Successful opposition to the attempt to reduce a $2 million jury trial verdict against a title insurance company.

1. DOCKET NO. CV08-4041234 : SUPERIOR COURT
FIRST AMERICAN TITLE INS. CO. : JD-HARTFORD
V. : AT HARTFORD
273 WATER STREET, LLC, ET AL : MAY 10, 2013
OPPOSITION TO PLAINTIFF’S POST-TRIAL MOTION TO REDUCE OR SET
ASIDE VERDICT
Defendants/Counterclaim Plaintiffs 273 Water Street, LLC and Fenwick
Acquisition, LLC (collectively, “Sciame”) respectfully oppose plaintiff First American
Title Insurance Company’s (“First Am”) attempt either to reduce or to set aside the
jury’s verdict in this matter (the “Motion”). The verdict, rendered after nearly two
weeks of trial and after the testimony of seven witnesses, was fair, just and
appropriate. This Court should deny the Motion in its entirety.
Applicable Facts
Based on the evidence, the jury could have reasonably found the following
facts:
On September 27, 2004, Sciame purchased the seaside estate of the late
Katharine Hepburn located in the exclusive Borough of Fenwick at 10 Mohegan
Avenue, Old Saybrook, Connecticut for the amount of $6,000,000.00 (the “Property”).
Also on or about September 27, 2004, Sciame had obtained, through counsel, a title
search undertaken by First Am. At closing, First Am issued a policy of title insurance
in favor of Sciame as owners of the Property, as well as their lender (the “Title

2. 2
Policy”). The Title Policy contained survey coverage as well as a provision increasing
its coverage over the course of the first five years at the amount of 10% per year.
The Property consists of a main home of over 8,000 square feet comprised of
15 rooms and is sited on 3.4 acres directly on Long Island Sound. In the front, the
Property is protected from access and view by a large pond. To the east, the Property
is bordered by a private, deed restricted three-acre land preserve owned by the Lynde
Point Land Trust.1 The rear of the Property is protected by a 680-foot private beach,
which includes a deep water dock. In her time, Katharine Hepburn called the Property
“paradise.”
When acquired, the dwelling on the Property, although both historic and very
well loved, was in a sore state of disrepair. The Property was in much need of care
and extensive rehabilitation. Despite its physical ailments, the Property continued to
enjoy unparalleled privacy and exclusivity due to its physical boundaries. At least that
is what Sciame believed when they purchased this special home.
Recognizing the value and uniqueness of this special Property, Sciame
undertook a massive restoration and renovation of the Property, which included lifting
the Property so that it could be placed on a repaired and enhanced foundation. The
restoration also included a complete upgrade of all electrical and mechanical systems,
as well as the fit and finish of the long neglected interior. Undertaken in the winter of
2005, the repairs and restoration had a cost exceeding $3,500,000 in both hard and
1 A requirement of the sale of the Property from the Estate of Katharine Hepburn to
Sciame was the transfer of three acres on the eastern side of the Property to the
Lynde Point Land Trust so that land could forever remain open and undeveloped.
Sciame went to great lengths through extensive negotiations to ensure that the use of
that property by the public would not negatively impact the privacy enjoyed by the
Property.

3. 3
soft costs. As they completed the rehabilitation, Sciame believed they had invested in
the re-birth of one of the most famous, but also one of the most private, homes in the
country.
On February 18, 2005, as the repair and restoration of the Property was
ongoing, Sciame received a letter from the Borough of Fenwick (the “Borough”),
claiming that the Borough may own title to a portion of the land Sciame believed to be
Sciame’s, specifically, a strip of land, located along the easterly boundary of their
property, over which the road known as ‘Mohegan Avenue’ previously passed (the
“Title Defect”). Formal notice of the Title Defect was provided through the Borough’s
counsel on August 12, 2007.
On August 15, 200, after receiving formal notice of the Title Defect on or about
August 12, 2007, Sciame provided written notice to First Am of the Borough’s
allegations and made claim under the Title Policy (the “Title Claim”). On August 16,
2007, First Am provided Sciame with a written acknowledgement of the Title Claim.
Over one year after receipt and acknowledgment of the Title Claim, on October 8,
2008, First Am provided written notice to Sciame accepting liability under the Title
Policy, and issued a check in the amount of $17,000.00 (the “Rejected Check”)
representing First Am’s assessment of the monetary harm resulting from the Title
Claim in “full and final settlement of the claim.”
The Rejected Check was issued by First Am pursuant to a determination of
monetary damages made by Marc P. Nadeau in an appraisal dated May 12, 2008 (the
“Nadeau Appraisal”). Nadeau, who was initially disclosed as an expert witness for the
purposes of trial, was withdrawn as an expert witness on February 6, 2013 (just a

4. 4
month before trial), and Albert Franke was designated as First Am’s expert witness in
his place.2
Sciame sent back the Rejected Check, since it, in their opinion, in no way
represented the true damages suffered by the Property. First Am brought the instant
action on or about November 26, 2008 seeking, inter alia, a declaration as to the rights
and obligations of the parties under the Title Policy as they pertain to the Title Claim.
That complaint was later amended, with First Am seeking an award to Sciame of
either $40,000 or zero in connection with the Title Defect.
Sciame asserted both special defenses and counterclaims against First Am
related to their handling of the claim. As the result of a motion to strike filed by First
Am, Sciame retained special defenses of estoppel, unclean hands and laches, as well
as the counterclaims of breach of contract, breach of the covenant of good faith and
fair dealing, and declaratory judgment.
After the initiation of this action, First Am assisted Sciame in an attempt to
actually manage the Title Defect itself. In late 2010, the Borough deeded Mohegan
Avenue to Sciame, on the condition that a six-foot easement remain for use by the
residents of the Borough. The easement directly abuts the Property’s formerly private
beach and unequivocally has an impact on the private use of the Property as a whole.
Since this new easement prevents Sciame from restricting access to the Property, the
easement has had the unfortunate effect of inviting trespassers to stray from the
easement onto Sciame’s property. See Exs. 93, 96 and 102.
2 In its Joint Trial Memorandum, First Am lists Albert Franke as its expert witness and
lists Marc Nadeau as merely a fact witness.

5. 5
At trial, the parties stipulated that the valuation date for the purpose of
determining damages was February 18, 2005. While First Am contended that the Title
Defect affects only the value of the “strip” of land formerly known as Mohegan Avenue,
subject to the encumbrance of the six foot easement, Sciame believed that the loss of
privacy and control resulting from the Title Defect negatively impacted the value of the
entire Property, not just the dirt that comprised the roadbed of the former Mohegan
Avenue. Sciame’s expert Robert Nocera supported this belief in both his trial
testimony and his expert report.
Using February 2005 as the valuation date, First Am’s appraisal undertaken by
their disclosed expert witness Albert Franke indicated a property value of $6,000,000
and suggested a loss of value to the Property of $40,000 as of February 18, 2005.
Franke also posited that future, but unimplemented, restrictions would reduce the loss
of value to the Property to zero. First Am claimed that the existence of Mohegan
Avenue through the Property had no effect on the Property as a whole -- only the dirt
comprising the old Mohegan Avenue. Thus Franke limited his opinion to the loss in
vaue to the land under Mohegan Avenue rather than the loss to the property as a
whole.
Robert Nocera, Sciame’s expert appraisal witness, testified that the value of the
entire Property was $9,205,000 on February 18, 2005, and that the entire Property,
not just the land that makes up the roadbed of the former Mohegan Avenue, was
diminished because of the Title Defect. Nocera testified that the estate’s value has
been diminished by at least $4,101,000.00, which is over 40% of the Property’s

6. 6
$9,205,000.00 value in 2005. Specifically, Mr. Nocera found in his report, and
amplified at trial, that:
While the title error results in the loss of approximately one-quarter acre of the
entire site, a substantial loss in and of itself, the primary impact on the value of
the property results from the loss of privacy and exclusivity that enhanced the
unique characteristics of the property.
The Property is the former lifelong home of one of the most beloved and well-
known actresses in the world. Specifically, Nocera noted that “the subject property
benefits from the existence of intangible property, most notably being the celebrity
status relating to the prior owner.”3 In addition, its location on a protected beach in a
private community with extraordinary natural and water views is unequaled. Using the
“before and after” approach to determine the impact of the Title Defect on the privacy
and control of the entire Property resulted in only one reasonable conclusion: the
entire Property is diminished because of the Title Defect.
Sciame sought and were awarded what is fair and just. They purchased title
insurance on the understanding that First Am would live up to the promises and
assurances set out in the contract that is the Title Policy. This special Property that
has been so conscientiously rehabilitated and restored is forever impacted by the Title
Defect. Sciame are entitled to be fairly compensated and to receive the benefit of
their bargain. The jury, considering all the relevant evidence, made a determination
that the Property has suffered damage in the amount of $2,200,000.00.
3 Nocera specifically did not opine as to the value of the intangible property, as such
property is outside the scope of work that can be properly undertaken by a licensed
real estate appraiser.

7. 7
Argument
Since the trial court did not abuse its discretion regarding the evidentiary errors
alleged by First Am and since the verdict is supported by the evidence and falls within
the necessarily uncertain limits of fair and reasonable compensation, the Plaintiff’s
Motion seeking either to reduce the amount of the jury’s verdict or set aside the jury’s
verdict in its entirety and order a new trial should be denied in its entirety.
I. Motion to Set Aside Verdict (§ 52-228b)
The Motion submitted by First Am provides no compelling reasons or any basis
in law or fact for either reducing or setting aside the jury’s appropriate and well-
founded verdict. Over the course of a two week trial, the jury heard conflicting
testimony regarding both the value of the Property on February 18, 2005 and whether
the existence of the abandoned road formerly known as Mohegan Avenue had any
impact on the Property, either limited only to the land under the abandoned Mohegan
Avenue or the entirety of the Property itself.
The parties had two completely opposite theories of the case: First Am believed
that the Title Defect did not affect the value of the Property as a whole, and also that
the later transfer of Mohegan Avenue with the imposition of an easement allowing for
access to the once private property reduced any possible damage to even that piece
itself to zero. Sciame on the other hand presented evidence that the entire Property
was negatively impacted by the Title Defect and that the transfer of Mohegan Avenue
subject to the allowance of Borough access continued to harm and burden the
Property as a whole. The jury was entitled to assess the evidence presented by both
sides and determine which theory was correct. Their theory is not correct.

8. 8
All witnesses were subject to extensive cross-examination and the court made
appropriate, conscientious and fair evidentiary rulings based on the law and evidence.
The court properly excluded irrelevant, cumulative and collateral testimony and was
correct in limiting Nadeau to testifying to only facts. The court also made the correct
determination that Farricker was qualified to testify as to aspects of the Property’s
value, and that his proffered opinions were not scientific in nature. Not one of the
issues raised by First Am sets forth a valid justification for infringing upon Sciame’s
constitutional rights or the fact-finding role of the jury.
Standard
Courts exercise due caution when asked to set aside an award given by a jury.
[The Court] must consider the evidence, including reasonable inferences which
may be drawn therefrom, in the light most favorable to the parties who were
successful at trial . . . giving particular weight to the concurrence of the
judgments of the judge and the jury, who saw the witnesses and heard the
testimony . . . . The verdict will be set aside and judgment directed only if we
find that the jury could not reasonably and legally have reached their
conclusion. . . .
(emphasis added). Suarez v. Sordo, 43 Conn. App. 756, 759, 685 A.2d 1144 (1996),
cert. denied, 240 Conn. 906, 688 A.2d 334 (1997).
When making its determination on a motion to set aside a verdict, the court
“must consider the evidence, including all reasonable inferences which may be drawn
therefrom, in the light most favorable to the parties who were successful at trial.”
Purzycki v. Town of Fairfield, 244 Conn. 101, 106, 708 A.2d 937 (1998), citing Labbe
v. Hartford Pension Commission, 239 Conn. 168, 191-93, 682 A.2d 490 (1996).
Thus, a trial court may set aside a verdict on a finding that the verdict is
manifestly unjust because the jury, on the basis of the evidence presented,
mistakenly applied a legal principle or because there is no evidence to which
the legal principles of the case can be applied.

9. 9
Suarez v. Sordo, supra.
The only practical test to apply to a verdict is whether the award of damages
falls somewhere within the necessarily uncertain limits of fair and reasonable
compensation in the particular case, or whether the verdict so shocks the sense
of justice as to compel the conclusion that the jury was influenced by partiality,
mistake or corruption.
Sigular v. Gilson, 2011 WL 3427206, CV085025414S (July 13, 2011; Woods, J), citing
Schettino v. Labarba, 82 Conn.App. 445, 448-449, 844 A.2d 923 (2004).
In reviewing a verdict where, as in the instant matter, there is
room for reasonable difference of opinion among fair-minded men, the
conclusion of a jury, if [it is] one at which honest men acting fairly and
intelligently might arrive reasonably, must stand, even though the opinion of
the trial court … could be that a different result should have been reached.
Sigular v. Gilson, supra, citing Schettino v. Labarba, supra. “The court should not
assume that the jury made a mistake, but should suppose that the jury did exactly
what it intended to do.” Sigular v. Gilson, supra, citing Schettino v. Labarba, supra.
The role of the court is “not to sit a seventh juror, but rather to decide whether,
viewing the evidence in the light most favorable to the prevailing party, the jury
could have reasonably have reached the verdict that it did.” (emphasis added) Froom
Development Corp. v. Developers Realty, Inc., 114 Conn.App. 618,632, 972 A.2d 239,
cert. denied, 293 Conn. 922, 980 A.2d 909 (2009). The only relevant questions are
whether the jury could have fairly reached its verdict on the evidence presented.
Froom Development Corp. v. Developers Realty, Inc., supra. “The jury, as the trier of
fact, was free to accept or reject the testimony offered by either party.” Sigular v.
Gilson, supra, citing Froom Development Corp. v. Developers Realty, Inc., supra, 114
Conn.App 635. “It is the jury’s task to determine the credibility of the evidence, and as
such, the jury was not compelled to accept the plaintiff’s claims…” Sigular v. Gilson,
supra at 591, citing Smith v. Lefebre, 92 Conn.App. 417, 426-27, 885 A.2d 1232

10. 10
(2005). “The jury was not required to believe the testimony of the plaintiff” or its
experts. Sigular v. Gilson, supra, p. 593, citing Froom Development Corp. v.
Developers Realty, Inc., supra, 114 Conn.App 635.
“[I]n setting aside a verdict the court deprives a litigant in whose favor the
verdict has been rendered of his constitutional right to have disputed issues of fact
determined by a jury.” Schettino v. Labarba, 82 Conn.App. 445, 449, 844 A.2d 923
(2004), citing Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000). When
“there is a reasonable basis in the evidence for the jury’s verdict, unless there is
mistake in law or some other valid basis for upsetting the result other than a difference
of opinion regarding the conclusions to be drawn from the evidence, the trial court
should let the jury work its will.” Schettino v. Labarba, supra. “The trial court should
not set a verdict aside where there was some evidence upon which the jury could
have based its verdict…” Purzycki v. Town of Fairfield, supra, citing Labbe v.
Hartford Pension Commission, supra.
Importantly, “the existence of conflicting evidence [in this matter] curtails the
authority of the court to overturn the verdict because the jury is entrusted with
deciding which evidence is more credible and what effect it is to be given.” (emphasis
added) Schettino v. Labarba, 82 Conn.App. 445, 449, 844 A.2d 923 (2004), citing
Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 58, 578 A.2d
1054 (1990). “The constitutional right of trial by jury includes the right to have issues
of fact as to which there is room for a reasonable difference of opinion among fair-
minded persons passed upon by the jury and not by a judge.” Purzycki v. Town of
Fairfield, supra, 44 Conn. 101, 112, citing State v. Wooten, 227 Conn. 677, 696, 631

11. 11
A.2d 271 (1993). Finally, “in reviewing the jury verdict, it is well to remember that
jurors are not expected to lay aside matters of common knowledge or their own
observation and experience of the affairs of life, but, on the contrary, to apply them to
the evidence or facts at hand, to the end that their action may be intelligent and their
conclusions correct.” Purzycki v. Town of Fairfield, supra, 44 Conn. 101, 113, citing
State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994). In fact, First Am reminded
the jurors in both its opening and closing statement that the jury was to use its
common sense.
While the trial court does have the power to set aside a verdict where it finds
that it has made palpable errors that affected the jury’s verdict, the court must use
discretion and caution to determine that its “rulings were consequential enough to
have a substantial effect on the verdict.” Melo v. Spencer, 62 Conn.App. 727, 730,
774 A.2d 217 (2001), citing Ardoline v. Keegan, 140 Conn. 552, 555-56, 102 A.2d 352
(1954). “[T]he exercise of this discretion should be a wise discretion, to be sparingly
exercised…” (emphasis added). Munson v. Atwood, 108 Conn. 285, 288, 142 A.2d
737 (1928). In sum, “[t]he trial court may set aside a jury’s verdict only if it finds that
the jury could not have reasonably and legally reached their conclusion.” Chieffalo v.
Norden Systems, Inc.,, 49 Conn.App. 474, 478, 714 A.2d 1261 (1998), citing Mezes v.
Mead, 48 Conn.App. 323, 328, 709 A.2d 597 (1998). The jury award must not be set
aside here.
1. Frank Farricker’s Expert Testimony Was Wholly Proper and not
Prejudicial
Mr. Farricker was offered as an expert witness regarding property valuation.
His testimony was proper both under the Practice Book and applicable caselaw.

12. 12
As a preliminary matter, Farricker’s testimony, if it was improper, was harmless.
The jury did not credit the plaintiff’s expert’s value of $40,000 or zero, undoubtedly
because he did not consider the loss of value to the whole property, and therefore
relied on Sciame’s expert’s value of $4,101,000. The lack of harm is evidenced by the
fact that the jury discounted this value almost 50% as opposed to increasing it in
accord with Farricker’s celebrity enhancement theory. Also, Nocera himself noted
that the property benefits from the celebrity status of the former owner, and no
objection was taken to this testimony.
The admission of expert testimony is governed by Section 7-2 of the Code, as
applied and interpreted by applicable case law. The trial court has wide discretion in
determining “the qualification of expert witnesses and the admissibility of their
opinions.” Hutchinson v. Andover, 49 Conn.App. 781, 788, 715 A.2d 831 (1998).
Any expert testimony may be allowed where the trial court finds the witness’
education, training and experience qualifies them to testify as an expert. Hutchinson
v. Andover, supra, 49 Conn.App. at 788. The test is whether the expert has
knowledge that is significantly greater than that of other persons lacking the proposed
expert’s education or experience. Sullivan v. Metro-North Commuter R.R.Co., 292
Conn. 150, 160-61 (2009). “Establishing expertise merely requires special skill or
knowledge that is not common to the average person.” Anderson v. Whitten, 100
Conn.App. 730, 918 A.2d 1056 (2007). While there is an additional hurdle for the
admission of scientific evidence, that barrier is inapplicable here since Mr. Farricker’s
proposed testimony is not “scientific evidence”.

13. 13
With regard to the testimony of real estate brokers regarding the value of
property or the diminution in value of certain property, our courts specially found that
real estate brokers are qualified to testify in such regard. Taylor v. King, 121
Conn.App. 105, 994 A.2d 330 (2010). In fact, any expert testimony as to property
value is admissible “if the witness has a special skill or knowledge that would be
helpful … in considering the issues regarding a value of a property.” City of New
Haven v. Wrotten, 093002 CTSUP, CV01-10458972, Superior Court, New Haven
(September 30, 2002; Zoarski, J.). In Hutchinson v. Andover, above, the court
allowed a real estate developer and broker to testify as to the value of real estate.
Our courts have found that testimony as to a property’s value is not the sole
province of licensed real estate appraisers. In addition to the allowance of real estate
broker testimony as noted above, a property owner is also competent to testify about a
property’s value. Misisco v. LaMaita, 150 Conn. 680, 684 (1963). Our courts have
even found that price listings and market reports, including those in trade journals or
newspapers, are fully admissible to prove a property’s value. Henry v. Kopf, 104
Conn. 73, 80-81 (1925).
Farricker testified that it was his opinion, based on his many years as a real
estate broker, the Property enjoyed “enhanced value” because of its connection to
Katharine Hepburn. Mr. Farricker did not speculate as to what such an enhanced
value to be, but left that determination to the common sense of the jurors based on
their real world experience.
First Am’s concerns about Farricker’s report and deposition transcript are
misplaced. In the first instance, Farricker’s draft report was not submitted into

14. 14
evidence at trial. Further, on cross examination, First Am had ample opportunity to
probe Farricker’s qualifications and credibility. First Am sufficiently addressed
Farricker’s methodology and certainly had the opportunity to introduce Farricker’s
deposition testimony if it was at all relevant. First Am did not do so. If First Am
believes that it did not sufficiently challenge Mr. Farricker’s credibility or foundation, it
is not the fault of the trial court.
Furthermore, Farricker gave an opinion based on his extensive personal
experience. He never claimed to have a “scientific method” for the basis of his
opinion, because his opinion was not based on science. Farricker’s testimony is not
the “scientific evidence” contemplated by Porter and even if it were, is not so technical
as to require the application of Porter to its admission. Maher v. Quest Diagnostics,
Inc., 269 Conn. 154, 169 (2004), indicates that this court must consider whether Mr.
Farricker’s proposed testimony is “the type of evidence contemplated by Porter.” A
review of Farricker’s testimony clearly demonstrates that it is squarely not within the
consideration of Porter.
“Science is [k]nowledge derived from study, observation, and experimentation
and arranged for use in system and form. Study in a branch of knowledge conducted
abstractly but also with observation and experimentation." Ballentine's Law Dictionary
(3d Ed.1969). “Some evidence with its roots in scientific principles, which is within the
comprehension of the average juror and which allows the jury to make its own
conclusions based on its independent powers of observation and physical
comparison, and without heavy reliance upon the testimony of an expert witness,
need not be considered 'scientific' in nature for the purposes of evidentiary

15. 15
admissibility." Maher v. Quest Diagnostics, Inc., supra, 269 Conn. at 170-71 n. 22.
Where the proposed testimony is expert in nature because it is based on experience
and knowledge, but not scientific, a Porter hearing is unnecessary and improper to
determine its admissibility. See Message Center Management, Inc. v. Shell Oil
Products Co., 85 Conn.App. 401, 857 A.2d 936, (2004). As a rule, “evidence, neither
scientifically obscure nor instilled with an aura of mystic infallibility . . . which merely
places a jury . . . in a position to weigh the probative value of the testimony without
abandoning common sense and sacrificing independent judgment to the expert's
assertions based on his special skill or knowledge . . . is not the type of scientific
evidence within the contemplation of Porter . . ." (Citations omitted; internal
quotation marks omitted.) Maher v. Quest Diagnostics, Inc., supra, 269 Conn. 170
n.22 “While the law does not provide a bright line to distinguish between those cases
which do require a Porter analysis and those which do not, there are many examples
in our recent cases from which we can gain insight. Justice Borden in the case of
Prentice v. Dalco Electric, Inc., (280 Conn. 336, 907 A.2d 1204 (2006)) outlined a
measure to be used when applying the exception to the Porter requirement: . . .
neither scientifically obscure nor instilled with an aura of mystic infallibility . . . which
merely places a jury . . . in a position to weigh the probative value of the testimony
without abandoning common sense and sacrificing independent judgment . . ."
Henderson v. DeMatteo Management, Inc., CV-05-5000094, 031407 CTSUP (March
14, 2007; Leuba, J). In sum, “evidence ... which merely places a jury ... in a position
to weigh the probative value of the testimony without abandoning common sense and
sacrificing independent judgment to the expert's assertions based on his special skill

16. 16
or knowledge ... is not the type of scientific evidence within the contemplation of
Porter, and similarly was not within the ambit of our standard for assessing
scientific evidence prior to Porter.” State v. West, 877 A.2d 787, 274 Conn. 605
(2005).
Farricker’s testimony does not involve the “aura of mystic infallibility” and it is
not “scientifically obscure.” As can be seen from Farricker’s responses to the
questions of all counsel, his testimony is not scientific but is based on his education
and experience and impressions. As our courts have recognized, property valuation,
including appraisal, “is an art, not a science.” J.P. Morgan Chase Bank v. Mastej,
CV 06-50006016 S, Superior Court, New Haven (December 11, 2007; Crawford, J.).
See also State v. Childers, 979 So.2d 412, 33 Fla. L. Weekly D1100 (Fla.App. 1 Dist.
2008) (“. . . real property appraisal is an art, not a science.”); Los Angeles County
Metropolitan Transportation Authority v. Continental Development Corp., 16 Cal.4th
694, 66 Cal.Rptr.2d 630, 941 P.2d 809 (1997) (“In practice, real estate appraisal is an
art, not a science.”). Mr. Farricker’s testimony is no more subject to Porter than is Mr.
Franke’s testimony.
Nocera, as a licensed real estate appraiser, undertook an appraisal and
rendered an opinion of fair market value based upon his appraisal findings. Farricker
did not conduct an appraisal and did not purport to have undertaken an appraisal. He
is not a real estate appraiser. Notably, and importantly, after discussion with the court
and argument by counsel, First Am withdrew its objections to Farricker’s qualifications.
Farricker Testimony, p. 18, lines 11-12 (“Not a big point, but I think the objection is
actually withdrawn.”; p. 23, “I’d withdrawn my objection to the qualifications of Mr.

17. 17
Farricker”). First Am was successful in preventing Farricker from testifying as to a
formulaic determination of celebrity value and in fact, testifying as to any amount at all
regarding the enhanced celebrity value of the Property. Farricker Testimony, p. 28-29.
In truth, Farricker made one comment regarding the celebrity value of the Property:
BY ATTY. SALVATORE:
Q So it is your opinion though, Mr. Farricker, that the celebrity status of the
Katherine Hepburn house would give it a value in excess of the appraised value?
A Most definitely. (Farricker Testimony, p. 29).4
This statement by Farricker was not prejudicial. Importantly, First Am did not object
to this question or move to strike the response.
As noted, First Am undertook extensive cross-examination of Farricker and
probed both his qualifications and his opinions. Based on this examination, and the
instructions provided to the jury prior to deliberation5, the jury had sufficient
information to determine whether or not Farricker’s testimony, which was properly
before them, was helpful in making a decision. The Court did not err in allowing
Farricker’s testimony and this testimony was not prejudicial, confusing or otherwise
improper. First Am’s complaints are without basis.
4 The jury could not have been confused as to whether Farricker’s testimony applied to
so-called “strip” or the entire property. The “strip” is part of the Property. If the
Property is affected by the celebrity status, the “strip” as part of Property, is affected,
too. The suggestion that the jury was “confused” defies logic.
5The instructions provided to the jury were highly negotiated between counsel and the
court. Notably, at trial, Frist Am made no objection to the Trial Court’s instructions to
the jury in general, and specifically made no objection to the instruction regarding
expert testimony. Frist Am cannot now claim that this testimony “confused the jury.”

18. 18
2. Mr. Sciame’s Testimony Was Neither Hearsay Nor Prejudicial
First Am has complained that one sentence pulled out of two days of Mr.
Sciame’s testimony, elicited in response to a question posed by First Am itself was
hearsay and was so prejudicial that its admission undermined the entire trial. This
complaint is without any merit.
The statement First Am complains of is as follows:
Q And looking at question 62, the question is does anybody other
than yourself have any right to use any part of your property, or does anybody else
claim to own any part of your property. If yes, explain? And then the answer written is
driveway access to easement. Do you see that?
A I do.
Q And is that the easement that we’ve been discussing in this case?
A That is the easement that we’ve been discussing in this case, and
that is at the crux of the issue. You’re required to disclose any easements. And
actually, this, in talking to real estate brokers, could be why we have not gotten
a single offer on the property. In that small universe of people that are
interested, this jumps out –Transcript of Testimony of Frank Sciame (“Sciame
Testimony”) , March 20, 2013, pp. 39-40.
It is impossible that Mr. Sciame’s comment about the very easement that First Am
claims credit for was in any way prejudicial. His statement was not offered to prove
any fact or the truth of the matter asserted and was therefore not hearsay. The
statement was Mr. Sciame’s opinion as to why no offers had been received on the
house.
Even if it was hearsay, First Am bears the burden of showing that the court
improperly admitted that statement and must specifically demonstrate the harmful
effect of the court’s ruling. First Am’s bare assertion that Mr. Sciame’s comment
“misguided” the jury does not meet this burden. First Am has not shown how this

19. 19
statement misguided the jury, how it conflicted with other evidence or that this
statement was in any way prejudicial.
First Am’s also argues, in a footnote, that the “clear implication” of a personal
story told by Mr. Sciame’s about his dad equates to some devious practice of First
Am. Because the jury did not find bad faith on the part of First Am, it is hard to see
how Mr. Sciame’s story had any impact. Again, First Am has failed to demonstrate
that this statement was in any way prejudicial or had any improper effect on the jury’s
decision making.
3. The Trial Court Properly Excluded Irrelevant Evidence Regarding the
So-Called East Lot
The court properly excluded evidence that had no bearing whatsoever on the
value of the Property on February 18, 2005 or the effect, if any, of the later imposed
easement. The proffered evidence did not tend to establish or support any fact in
evidence, was wholly irrelevant to the Property’s value and would have been highly
prejudicial.
First Am sought to introduce a letter from June 6, 2011 (the “Letter”) regarding
Sciame’s intent to list the Property. The Letter, from 2011, did not go to the value of
the Property on the stipulated valuation date of February 18, 2005, did not go to the
current value of the Property in 2013, did not speak to the stipulated current list price
of $30,000,000 and therefore was not relevant to any of the issues before the jury for
consideration.
The Letter was properly excluded from evidence because it was irrelevant and
because it would have served to confuse the jury, rather than aid its decision making.

20. 20
The court correctly found that the proffered evidence was immaterial and collateral in
nature.6
A 2011 letter authored by Mr. Sciame has no relation to either the value of the
Property in 2005 or 2013, the only time frames that could possibly be used to make a
determination of the Property’s value and the loss occasioned by the Title Defect.
The Court properly excluded the proposed testimony because it was irrelevant and
highly prejudicial and would have served to confuse and mislead the jury.
4. Nadeau Was A Fact Witness and his Testimony was Properly Limited
to Facts
Although First Am complains that the court improperly limited Marc Nadeau’s
testimony to issues of fact, First Am cannot establish that the court abused its
discretion with respect to Nadeau’s testimony. See Mezes v. Mead, 48 Conn. App.
323, 330 (1998). Nadeau is an appraiser who undertook an appraisal of the Property
in connection with First Am’s issuance of the Rejected Check. While Mr. Nadeau was
at one point disclosed as an expert witness for the purposes of trial, he was later
withdrawn. See Transcript of Marc Nadeau, (“Nadeau Transcript”) March 7, 2013, pg.
17., line 26 (“ATTY. KING: No. We withdraw him as an expert;” Nadeau Transcript
pg. 26, lines 10-11 (“ATTY. KING: But we are not proffering him as an expert,
6 First Am sought to introduce exhibit 70 at trial to impeach Mr. Sciame. “A witness
may not be impeached by contradicting his or her testimony as to collateral matters,
that is, matters that are not directly relevant and material to the merits of the case....
Thus, the answer of the witness on cross-examination [as] to a collateral matter is
conclusive and cannot be later contradicted.” (Citations omitted; internal quotation
marks omitted.) State v. Colton, 227 Conn. 231, 247-48, 630 A.2d 577 (1993); see
also Conn.Code Evid. § 6-6(b). Impeachment is not properly used “as a mere
subterfuge to get before the jury evidence not otherwise admissible.” United States v.
Webster, 734 F.2d 1191, 1192 (7th Cir.1984).

21. 21
Your Honor.”) As a fact witness, it was not proper for Mr. Nadeau to provide an
opinion and the Court properly limited his testimony to only facts.
Lay witnesses generally are not permitted to provide opinion testimony except
under the very limited circumstances where their opinion is “based on their personal
observations.” In re Sanzo’s Appeal from Probate, 133 Conn. App. 42, 47 (2012); see
also State v. Watson, 50 Conn. App. 591, 600, 718 A.2d 494 (1998), cert. denied, 247
Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058 (1999), cert. dismissed,
255 Conn. 953 (2001) (lay witnesses may testify as to observed facts). The Plaintiff
references State v. DeJesus, 128 Conn. App. 129, 145, cert. denied, 301 Conn. 923
(2011), in support of this exception, namely, that a lay witness’s opinion testimony is
admissible where “the opinion is rationally based on the perception of the witness and
is helpful to a clear understanding of the testimony of the witness or the determination
of a fact in issue.” While this is true, the Plaintiff overlooks two significant points in
attempting to apply this rule to Mr. Nadeau’s properly excluded testimony.
First, the Plaintiff omits reference to the footnote immediately following the
quoted passage, which reads: “Lay opinion is admissible when, inter alia, the ‘opinion’
is the shorthand expression of a number of facts and conditions, observed or sensed
by the witness, which are so numerous, complex or evanescent that they cannot be
fully recollected or detailed individually.” Id. at 145 n.11 (emphasis added). The
Appellate Court thus has expressly clarified that a lay opinion must be based on
factual observations or senses by the witness. The methodologies underlying Mr.
Nadeau’s report, or the “steps that he actually took in forming the appraisal that First
American used as part of its initial response to Defendants’ request for coverage

22. 22
under the Policy”; (M/Set Aside p. 14); are not Mr. Nadeau’s personal factual
observations or senses. They are the calculated decisions that Mr. Nadeau made
along the way in coming to his ultimate conclusion of the price at which the property
should be appraised. Nadeau was not admitted as an expert, and thus he may not
testify to that which an expert may testify to – this includes an explanation of the
methodologies underlying a conclusion which forms the basis of one of the facts in
issue.
Second, in claiming that Mr. Nadeau’s testimony was admissible under
DeJesus, the Plaintiff conveniently skips over the requirement that the opinion be
“rationally based on the perception of the witness” and goes straight to the
requirement that it be “helpful.” Mr. Nadeau’s testimony cannot be helpful to the jury
in explaining the methodologies forming the basis of his appraisal, if he is not qualified
to provide that testimony because, as explained above, he is not an expert and his
testimony is not “rationally based on the perception of the witness.” The Plaintiff
intentionally withdrew Mr. Nadeau as a potential expert witness and did not seek to
admit his testimony as such, even when it nevertheless sought to admit the Appraisal
Report he drafted. If the Plaintiff had properly presented Mr. Nadeau as an expert
witness, and if his testimony was admitted as such, it arguably could be used to
explain the methodologies forming the basis of his appraisal. While the benefit of
hindsight has revealed that the strategic decision to not seek his admission as an
expert may not have been the best idea, the Plaintiff may not be permitted to receive a
second bite at the apple in admitting Mr. Nadeau’s testimony because it suddenly
realized, post-verdict, that it had failed to account for the basis forming the appraisal it

23. 23
sought to rely on throughout the case. Mr. Nadeau’s opinion is not based on his
personal observations, sensations or perceptions of fact, and instead is based upon
his calculated decisions and methodologies, i.e., a formulated process, and therefore
is inadmissible lay opinion. The trial court properly precluded its admission.
First Am is trying to blame the court for its tactical error in withdrawing Nadeau
as an expert. This effort should not be countenanced by this Court.
II. Motion for Reduction of Verdict as Excessive (§ 52-216a)
Courts are loathe to tamper with jury awards, since “the amount of an award is
a matter peculiarly within the province of the trier of facts.” Pisel v. Stamford Hospital,
180 Conn. 314, 342-43, 430 A.2d 1 (1980). As a general rule, the “court should not
interfere with the jury's determination except when the verdict is plainly excessive or
exorbitant.... The ultimate test which must be applied to the verdict by the trial court is
whether the jury's award falls somewhere within the necessarily uncertain limits of just
damages or whether the size of the verdict so shocks the sense of justice as to
compel the conclusion that the jury were influenced by partiality, prejudice, mistake or
corruption. Pisel v. Stamford Hospital, supra. The court's power to order a remittitur
should be exercised “only when it is manifest that the jury [has] included items of
damage which are contrary to law, not supported by proof, or contrary to the court's
explicit and unchallenged instructions." Rosenblatt v. Berman, 143 Conn. 31, 37, 119
A.2d 118 (1955).
The jury’s award is appropriate and based on the evidence. First Am
complains that the jury award “shocks the conscience.” The well-reasoned jury award

24. 24
is well within the range of values provided, from $6,000,00 to $30,000,0007 for the
Property’s value, and from zero to $4,101,000 for a range of diminution in that
Property’s value.
Sciame must make note of First Am’s misquoting of the jury instructions. By
underlining the last section of the instructions in its Motion, First Am suggests that the
six foot easement issue applies to the entire valuation question. It does not. Reading
the jury instruction properly and in accordance with the rules of grammar, the words
“subject to the six foot easement” limitation applies only to the conveyance of
Mohegan Avenue. It does not limit the jury’s ability to determine that the conveyance
of Mohegan Avenue, with the encumbrance of the easement, had no impact on
minimizing the effect of the Title Defect. While First Am passionately believes that that
the easement made a difference, Sciame does not. The jury was entitled to make its
own determination and is not bound to the version of the facts or theory of the case
proposed by First Am. Just because First Am believes its version of the story does
not mean that its version is true, or that the jury agreed.
Because the jury is charged with deciding which evidence is more credible and
what to do with it, conflicting evidence curtails the court’s authority. Schettino v.
Labarba, 82 Conn.App. 445, 449, 844 A.2d 923 (2004). In this case, the jury was
presented with conflicting evidence on most major points. For example, the jury was
provided a range of values for the Property of $6,000,000 to $30,000,000. The jury
was presented evidence that the Title Defect resulted in a diminution of value ranging
7 As First Am made much ado of at trial, the stipulated facts in the Trial Memorandum
states that the current list price of the Property is $30,000,000. First Am made sure
that this fact was brought to the jury’s attention at trial.

25. 25
from zero to $4,101,000. It was also given evidence that the Title Defect had little
impact and that it had great impact. The jury was told by First Am’s witnesses that the
transfer of title of Mohegan Avenue to Sciame subject to the easement took away the
impact of the Title Defect on the remainder of the Property, and Sciame demonstrated
to the jury that The Title Defect and now the easement that abuts this Property’s once
private beach directly and negatively impact the Property. The jury saw evidence that
people trespass on the Property and the jury learned at trial that because of the Title
Defect and the easement, both Borough residents and the public now have access to
this previously private property.
First Am seeks to convince this Court that the jury erred because they could not
have determined that the Property has been diminished in value by $2,200,000. In
pushing this argument, First Am mistakenly believes that the jury was required to find
the value of the “strip” only as affected by the easement, and in making this finding, it
could not have possibly found the damages it awarded. The jury certainly could have
awarded damages for only the value of the “strip” as encumbered by the easement
and could have properly awarded $2,200,000 for the damages occurring because of
that perpetual easement allowing the world access to the Property. The jury could
also have properly determined that, as Sciame believes, the entire Property is
diminished in value because of the Title Defect. The jury had a number of theories of
damage before it and was entitled to consider the theory it deemed most logical in
making its award. The jury was presented with ample evidence to substantiate its
award of damages. This is a multi-million dollar property, and the evidence
demonstrated the substantial Title Defect diminished that value. The award neither

26. 26
shocks neither the conscience nor the mind. It is appropriate in light of all the facts
and circumstances and should remain, unabridged.
III. Conclusion
Based on the evidence before it, and its own collective experience and
common sense, the jury made a determination that the Property has been diminished
in value by $2,200,000. As we know by First Am's poll of the jury, this decision was
firm. It was also fair and appropriate, and First Am has failed to point to any evidence
that would tend to show that the award was in any way based on miscalculation,
mistake, sympathy prejudice, judicial error or any other improper basis. The award in
no way shocks the conscience.
First Am has failed to satisfy its burden of proving that the Court made any
harmful error and has further failed to link any claimed error to any harm. The jury’s
award is squarely in line with all of the proper evidence provided to the jury and should
stand. To reduce the award or set it aside in its entirety would work a manifest
injustice to Sciame. Considering the award and all of the rulings in this case in favor
of Sciame, as it must, this Court can some to no other conclusion than to deny First
Am’s Motion, in its entirety.

27. 27
Defendants/Counterclaim Plaintiffs
273 Water Street, LLC and
Fenwick Acquisition, LLC
By:
Genevieve P. Salvatore, Esq.
The Salvatore Law Firm, LLC
146 S. Broad Street
Milford, CT 06460
203-306-5902
866-215-2998(f)
Juris No. 423076

28. 28
CERTIFICATION
The foregoing motion was emailed this 10th day of May, 2013 to the following
appearing parties of record:
UPDIKE KELLY & SPELLACY(065040)
100 PEARL ST 17TH FLOOR
P.O. BOX 231277
HARTFORD, CT 06123
jking@uks.com
Genevieve P. Salvatore, Esq.
Comm. Superior Court