Martin v. Olson

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Martin v. Olson

DANIEL A. MARTIN v. CHRISTOPHER R. OLSON,
EXECUTOR (ESTATE OF ROBERT K. OLSON)
(AC 46483)
Alvord, Cradle and Westbrook, Js.

Syllabus

The plaintiff appealed to this court from the judgment of the trial court
rendered for the defendant on his claims of, inter alia, breach of contract.
The plaintiff had been living with his grandfather, R, for approximately
thirteen years prior to R’s death, during which time he provided certain
caregiving services to R. After R’s death, the defendant was appointed
the executor of R’s estate. The plaintiff sent a claim to the defendant
for compensation for his caregiving services, which the defendant
rejected by filing a return of claims with the Probate Court and sending
the return to the plaintiff in July, 2020. The plaintiff commenced this
action in December, 2020, and the defendant raised several special
defenses including, inter alia, that the plaintiff’s claims were barred by
the statute of limitations (§ 45a-363) because he did not commence this
action within 120 days of receiving the return of claims. Held:
1. The plaintiff could not prevail on his claim that the trial court improperly
instructed the jury regarding the effect of the return of claims and the
defendant’s statute of limitations defense; this court concluded that,
even if it assumed that the jury instruction should have been more
detailed, any error arising from the jury instructions was harmless and
did not affect the verdict, as the trial court instructed the jury to answer
the interrogatories in the order in which they were presented on the
jury form, and the jury found that the plaintiff had failed to prove an
essential element of each of his claims prior to addressing the defen-
dant’s special defense.
2. The trial court did not abuse its discretion by admitting into evidence
testimony regarding the fair rental value of R’s real property and evidence
of the emotional effect of the plaintiff’s claims on the defendant and the
plaintiff’s mother: the plaintiff failed to demonstrate that the defendant’s
testimony regarding the fair rental value of the property constituted
hearsay, as the defendant, in describing his efforts to determine the fair
rental value, did not testify to any specific out-of-court statements made
to him, and, in his capacity as executor, the defendant was reasonably
qualified to talk about the fair rental value; moreover, the court reason-
ably could have determined that the testimony provided by the defendant
and the plaintiff’s mother regarding their reactions to the plaintiff’s claim
against R’s estate was relevant because it was offered to assist the jury
in determining whether it found credible the plaintiff’s testimony that
R promised to compensate him for his caregiving services.
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Martin v. Olson
3. The trial court did not abuse its discretion in allowing the defendant to
present the testimony of two ‘‘surrebuttal’’ witnesses during his case-
in-chief; regardless of the descriptor attached to the witnesses’ testimony
by the plaintiff, the court’s findings that it would allow the evidence so
as not to delay the trial and because it did not surprise the plaintiff
reasonably justified its decision to allow the defendant to present this
evidence during his case-in-chief.
Argued March 13—officially released June 25, 2024

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford and tried to
the jury before Budzik, J.; verdict and judgment for the
defendant, from which the plaintiff appealed to this
court. Affirmed.
Thomas A. Amato, for the appellant (plaintiff).
Steven L. Katz, for the appellee (defendant).
Opinion

ALVORD, J. The plaintiff, Daniel A. Martin, appeals
from the judgment of the trial court rendered after a
jury verdict in favor of the defendant, Christopher R.
Olson, executor of the estate of Robert K. Olson (dece-
dent). On appeal, the plaintiff claims that the court
improperly (1) instructed the jury regarding the defen-
dant’s statute of limitations defense, (2) admitted into
evidence certain testimony, and (3) permitted the defen-
dant to present the testimony of undisclosed witnesses
during his case-in-chief.1 We affirm the judgment of the
trial court.
1
We have consolidated certain of the plaintiff’s issues on appeal for ease
of discussion.
The plaintiff raises three additional claims on appeal, which warrant little
discussion. The plaintiff first claims that the court improperly instructed
the jury that the applicable burden of proof it was to apply to his claims
was clear and convincing evidence rather than clear and satisfactory evi-
dence. The court instructed the jury that clear and convincing evidence is
a heightened burden of proof greater than a preponderance of the evidence
and less than beyond a reasonable doubt. See footnote 6 of this opinion.
Our jurisprudence provides that ‘‘[c]lear and satisfactory evidence is the
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Martin v. Olson

The following facts, as reasonably could have been
found by the jury, and procedural history are relevant
to this appeal. In October, 2007, the plaintiff moved into
the home of the decedent, his grandfather, at 65 Andreis
Trail, South Windsor (property). The plaintiff continued
to reside at the property with the decedent until the
decedent’s death in March, 2020. During this thirteen
year period, the plaintiff provided certain caregiving
services to the decedent in the form of (1) assisting
the decedent with completing errands, (2) completing
general household chores and cooking, (3) providing
the decedent with his medications, (4) driving the dece-
dent to doctor’s appointments, (5) providing care to
the decedent when he was ill, and (6) serving as a daily
equivalent to clear and convincing evidence.’’ (Internal quotation marks
omitted.) Wallenta v. Moscowitz, 81 Conn. App. 213, 220, 839 A.2d 641, cert.
denied, 268 Conn. 909, 845 A.2d 414 (2004). We conclude that the court’s
instruction was proper and, therefore, we reject the plaintiff’s claim.
The plaintiff also asserts, in his statement of issues, that the court improp-
erly denied his motion to set aside the verdict. Aside from that statement,
the only other mention of this claim is in the nature of a conclusion in the
plaintiff’s brief. ‘‘[When] a claim is asserted in the statement of issues but
thereafter receives only cursory attention in the brief without substantive
discussion or citation of authorities, it is deemed to be abandoned.’’ (Internal
quotation marks omitted.) Darin v. Cais, 161 Conn. App. 475, 483, 129
A.3d 716 (2015). We conclude that this claim is inadequately briefed and,
accordingly, we decline to address it.
Finally, the plaintiff raises an evidentiary claim that the court improperly
permitted the defendant to testify regarding the estate’s financial transac-
tions. In his appellate brief, the plaintiff devotes one sentence to his argument
that the admission of this testimony was harmful. The plaintiff bears the
burden of establishing not only the existence of an erroneous evidentiary
ruling but that the evidentiary ruling was harmful. See LM Ins. Corp. v.
Connecticut Dismanteling, LLC, 172 Conn. App. 622, 628, 161 A.3d 562
(2017). ‘‘[W]e are not required to review issues that have been improperly
presented to this court through an inadequate brief. . . . [W]ithout adequate
briefing on the harmfulness of an alleged error, the [plaintiff] is not entitled
to review of [the] claim on the merits.’’ (Citation omitted; internal quotation
marks omitted.) MacDermid, Inc. v. Leonetti, 328 Conn. 726, 748, 183 A.3d
611 (2018). We conclude that the plaintiff has inadequately briefed whether
the claimed error was harmful and, accordingly, we decline to address it.
See id., 749 (defendant’s harm analysis consisted of only cursory statements
and therefore was inadequately briefed).
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presence at the property in the event of an emergency.
The decedent’s children, including the defendant, also
frequently provided care for their father.
After the decedent’s death, the defendant was appointed
executor of the decedent’s estate. The decedent’s last
will and testament did not include the plaintiff as a
beneficiary. On May 29, 2020, the plaintiff sent a claim
to the defendant requesting $741,048 for the caregiving
services the plaintiff provided to the decedent. On June
5, 2020, the plaintiff sent a supplemental claim to the
defendant requesting an increased amount of $1,106,175
for the services he provided to the decedent. On July
10, 2020, the defendant filed with the Probate Court
a form titled ‘‘Return of Claims and List of Notified
Creditors’’ (return of claims), wherein the defendant
rejected the plaintiff’s claim by identifying the ‘‘date of
written disallowance’’ as July 10, 2020, and stating that
the ‘‘amount allowed’’ to the plaintiff was zero dollars.
The defendant sent via certified mail the return of
claims to the plaintiff. On July 13, 2020, the postal return
receipt card was signed. The defendant subsequently
received the signed return receipt card.2
On October 19, 2020, the plaintiff sent a letter to the
defendant by certified mail stating in relevant part: ‘‘I
understand that you are the executor of [the decedent’s
estate]. On May 29, 2020 I presented a claim, and on
June 6, 2020 an amended claim, to you in your capacity
as such executor. You thus far have failed to give notice
under [General Statutes §] 45a-360 (a)3 of your action
2
The plaintiff testified that he did not receive the return of claims. The
return receipt card that was signed and returned to the defendant had an
illegible signature on the ‘‘signature’’ line and did not contain a printed name
of the signatory.
3
General Statutes § 45a-360 (a) provides: ‘‘The fiduciary shall: (1) Give
notice to a person presenting a claim of the rejection of all or any part of
his claim, (2) give notice to any such claimant of the allowance of his claim,
or (3) pay the claim.’’
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Martin v. Olson

on said claim. Since at least ninety days have elapsed
since May 29, 2020 please consider this correspondence
my request under [§] 45a-360 (c)4 that you take action
on said claims.’’ (Footnotes added.)
The defendant received the plaintiff’s letter on Octo-
ber 24, 2020. On November 23, 2020, the defendant’s
counsel sent an email to the plaintiff’s counsel stating
in relevant part: ‘‘I have received a letter from your
client to the [defendant] requesting action on his claim
for caretake[r] services. The claim was denied by virtue
of the [return of claims] filed on July 9, 2020.5 On that
form, the claim was denied in its entirety. At this time,
we consider the claim to be dismissed as no legal action
was commenced within 120 days per Connecticut law.’’
(Footnote added.)
In December, 2020, the plaintiff commenced this
action against the defendant. In the plaintiff’s operative
amended complaint, he alleged five causes of action,
captioned breach of express oral contract, breach of
implied-in-fact contract, quantum meruit, unjust enrich-
ment, and ‘‘breach of promise to nominate as benefi-
ciary.’’ The defendant filed an answer to the plaintiff’s
amended complaint and raised several special defenses.
Relevant to this appeal, the defendant asserted, inter
alia, that the plaintiff’s causes of action were barred by
the statute of limitations set forth in General Statutes
§ 45a-3636 because the plaintiff did not commence this
action within 120 days of receiving the return of claims.
4
General Statutes § 45a-360 (c) provides: ‘‘If the fiduciary fails to reject,
allow or pay the claim within ninety days from the date that it was presented
to the fiduciary as provided by section 45a-358, the claimant may give notice
to the fiduciary to act upon the claim as provided by subsection (a) of this
section. If the fiduciary fails to reject, allow or pay the claim within thirty
days from the date of such notice, the claim shall be deemed to have been
rejected on the expiration of such thirty-day period.’’
5
We note that, although the return of claims was dated July 9, 2020,
records from the Probate Court reflect that the return of claims was filed
with the court on July 10, 2020.
6
General Statutes § 45a-363 provides in relevant part: ‘‘(a) No person who
has presented a claim shall be entitled to commence suit unless and until
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A jury trial was held over several days in September,
2022. In addition to his own testimony, the plaintiff
presented the testimony of Gabrielle Duah, an expert
in the rates for caregiving services; Jami Somero, his
friend; and Jeffrey J. Martin, his father. The plaintiff
testified, inter alia, that he had several conversations
with the decedent wherein the decedent offered to pay
the plaintiff for his caregiving services, offered him the
property as compensation for his services, and stated
that he would name the plaintiff as a beneficiary in
his will.
In addition to his own testimony, the defendant pre-
sented the testimony of his siblings. The defendant also
presented the testimony of Audrey Carson, a caregiver
hired by the defendant and his siblings to provide assis-
tance to the decedent. Finally, the defendant presented,
during his case-in-chief, the testimony of Debra Olson,
the defendant’s wife, and Mark Longo, the plaintiff’s
stepfather. The plaintiff objected to the defendant pre-
senting this testimonial evidence during his case-in-
chief, arguing that it was impermissible ‘‘surrebuttal’’
evidence. The court overruled the plaintiff’s objection
and permitted the defendant’s wife to testify so as not
to delay the trial and found that the plaintiff was not
unfairly surprised by the testimony of his stepfather.
After the close of evidence, the court instructed the
jury as to each of the plaintiff’s causes of action.7 The
such claim has been rejected, in whole or in part, as provided in section
45a-360.
‘‘(b) Unless a person whose claim has been rejected (1) commences suit
within one hundred twenty days from the date of the rejection of his claim,
in whole or in part . . . he shall be barred from asserting or recovering on
such claim from the fiduciary, the estate of the decedent or any creditor or
beneficiary of the estate, except for such part as has not been rejected. . . .’’
7
Before charging the jury on the elements of the plaintiff’s causes of
action, the court instructed the jury that, ‘‘[i]n this particular case, in order
to meet his burden of proof, [the plaintiff] must prove each of his claims
by a standard of proof known as clear and convincing evidence. Under
Connecticut law, a claim that a decedent, here [the plaintiff’s] grandfather,
[the decedent], promised—promised to compensate a family member for
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court then instructed the jury on the defendant’s special
defenses. Finally, the court instructed the jury on how
to complete the jury interrogatories. Specifically, the
court instructed the jury to make a finding as to each
count of the plaintiff’s operative complaint and then, if
necessary, to make findings on the defendant’s special
defenses.
On September 19, 2022, the jury returned a verdict
in favor of the defendant on each count of the plaintiff’s
operative complaint. The jury also determined that the
defendant’s statute of limitations defense applied. The
plaintiff filed a timely motion to set aside the verdict
pursuant to Practice Book § 16-35. The defendant filed
an objection, and, on April 24, 2023, the court denied the
plaintiff’s motion and rendered judgment in accordance
with the verdict. This appeal followed. Additional proce-
dural history will be set forth as necessary.
I
The plaintiff first claims that the court improperly
instructed the jury regarding the effect of the return of
caregiving services, and that is a serious claim. That’s [the plaintiff’s] allega-
tion I should say. Therefore, the law applies a higher standard of proof to
such a claim than is ordinarily applied in other civil cases. This, in this case,
[the plaintiff] has the burden of proving each of his claims by clear and
convincing evidence. This standard of proof also applies to any amount of
damages [the plaintiff] may seek to prove. [The plaintiff] cannot meet the
burden of proof of his claims by simply producing evidence which is slightly
more persuasive than the evidence that is opposed to his claims. That amount
of proof would meet the burden of proof under the preponderance of the
evidence standards which is typical in most civil cases. Instead, in this case,
[the plaintiff] must prove—must produce clear and convincing evidence to
prove his claims. Clear and convincing evidence is evidence that is substan-
tial and that unequivocally established each of the elements of [the plaintiff’s]
claims. Stated another way, clear and convincing evidence is evidence that
establishes for you a very high probability that the facts asserted are true
or—or that they exist. Not simply that the facts at issue are more probable
than not. Finally, you may have heard in criminal cases that proof must be
beyond a reasonable doubt. I must emphasize to you that this is not a criminal
case, and you are not deciding criminal guilt or innocence. Therefore, the
standard of beyond a reasonable doubt has no application in this case.’’
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claims. Specifically, the plaintiff asserts, inter alia, that
the court’s instruction as to the defendant’s statute of
limitations defense caused the jury to find against the
plaintiff on his five causes of action. The defendant
responds that, because the jury returned a verdict in
favor of the defendant on all five causes of action, the
jury was not required to make any findings as to the
defendant’s special defenses and any purported error
in the court’s instruction was harmless. We agree with
the defendant.
The following procedural history is relevant to our
resolution of this claim. After the close of evidence, the
court held a charging conference. The plaintiff’s counsel
objected to the court’s draft instruction on the defen-
dant’s statute of limitations defense and argued, inter
alia, that his ‘‘position is that the return of claims that
seems to be the significant document by which the
defendant is claiming that it notif[ied] the plaintiff of
the rejection, our position is that that document in and
of itself is invalid because it violates § 45a-360 (b).’’8
The court overruled the objection, stating that it under-
stood the plaintiff’s objection to be that the return of
claims did not provide a reason for denying the plain-
tiff’s claim. The court relied on International Tool &
Gauge Co. v. Borg, 145 Conn. 644, 646, 145 A.2d 750
(1958), for the proposition that notice must be suffi-
ciently unequivocal to place a claimant on notice that
their claim has been denied.
The court, after instructing the jury on the plaintiff’s
causes of action, charged the jury on the defendant’s
statute of limitations defense as follows: ‘‘[The defen-
dant] has raised defenses to [the plaintiff’s] claims
asserting that [the plaintiff] cannot prevail on his vari-
ous claims because he did not bring suit on those claims
8
General Statutes § 45a-360 (b) provides: ‘‘A notice rejecting a claim in
whole or in part shall state the reasons therefor, but such statement shall
not bar the raising of additional defenses to such claim subsequently.’’
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within the time that is allowed by law. There are state
statutes that specify how much time a person—how
much time a person has to bring certain kinds of claims.
These are called statutes of limitation. A person cannot
recover on a claim that is brought after the time period
that applies to a particular claim even if it is one day late.
The defendant claims that the [statute] of limitations
provided for under . . . § 45a-363 bars recovery under
all of [the plaintiff’s] claims since the action was not
commenced within 120 days from the date of the rejec-
tion of [the plaintiff’s] claim against [the decedent’s]
estate. [The defendant] contends that [the plaintiff’s]
claim for alleged caregiver services was denied on July
9, 2020,9 and that [the plaintiff] received a copy of that
denial on July 13, 2020. [The plaintiff] denies that he
ever received a copy of the denial of his claim. It is
undisputed that this action was filed with the court on
December 24, 2020. If you find that [the defendant] has
proven that [the plaintiff] did not file his claim within
120 days of being notified of his claim’s denial by [the
decedent’s] estate, then you must find in favor of [the
defendant] as to all of [the plaintiff’s] claims.’’ (Footnote
added.)
Thereafter, the court instructed the jury on how to
complete the jury verdict form and interrogatories. The
court informed the jury that it ‘‘will have to answer,
perhaps, nineteen questions in––in serial form,’’ and
then instructed the jury to begin with the first interroga-
tory, and then, depending on its answer, proceed pursu-
ant to the instructions on the jury verdict form. By way
of example, the court instructed: ‘‘Count one which is
. . . the breach of expressed contract. If you find that
there was—that there was a contract, then you have
to answer some questions with respect to whether or
not you think it was breached and whether or not there
was any damage. If you find it was not—there was
9
See footnote 5 of this opinion.
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no breach, then you simply skip to the interrogatories
dealing with the next count which is count two. I’ve
set that all out in the instructions that are on your form,
but it depends on how you answer that first question
whether or not you answer the next four or five, we’re
only going to have you skip to what is interrogatory
number five. Okay?’’ The court repeated similar instruc-
tions with respect to counts two through five of the
plaintiff’s operative complaint. The court then instructed
in relevant part: ‘‘At interrogatory number sixteen, then
you will consider the special defenses which are, again,
the statute of limitations. You have to decide whether
or not [the defendant] has met his burden there. You
have to answer the first few questions before you get
there . . . .’’
The jury returned a verdict in favor of the defendant,
finding that (1) the plaintiff and the decedent did not
enter into an express oral contract for the decedent to
compensate the plaintiff for providing caregiver ser-
vices, (2) the plaintiff and the decedent did not enter
into an implied-in-fact contract for the decedent to com-
pensate the plaintiff for providing caregiver services,
(3) the decedent did not promise to nominate the plain-
tiff as a beneficiary in his will, (4) the plaintiff is not
entitled to recover under quantum meruit, and (5) the
decedent was not unjustly enriched by the caregiver
services the plaintiff provided him. With respect to the
defendant’s special defenses, interrogatory sixteen
stated: ‘‘Do you find that [the plaintiff] did not file his
complaint in this action within 120 days of the denial
of [the plaintiff’s claim against [the decedent’s] estate
by [the defendant],’’ to which the jury answered, ‘‘Yes.’’
The jury did not make any findings on the additional
special defenses raised by the defendant.
We now turn to our standard of review and relevant
legal principles. ‘‘A jury instruction must be considered
in its entirety, read as a whole, and judged by its total
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Martin v. Olson

effect rather than by its individual component parts.
. . . [T]he 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. . . .
As long as [the instructions] are correct in law, adapted
to the issues and sufficient for the guidance of the jury
. . . we will not view the instructions as improper. . . .
Therefore, [o]ur standard of review on this claim is
whether it is reasonably probable that the jury was
misled. . . . Furthermore, [n]ot every error is harmful.
. . . [B]efore a party is entitled to a new trial . . . he
or she has the burden of demonstrating that the error
was harmful. . . . An instructional impropriety is
harmful if it is likely that it affected the verdict.’’ (Cita-
tion omitted; internal quotation marks omitted.) Allen
v. Shoppes at Buckland Hills, LLC, 206 Conn. App. 284,
288–89, 259 A.3d 1227 (2021).
‘‘The power of the trial court to submit proper inter-
rogatories to the jury, to be answered when returning
[its] verdict, does not depend upon the consent of the
parties or the authority of statute law. In the absence
of any mandatory enactment, it is within the reasonable
discretion of the presiding judge to require or to refuse
to require the jury to answer pertinent interrogatories,
as the proper administration of justice may require.
. . . The trial court has broad discretion to regulate
the manner in which interrogatories are presented to
the jury, as well as their form and content. . . . More-
over, [i]n order to establish reversible error, the defen-
dant must prove both an abuse of discretion and a harm
that resulted from such abuse. . . .
‘‘We further note that jury interrogatories must be
consistent with the pleadings and the evidence adduced
at trial, so as not to mislead the jury. . . . The function
of jury interrogatories is to provide a guide for the jury’s
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Martin v. Olson

reasoning, and a written chronicle of that reasoning.
. . . The purpose of jury interrogatories is to elicit a
determination of material facts, to furnish the means
of testing the correctness of the verdict rendered, and
of ascertaining its extent.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Wilkins v.
Connecticut Childbirth & Women’s Center, 176 Conn.
App. 420, 430–31, 171 A.3d 88 (2017).
On appeal, the plaintiff argues that the court improp-
erly instructed the jury that, ‘‘[i]f you find that [the
defendant] has proven that [the plaintiff] did not file
his claim within 120 days of being notified of his claim’s
denial by [the decedent’s] estate, then you must find in
favor of [the defendant] as to all of [the plaintiff’s]
claims.’’ The plaintiff contends, inter alia, that ‘‘[t]he
jury, relying on the erroneous instruction concerning
the effect of the return of claims, probably felt com-
pelled to find in favor of the defendant on the substan-
tive claims of the plaintiff.’’
We need not decide whether the court should have
provided a more detailed instruction on the defendant’s
statute of limitations defense because, even if we
assume it was error, it was harmless. The court instructed
the jury to answer the interrogatories in the order in
which they were presented on the jury verdict form.
‘‘[W]hen a jury has received an instruction, it is pre-
sumed to have followed such instruction unless the
contrary appears.’’ (Internal quotation marks omitted.)
Stratek Plastic Ltd. v. Ibar, 145 Conn. App. 414, 419,
74 A.3d 577, cert. denied, 310 Conn. 937, 79 A.3d 890
(2013). Because the jury found that the plaintiff had
failed to prove an essential element of each of the five
causes of action prior to addressing the defendant’s
special defenses, the court’s instruction on the defen-
dant’s statute of limitations defense, assuming it was
erroneous, could not have confused or misled the jury.
See, e.g., Kos v. Lawrence + Memorial Hospital, 334
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Martin v. Olson

Conn. 823, 848, 225 A.3d 261 (2020) (instructional error
was neither misleading nor harmful because error did
not affect verdict, which was premised on different
issue).10 Accordingly, we conclude that any error arising
from the court’s jury instructions was harmless and did
not affect the verdict.
II
We next address the plaintiff’s claims that the court
improperly admitted into evidence testimony regarding
the fair rental value of the property and the effect of
the plaintiff’s claims on the defendant and the plaintiff’s
mother.
‘‘The trial court’s ruling on evidentiary matters will
be overturned only upon a showing of a clear abuse of
the court’s discretion. . . . We will make every reason-
able presumption in favor of upholding the trial court’s
ruling, and only upset it for a manifest abuse of discre-
tion. . . . [Thus, our] review of such rulings is limited
to the questions of whether the trial court correctly
applied the law and reasonably could have reached the
conclusion that it did. . . . To the extent [that] a trial
court’s admission of evidence is based on an interpreta-
tion of the Code of Evidence, our standard of review is
plenary. For example, whether a challenged statement
properly may be classified as hearsay and whether a
hearsay exception properly is identified are legal ques-
tions demanding plenary review. . . . We review the
trial court’s decision to admit [or exclude] evidence, if
premised on a correct view of the law, however, for an
abuse of discretion. . . . Additionally, [b]efore a party
is entitled to a new trial because of an erroneous eviden-
tiary ruling, he or she has the burden of demonstrating
10
We decline the plaintiff’s invitation to speculate as to how and why the
jury arrived at its verdict. See Tisdale v. Riverside Cemetery Assn., 78 Conn.
App. 250, 263, 826 A.2d 232 (law is clear that reviewing court will not
speculate about jury’s intentions), cert. denied, 266 Conn. 909, 832 A.2d
74 (2003).
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that the error was harmful. . . . The harmless error
standard in a civil case is whether the improper ruling
would likely affect the result.’’ (Internal quotation
marks omitted.) LM Ins. Corp. v. Connecticut Disman-
teling, LLC, 172 Conn. App. 622, 627–28, 161 A.3d
562 (2017).
A
The plaintiff’s first evidentiary claim is that the defen-
dant’s testimony regarding the fair rental value of the
property ‘‘constituted inadmissible hearsay.’’ We dis-
agree.
The following additional procedural history is rele-
vant. At trial, the following colloquy occurred:
‘‘[The Defendant’s Counsel]: All right. So . . . in the
past what, if any, efforts did you undertake to ascertain
rental values for [the property]?
‘‘[The Defendant]: Well, in December of 2019, my
brother did an evaluation of the foundation of the house
and found out it had a failing foundation. So, we decided
to get some rent values because we thought, you know,
my father was not doing that well at that time. So, we
thought, perhaps, we would need to maybe rent the
house, since we couldn’t sell it because of the founda-
tion. So, I went online and also talked to a realtor friend
of mine just to see what the value of the house would be,
if we had rented it. And it turned out to be, somewhere
between $1000–$2000 a month.
‘‘[The Plaintiff’s Counsel]: Objection. We move to
strike (indiscernible) that’s hearsay. And it’s also
beyond the scope, or beyond the province that the lay
witness can testify about the value of somebody else’s
property.
‘‘The Court: Overruled.’’
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The Connecticut Code of Evidence defines ‘‘hearsay’’
as ‘‘a statement, other than one made by the declarant
while testifying at the proceeding, offered in evidence
to establish the truth of the matter asserted.’’ Conn.
Code Evid. § 8-1 (3). Subject to certain exceptions, hear-
say is inadmissible. See Conn. Code Evid. § 8-2. A ‘‘state-
ment’’ is defined as ‘‘an oral or written assertion or
. . . nonverbal conduct of a person, if it is intended by
the person as an assertion.’’ Conn. Code Evid. § 8-1 (1).
‘‘There are certain circumstances when, although the
witness did not repeat the statements of another person,
his or her testimony presented to the jury, by implica-
tion, the substance of another person’s statements. . . .
Under these circumstances, a witness has implied an
out-of-court statement of another by testifying to the
witness’ own verbal or nonverbal response to an identi-
fiable conversation.’’ (Citation omitted; internal quota-
tion marks omitted.) Loiselle v. Browning & Browning
Real Estate, LLC, 147 Conn. App. 246, 257–58, 83 A.3d
608 (2013).
In the present case, the plaintiff has not demonstrated
that the defendant’s testimony that he ‘‘went online and
also talked to a realtor friend’’ to ascertain the fair
rental value of the property constituted hearsay. The
defendant’s counsel asked the defendant ‘‘what, if any
efforts’’ the defendant undertook to determine the fair
rental value of the property, and the defendant
responded by describing his process for ascertaining
the property’s value and the conclusions he drew on
the basis thereof. The plaintiff has not cited, nor has
our review of the record revealed, any portion of the
transcript where the defendant testified, in either sub-
stance or by implication, to any specific out-of-court
statement made to him by his friend or that he discov-
ered online. The court, therefore, properly concluded
that the defendant’s testimony regarding the fair rental
value of the property was not hearsay.
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The plaintiff contends that our Supreme Court’s deci-
sion in Urich v. Fish, 261 Conn. 575, 804 A.2d 795 (2002),
‘‘applies squarely’’ to his case. We disagree. In Urich,
the defendant offered during trial ‘‘a list that he had
prepared of items that were missing from [a] boat upon
delivery. The list was offered by the defendant both as
an indicator of what items were missing and as evidence
of their value. The plaintiff objected on the ground that
the defendant had not provided a foundation for the
value of the items, and the court sustained the objection,
ruling that the list was admissible as a list of allegedly
missing items but not as evidence of their value. After
a foundation had been laid, however, as to the replace-
ment cost of some of the items, primarily in the form
of the amount actually paid by the defendant to replace
them, the trial court admitted the exhibit in its entirety
but with the limitation that the court would rely only
on the valuations for which a foundation had been laid.’’
Urich v. Fish, supra, 578. Despite this ruling, the court
relied, in its calculation of damages, on the price quotes
provided by the defendant irrespective of whether the
defendant had laid a proper foundation for the quote.
Id., 579–80. Our Supreme Court determined that the
price quotes offered by the defendant that lacked a
proper foundation met ‘‘the definition of hearsay because
they were statements made outside of court by the
suppliers and were offered by the defendant to establish
that the prices quoted represented the true replacement
cost of the items.’’ Id., 583–84.
In the present case, the defendant neither sought to
introduce into evidence an exhibit reflecting, nor an
out-of-court statement suggesting, the estimated rental
value of the property for the truth of the matter asserted.
Rather, the defendant testified as to the procedure he
undertook to ascertain the property’s rental value and
the conclusions he drew therefrom. Moreover, the
defendant, in his capacity as executor of the decedent’s
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estate, was reasonably qualified to testify about the
rental value of the property. See id., 581 (‘‘[o]ur long
settled rule is that a witness is permitted to testify about
the value of goods with a proper foundation and when
any reasonable qualifications of the witness to do so
have been established’’). Accordingly, the present case
is factually distinguishable from Urich.11
We, therefore, conclude that the court did not abuse
its discretion in admitting the defendant’s testimony on
the rental value of the property.
B
The plaintiff’s second evidentiary claim is that the
court improperly admitted ‘‘evidence of the emotional
effect’’ of the plaintiff’s claim against the decedent’s
estate on his relatives. Specifically, the plaintiff con-
tends that the testimony of the defendant and Margaret
Longo, the plaintiff’s mother, was irrelevant.12 We are
not persuaded.
The following procedural history is relevant to our
resolution of this claim. At trial, the following colloquy
11
The plaintiff also maintains that the court improperly admitted the
defendant’s testimony regarding the fair rental value of the property because
the testimony constituted inadmissible lay witness testimony. Typically, a
witness cannot offer an opinion as to the value of a property unless they
own the property to which their testimony relates. See Conn. Code Evid.
§ 7-1, commentary. Our courts, however, have allowed a witness to present
valuation testimony if the court finds the witness qualified to offer such
testimony. See, e.g., O’Connor v. Dory Corp., 174 Conn. 65, 70, 381 A.2d
559 (1977) (court admitted former property owner’s testimony regarding
property value because ‘‘[r]easonable qualifications were established for the
admission of the witness’ testimony as to value and the objection raised
concerning his former ownership of the property went to its weight rather
than its admissibility’’). In the present case, because the defendant in his
capacity of executor of the decedent’s estate had experience with the over-
sight and management of the property prior to its sale, he was reasonably
qualified to provide testimony on the rental value of the property.
12
Although the other children of the decedent testified as to their reaction
to the plaintiff’s claim against the estate, the plaintiff’s claim on appeal is
limited to challenging the testimony of the defendant and the plaintiff’s
mother.
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occurred between the defendant’s counsel and the
defendant:
‘‘[The Defendant’s Counsel]: Okay. Now, as you heard
from [the plaintiff’s] testimony, he claims he’s owed
some figure. I don’t know if we’ve heard an amount but
it’s a figure of maybe, in excess of a half a million
dollars, for caregiver services that he’s provided to your
father. You understand that to be the claim. Right?
‘‘[The Defendant]: Yes.
‘‘[The Defendant’s Counsel]: And when you heard
[the plaintiff] was making this claim, what thoughts
came into your mind?
‘‘[The Defendant]: Nobody—
‘‘[The Plaintiff’s Counsel]: Objection. Relevance.
‘‘The Court: Overruled.
‘‘[The Defendant]: Nobody was really expecting it.
So, I guess, you know, we were all kind of shocked
because, you know, he certainly, did some things
around the house. But he lived there, didn’t pay rent
so, we kind of thought that that’s, you know, was pay-
ment for him staying there.’’
Additionally, the following colloquy occurred between
the defendant’s counsel and the plaintiff’s mother:
‘‘[The Defendant’s Counsel]: When you heard that
your son was making this claim, what thoughts did
you have?
‘‘[The Plaintiff’s Counsel]: Objection. Relevance.
‘‘The Court: Overruled.
‘‘[The Witness]: I was appalled. I did not agree with
it at all.
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‘‘[The Defendant’s Counsel]: And what did you not
agree with?
‘‘[The Witness]: The fact that he was bringing suit
against me, and my siblings. And I always thought he
had a roof over his head, a very nice room, a bathroom,
a garage of his own and he helped my dad with things
that any good grandson would help with and my dad,
in turn, gave him free rent. And I didn’t . . . I didn’t
think the suit was warranted at all.’’
The following legal principles guide our resolution
of this claim. ‘‘Section 4-1 of the Connecticut Code of
Evidence defines relevant evidence as evidence having
any tendency to make the existence of any fact that is
material to the determination of the proceeding more
probable or less probable than it would be without the
evidence. To determine whether a fact is material or
consequential, it is necessary to examine the issues in
the case, as defined by the underlying substantive law,
the pleadings, applicable pretrial orders, and events
that develop during the trial. Thus, the relevance of an
offer of evidence must be assessed against the elements
of the cause of action, crime, or defenses at issue in
the trial. The connection to an element need not be
direct, so long as it exists.’’ (Internal quotation marks
omitted.) McCrea v. Cumberland Farms, Inc., 204
Conn. App. 796, 804, 255 A.3d 871, cert. denied, 338
Conn. 901, 258 A.3d 676 (2021). ‘‘Once a witness has
testified to certain facts . . . his credibility is a fact
that is of consequence to [or material to] the determina-
tion of the action, and evidence relating to his credibility
is therefore relevant . . . .’’ (Internal quotation marks
omitted.) Id., 805.
We are not persuaded that the court improperly
allowed the testimony of the defendant and the plain-
tiff’s mother regarding their reactions to learning about
the plaintiff’s claim against the decedent’s estate. The
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plaintiff brought causes of action sounding in breach
of express oral contract, breach of implied-in-fact con-
tract, unjust enrichment, quantum meruit, and ‘‘breach
of promise to nominate as beneficiary.’’ In support of
these claims, the plaintiff testified at trial that he would
have yearly discussions with the decedent during which
the decedent promised to compensate the plaintiff for
providing him with caregiving services. The court rea-
sonably could have determined that the testimony pro-
vided by the defendant and the plaintiff’s mother regard-
ing their reactions to the plaintiff’s claim against the
decedent’s estate was relevant because it was offered
to assist the jury in determining whether it found credi-
ble the plaintiff’s testimony that the decedent promised
to compensate the plaintiff for providing caregiver ser-
vices.
Accordingly, the court did not abuse its discretion
by allowing the defendant and the plaintiff’s mother to
testify to their reactions to the plaintiff’s claim against
the decedent’s estate.
III
The plaintiff’s final claim on appeal is that the trial
court improperly allowed the defendant to present the
testimony of two surrebuttal witnesses during his case-
in-chief. The plaintiff argues that the court erred
because there was no good cause for allowing the defen-
dant’s surrebuttal witnesses to testify out of order. We
disagree.
The following additional procedural history is rele-
vant to our resolution of this claim. During trial, the
defendant sought to call as witnesses during his case-
in-chief the defendant’s wife and the plaintiff’s stepfa-
ther. The plaintiff’s counsel objected to the defendant’s
wife testifying because (1) she was not listed as a wit-
ness on the joint trial management report, (2) the plain-
tiff did not have questions prepared for her, and (3)
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allowing her to testify during the defendant’s case-in-
chief would prejudice the plaintiff. The court overruled
counsel’s objection and stated: ‘‘I’m going to allow [the
defendant’s counsel] to take her out of order, because
she would be, obviously, an appropriate rebuttal wit-
ness. And I don’t see any reason why to—to delay her
testimony.’’13
The plaintiff’s counsel also objected to the plaintiff’s
stepfather testifying during the defendant’s case-in-
chief on the basis that it was premature surrebuttal
13
The following colloquy occurred prior to the testimony of the defen-
dant’s wife:
‘‘[The Plaintiff’s Counsel]: Your Honor, we would object, because I don’t
think [the defendant’s wife is] listed on the joint trial management report.
‘‘The Court: Ah. . . .
‘‘[The Plaintiff’s Counsel]: We have a specific list of witnesses. And I don’t
recall seeing her.
‘‘The Court: I—my copy of the report is in the—in chambers, but that
should be an objective yes or no. Is [the defendant’s wife] listed or not?
‘‘[The Defendant’s Counsel]: She was not. This is a rebuttal [witness] in
connection with the testimony of [the plaintiff] regarding what, if anything,
a few family members did, with respect to helping [the decedent]. The
[plaintiff’s] testimony was no assistance. The testimony was the—whatever
little things that [the defendant’s wife] did and she has direct knowledge
concerning what she did, as well. So, it—it wasn’t intended to be a witness.
‘‘The Court: Attorney Amato.
‘‘[The Plaintiff’s Counsel]: Well, I don’t think that now is an appropriate
time to be doing rebuttal for the defendant. Typically, the plaintiff does
rebuttal and the defendant would do surrebuttal and that would only come
after the plaintiff does rebuttal. So, in other words, under my interpretation—
‘‘The Court: All right. Wait.
‘‘[The Plaintiff’s Counsel]:—it’s all—
‘‘The Court: And it—I understand the procedural issue. Is there any sub-
stantive issue, which is to say why shouldn’t we just skip the formalities
and let [the defendant’s wife] testify, because she would be able to testify
in rebuttal because, if—she’s clearly rebutting what the plaintiff was saying
with respect to what may or may not have been done—
‘‘[The Plaintiff’s Counsel]: I—
‘‘The Court: —by the plaintiff and the children.
‘‘[The Plaintiff’s Counsel]: Apart from the—
‘‘The Court: So why shouldn’t we just skip to what we know—all know
she’s going to—her—her ability to testify?
‘‘[The Plaintiff’s Counsel]: Well, apart from the fact that we haven’t had
a chance to prepare anything for her, I think that’s kind of—
‘‘The Court: All right.
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evidence. The following colloquy occurred between the
court and the plaintiff’s counsel:
‘‘The Court: If I—how are you prejudiced by this? I
mean, I think you agree that he can present this witness
on surrebuttal because he’s contradicting testimony
that [the plaintiff] has provided. So other than the proce-
dural issue and timing, what is your prejudice? Testi-
mony is coming in either way, right?
‘‘[The Plaintiff’s Counsel]: I don’t think that’s correct,
Judge, no.
‘‘The Court: Why is that not correct?
‘‘[The Plaintiff’s Counsel]: Because if he brings him
in in the normal order—let’s say, the defendant finishes
his case-in-chief. Now the plaintiff goes on and does
his rebuttal, then if he wants to bring in a witness on
surrebuttal to rebut what the plaintiff brought in on
rebuttal, that’s fine. But we don’t know that this per-
son—this other witness, this undisclosed witness is
going to rebut the rebuttal evidence. We don’t know
that. What he’s trying to do is get an extra crack at
trying to defend or contradict or challenge what the
plaintiff said on direct examination. An undisclosed
surrebuttal witness is not the way to do it.’’
The court overruled the plaintiff’s objection and
stated: ‘‘Okay. Well, I mean, I’m going to allow the
witness. I think he’s—it’s not unfair surprise. There’s
clearly been a lot of testimony about this. It’s a family
dispute. The idea that family members on either side
of this dispute might be testifying about relevant facts.
It shouldn’t come as a surprise to anyone. I’m going to
allow him to present that testimony out of order.’’
‘‘[The Plaintiff’s Counsel]:—prejudicial.
‘‘The Court: I’m going to allow [the defendant’s counsel] to take her out
of order . . . .’’
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We now turn to our standard of review and relevant
legal principles. Practice Book § 15-5 (a) provides in
relevant part: ‘‘Unless the judicial authority for cause
permits otherwise, the parties shall proceed with the
trial and argument in the following order: (1) The plain-
tiff shall present a case-in-chief. (2) The defendant may
present a case-in-chief. (3) The plaintiff and the defen-
dant may present rebuttal evidence in successive rebut-
tals, as required. The judicial authority for cause may
permit a party to present evidence not of a rebuttal
nature, and if the plaintiff is permitted to present further
evidence in chief, the defendant may respond with fur-
ther evidence in chief. . . .’’ ‘‘[W]hen considering
whether there was cause for a court to [deviate from
the procedures] prescribed in . . . § 15-5 (a), we
review the decision of the court under the abuse of
discretion standard.’’ (Internal quotation marks omit-
ted.) Moutinho v. 500 North Avenue, LLC, 191 Conn.
App. 608, 625–26, 216 A.3d 667, cert. denied, 333 Conn.
928, 218 A.3d 68 (2019).
‘‘It is well settled that the admission of rebuttal evi-
dence lies within the sound discretion of the trial court.
. . . Our standard of review of the [plaintiff’s] claim is
that of whether the court abused its discretion in
allowing this . . . testimony. . . . Discretion means a
legal discretion, to be exercised in conformity with the
spirit of the law and in a manner to subserve and not
to impede or defeat the ends of substantial justice. . . .
It goes without saying that the term abuse of discretion
. . . means that the ruling appears to have been made
on untenable grounds. . . . In determining whether the
trial court has abused its discretion, we must make
every reasonable presumption in favor of the correct-
ness of its action.’’ (Citation omitted; internal quotation
marks omitted.) O & G Industries, Inc. v. American
Home Assurance Co., 204 Conn. App. 614, 642–43, 254
A.3d 955 (2021).
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As an initial matter, it is unclear to us why the testi-
mony at issue would be considered surrebuttal evi-
dence. It was offered to directly refute the plaintiff’s
testimony in his case-in-chief. It is typical for a defen-
dant to offer in his case-in-chief evidence directly refut-
ing evidence offered by the plaintiff, including the testi-
mony of witnesses who directly contradict the plaintiff’s
testimony. See id., 645 (‘‘[R]ebuttal evidence is that
which refutes the evidence [already] presented . . .
rather than that which merely bolsters one’s case. . . .
[A] general contradiction of the testimony given by [a
party] is considered permissible rebuttal testimony.’’
(Citation omitted; internal quotation marks omitted.)).
Nevertheless, the plaintiff contends, inter alia, that ‘‘the
trial court failed to expressly solicit and find good
cause’’ for allowing the defendant to present what the
plaintiff calls ‘‘surrebuttal evidence’’ during his case-
in-chief.
Regardless of the descriptor attached to the evidence,
we conclude that the court did not abuse its discretion
by allowing the defendant to present the testimony of
the defendant’s wife and the plaintiff’s stepfather during
his case-in-chief. The court stated that it was allowing
the evidence, first, because the testimony did not
unfairly surprise the plaintiff and, second, so as not to
delay the trial. Considering that the court’s decision is
to be afforded every reasonable presumption of correct-
ness, we conclude that the court’s findings reasonably
justified its decision to allow the defendant to present
the evidence during his case-in-chief. See, e.g., de
Repentigny v. de Repentigny, 121 Conn. App. 451, 456,
995 A.2d 117 (2010) (trial court’s decision denying plain-
tiff’s request to present oral closing argument on basis
that it would prolong trial justified deviating from Prac-
tice Book § 15-5 and did not constitute abuse of discre-
tion).14 Accordingly, the plaintiff has not demonstrated
14
The plaintiff’s claim, if accepted, also would lead to the bizarre circum-
stance that the defendant would be precluded from presenting evidence
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that the court abused its discretion in allowing the
defendant to present rebuttal evidence during his case-
in-chief.
The judgment is affirmed.
In this opinion the other judges concurred.

that contradicted the testimony the plaintiff already gave if the plaintiff
chose not to present a rebuttal case. That simply is not how the rules of
evidence and trial procedure work.