Lukas v. McCoy, AC 36463

WILLIAM LUKAS III v. JASON L. MCCOY ET AL.

AC 36463

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued February 10, 2015

May 26, 2015

Lavine, Keller and Harper, Js.

(Appeal from Superior Court, judicial district of Tolland, Cobb, J.)

James H. Howard, for the appellant (plaintiff).

Lorinda S. Coon, with whom, on the brief, were Kay A. Williams and Herbert J. Shepardson, for the appellee (named defendant).

Opinion

LAVINE, J. The plaintiff, William Lukas III, appeals from the judgment of the trial court after it denied his motions to set aside the verdict and for a new trial. The plaintiff filed these motions after a jury returned a verdict in favor of the defendant Jason L. McCoy, doing business as the Law Offices of Jason L. McCoy, on the plaintiff's claim of legal malpractice.¹ The plaintiff brought this legal malpractice action against the defendant, his former attorney, after his chapter 13 bankruptcy petition (petition) was dismissed by the bankruptcy court. On appeal, the plaintiff claims that the trial court (1) abused its discretion by denying his motion to set aside the verdict and for a new trial, (2) erred in submitting the question of confirmability to the jury, and (3) failed to instruct the jury on the applicable bankruptcy statute. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2005, the plaintiff filed the petition and retained the defendant to represent him. On or about June 13, 2006, the bankruptcy court held a hearing on the plaintiff's petition to determine whether to confirm or dismiss it. The defendant failed to attend the hearing and the chapter 13 bankruptcy trustee requested that the bankruptcy court dismiss the petition with a 180 day bar on refiling.

Following the dismissal of his petition, the plaintiff brought this action sounding in legal malpractice against the defendant for his alleged negligent representation. The plaintiff claimed, inter alia, that the defendant failed to attend the June 13, 2006 hearing and to communicate with and to provide the necessary documentation to the chapter 13 bankruptcy trustee. The plaintiff argued that the defendant's alleged negligence resulted in the bankruptcy court dismissing his petition with a 180 day bar on refiling. On December 12, 2013, the plaintiff filed his fourth amended complaint. The defendant answered, denying that he had acted negligently, and he alleged a special defense of contributory negligence.

On December 13, 2013, following a trial, the jury returned a general verdict in favor of the defendant.² No interrogatories were submitted to the jury. On December 19, 2013, the plaintiff filed motions to set aside the verdict and for a new trial. In support of these motions, the plaintiff asserted that the jury's verdict was against the weight of the evidence. The court denied the motions and rendered judgment for the defendant on January 6, 2014. The plaintiff did not ask the court to articulate the basis for its denial of his motions. This appeal followed. Additional facts will be set forth as necessary.

I

In his motion to set aside the verdict, the plaintiff claimed that he had "provided ample, compelling testimony regarding the defendant's breach of the standard of care, as well as the confirmability and subsequent affordability of a chapter 13 plan," and, therefore, the verdict was against the evidence. On appeal, the plaintiff claims that the court abused its discretion in denying his motions to set aside the verdict and for a new trial. In response, the defendant contends that the general verdict rule bars review of that claim. We agree with the defendant.

"The general verdict rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated. Declining in such a case to afford appellate scrutiny of the appellant's claims is consistent with the general principle of appellate jurisprudence that it is the appellant's responsibility to provide a record upon which reversible error may be predicated. . . . In the trial court, the rule relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant. Thus, unless an appellant can provide a record to indicate that the result the appellant wishes to reverse derives from the trial errors claimed, rather than from the other, independent issues at trial, there is no reason to spend the judicial resources to provide a second trial." (Internal quotation marks omitted.) Brown v. Bridgeport Police Dept., 155 Conn. App. 61, 68-69, 107 A.3d 1013 (2015).

"[A]n appellate court will presume that the jury found every issue in favor of the prevailing party . . . and decline further appellate review. . . . Where there was an error free path available to the jury to reach its verdict, and no special interrogatories were submitted showing which road the jury went down, any judgment rendered on such a verdict must be affirmed. . . . [I]n a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 69.

In Curry v. Burns, 225 Conn. 782, 801, 626 A.2d 719 (1993), our Supreme Court held that the general verdict rule applies to the following five situations: "(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that hadbeen asserted as the case was tried but that should have been specially pleaded." The fourth situation is implicated in the present case, as the defendant, in his answer, denied the allegations of negligence set forth in the complaint and pleaded a special defense of contributory negligence.

In this case, it is unclear whether the jury's verdict was premised on a finding of an absence of negligence on the part of the defendant or on a finding of contributory negligence with respect to the plaintiff. See O'Brikis v. Supermarkets General Corp., 34 Conn. App. 148, 153, 640 A.2d 165 (1994). The record reveals that the plaintiff did not request any interrogatories that would have clarified the jury's findings. "When there are alternative bases for the verdict, it is necessary for the interrogatories to reveal the actual grounds for the jury's verdict in order for the general verdict rule to be precluded." (Internal quotation marks omitted.) Malaguit v. Ski Sundown, 136 Conn. App. 381, 388, 44 A.3d 901, cert. denied, 307 Conn. 902, 53 A.3d 218 (2012). Accordingly, we conclude that the general verdict rule precludes review of the plaintiff's claim.

II

As a preliminary matter, the plaintiff seeks review of his second and third claims under the plain error doctrine.³ Our review of the record reveals that the plaintiff did not file a request to charge related to the issues on appeal, take an exception to the charge, or object to the instructions the court gave to the jury.⁴Accordingly, he did not preserve his second and third claims for appeal. We decline to reverse the trial court's judgment on the basis of plain error for the reasons that follow.

Although the plaintiff's second claim is that the court erred in submitting to the jury the question of whether his petition was confirmable, the actual question before the jury was whether the defendant was responsible for the dismissal of the plaintiff's petition. In his third claim, the plaintiff claims, in the alternative, that if the question of the confirmability of the petition was properly before the jury, the court failed to instruct it on how to analyze the feasibility of the chapter 13 bankruptcy plan. Given that the plaintiff's third claim—that the court abused its discretion because it failed to instruct the jury on the applicable bankruptcy statute—is subsumed by his second claim, we will address them simultaneously. The following additional facts are pertinent to the plaintiff's claims.

In his complaint, the plaintiff alleged that the defendant breached the standard of care of lawyers practicing before the bankruptcy court by failing to attend court hearings and to present information and documents to support the feasibility of the plaintiff's chapter 13 bankruptcy plan. The defendant alleged contributorynegligence as a special defense.

During the trial, portions of the bankruptcy court hearing transcripts were read into the record. The following pertinent evidence was before the jury. The chapter 13 bankruptcy trustee stated the following to the bankruptcy court: "Can that case be dismissed? I'm asking for a 180 day bar. It's the [plainti...