### 1 10-700-cv Lawrence Goetz, et al. v. Peter Hershman, et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summa ry order in a document f iled with this court, a party must cite either the Federal Appendix or anelectronic database (wit h the notation “summary order”). A party citing a summary order must serv e a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthou se, 500 Pearl Street, in the City of New York, on the 20 th day of May, two thousand eleven.
PRESENT: J OSÉ A. C ABRANES , C HESTER J. S TRAUB , REENA R AGGI , Circuit Judges.

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AWRENCE G OETZ , R&L L EASING , L.L.C., Plaintiff-Appellees , v. No. 10-700-cv

P ETER H ERSHMAN , S IEGEL O’C ONNER Z ANGARI O’D ONNELL & B ECK , P.C., Defendants-Appellants.

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FOR DEFENDANTS-APPELLANTS: M ATTHEW W. N APARTY (Barbara D. Goldberg and Richard J. Montes, of counsel ), Mauro Goldberg & Lilling LLP, Great Neck, NY.
FOR PLAINTIFFS-APPELLEES: T HOMAS J. F LEMING , Olshan, Grundman, Frome, Rosenzweig & Wolosky, LLP, New York, NY.

### 2 Appeal from a judgment of the United States District Court for the Southern District of New York (Robert P. Patterson, Jr., Judge ).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED in part and VACATED and REMANDED in part.
Plaintiffs-appellees Lawrence Goetz and R&L Leasin g, L.L.C. (jointly, “plaintiffs”) brought suit against defendants-appellants Peter Hershman and th e law firm of Siegel O’Conner Zangari O’Donnell & Beck, P.C. (jointly, “defendants”), asserting claims for legal malpractice and breach of fiduciary duty. Defendants appeal from the denial of their motion fo r judgment as a matter of law under Federal Rule of Civil Procedure 50(b) after resting their case during a jury trial; a series of evidentiary rulings by the District Court; the District Court’s failure to item ize alleged damages on the verdict sheet before jury deliberation; and the amount of prejudgment interest awarded to pl aintiffs under § 37-3a of the Connecticut General Statutes. We assume the parties’ familiarity with the facts and procedural history of this case and the issues raised on appeal.
I. Appeal from judgment as a ma tter of law and evidentiary rulings

We review de novoa district court’s denial of a motion for judgment as a matter of law, see Chartschlaa v. Nationwide Mut. Ins. Co. , 538 F.3d 116, 121-22 (2d Cir. 2008), and in doing so “consider the evidence in the light most favorabl e to the non-moving party and give that party the benefit of all reasonable inferences from the ev idence that the jury might have drawn in that party’s favor,” id. at 122. Such a motion can be granted “only if there is ‘s uch a complete absence of evidence supporting the verdict that the jury’s findings co uld only have been the result of sheer surmise and conjecture, or [there is] such an overwhelming amount of evidence in fa vor of the movant that reasonable and fair minded [jurors] could not arrive at a verdict against [the moving party].’” Nimely v. City of New York , 414 F.3d 381, 390 (2d Cir. 2005) (quoting LeBlanc-Sternberg v. Fletcher , 67 F.3d 412, 429 (2d Cir. 1995)).

We review a district court’s “decision to admit orexclude evidence . . . for abuse of discretion.” Henry v. Wyeth Pharmaceuticals, Inc. , 616 F.3d 134, 149 (2d Cir. 2010); cf. Sims v. Blot , 534 F.3d 117, 132 (2d Cir. 2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (alter ation, citations, and quotation marks omitted)). “A finding is ‘clearly erroneous’ when although ther e is evidence to support it, the reviewing court on the entire evidence is left with the definite and fi rm conviction that a mistake has been committed.” United States v. United States Gypsum Co. , 333 U.S. 364, 395 (1948); accord Anderson v. City of Bessemer City , 470 U.S. 564, 573-74 (1985) (“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have we ighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”).

### 3 We review a timely objection to a verdict sheet de novo

. See AMW Material Testing, Inc. v Town of Babylon , 584 F.3d 436, 449-50 (2d Cir. 2009). When a party fails to object to a verdict sheet as required under Federal Rule of Civil Procedure 51 we review the verdict sheet for “funda mental error,” that is, error that is “so serious and flagrant that it goes to the very integrity of the trial.” S.E.C. v. DiBella , 587 F.3d 553, 569 (2d Cir. 2009) (quoting Jarvis v. Ford Motor Co. , 283 F.3d 33, 62 (2d Cir. 2002)).
The question of “the amount of recoverable damage s is a question of fact,” that we review for clear error. Lucente v. Int’l Bus. Mach. Corp. , 310 F.3d 243, 261 (2d Cir .2002) (quotation marks omitted).

In its thoughtful and well-reasoned Opinion an d Order of July 14, 2010, the District Court explained its reasons for denying judgment as a ma tter of law and carefully explained its rulings with regard to the other matters on appe al mentioned above. For substant ially the reasons offered by the District Court, we affirm its order denying judgme nt as a matter of law and its various evidentiary rulings.
II. Appeal of award of prejudgment interest
While we generally review for abuse of disc retion a district court’s award of prejudgment interest, New England Ins. Co. v. Healthcare Underwriters Mut. Ins. Co. , 352 F.3d 599, 602-603 (2d Cir. 2003), under Connecticut law “review is plenary” to the exte nt there is a challenge to “the applicability of § 37- 3a under the circumstances.” Chapman Lumber, Inc. v. Tager , 288 Conn. 69, 100 (2008). In applying § 37- 3a, the District Court relied on Chapman Lumber, Inc. , in which the attorney “had conspired with [the client] to deprive the plaintiff of moneys that were owed to it.” Id . In the present case, it is not clear that defendants agreed to join a client’s “scheme to evade payment of his de bt” such that “by assisting him in perpetrating that scheme, the [atto rney] thereby became liable for all of the ensuing damage, including the interest that, absent the [a ttorney’s] assistance, only [the client] would have owed.” Id . at 102. Accordingly, it is not clear that the pr esent action fits within a narrow reading of Chapman Lumber

. Furthermore, § 37-3a only “applies to claims involving the wrongful detention of money after it becomes due and payable.” Foley v. Huntington Co ., 682 A.2d 1026, 1043 (Conn. App. Ct. 1996) (emphasis in original). Because the District Cour t in this case did not make a find ing with regard to whether Richard Volpe or Hershman had any “due or payable” debt to plaintiffs that Hershman could have wrongfully detained or assisted in detaining, we vacate the award of prejudgment interest, and remand the cause to the District Court with instruction to reconsider, on the basis of the record before it, its award of prejudgment interest. Of course, on this question we intimate no view on the merits.

### 4 CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED with respect to the District Court’s order denying judgment as a matte r of law and its evidentiary rulings. The judgment of the District Court is VACATED solely with respect to the aw ard of prejudgment interest and REMANDED for further proceedings consistent with this order.
FOR THE COURT, Catherine O’Hagan Wolfe, Clerk of Court