B when B in fact owes A.” (Internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 612, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). The policy of the law of setoff is to prevent unnecessary litigation where entire justice can be done to both of the parties before the court. See Hope’s Architectural Products, Inc. v. Fox Steel Co., 44 Conn. App. 759, 762, 692 A.2d 829, cert. denied, 241 Conn. 915, 696 A.2d 985 (1997). The $5000 retainer payment is not squarely the subject of a setoff because it is not a cross demand for payment of a debt owed to the defendant.

In light of the foregoing, we conclude that in this action to recover in quantum meruit for legal services rendered, the court properly calculated the plaintiffs award with respect to the $5000 credit. The $5000 credit is legally and logically correct and flows from the facts found by the referee, notwithstanding the defendant’s failure to plead the $5000 retainer payment as a special defense or setoff. Accordingly, we reject the plaintiffs claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       In Shapero v. Mercede, 66 Conn. App. 343, 784 A.2d 435 (2001), rev’d, 262 Conn. 1, 808 A.2d 666 (2002), we reversed the judgment of the trial court rendered in favor of the plaintiff in the amount of $22,500. The trial court rendered judgment in accordance with the report of an attorney trial referee (referee) to whom the matter had been referred. The report recommended judgment for the plaintiff in the amount of $22,500 in his action seeking, inter alia, quantum meruit damages for legal services provided to the defendant.
      In reversing our decision, our Supreme Court held that we improperly concluded that because the plaintiff had not produced evidence showing either his rate of compensation or the prevailing rates in the community, there was insufficient evidence on which to base an award. Shapero v. Mercede, 262 Conn. 1, 6, 808 A.2d 666 (2002). Specifically, our Supreme Court held that the referee’s general knowledge concerning the reasonable value of legal services, and her unchallenged factual findings with regard to the plaintiffs experience and reputation and the novelty and complexity of the legal issues addressed in the course of the plaintiffs work for the defendant provided sufficient support for her challenged finding as to an appropriate hourly rate. See id., 7-10.

       This appeal involves the legal services performed in connection with only one of the parcels of real property owned by the defendant, specifically, the defendant’s real property located on Progress Street in Stamford. See footnote 7.

       The defendant did not pursue those special defenses at the hearing before the referee.

       The court’s memorandum of decision stated the following:
      “The court has been requested to articulate upon the following issue:
      “1. What was the factual and legal basis for allowing the defendant to obtain a $5000 credit when he did not plead a setoff or special defense regarding the same?
      “Articulation
      “The attorney trial referee heard the evidence and awarded the plaintiff recovery on the basis of quantum meruit. The law provides that quantum meruit is predicated on and limited to the reasonable value of services rendered. The attorney trial referee found the reasonable value of the services rendered by the plaintiff was $27,500, or 100 hours at the rate of $275 per hour. The attorney trial referee took into account the fact that this sum represents the full amount due and owing the plaintiff for all work performed. Since the plaintiff had already been compensated in part in the amount of $5000, the attorney trial referee properly subtracted that sum from the award.
      “The plaintiff has the burden of establishing value. A reduction of a retainer does not require special pleading such as setoff or special defense. The evidence was that the value was $27,500 and that $5000 had been paid. Therefore, the balance due was $22,500.”

       Although we stated that we disagreed with the plaintiffs claim regarding the $5000 credit; Shapero v. Mercede, supra, 66 Conn. App. 353; we went on to state that “[bjecause we have concluded that the referee acted outside her discretion in assigning a value to the plaintiffs services, we need not reach the plaintiffs claim on cross appeal.” Id.

       Although the defendant did plead a special defense alleging payment in the amount of $6559.03, that special defense did not relate to the same legal services that were the subject of the hearing before the referee. See footnote 4. Rather, the defendant’s special defense alleged payment for legal services performed in connection with his real property located on Canal Street and addressed the allegations contained in the first five counts of the plaintiffs complaint. Prior to the hearing before the referee, however, the plaintiff admitted receipt of the $6559.03 payment for services involving the Canal Street property, but denied receiving payment for services performed in connection with the defendant’s real property located on Progress Street in Stamford, as alleged in counts six through ten of the complaint. Consequently, the legal services at issue at the hearing involved services performed in connection with the Progress Street property. Accordingly, the first five counts of the plaintiffs complaint and the defendant’s special defense alleging payment were not the subject of the referee’s findings or the trial court’s judgment, and they are not at issue on appeal.

       At oral argument, the plaintiff argued further that the defendant could have, and should have, sought to amend his pleading to include a special defense or setoff claiming the $5000 credit so as to conform to the evidence adduced at the hearing. See Practice Book § 10-62; see also Wilburn v. Mount Sinai Medical Center, 3 Conn. App. 284, 287, 487 A.2d 568 (1985) (“trial court may allow, in its discretion, an amendment to pleadings before, during, or after trial to conform to the proof’).

       In the sixth count, labeled “Quantum Meruit,” the plaintiff alleged, inter alia, that (1) “the [defendant retained the [pjlaintiff,” (2) “[tjhe legal fee agreement between the [pjlaintiff and the [djefendantwas reduced to writing and set forth the contingent nature of the legal fee arrangement,” (3) “[tjhe [djefendant terminated the legal fee agreement so as to avoid paying a contingent legal fee to the [pjlaintiff,” and (4) “the [pjlaintiff is entitled to the reasonable value of the legal services he performed which has benefited of the [djefendant to the [pjlaintiff’s financial detriment.”
      The plaintiff appended the retainer agreement to his complaint as “exhibit A,” and his sixth count refers to and incorporates the retainer agreement by reference. See footnote 11.

       In Cole v. Myers, supra, 128 Conn. 223, an action brought by an attorney to recover a fee for legal services rendered, the attorney, like the plaintiff in the present case, had been employed on a contingency fee basis to obtain a reduction in tax assessments, but was discharged by the client before he had fully or substantially performed, and the client obtained a settlement through other attorneys. Id., 224-27. Our Supreme Court held that the discharged attorney was entitled to recover only on a quantum meruit basis, notwithstanding that the contracted for contingency occurred after the attorney’s discharge. See id., 228-30; see also 56 A.L.R.5th 85-92, § 8 [a] (1998). In so ruling, the court explained that “[a]n attorney at law is an officer of the court; a minister of justice. He is entitled to fair compensation for his services, but since, because of the highly confidential relationship, the client may discharge him even without just cause, he should receive reasonable compensation for the work he has done up to that point .... This rule is not unfair to the attorney. He will receive fair compensation for what he has done; his position as an officer of the court does not entitle him to receive payment for services he has not rendered.” (Emphasis added.) Cole v. Myers, supra, 230.

       The retainer agreement bears the parties’ signatures, lists a schedule of contingency fee payment amounts and provides, in relevant part: “This letter is to serve as an agreement between [the plaintiff] and [the defendant] concerning [1he plaintiffs] services as an attorney in connection with property owned by [the defendant] and located on Progress Drive in Stamford. . . .
      “If this letter is satisfactory and reflects your [the defendant’s] understanding of [the] agreement, would you [the defendant] please sign the copy of this letter . . . and return it to [the plaintiff] with a retainer of $5000 which will be credited against any fees due under the terms of this letter.....”

       The plaintiff objected on the ground that the defendant had not pleaded a special defense or setoff regarding the retainer payment.

       See footnote 5.

       We note that the Rules of Professional Conduct expressly prohibit an attorney from keeping unearned retainer fees. See Rules of Professional Conduct 1.16 (d) (“[u]pon termination of representation, a lawyer shall . . . [refund] any advance payment of fee that has not been earned”) and rule 1.5, commentary (“[a] lawyer may require advance payment of a fee, but is obliged to return any unearned portion”); see State v. Fernandez, 254 Conn. 637, 650 n.19, 758 A.2d 842 (2000) (“[r]ule 1.16 (d) of the . . . Rules of Professional Conduct requires attorneys, upon withdrawal from representation, to return to a client any unearned portion of a retainer”), cert. denied, 532 U.S. 913, 121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001).

       That is especially trae in cases such as the present one, where the party seeking recovery in quantum meruit is an attorney, an officer of the court, the prior payment is compensation in part for the legal services on which the sought for recovery is based, and the attorney does not contest the factual finding that the prior payment was made.

       Practice Book § 10-50 governs the pleading of special defenses and provides in relevant part: “No facts may be proved under either a general or special denial except such as 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. Thus . . . payment (even though nonpayment is alleged by the plaintiff) . . . must be specially pleaded . . . .” The burden of pleading and proving the special defense of payment rests on the defendant. See New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 606 n.10, 717 A.2d 713 (1998); Selvaggi v. Miron, 60 Conn. App. 600, 601, 760 A.2d 539 (2000).

       Practice Book § 10-54 governs the pleading of setoffs and provides in relevant part: “In any case in which the defendant has either in law or in equity or in both a . . . right of setoff, against the plaintiffs demand, the defendant may have the benefit of any such setoff ... by pleading the same as such in the answer, and demanding judgment accordingly; and the same shall be pleaded and replied to according to the rules governing complaints and answers.”

       We note that because “[t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” Practice Book § 1-8. Further, the “[rjules of practice must be construed reasonably and with consideration of this purpose. . . . Rules are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding.” (Internal quotation marks omitted.) Webster Bank v. Zak, 71 Conn. App. 550, 558 n.5, 802 A.2d 916, cert. denied, 261 Conn. 938, 808 A.2d 1135 (2002).

       See footnotes 9 and 11.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    ELIZABETH HARRISON v. MUNIR HAMZI ET AL.
    (AC 22499)
    Lavery, C. J., and Foti and Dupont, Js.
    Argued January 13
    officially released June 17, 2003

      George E. Mendillo, for the appellant (plaintiff).

      David J. Robertson, with whom, on the brief, were Garie J. Mulcahey and Catherine L. Creager, for the appellee (named defendant).
   Opinion

DUPONT, J.

In this medical malpractice action, the plaintiff, Elizabeth Harrison, appeals from the judgment for the defendant, Munir Hamzi, after a jury verdict in his favor. She claims that the trial court (1) abused its discretion in excluding certain medical expert testimony and (2) improperly denied her motion for an evidentiary hearing concerning alleged jury misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff was diagnosed as having an enlarged right thyroid lobe, a goiter. She was referred to the defendant, a general surgeon, for an evaluation and a second opinion. Upon a physical examination, the defendant confirmed that the plaintiff had a retrosternal thyroid goiter on the right side. The defendant explained to the plaintiff her options of leaving the goiter in place or having surgery to remove the goiter, and the risks associated with each option. Thereafter, the plaintiff elected to schedule surgery with the defendant for the removal of her right thyroid lobe and isthmus. The surgery performed is called a hemithyroidectomy or right thyroid lobectomy, which is the removal of the right lobe of the thyroid gland, and isthmectomy, which is the removal of the isthmus.

The experts who testified at trial identified five different methods of performing the surgery. There was no unanimity among the experts, however, as to the efficacy of the methods or even as to the number of methods.

Following the surgery, the plaintiff complained of voice hoarseness. The defendant referred her to a speech therapist for an evaluation. After the evaluation, the plaintiff began treatment with Neil Schiff, a physician who determined that during the surgery, the plaintiff had suffered a permanent injury to her recurrent laryngeal nerve causing right true vocal cord paralysis, which can result in voice dysfunction. The plaintiff testified at trial, which allowed the jury to assess any voice dysfunction.

I

EVIDENTIARY CLAIM

The plaintiff claims that the court abused its discretion in disallowing certain proffered expert testimony. The court’s ruling, on which the plaintiffs basic claim is centered, was the sustaining of the defendant’s objection to the plaintiffs question to her expert witness, Paul Giyska, regarding the probable result of the operation if one of the alternate methods had been used.

The following additional facts are relevant to the discussion of the plaintiffs claim. The defendant testified that he performed the procedure supracapsularly. He testified that there were three reasons he did not opt to do, or to change, during the operation, to any of the alternative methods for removal of the thyroid gland. The reasons were: (1) implementing a different option presented a greater risk to the plaintiff, (2) having identified and protected the nerve in the operative field, another option was not necessary, and (3) he did not have any difficulty in removing the thyroid supracapsularly.

The defendant also testified that he could not identify the nerve below one inch from the thyroid artery and that the only way to do that would be to perform a medianstemodomy. He testified that it was not necessary to protect the nerve further because it was protected in the operative field. He opined that the injury was a stretching injury caused when removing the goiter from the plaintiffs chest.

Following the defendant’s testimony, the plaintiff called Gryska to testify. In an offer of proof to establish the basis of his testimony, Gryska testified that his opinion was based entirely on the deposition testimony of the defendant, the plaintiffs medical records and the written report on the plaintiffs surgeiy, but not on the defendant’s in-court testimony because he had not heard it or reviewed it prior to testifying. During the offer of proof, Gryska specifically testified that “whether it was done intra [sub] or extracapsular [supra] speaks to the surgeon’s preference. However, a supracapsulax . . . dissection done rapidly is not done carefully. So, it all speaks to speed.” Further, in response to a question, “[a]re you going to testify . . . that [the defendant] deviated from the standard of care because he did [not perform] a subcapsular procedure?” he stated: “I am not going to [state] that that is the reason he deviated. I am going to testify, as I’ve said all along, that it was the speed at which he did whatever operation . . . .”

During Gryska’s testimony to the jury, which was allowed, he repeated that opinion, explaining that it was not a breach of the standard of care to do the procedure supracapsularly, but that the operation was done too quickly to have been done correctly. The procedure was “done extraordinarily rapidly using a technique that is appropriate . . . when done very, very slowly and veiy meticulously.” Gryska reiterated that testimony on numerous occasions throughout his testimony to the jury.

Gryska testified that the plaintiffs goiter extended three to four inches below the artery. Gryska further opined that the standard of care requires a general surgeon to identify the nerve over the entire course of the enlarged thyroid. In response to counsel’s question summarizing the defendant’s testimony that he could not identify and protect the nerve below one inch from the thyroid artery, Gryska testified that three other options are available at that point. He then explained the other methods.

Following that testimony, the plaintiff sought to ask Gryska the probable result if the defendant had performed one of the alternative methods identified by the plaintiffs expert, intracapsular dissection, morcellization or the tracheal approach. The defendant objected on the ground that the question required “total speculation.” After hearing arguments out of the presence of the jury, the court sustained the objection.

The plaintiff claims that the court abused its discretion in excluding that evidence because Gryska’s testimony was relevant to show the proximate cause of the plaintiffs injury. The defendant argues that the evidence was irrelevant to the issue of whether he had breached the standard of care in his performance of the only relevant surgical option in this case, namely, supracapsular dissection. In light of all the evidence and arguments before the court, we conclude that the court did not abuse its discretion.

“The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Eagles, 74 Conn. App. 332, 337 (2002), 812 A.2d 124, cert. denied, 262 Conn. 953, 818 A.2d 781 (2003). “In order to establish reversible error, the [plaintiff] must prove both an abuse of discretion and a harm that resulted from such abuse.” (Internal quotation marks omitted.) Bolmer v. McKulsky, 74 Conn. App. 499, 504, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).

The defendant objected to the evidence on the ground that it was speculative, and the court excluded the evidence on the ground that it was irrelevant. Evidence is “too speculative if the record makes it clear that there was no basis for finding that the testimony would bear on relevant facts.” Burns v. Hanson, 249 Conn. 809, 826, 734 A.2d 964 (1999). A relevant fact is one that “has a logical tendency to aid the trier in the determination of an issue.” (Internal quotation marks omitted.) Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 378, 805 A.2d 130 (2002). “No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience.” (Internal quotation marks omitted.) State v. Eagles, supra, 74 Conn. App. 337.

As a basis for her claim, the plaintiff highlights certain testimony by Gryska and the defendant. Specifically, she highlights the defendant’s testimony that he could not identify and protect the nerve below one inch from the inferior thyroid artery and Gryska’s testimony that in that situation, there are three other options within the standard of care. Gryska further testified that the defendant severed the nerve, which he would not have done had he identified the entire nerve. Last, the defendant, himself, testified that the injury was caused to the nerve in the area where he had not identified and protected it. The plaintiff views that testimony as establishing the relevance of the evidence sought to be elicited by the question at issue.

That testimony, however, must be viewed in the context of the entire trial. Gryska also testified on numerous occasions that the defendant had not breached the standard of care by choosing to perform a supracapsular dissection, but because the defendant performed the operation too speedily. First, in the initial offer of proof, testing the basis of Gryska’s expert testimony, Gryska repeatedly emphasized that he did not fault the defendant for choosing the supracapsular method, but that the quickness of the procedure was a breach of the standard of care, given the size and extent of the plaintiffs goiter.

In Gryska’s subsequent testimony to the jury, on direct, cross-examination and redirect examination, he explained that it is possible to avoid injury to the nerve in the performance of a supracapsular dissection if it is done in a meticulous, careful and painstaking way. Even after being informed of the defendant’s inability to identify the nerve, in response to a question by the court in the course of argument, Gryska stated that it was his opinion that the procedure was within the standard of care, but that the defendant deviated from that standard of care because he performed the surgery too quickly. In fact, in colloquy with the court and opposing counsel during Gryska’s testimony, the plaintiffs counsel himself stated that “Gryska’s not saying that [the defendant] did the wrong procedure. He’s saying that if he did the procedure he did, he couldn’t have done it in fifty-five minutes and done it carefully.”

In light of the abundance of testimony regarding Gryska’s opinion that the breach was that the defendant had performed the procedure too quickly, his singular statement that when the general surgeon cannot identify the nerve below one inch from the thyroid artery, there are three other options available, cannot be read to mean, as the plaintiff argues, that the standard of care required that the defendant conduct an alternate procedure. Notably, in responding to the plaintiff’s counsel’s question regarding what is required in the standard of care, Gryska used the word available, rather than required. Therefore, considering Gryska’s repeated statements as to speed, a fair reading of his testimony is that there were three other options available, but they were not required within the standard of care as long as the option the defendant chose was done slowly and meticulously.

The breach, according to Gryska, was that the defendant performed the chosen method too quickly and, therefore, did not execute it appropriately. Thus, although the plaintiffs counsel may have wanted and expected Gryska to testify that it was a breach of the standard of care for the defendant to not perform another method, Gryska did not so testify. Accordingly, the evidence related to the result of another method was irrelevant.

In light of Gryska’s testimony that there was no breach of the standard of care by the defendant in choosing the supracapsular procedure, it was not an abuse of discretion to exclude, as irrelevant, the question regarding what would have happened if an alternate procedure had been performed. We conclude that the court did not abuse its discretion and that it acted in the proper exercise of its discretion.

II

JUROR MISCONDUCT

The plaintiff next claims that the court improperly denied her motion for an evidentiary hearing and her motion in arrest of judgment after hearing the arguments of counsel. Those motions relate to alleged juror misconduct. The following additional facts are relevant to this claim. Following the jury’s verdict in favor of the defendant, the plaintiffs counsel spoke with two members of the jury. As a result of those conversations, the plaintiff filed a motion for an evidentiary hearing to establish jury misconduct and a motion in arrest of judgment for extrinsic causes on the basis of the alleged jury misconduct.

In support of her motion in arrest of judgment, the plaintiffs counsel submitted an affidavit, which represented that one juror had revealed to him that the jurors did not believe “that there was enough evidence to ruin [the defendant’s] reputation,” that no one “wanted to get [the defendant] in trouble,” and that one juror “had stated that doctors save lives and that the Plaintiff was lucky to be alive.” At argument on the motions, the plaintiffs counsel further represented that he had spoken with a second juror who revealed that in the course of deliberations, the defendant’s reputation was considered. That juror stated that the jury considered that the defendant had a good reputation as a surgeon, that he had never before been sued for malpractice or been found negligent and that his reputation would be injured if the jury found for the plaintiff.

The court, having accepted as true all of the representations made by the plaintiffs counsel, denied the plaintiffs motion for an evidentiary hearing. Additionally, after considering the representations, the court denied the plaintiffs motion in arrest of judgment. The court objectively considered the probable effect of those statements on the minds and the verdict of the jurors, and concluded that they did not cause the plaintiff prejudice.

The plaintiffs first claim regarding the alleged juror misconduct is that the court was required to hold an evidentiary hearing. She argues that without one, the court was unable to determine whether the alleged misconduct resulted from improper speculation or from consideration of extraneous information, or the degree to which the statements may have affected the jurors’ impartiality. The defendant argues that because the court accepted all of the plaintiffs counsel’s representations as true, no further information would be elicited at a hearing, making it unnecessary to hold an evidentiary hearing. We agree.

In State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc), our Supreme Court concluded that a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case. The court, however, specifically, declined to decide whether that requirement applied to civil cases. Id., 526 n.27. In Baldwin v. Jablecki, 52 Conn. App. 379, 383, 726 A.2d 1164 (1999), a civil case, we stated, citing Brown, that “a specific allegation of juror misconduct requires some inquiry by the trial court.” See also Pineau v. Home Depot, Inc., 45 Conn. App. 248, 260, 695 A.2d 14 (1997), appeal dismissed, 245 Conn. 422, 713 A.2d 825 (1998).

We have yet to consider the extent of the required inquiry. Having already applied the rule to criminal cases, however, we see no reason why the extent of the required inquiry should be any different from that promulgated in Brown. “[T]he form and scope of such an inquiry he within a trial court’s discretion .... That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto.” State v. Brown, supra, 235 Conn. 526; see also State v. Dorans, 261 Conn. 730, 751-52, 806 A.2d 1033 (2002).

The court conducted an inquiry into the allegations of misconduct and accepted all of the plaintiffs counsel's representations as true. There is no basis in the record or the law for the requirement of a full evidentiary hearing. The plaintiff has not provided any evidence that the court’s inquiry was insufficient, especially in light of the court’s taking as true all the representations of counsel. Additionally, “where juror misconduct is claimed, jurors . . . [cannot] testily as to the impact of . . . incidents on their verdict. . . . [A]ny inquiry into the content of the opinion or the impact it had on the juror is clearly impermissible.” (Citation omitted; internal quotation marks omitted.) Turk v. Silberstein, 48 Conn. App. 223, 709 A.2d 578 (1998). Thus, the court was unable to conduct inquiry beyond what it already had accepted as true. We therefore conclude that the court did not abuse its discretion in failing to hold a full evidentiary hearing on the plaintiffs allegations of juror misconduct.

The plaintiff next claims that the court improperly determined that she had not demonstrated that the juror misconduct caused her prejudice. She argues that the facts as represented by her counsel, and taken as true by the court, demonstrate that the jury improperly allowed the reputation of the defendant and other extraneous information to influence its verdict and, therefore, the motion in arrest of judgment should have been granted. The defendant argues that the facts were not proven to be from extrinsic sources and that even if they were, they did not demonstrate juror misconduct.

“In reviewing juror misconduct, we use an objective standard in which the focus is on the nature and quality of the misconduct, rather than the mental processes of the jurors.” Speed v. DeLibero, 19 Conn. App. 95, 561 A.2d 959 (1989). Therefore, having accepted the representations of counsel as true, “it [was] for the trial court to determine whether they warranted] a reversal of the verdict.” (Internal quotation marks omitted.) Turk v. Silberstein, supra, 48 Conn. App. 228. “The question is whether the misconduct is of such a nature as to make it probable that the misconduct resulted in prejudice and an unfair trial.” Speed v. DeLibero, supra, 103; see also Baldwin v. Jablecki, supra, 52 Conn. App. 384. “[T]he burden rests on the moving party to demonstrate that the misconduct complained of resulted in probable prejudice to her.” Durso v. Aquilino, 64 Conn. App. 469, 478, 780 A.2d 937 (2001).

Contrary to the plaintiffs assertions, there was testimony, during the trial, to which the plaintiff did not object, regarding the defendant’s reputation. In response to a question posed by the plaintiffs counsel, the defendant, referring to himself, stated that “you don’t stay in practice for [twenty-one] years and you don’t see any judges, basically.” While being qualified as an expert, the defendant testified as to his background and experience as a surgeon. In fact, the plaintiffs expert stated that he had not heard that any other patients of the defendant had ever suffered a nerve injury. That testimony could establish a basis for any statements made during jury deliberations regarding the defendant having never been sued and his reputation as a good surgeon.

Other statements allegedly made by the jurors affecting the defendant’s reputation are extrinsic to the record, but do not affect our conclusion. Because jurors cannot be expected to set aside their own knowledge and experience; Purzycki v. Fairfield, 244 Conn. 101, 113, 708 A.2d 937 (1998); such statements are common sense inferences or commonly held beliefs expected to arise when one participates as a juror in a malpractice case. Therefore, none of the representations by counsel demonstrate that improper matters were considered.

Further, the court instructed the jury not to consider the defendant’s reputation in deliberating its verdict. In the absence of an indication to the contrary, the jury is presumed to have followed such an instruction. State v. Grenier, 257 Conn. 797, 810, 778 A.2d 159 (2001).

Therefore, we conclude that not only do the statements not show jury misconduct, but there is no indication that the statements regarding the defendant’s reputation were considered improperly by the jury to the prejudice of the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants were Abdulmasih Zarif and St. Mary’s Hospital Corporation. We refer in this opinion to Hamzi as the defendant.

       Retrosternal means extending below the sternum or breastbone.

       The isthmus is the connecting tissue between the right and left lobe of the thyroid gland.

       Paul Gryska testified as the plaintiffs expert, and Phillip McWhorter and the defendant testified as the defendant’s experts.

       The five methods are a supracapsular dissection, a medianstemodomy, morcellization, intracapsular dissection and a tracheal approach. All three experts who testified at trial testified as to the method chosen by the defendant, the supracapsular dissection. That method involves removing the goiter in its entirety. The surgeon first identifies and protects the surrounding structures. Next, the surgeon clears the operative field, which enables the surgeon to remove the goiter by scooping it out with his finger.
      The testimony differed on the number and type of other methods. The defendant testified that there were two methods other than supracapsular dissection. The first is a medianstemodomy. That alternative is appropriate when the physician has difficulty removing the goiter supracapsularly and cannot properly protect the recurrent laryngeal nerve because the thyroid is low in the chest and large. That method requires a surgeon to open the rib cage partially to remove the lobe of the thyroid gland. The other method identified by the defendant, morcellization, is performed subcapsularly, below the thyroid capsule. A subcapsular procedure requires the surgeon to open the thyroid capsule. Morcellization involves opening the thyroid capsule, breaking or cutting up the gland and suctioning out the contents through the opened portion of the capsule to reduce its size so that removal is possible. The defendant was not aware of any other methods of performing the surgery.
      Paul Gryska, the plaintiffs expert witness, testified that there were two ways to perform the surgery subcapsularly, namely, morcellization and intracapsular dissection. Intracapsular dissection involves opening the capsule and removing the lobe in its entirety through the opening. Gryska also testified about a method called the tracheal approach, which involves approaching the thyroid from a different angle to enable better identification of the nerve. Gryska did not believe a medianstemectomy was ever appropriate to remove a goiter.
      Phillip McWhorter, an expert witness for the defendant, testified only as to the supracapsular and medianstemectomy methods of removing a goiter. He was not aware of either subcapsular procedure or the tracheal approach.

       Schiff s testimony, if any, is not included in the transcripts of testimony supplied to us. The defendant testified that the injury was a stretching injury that occurred in the course of pulling out the goiter. Paul Gryska, the plaintiffs expert witness, testified that the nerve was severed, not stretched, because a stretching ipjury would not have been permanent.

       The defendant testified that opening the sternum increases the risk of infection and other surgical complications, and that a subcapsular procedure would spread cancer, if it existed. He testified that prior to surgery, there was no way to test the plaintiffs goiter to determine if it was cancerous, but there was a 5 percent to 7 percent statistical chance of cancer. After surgery, the goiter was tested and was found to have contained no cancerous cells.

       Gryska did testify that he “briefly” discussed the defendant’s testimony with the plaintiffs counsel, but that his opinion was formed prior to that.

       The precise question was: “Do you have an opinion based on reasonable medical probability as to whether or not had any of these three procedures you’ve mentioned had been performed in the case of [the plaintiff], whether she would have sustained an iqjury to her recurrent laryngeal nerve?” See footnote 5.

       The transcript indicates that the court concluded that the question would not elicit evidence probative of the issue before the jury, that is, whether the defendant meticulously, carefully and properly performed the procedure that he selected. The court’s memorandum of decision on the plaintiffs motion to set aside the verdict on that issue indicates that the evidence was excluded because it was “immaterial and not germane.”

       In her brief, the plaintiff also claims that the court precluded rebuttal evidence of the lack of a cancer risk associated with the alternative procedures. Although, in the course of argument on the objection at issue, the plaintiff suggested that she wanted to ask such a question, the plaintiff never actually posed a question as to the risk, or lack of a risk, of cancer in using the alternate methods. Thus, the court never ruled on such a question. We therefore do not consider this claim.

       The written report on the plaintiffs surgery states that the defendant identified and protected the nerve. At oral argument, the plaintiff argued that the defendant’s in-court testimony was a change in position from that representation, and that this change necessitated the need for, and relevance of, the inquiry of Gryska. The defendant’s trial testimony was that he identified and protected the nerve in the operative field, the extent to which he believed was necessary. The only sentence in the operative report on the subject was that the “nerve was identified and protected.” Due to the inherent terseness of that sentence, we view any discrepancy as one of degree, which the plaintiff explored during the examination of both the defendant and Gryska.

       During the offer of proof, the court further clarified that “[i]t wasn’t that. . . the option that he selected ... or the procedure that he followed was incorrect for the situation. It’s just that he moved too rapidly and couldn’t therefore be careful enough in performing that procedure.” To which, Gryska responded: “Precisely. That’s why my entire focus was on the speed.”

       Later on direct examination, Gryska testified that “[i]t is possible to do a supracapsular dissection in a meticulous, careful, painstaking way . . . and thereby avoid injuring [the nerve].” He further stated that in doing the subcapsular procedure in this case, it is difficult and tedious, but possible to identify the nerve. At the end of direct examination, he stated that in his opinion, on the basis of reasonable medical probability, the “conduct of the procedure performed caused injury to the nerve, meaning it was done rapidly and without the appropriate care” and "that careful dissection, slow, meticulous care could have avoided injury to . . . the nerve.”
      On cross-examination, even after learning the extent to which the defendant identified the nerve, Gryska further reiterated this opinion. He stated that the type of procedure was well within the standard of care and that his sole criticism was that it was done too quickly. Additionally, he testified that the only reason he determined that the surgery was performed sloppily was because of the amount of time it took. He further stated that the supracapsular method is a very acceptable way to perform the surgery and it is within the standard of care. On redirect, he stated that you can avoid the nerve doing the supracapsular if you take the time.

         Additionally, in colloquy with the court and opposing counsel during Gryska’s testimony, Gryska and the plaintiffs attorney confirmed that it was Gryska’s opinion that “if you’re careful and you’re meticulous . . . [you can] identify the nerve if in fact you couldn’t have identified it in the first instance.”

       “[Plaintiffs Counsel]: What would the standard of care applicable to the general surgeons require a general surgeon to do in a case such as the case with [the plaintiff] where he can’t identify the recurrent laryngeal nerve more then one inch below the inferior thyroid artery?
      “[The Witness]: During the conduct of operation, there are — that he was doing, then there are three other options that are available to him at that point. They’re all technical variations on removing the thyroid gland. . . .” (Emphasis added.)

       The court instructed the jury in relevant part: “[I]n arriving at your verdict . . . you must not allow yourself to be influenced by sympathy or prejudice against anyone. And certainly you would be violating your oath as jurors if you allow sympathy prejudice, or any other improper consideration such as the effect of your decision on one’s reputation, to influence your determination of this case. ” (Emphasis added.)


author: PER CURIAM.

text:
    WILLIAM H. WILSON v. ZONING COMMISSION OF THE TOWN OF EAST LYME
    (AC 22362)
    (AC 22363)
    Bishop, West and Hennessy, Js.
    Argued April 29
    officially released June 17, 2003

      Fatima T. Lobo, for the appellant (plaintiff).

      Edward B. O’Connell, for the appellee (defendant).
   Opinion

PER CURIAM.

The resolution of these appeals, which concern the identical legal issue, involving the construction of General Statutes 8-3 (d), is controlled by our Supreme Court’s decision in Wilson v. Planning & Zoning Commission, 260 Conn. 399, 796 A.2d 1187 (2002). In Wilson v. Planning & Zoning Commission, 53 Conn. App. 182, 729 A.2d 791 (1999), this court held that the East Granby planning and zoning commission could establish a new effective date for a certain zone change and publish notice before the new effective date. We therefore reversed the trial court’s determination that the commission’s failure of notice rendered its decision null and void. In the present cases, the trial court applied that reasoning with respect to certain actions by the East Lyme zoning commission.

In Wilson v. Planning & Zoning Commission, supra, 260 Conn. 399, the Supreme Court reversed our decision and determined that the failure to comply with statutory; General Statutes § 8-3 (d); publication requirements rendered the commission’s decision null and void, and that the commission could not retroactively validate an invalid zone change by fixing a new effective date and publishing notice. Id., 405. Although the trial court correctly applied the holding of this court in Wilson v. Planning & Zoning Commission, supra, 53 Conn. App. 182, the Supreme Court’s subsequent reversal of our judgment requires that we reverse the trial court’s judgments.

The judgments are reversed and the cases are remanded with direction to render judgments sustaining the appeals and vacating the zone changes in the first case and the amendment to the zoning regulations in the second case.

       The trial court rendered its judgments on July 26, 2001.