author: Shea, J.

text:
    Scott Jaconski et al. v. AMF, Inc., et al.
    (13375)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.
    Argued May 31
    decision released July 12, 1988

      Wesley W. Horton, with whom was Susan M. Cormier, for the appellants (plaintiffs).

      Robert A. Brooks, with whom was Antonio B. Braz, for the appellees (named defendant et al.).

      Jeffrey L. Williams, with whom, on the brief, was Kirby G. Huget, for the appellee (defendant Harley-Davidson Sales Corporation).
   Shea, J.

This is an appeal by the plaintiffs from the trial court’s nonsuit of their case for failure to comply with an order of the court. We find no error.

This products liability action was commenced in March, 1986, and assigned to the trial court under the “individual calendar” program. The plaintiffs are Scott Jaconski and his wife, Catherine Jaconski, who were injured while riding a motorcycle manufactured and sold by the defendants, AMF, Inc. (AMF), Harley-Davidson Motor Co., Inc. (Harley Motor), and Harley-Davidson Sales Corporation (Harley Sales). On appeal, the plaintiffs claim that the trial court erred (1) in entering a nonsuit on its own motion, and (2) in denying their motion to set aside the nonsuit on the ground that the plaintiffs’ negligence precluded such relief.

On November 12,1986, AMF and Harley Motor filed a request to revise the plaintiffs’ complaint. On November 21,1986, these defendants served interrogatories and requests for production upon the plaintiffs. At a pretrial discovery conference on May 12, 1987, the court ordered counsel for the plaintiffs to file a revised complaint within one week of May 12,1987, and further ordered the plaintiffs to respond to the interrogatories by June 15,1987. These orders were followed by a written pretrial order to the same effect on May 14,1987.

On June 19, 1987, AMF and Harley Motor filed a motion for nonsuit because the plaintiffs had failed to file a revised complaint and had failed to respond to AMF’s interrogatories of November 21,1986, as ordered by the court. On June 22,1987, the plaintiffs filed objections to AMF’s and Harley Motor’s request to revise filed November 12, 1986.

AMF’s and Harley Motor’s request to revise and the plaintiffs’ objections to the request to revise appeared on the short calendar on July 27, 1987. At that hearing, the trial court determined that the court’s order to the plaintiffs to revise their complaint within one week had not been complied with and the court on its own motion nonsuited the plaintiffs pursuant to Practice Book § 351 for failure to comply with an order of the court. No motion for nonsuit was on the short calendar list for hearing that day.

I

The plaintiffs claim that the trial court misconstrued its authority under Practice Book § 351 when it entered a nonsuit against the plaintiffs, on its own motion, for their failure to comply with an order of the court. Their argument is twofold: first, the trial court is not authorized to enter a nonsuit under Practice Book § 351 on its own motion, and second, they had no notice that the trial court would nonsuit them.

Practice Book § 351 provides that “[i]f a party fails to comply with an order of court or a citation to appear or fails without proper excuse to appear for trial, he may be nonsuited or defaulted by the court.” Section 351 thus plainly authorizes the trial court to enter a nonsuit for noncompliance with its orders. Further, the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its rules. Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 33, 474 A.2d 787 (1984); Stanley v. Hartford, 140 Conn. 643, 648, 103 A.2d 147 (1954). As we noted in Gionfrido, the trial court has the responsibility to process cases in a timely and efficient manner. “ ‘In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management. Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system. . . ” Gionfrido v. Wharf Realty, Inc., supra, 32-33, quoting In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983).

The plaintiffs suggest that because no motion for non-suit was on the short calendar for July 27, 1987, they had no notice that the trial court would nonsuit them. We disagree. On May 12, 1987, at the pretrial discovery conference, the trial court directed the plaintiffs’ counsel to file a specified document by a specified date. Under these circumstances, the order itself in conjunction with § 351 constituted sufficient notice that failure to comply could result in a nonsuit. On May 14, 1987, the trial court issued a written order that embodied the order of May 12, and on June 19, 1987, AMF and Harley Motor filed a motion for nonsuit because the plaintiffs had failed to comply with the May 12 order of the court. These facts indicate that the plaintiffs were more than amply apprised of the potential consequences of failing to comply with the court’s May 12 order.

The plaintiffs contend also that a “prior notice” requirement, such as that found in Practice Book § 251 (“Dismissal for Lack of Diligence”), should be engrafted onto Practice Book § 351. As noted above, however, the May 12 order itself constituted notice to the plaintiffs that they could be nonsuited for failure to comply with the court’s order. Further, the facts of the instant case are readily distinguishable from a § 251 situation. Under § 251, the trial court is confronted with endless gradations of diligence, and in its sound discretion, the court must determine whether the party’s diligence falls within the “reasonable” section of the diligence spectrum. See, e.g., Gionfrido v. Wharf Realty, Inc., supra. The two week notice requirement, where applicable, allows a party to offer an explanation for his delay, or to cure the deficiency that is the basis for the proposed dismissal. Under § 351, on the other hand, an order of the court has already been entered, and whether the order is justified because of a lack of diligence is no longer arguable. An order of the court must be obeyed until it has been modified or successfully challenged. See Fox v. First Bank, 198 Conn. 34, 40 n.3, 501 A.2d 747 (1985). When an order has been entered, a party is not faced with the uncertainty of forecasting whether his conception of “reasonable diligence” conforms with the trial court’s view. A party is presumed to be aware of the rules of practice and thus to know that disobedience of a court order may result in a nonsuit under § 351. When the plaintiffs in this case, therefore, failed to file a revised complaint as ordered, they must be presumed to have had notice that their failure to do so could result in a nonsuit. The trial court was within its discretion in nonsuiting the plaintiffs for failure to file the revised complaint.

II

The plaintiffs filed a motion to set aside the non-suit on August 7, 1987, within the four month period allowed by General Statutes § 52-212. The plaintiffs’ counsel attached to the motion an affidavit in which he sought to establish that the plaintiffs were prevented by mistake, accident or other reasonable cause from complying with the court’s order. On September 29, 1987, the court issued a memorandum of decision denying the plaintiffs’ motion to set aside the nonsuit. In its memorandum of decision, the trial court found that the plaintiffs’ failure to comply with the court’s order was due to their negligence, and not to mistake, accident or other reasonable cause. The trial court held that because the plaintiffs had failed to make a showing of mistake, accident or other reasonable cause, as required by § 52-212, the court had no discretion to set aside the nonsuit.

The plaintiffs claim that a finding of negligence by the trial court does not necessarily preclude the court from setting aside a nonsuit. We disagree.

The power of a court to set aside a nonsuit judgment is controlled by § 52-212. Pantlin & Chananie Development Corporation v. Hartford Cement & Bldg. Supply Co., 196 Conn. 233, 234-35, 492 A.2d 159 (1985); Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 131, 474 A.2d 456 (1984); Jaquith v. Revson, 159 Conn. 427, 431, 270 A.2d 559 (1970). The statute provides that any judgment rendered upon a nonsuit may be set aside upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action in whole or in part existed at the time of the rendition of the judgment and that the plaintiff was prevented by mistake, accident or other reasonable cause from prosecuting the action. It is thus clear that there is a two-pronged test for setting aside a judgment rendered after a nonsuit. Eastern Elevator Co. v. Scalzi, supra. There must be a showing (1) that a good cause of action, the nature of which must be set forth, existed at the time judgment was rendered, and (2) that the plaintiff was prevented from prosecuting the action because of mistake, accident or other reasonable cause. General Statutes § 52-212; Practice Book § 377; Pantlin & Chananie Development Corporation v. Hartford Cement & Bldg. Supply Co., supra, 235.

In Eastern Elevator Co. v. Scalzi, supra, 131-32, we reiterated that in granting or denying a motion to open a judgment, the trial court is required to exercise a sound judicial discretion and its decision will be set aside only for an abuse of such discretion. We noted in Jaquith v. Revson, supra, that the denial of a motion to set aside a nonsuit should not be held to be an abuse of discretion in any case in which it appears that a plaintiff has not been prevented from prosecuting the claim by mistake, accident or other reasonable cause. Further, we have long held that negligence is no ground for vacating a judgment, and that the denial of a motion to open a nonsuit judgment should not be held an abuse of discretion where the failure to prosecute the claim was the result of negligence. People’s Bank v. Horesco, 205 Conn. 319, 323-24, 533 A.2d 850 (1987); Jaquith v. Revson, supra, 432; Automotive Twins, Inc. v. Klein, 138 Conn. 28, 34, 82 A.2d 146 (1951).

The trial court made the specific finding that the failure of the plaintiffs to file the revised complaint was due to their negligence, and not to any accident, mistake or other reasonable cause. This finding was well within the trial court’s discretion. See People’s Bank v. Horesco, supra, 324. Because the finding signified that the plaintiffs had not fulfilled the statutory prerequisites for setting aside a nonsuit, the trial court correctly concluded that it had no authority to set aside the nonsuit.

The plaintiffs claim that a proper reading of Trichilo v. Trichilo, 190 Conn. 774, 462 A.2d 1048 (1983), demonstrates that a court may set aside a nonsuit, despite a finding of negligence by that court. In Trichilo, the trial court rendered a judgment of default against the defendant for failure to appear and awarded damages to the plaintiff; the trial court later denied a motion to open the judgment. In affirming the trial court, we stated: “Although a reasonable degree of liberality should be exercised in determining whether a default has resulted from excusable neglect, the transcript indicates no abuse of discretion by the trial court in that respect . . . .” (Emphasis added.) Id., 783. This statement does not support the plaintiffs’ contention that a court may set aside a nonsuit, despite a finding of negligence. Rather, Trichilo reflects the legislative determination embodied in General Statutes § 52-212 that not all deviations from ideal performance constitute negligence, and that a limited class of deviations may be excusable because they were the result of “mistake, accident or other reasonable cause.” General Statutes § 52-212. In those cases, the trial court may exercise its discretion and set aside a judgment of nonsuit.

The trial court was within its discretion in finding negligence on the plaintiffs’ part. Having determined that the plaintiffs failed to meet the statutory requirements of § 52-212, the trial court correctly concluded that it had no authority to set aside the judgment of nonsuit against the plaintiffs.

There is no error.

In this opinion the other justices concurred.

       We note that the trial court need not have issued the May 14 written order for the plaintiffs to have had sufficient notice of the possibility of a nonsuit: the oral order at the May 12 pretrial conference was enough. We mention the May 14 written order and the June 19 motion for nonsuit to emphasize that there could have been little doubt by the plaintiffs as to what was expected of them, as well as to the possible consequences if they failed to comply.

       “[Practice Book] Sec. 251. dismissal for lack of diligence
      “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.
      “If a case is printed on a dormancy calendar pursuant to the dormancy program administered under the direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to Sec. 128, only those papers which close the pleadings by joining issues, or raise a special defense, may be filed by any party, unless the court otherwise orders.”

       Under Practice Book § 251, at least two weeks notice is required except in cases appearing on an assignment list for final adjudication.

       In this appeal we need not determine whether the plaintiffs may, in seeking a further remedy, commence a new action pursuant to General Statutes § 52-592, which provides in part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because . . . a judgment of nonsuit has been rendered . . . the plaintiff . . . may commence a new action ... for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.” See Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144-45, 470 A.2d 246 (1984).

       “[General Statutes] See. 52-212. reopening judgment upon default or nonsuit, (a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.

        “(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.
      “(c) The court shall order reasonable notice of the pendency of the complaint or written motion to be given to the adverse party, and may enjoin him against enforcing the judgment or decree until the decision upon the complaint or written motion.”
      Practice Book § 377 contains a similar provision: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed, and the case reinstated on the docket on such terms in respect to costs as the court deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The court shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin him against enforcing such judgment or decree until the decision upon such written motion.
      “If the court opens a nonsuit entered pursuant to Sec. 363, the court as part of its order may extend the time for filing pleadings or disclosure.”

       In its memorandum of decision, the trial court stated: “The reasons given for plaintiffs’ failure to obey the court’s orders of May 12, 1987 were all the negligence of plaintiffs. Negligence is not reasonable cause under Conn. Gen. Stat. § 52-212 or Practice Bk. § 377. Jaquith v. Revson, 159 Conn. 427, 432 [270 A.2d 559 (1970); Segretario v. Stewart-Wamer Corporation, 9 Conn. App. 355, 362 [519 A.2d 76 (1986)]. Before the requirements of the statute and the practice book are complied with, i.e., before reasonable cause, mistake or accident are proven, the court cannot begin to use its discretion to set aside a nonsuit. [Segretario v. Stewart-Warner Corporation, supra, 363].”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Josephine Krawczyk et al. v. Kathleen D. Stingle et al.
    (13313)
    (13314)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.

      Argued May 5
    decision released July 12, 1988

      Patrick J. Flaherty, with whom, on the brief, were Kenneth P. Namnoum, Jr., and Lorinda S. Coon, for the appellant-appellee in the first case (defendant Trantolo and Trantolo, P.C.).

      Joseph T. Sweeney, for the appellant in the second case (named defendant).

      Peter N. Upton, with whom, on the brief, was Ellen A. Conway, for the appellees-appellants in the first case, appellees in the second case (plaintiffs).
   Peters, C. J.

The dispositive question in this appeal is whether an attorney’s negligent failure to arrange for timely execution of estate planning documents permits the intended beneficiaries of the estate to pursue a cause of action for legal malpractice. The plaintiffs, Josephine Krawczyk, Stella K. Rabiega, Genevieve Krawczyk, Helaine Kania, Francis Krawczyk, Edmund Krawczyk and Henry Taylor, relatives of the decedent, Joseph C. Krawczyk, brought suit against the defendants, Kathleen D. Stingle and Trantolo & Trantolo, P.C., for legal malpractice. The gravamen of their complaint was that the defendants, who had been engaged by the decedent to prepare documents for the disposition of his estate, had been negligent in failing to provide them to the decedent for execution prior to his death. At the conclusion of the plaintiffs’ evidence and again at the conclusion of all the evidence, each defendant filed a motion for a directed verdict, which was denied. After trial, a jury returned a verdict for the plaintiffs, awarding them $65,000 in damages. Each defendant thereafter filed a motion to set aside the verdict and for judgment notwithstanding the verdict. The trial court denied the motions and rendered a judgment against the defendants in the amount of $65,000, from which they appeal. We find error.

The record discloses the following undisputed facts: On the afternoon of Tuesday, March 8,1983, the plaintiffs’ decedent met with the defendant Stingle, who was then associated as an attorney with the defendant Trantolo & Trantolo, P.C. At the meeting, the decedent informed Stingle that he was soon to undergo open heart surgery and that he wanted to make arrangements for the disposition of his estate. The decedent named his daughter, his mother and several of his brothers and sisters as the intended beneficiaries of his estate. He also indicated that he did not want his estate to go through probate. Stingle recommended that he create two trusts that would hold the ownership of his real estate and bank accounts during his lifetime for the benefit of the persons he designated. Although Stingle explained that using a will would be less expensive and would entail fewer steps, the decedent reiterated his desire to avoid probate. Accordingly, the two agreed that Stingle would prepare trust documents for the decedent to sign the following Tuesday. Stingle informed the decedent that, in order to complete these documents, she would need additional information prior to the next meeting. Accordingly, she provided him a list of the required items, which included the names of his banks, his bank account identification numbers and a legal description of his real property.

On Friday, March 11,1983, when the decedent delivered some of the necessary information to Stingle’s office, Stingle’s secretary explained to him what other documentation was still required for the completion of the trust instruments. The decedent did not, however, deliver the additional information until the scheduled meeting of Tuesday, March 15. As a result, the trust documents were not ready to be executed at that time. Stingle and the decedent accordingly agreed to meet the following Saturday, March 19, to execute the documents. During the course of the March 15 meeting, the decedent instructed Stingle to delete one of his brothers from the trust instruments and to make some further alterations.

On Thursday, March 17, 1983, Stingle received a phone call from the plaintiff Genevieve Krawczyk, the decedent’s sister. Genevieve Krawczyk informed Stingle that, because the decedent had suffered a massive heart attack and was in the intensive care unit at Hartford Hospital, the decedent would be unable to keep his appointment for that Saturday. Stingle did not inquire further as to the decedent’s condition nor did she proceed, after the conversation, to complete the trust instruments.

The next afternoon, Stingle received another call from Genevieve Krawczyk, who told her that the decedent was very ill and instructed her to bring the trust instruments to the hospital. Stingle spent the next two hours completing the preparation of the documents. Upon her arrival at the hospital, however, she was informed by a physician that she would be unable to see the decedent due to his deteriorating condition. He died shortly thereafter without having signed the documents.

During trial, the plaintiffs called James R. Greenfield, an attorney, as their expert witness to testify concerning the appropriate standard of care. In his view, Stingle’s conduct had deviated from the appropriate standard on two occasions: During the phone conversation of Thursday, March 17, Stingle should have inquired whether the decedent was in any condition to sign the documents and whether it was possible for her to come to the hospital to have him execute them; and after the conversation of Friday, March 18, she should either have brought hand-written documents to the hospital for the decedent’s signature or alternatively have prepared a simple will that she could have presented to him for his immediate signature.

The defendants’ expert witness, attorney William H. Wood, Jr., testified that Stingle’s conduct conformed to the standard of care ordinarily required of an attorney under the circumstances. On the question of causation, he testified that implementation of the trust plan would have required further steps to be taken subsequent to the execution of the trust instruments themselves. Furthermore, he emphasized that an attorney had a duty in preparing estate planning documents to make sure that his or her client understood their meaning and legal significance.

On appeal, the defendants claim that the trial court erred in: (1) denying their motions for a directed verdict and for judgment notwithstanding the verdict because under the circumstances the defendants did not have a duty to the plaintiffs; (2) denying their motions for a directed verdict and for judgment notwithstanding the verdict because there was no evidence that Stingle’s conduct caused the plaintiffs’ alleged losses; and (3) refusing to charge the jury that expert testimony was necessary to prove causation. In addition, the defendant Trantolo & Trantolo, P.C., argues separately that the court erred in allowing, over objection by the defendants, a hypothetical question propounded to the plaintiffs’ expert. Because we agree with the first ground for reversal raised by the defendants, we need not consider the others.

At the outset, we note the appropriate standard of review. In considering the trial court’s denial of a motion for directed verdict, we view the evidence in the light most favorable to the prevailing party. Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988). Nevertheless, a verdict will be set aside and judgment directed “ 'if we find that the jury could not reasonably and legally have reached their conclusion.’ ” Id., quoting Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986). If, as a matter of law, the defendants did not owe a duty to the plaintiffs under the circumstances of this case, then the trial court was required to direct a verdict in the defendants’ favor.

As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services. A number of jurisdictions have recognized an exception to this general rule when the plaintiff can demonstrate that he or she was the intended or foreseeable beneficiary of the attorney’s services. Mozzochi v. Beck, 204 Conn. 490, 499, 529 A.2d 171 (1987); see 3 F. Harper, F. James & O. Gray, The Law of Torts (2d Ed. 1986) § 18.6, pp. 725-32; R. Mallen & V. Levit, Legal Malpractice § 80, pp. 156-60, and § 622, pp. 778-82. An attorney alleged to have erred in the preparation of a will may be held liable to the intended beneficiary of the will under either a tort or a contract theory of liability. Stowe v. Smith, 184 Conn. 194, 199, 441 A.2d 81 (1981). Accordingly, courts have held that the intended beneficiary has a cause of action against an attorney who failed to draft a will in conformity with a testator’s wishes; see, e.g., id.; Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685, 15 Cal. Rptr. 821 (1961), cert. denied, 368 U.S. 987, 82 S. Ct. 603, 7 L. Ed. 2d 525 (1962); Needham v. Hamilton, 459 A.2d 1060 (D.C. App. 1983); Ogle v. Fuiten, 112 Ill. App. 3d 1048, 445 N.E.2d 1344 (1983), aff’d, 102 Ill. 2d 356, 466 N.E.2d 224 (1984); failed to supervise the proper execution of a will; see, e.g., Licata v. Spector, 26 Conn. Sup. 378, 225 A.2d 28 (1966); Succession of Killingsworth, 292 So. 2d 536 (La. 1973); Auric v. Continental Casualty Co., 111 Wis. 2d 507, 331 N.W.2d 325 (1983); or failed to advise a client of the consequences of not revising a will; see, e.g., McAbee v. Edwards, 340 So. 2d 1167 (Fla. App. 1976); or of using one type of estate planning instrument. See, e.g., Bucquet v. Livingston, 57 Cal. App. 3d 914, 129 Cal. Rptr. 514 (1976). The question before us is whether such liability should be further expanded to encompass negligent delay in completing and furnishing estate planning documents for execution by the client.

Determining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy. 3 F. Harper, F. James & O. Gray, supra, § 18.6, p. 730. In addressing this issue, courts have looked principally to whether the primary or direct purpose of the transaction was to benefit the third party. See, e.g., Needham v. Hamilton, supra, 1062-63; Pelham v. Griesheimer, 92 Ill. 2d 13, 21, 440 N.E.2d 96 (1982). Additional factors considered have included the foreseeability of harm, the proximity of the injury to the conduct complained of, the policy of preventing future harm and the burden on the legal profession that would result from the imposition of liability. Lucas v. Hamm, supra, 588; Auric v. Continental Casualty Co., supra, 514. Courts have refrained from imposing liability when such liability had the potential of interfering with the ethical obligations owed by an attorney to his or her client. See, e.g., Parnell v. Smart, 66 Cal. App. 3d 833, 837-38, 136 Cal. Rptr. 246 (1977) (in adversary proceedings, attorney for insurance carrier owed no duty to insured); Pelham v. Griesheimer, supra, 22-23 (attorney representing parent in custody dispute owed no duty to child); Clagett v. Dacy, 47 Md. App. 23, 29-30, 420 A.2d 1285 (1980) (attorneys conducting foreclosure sale owed no duty to highest bidders); see also R. Mallen & V. Levit, supra, § 80, p. 158. We conclude that the imposition of liability to third parties for negligent delay in the execution of estate planning documents would not comport with a lawyer’s duty of undivided loyalty to the client.

A central dimension of the attorney-client relationship is the attorney’s duty of “[ejntire devotion to the interest of the client.” G. Sharswood, An Essay on Professional Ethics (5th Ed. 1896) p. 78; see Rules of Professional Conduct 1.7; and see Mozzochi v. Beck, supra, 497. This obligation would be undermined were an attorney to be held liable to third parties if, due to the attorney’s delay, the testator did not have an opportunity to execute estate planning documents prior to death. Imposition of liability would create an incentive for an attorney to exert pressure on a client to complete and execute estate planning documents summarily. Fear of liability to potential third party beneficiaries would contravene the attorney’s primary responsibility to ensure that the proposed estate plan effectuates the client’s wishes and that the client understands the available options and the legal and practical implications of whatever course of action is ultimately chosen. These potential conflicts of interest are especially significant in the context of the final disposition of a client’s estate, where the testator’s testamentary capacity and the absence of undue influence are often central issues. See, e.g., Stanton v. Grigley, 177 Conn. 558, 564-65, 418 A.2d 923 (1979).

The facts of this case illustrate the serious potential for conflicts of interest inherent in such situations. The record suggests that, in making provisions for the final disposition of his estate, the decedent had two separate concerns: that his estate pass to certain of his relatives; and that it not go through probate. To accommodate both concerns, he chose to transfer his property through a relatively complex trust plan rather than by executing a simple will. Under one theory of liability espoused by the plaintiffs, when Stingle became aware that the decedent was gravely ill, she should have abandoned completion of the trust instruments in order to furnish a will for the decedent to sign. Thus, according to them, in order to fulfill her duty to the plaintiffs, she was required to encourage the decedent to forego his desire to avoid probate. The record further discloses that, approximately one week before his death, the decedent made some changes in the distribution of his estate, in particular omitting one brother whom he had previously included. Had Stingle been concerned about liability to the intended beneficiaries of the estate, she might have resisted making the requested changes, fearing that the ensuing delay would make her vulnerable to a claim of malpractice. Finally, a rush to execution of the estate plan would have put pressure on Stingle to urge the decedent to sign whatever documents she had had time to prepare without further inquiry into the effect of his illness on his testamentary capacity at the time of their execution. Prophylactic principles of public policy counsel against rules of liability that promote such conflicts of interest.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants in accordance with their motions for a directed verdict.

In this opinion the other justices concurred.

       The plaintiffs cross appeal from the trial court’s denial of their motion to set aside the verdict as to the issue of damages and for an order of additur. Our conclusion that under the circumstances the defendants owed no duty to the plaintiffs renders consideration of the cross appeal unnecessary.


author: Callahan, J.

text:
    Wyandot, Inc. v. Gracey Street Popcorn Company, Inc., et al.
    (13339)
    Peters, C. J., Healey, Shea, Callahan and Hull, Js.
    Argued May 10
    decision released July 12, 1988

      JohnD. Thomas, for the appellant (defendant George C. Carabetta, Jr.).

      David E. Wyskiel, for the appellee (plaintiff).
   Callahan, J.

This action was commenced by the plaintiff Wyandot, Inc., also known as Wyandot Popcorn Co., by a complaint in four counts against the defendants Gracey Street Popcorn Company, Inc., and its president, George C. Carabetta, Jr. The first three counts of the complaint are directed against the corporation. The first and third counts were ultimately abandoned and judgment was rendered for the plaintiff on the second count against the named defendant for the value of goods previously furnished. That portion of the judgment is not in issue.

What is in issue is the portion of the judgment rendered by the trial court against Carabetta on the fourth count of the plaintiff’s complaint. The fourth count was directed against Carabetta personally and alleged that Carabetta had made and delivered to the plaintiff a check dated July 26, 1984, payable to the plaintiff’s order and drawn on the Central Bank for Savings in the amount of $23,665.95. The plaintiff further alleged that the check had subsequently been presented for payment, but payment had been refused and the check dishonored, that the plaintiff continues to own and hold the check and that it has not been paid. The plaintiff claimed that Carabetta was personally responsible for the face amount of the check plus statutory interest and check charges.

By way of special defense Carabetta alleged that he had signed the check in question in his representative capacity as president of Gracey Street Popcorn Company, Inc. He claimed, therefore, that the obligation was that of the corporation and that he was not personally liable on the check. The trial court determined, however, that because the check failed to disclose Carabetta’s representative capacity, and insufficiently identified and therefore failed to name his corporate principal, he was foreclosed by General Statutes § 42a-3-403 (2) (a) from offering parol evidence to prove his special defense. It concluded that Carabetta was personally liable as a matter of law and rendered judgment against him for $23,665.95, plus statutory interest and costs.

It is undisputed that the check did not disclose Carabetta’s corporate office or his representative capacity. He contends, however, that the trial court erred when it found that the check did not sufficiently name his corporate principal so as to allow him to present parol evidence under § 42a-3-403 (2) (b), that he signed the check in his representative, not his personal, capacity. The only issue before this court, therefore, is whether the trial court was correct when it precluded Carabetta from offering parol evidence in support of his special defense.

The liability of the drawer of a check is established by General Statutes § 42a-3-413 (2) which provides in pertinent part: “The drawer engages that upon dishonor of the draft . . . he will pay the amount of the draft to the holder.” Because Carabetta’s signature appears on the dishonored check the burden is upon him under General Statutes § 42a-3-307 (2) to establish a defense and to disestablish his personal liability as drawer. Colonial Banking Co. of Des Moines v. Dowie, 330 N.W.2d 279, 283 (Iowa 1983).

The trial court found that, because the corporate name printed on the face of the check was “Gracey Street Popcorn, Inc.,” and the correct corporate name, i.e., that registered with the secretary of the state, was “Gracey Street Popcorn Company, Inc.,” the check failed to name the corporate entity that the defendant represented. Since it was admitted that the check failed to disclose Carabetta’s representative capacity, the trial court ruled that § 42a-3-403 (2) (a) controlled. That subdivision provides that “[a]n authorized representative who signs his own name to an instrument (a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity.”

The defendant, however, claims that the variation between the name of his principal on the face of the check and its full corporate name registered with the secretary of the state was inconsequential. He argues that the name on the face of the check clearly gave the plaintiff notice that it was receiving a check drawn on a corporate account. He argues further that the corporation was sufficiently identified and, therefore, the plaintiff knew the corporation with which it was dealing and could not possibly have been misled as to the nature of the obligation it was receiving. See General Statutes § 33-287 (a). Carabetta contends, therefore, that his principal was named and that the situation is governed by § 42a-3-403 (2) (b). That subdivision provides that “ja]n authorized representative who signs his own name to an instrument . . . (b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.” (Emphasis added.)

Since this is an action between the “immediate parties” to the transaction, if Carabetta’s principal was named, he fits within the above exception to § 42a-3-403, which otherwise imposes absolute personal liability on one who affixes his or her signature to a negotiable instrument as drawer. If Carabetta fits within the exception, he was entitled, under § 42a-3-403 (2) (b), to present parol evidence to prove that the obligation to pay the check was that of the corporation. Gulf & Basco Co. v. Buchanan, 707 S.W.2d 655, 658 (Tex. Civ. App. 1986); M & M Welding, Inc. v. Pavlicek, 713 P.2d 236, 240 (Wyo. 1986).

We conclude that “Gracey Street Popcorn Company, Inc.,” the corporate principal that Carabetta claims to have represented when he signed the check in question, was sufficiently identified on the face of the check by the appellation, “Gracey Street Popcorn, Inc.,” to be considered a named principal within the meaning of § 42a-3-403 (2) (b). Therefore, the trial court erred when it held that Carabetta’s principal was not named and excluded parol evidence of his special defense. Parol evidence, the defendant claims, would have proved that he was acting in a representative capacity when he signed the check and that it was so understood by all the parties to the transaction.

It is clear from a reading of § 42a-3-403 (2) (a) that a representative who signs his own name to an instrument is personally obligated if he neither names his principal nor shows that he signed in a representative capacity. It is also clear that, under such circumstances, parol evidence is not admissible to establish a defense. Falcone v. Hinsdale Gynecology & Obstetrics, 148 Ill. App. 3d 439, 445-46, 499 N.E.2d 694 (1986), appeal denied, 114 Ill. 2d 544, 508 N.E.2d 727 (1987); Smith v. Allison, 83 N.C. App. 232, 234, 349 S.E.2d 623 (1986), review denied, 319 N.C. 406, 354 S.E.2d 718 (1987); Wang v. Wang, 393 N.W.2d 771, 773-74 (S.D. 1986). Parol evidence is admissible, however, under § 42a-3-403 (2) (b) if the principal represented is named. Wurzburg Bros., Inc. v. Coleman, 404 So. 2d 334, 336 (Ala. 1981); Gulf & Basco Co. v. Buchanan, supra; M & M Welding, Inc. v. Pavlicek, supra. Unfortunately, § 42a-3-403 (2) does not specify what is necessary to satisfy its requirement that the entity represented be named before parol evidence is admissible to establish a defense under § 42a-3-403 (2) (b) in an action between the immediate parties. Schwarzwalder v. Waitkoss, 101 Ill. App. 3d 337, 341, 428 N.E.2d 633 (1981); see also annot., 97 A.L.R.3d 798, 815 (1980); 2 R. Anderson, Uniform Commercial Code (2d Ed. 1971) § 3-403:6-8.

Of the multitude of decisions that have construed various aspects of § 3-403 of the Uniform Commercial Code, only a minute number have addressed the specific problem at issue in this case. Two of those cases, upon which the plaintiff primarily relies to support its position that Carabetta is personally liable, differ factually from the case at hand and from each other and are not particularly helpful. In re Turner, 49 Bankr. 231 (D. Mass. 1985); Southern Oxygen Supply Co. v. de Golian, 230 Ga. 405, 197 S.E.2d 374 (1973). Moreover, we have found no case that even addressed the problem where the name of the corporate principal in an instrument was as similar to its registered name as it is in this instance and the name also indicated that the principal was a corporate entity. There were cases found where the corporate name used in the instrument varied slightly from the correct corporate name and the variation was ignored by the court and the parties apparently because it was thought insignificant. See, e.g., Berryfast, Inc. v. Zeinfeld, 714 F.2d 826, 827-28 (8th Cir. 1983); Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 227, 385 N.E.2d 1068, 413 N.Y.S.2d 141 (1978); Antil v. Southwest Envelope Co., 601 S.W.2d 47, 47-48 (Tex. Civ. App. 1979).

The view that a minor deviation in the name of a corporation has little legal significance finds support in the holding of this court in Seaboard Commercial Corporation v. Leventhal, 120 Conn. 52, 54-55, 178 A. 922 (1935), wherein we stated that “[i]t is the general rule that in case of a misnomer of a corporation in a grant, obligation or written contract, if there is enough expressed to show that there is such an artificial being and to distinguish it from all others, the corporation is sufficiently named although there is a variation of words and symbols. Commercial Bank v. French, 38 Mass. (21 Pick.) 486, 489 [1839]; Melledge v. Boston Iron Co., 59 Mass. (5 Cush.) 158, 174 [1849]; Newport Mechanics Mfg. Co. v. Starbird, 10 N.H. 123 [1839]; 14 C.J. 324; 7 R.C.L. 130.”

When applied to negotiable instruments generally, and to the instant case in particular, this holding would appear to require a common sense conclusion that where a corporate name, deviating from that registered with the secretary of the state but clearly indicating the existence of a corporate principal, appears on the face of an instrument it at least creates an ambiguity in the instrument that raises a question as to the capacity in which the individual whose signature is affixed thereto signed. It is for the resolution of ambiguities that § 42a-3-403 (2) (b) exists. See Schwarzwalder v. Waitkoss, supra, 341; 6 R. Anderson, Uniform Commercial Code (3d Ed. 1984) § 3-403:36, pp. 130-31. Under § 3-403 of the Uniform Commercial Code, “[i]f there is a question as to whether or not a person signed as an individual or as an agent for a principal, parol evidence is admissible if, and only if, two criteria are met. First, the action must be between the immediate parties to the [check]. Secondly, there must be some indication of the existence of a principal or that the signator signed in a representative capacity.” (Emphasis added.) J. P. Sivertson & Co. v. Lolmaugh, 63 Ill. App. 3d 724, 726, 380 N.E.2d 520 (1978); see also Hunt v. Dental Capital Corporation, 503 A.2d 205, 207 (D.C. App. 1985); Schwarzwalder v. Waitkoss, supra, 340-41.

Here there was certainly “some indication” of the existence of a corporate principal. Carabetta therefore should have been allowed to introduce parol evidence to attempt to prove that he signed the check in question in a representative rather than personal capacity.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other justices concurred.

       Payment was refused and the check dishonored because of insufficient funds.

       General Statutes § 42a-3-403 (2) provides: “signature by authorized REPRESENTATIVE. . . .
      “(2) An authorized representative who signs his own name to an instrument (a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity; (b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.”

       General Statutes § 42a-3-413 (2) provides: “contract of maker, DRAWER AND ACCEPTOR. . . .
      “(2) The drawer engages that upon dishonor of the draft and any necessary notice of dishonor or protest he will pay the amount of the draft to the holder or to any endorser who takes it up. The drawer may disclaim this liability by drawing without recourse.”

       General Statutes § 42a-3-307 (2) provides: “burden of establishing SIGNATURES, DEFENSES AND DUE COURSE. . . .
      “(2) When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.”

       In the middle of its uppermost portion the check contained the legend:
      “Gracey Street Popcorn, Inc. 136 Gracey Avenue Meriden, Conn. 06450”

       General Statutes § 33-287 (a) provides in pertinent part: “The name of each corporation formed after January 1, 1961: (1) Shall contain the word ‘corporation’ or ‘company’ or ‘incorporated’ or ‘limited’ ... or shall contain the abbreviation ‘corp.’ or ‘co.’ or ‘ine.’ or ‘ltd.’ . . .”

       General Statutes § 42a-3-101 provides: “short title. This article shall be known and may be cited as Uniform Commercial Code—Commercial Paper.”

        In re Turner, 49 Bankr. 231 (D. Mass. 1985), and Southern Oxygen Supply Co. v. de Golian, 230 Ga. 405, 197 S.E.2d 374 (1973), are clearly distinguishable from the case at hand. In In re Turner, a bankruptcy matter, a drawer was held personally liable on a number of checks he signed which, according to his version, he signed as representative for various principals whose names were imprinted on the checks. The checks he claimed to have signed, however, on behalf of “John F. McCarthy, Inc.,” were imprinted with the legend “Neponset Thrifty Liquors” with no evidence of a corporate designation. On checks imprinted with only the legend “Thrifty Liquors,” with no corporate designation, the drawer claimed to have signed as representative of a corporation named “Thrifty Liquors, Inc.” It appeared, however, that there were other businesses operating under the name “Thrifty Liquors.” As to checks the individual signed imprinted “Thrifty Liquors, Inc., Turners Package Store,” the checks not only failed to indicate which of the two entities was the purported principal, but failed to designate as a corporate entity “Turners Package Store, Inc.,” on whose behalf the individual claimed to have signed.
      In de Golian the name “Golian Steel Co.” appeared in a note allegedly signed by the defendant in his representative capacity as president of “Golian Steel & Iron Company.” The maker was held personally liable. Central to that holding, however, was the fact that “Golian Steel Co.” appeared on lines at the left hand side of the note intended for an address and were followed by a street address, city and state. The note was signed, ostensibly individually, by the defendant at the bottom right of the note at a spot designated for signatures. The court stated that “[t]he fact that a name similar to that of the corporation asserted to be the real maker of the note appears in the address does not name the person represented within the meaning of [Georgia] Code Ann. § 109A-3-403 (2) (b) . . . .” Southern Oxygen Supply Co. v. de Golian, supra, 406.


author: Covello, J.

text:
    Robert H. Anderson v. Latimer Point Management Corporation et al.
    (13352)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.

      Argued April 5
    decision released July 12, 1988

      Richard P. Weinstein, for the appellant-appellee (plaintiff).

      Robert J. Papp, with whom, on the brief, were Thomas J. Keramidas, Robert W. Clark and Jam Cable, for the appellee-appellant (named defendant).
   Covello, J.

The plaintiff, Robert H. Anderson, a resident of Latimer Point, Stonington, commenced this equitable action against the defendant, Latimer Point Management Corporation (LPMC), his lessor, and fourteen of his neighbors who were present or former directors of LPMC. The plaintiff sought an injunction restraining the defendants’ interference with the proposed use of his Latimer Point property in a number of subject matter areas. The plaintiff also claimed compensatory and punitive damages together with attorneys’ fees.

The trial court found some of the issues for the plaintiff and enjoined the defendants from: (1) interfering with the plaintiff’s maintenance of certain shrubs, trees and other vegetation; (2) interfering with the plaintiff’s membership in LPMC upon his payment of certain past due assessments; (3) pursuing the collection or levy of past fines from the plaintiff; and (4) pursuing a contemplated eviction of the plaintiff.

The plaintiff has appealed, contending that the court erred in: (1) refusing to grant an injunction restraining LPMC’s interference with a proposed second story addition to his cottage; (2) concluding that the plaintiff should pay a portion of past due assessments as a condition to his membership in LPMC; and (3) refusing to award attorneys’ fees. LPMC cross appealed claiming error in the court’s failure to award attorneys’ fees to the defendant corporation. We find no error.

The court found that Latimer Point is a peninsula located in Stonington. Prior to 1979, it was owned in its entirety by John Bindloss. Bindloss leased lots to various individuals who constructed summer homes upon them. Bindloss “governed” the peninsula and his approval was required for any proposed construction or planting. Part of his motive for this requirement was to maximize the water views for all the lessees. Although not perfectly accomplished, existing houses are situated on the various lots so as to afford the lessees a view of the water. Bindloss died in 1979, and Latimer Point was conveyed to Latimer Point Company, Inc.

In 1972, the individual lessees formed Latimer Point Management Corporation (LPMC), a nonstock corporation, pursuant to General Statutes § 33-419 et seq. The purpose of the corporation was to lease, sublease, maintain and improve Latimer Point.

In 1979, Latimer Point Company, Inc., leased the entire peninsula to LPMC for a term of thirty years. LPMC in turn executed a series of identical subleases to the individual lot holders for thirty year terms. The subleases provided that each lot could have one private home to be maintained in its present location. Alterations to existing structures or material changes to the surface or vegetation required prior approval of the sublessor, which approvals would not be unreasonably withheld. With the exception of existing trees, vegetation was not to obstruct the water views of other sublessees.

In May, 1981, Percy Wilcox assigned his sublease of lot 10 to the plaintiff. The plaintiff applied to LPMC for permission to add a second story to the dwelling on lot 10. The corporation denied his request. Having heard the evidence and after viewing the property, the trial court concluded that the required approval had been reasonably withheld because the proposed second story would substantially interfere with the water views of other sublessees.

The trial court further found that LPMC had denied the plaintiff his voting rights in LPMC and threatened his eviction by reason of his failure to pay dock assessments. He had also been fined by LPMC for failing to pay his pro rata share of other LPMC assessments, including legal expenses incurred in seeking to enforce the LPMC bylaws against the plaintiff. The trial.court concluded that a portion of the dock assessment had been unfairly levied against the plaintiff because LPMC had not timely notified the plaintiff that the town had assessed the docks. The trial court also concluded that the sections of the bylaws sought to be enforced against the plaintiff were impermissibly vague and without standards. The trial court therefore concluded that the plaintiff need not pay the fines, the legal expense assessment and the 1981-1982 dock assessment but that the balance of the accrued assessments was owed by the plaintiff as an incident to his exercise of voting privileges in LPMC. The trial court also concluded that any contemplated eviction of the plaintiff for nonpayment of the erroneously levied fines and assessments was not in order.

I

The plaintiff first claims error in the trial court’s refusal to grant an injunction restraining interference with his proposed second story addition. In this connection he advances two arguments.

First, the plaintiff challenges the court’s conclusion that LPMC acted reasonably in withholding permission for the addition because it would encroach on the view of the water from other properties. The plaintiff characterizes this conclusion as, in effect, creating “an easement of light or air by prescription or implication.” The plaintiff argues that General Statutes § 47-25 prohibits the creation of such easements through adverse possession. The plaintiff cites no authority for the proposition that the court’s ruling created such an easement nor does our research disclose this to be the case. We conclude that no prescriptive interest in favor of adjoining properties was created by the court’s holding and therefore § 47-25 is inapplicable.

Second, the plaintiff argues that LPMC had no adequate rules, bylaws or other procedures governing construction applications. The trial court found the only specific reference in the bylaws concerning construction applications to be impermissibly vague and incapable of providing standards. Although not specifically articulated, the plaintiff implies that these deficiencies in the LPMC bylaws somehow required the trial court to issue the injunctive relief requested. This argument overlooks the significant role of the exercise of the trial court’s broad discretion in injunctive matters and the fact that the trial court could and did consider not only the language of the sublease between the parties but also the insights gained from personal inspection of the property.

“It is clear that the power of equity to grant injunctive relief may be exercised only under demanding circumstances. Leo Foundation v. Cahelus, 151 Conn. 655, 657, 201 A.2d 654 [1964]. . . . ‘Restraining the action of an individual or a corporation by injunction is an extraordinary power, always to be exercised with caution, never without the most satisfactory reasons.’ Goodwin v. New York, N.H. & H. R. Co., 43 Conn. 494, 500 [1876]; Ginsberg v. Mascia, 149 Conn. 502, 505, 182 A.2d 4 [1962].” Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507, 511, 218 A.2d 383 (1966).

“We have repeatedly held that the issuance of an injunction rests in the sound discretion of the trial court.” Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981). “[I]ts action will not be disturbed unless it has abused its discretion.” Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 440, 440 A.2d 935 (1981).

The trial court viewed the premises, found that the proposed addition would substantially interfere with the water views of others, and declined to grant the requested injunction against LPMC. “[T]he visual observations made by the trier on a visit to the property are as much evidence as the evidence presented for his consideration by the witnesses under oath.” Houston v. Highway Commissioner, 152 Conn. 557, 558, 210 A.2d 176 (1965).

The court assessed the relative harm to others should the injunction issue and concluded that its entry was inappropriate. “ ‘In exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction. . . .’ Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972).” Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 541-42, 450 A.2d 369 (1982). We therefore find no abuse of discretion in the trial court’s declining to issue the requested injunction.

II

The plaintiff next claims that the trial court erred in ordering that he pay a portion of certain past due assessments levied by LPMC as a condition to his participation as a member in good standing in LPMC. He argues that in a prior suit between the parties LPMC could have raised the past due assessments issue and that, it having failed to do so, the issue is now res judicata as between these parties. We disagree.

Examination of the complaint discloses that the plaintiff alleged that “the defendant corporation has sought to collect dues, assessments, fines, and alike, from the plaintiff even though the plaintiff was denied participation in said corporation during the time applicable to the dues, assessments, etc.” LPMC denied this allegation.

The plaintiff’s theory was that the assessments were not due because LPMC had denied him participation in the corporation. The theory at trial was not, as he now alleges, that LPMC’s claim to assessments was barred by res judicata, a legal doctrine which must be specially pleaded. Practice Book § 164.

Since the plaintiff had not alleged that res judicata was implicated in the determination of the assessment issue, “[t]he trial court was entitled to follow the theory on which the case was tried. Alexander v. Alexander, 107 Conn. 101, 106, 139 A. 685 [1927].” Housing Authority v. Pezenik, 137 Conn. 442, 448, 78 A.2d 546 (1951). Moreover, “[a] party cannot present a case to the trial court on one theory and then ask a reversal in this court on another. Arcari v. Dellaripa, 164 Conn. 532, 537, 325 A.2d 280 [1973] . . . .” (Citation omitted.) Silverman v. St. Joseph’s Hospital, 168 Conn. 160, 176-77, 363 A.2d 22 (1975). Accordingly, we do not address this issue further.

Ill

Finally, both parties have appealed the denial of their requests for attorneys’ fees. The plaintiff claims an award pursuant to General Statutes § 42-150bb, while LPMC claims to be entitled under 42 U.S.C. § 1988. We disagree with both contentions.

A

Section 42-150bb is a statutory authorization for attorneys’ fees to be awarded “as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon [a] contract or lease” when that consumer is a party to a lease that provides for attorneys’ fees to the lessor. The trial court found that the sublease here in issue, which provided for attorneys’ fees to the sublessor, fell within this statutory definition of a “lease” but declined to award counsel fees for the reason that the plaintiff had not successfully prosecuted a claim under the lease. We agree.

The orders entered in behalf of the plaintiff concerning vegetation, assessments, LPMC membership and eviction were all based on inadequacies found by the court in the LPMC bylaws and not in the sublease. Thus, the court was correct in concluding that the plaintiff had not successfully prosecuted his action under the lease. The defendants, however, had also filed a counterclaim seeking: (1) a mandatory injunction directing the plaintiff’s removal of certain unapproved vegetation; (2) an injunction restraining his further planting; and (3) an injunction restraining his addition of a second story to his house. The court rendered judgment for the plaintiff on the counterclaim. The further issue thus remains as to whether the plaintiffs successful defense of this counterclaim entitles him to an award of attorneys’ fees under § 42-150bb.

The vegetation issues were decided on the basis of the inadequate bylaws and not on considerations involving the sublease. The issue of adding the second story was resolved against the plaintiff on the basis of his complaint and not the counterclaim. Therefore, the court’s rendering of a judgment in favor of the plaintiff on the counterclaim does not, in reality, constitute a successful defense of a counterclaim under the lease. Therefore, § 42-150bb is not applicable and the court correctly concluded that attorneys’ fees were not authorized.

B

LPMC based its claim for attorneys’ fees on the provisions of 42 U.S.C. § 1988. Section 1988 provides that “in any action or proceeding to enforce a provision of [section] . . . 1983 . . . the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” (Emphasis added.)

The first count of the plaintiff’s complaint purported to state a cause of action under 42 U.S.C. § 1983. The trial court rejected this claim. On the basis of § 1988, LPMC then sought an award of attorneys’ fees. The court concluded that the plaintiff’s claim that LPMC’s conduct constituted state action that had violated his civil rights under § 42 U.S.C. 1983, although novel, was not frivolous and had been made in good faith. It therefore declined to award attorneys’ fees pursuant to the exercise of the discretion authorized by the statute. This court will not interfere except in the case of a clear abuse of that discretion. Link v. Shelton, 186 Conn. 623, 629, 443 A.2d 902 (1982). Under the circumstances of this case, we find no error in the exercise of the court’s statutorily authorized discretion in declining LPMC’s claim for attorneys’ fees.

There is no error.

In this opinion the other justices concurred.

       Specifically, the plaintiff sought an injunction prohibiting the defendants from: (1) interfering with his proposed addition of a second story to the existing cottage; (2) interfering with the installation of a well; (3) interfering with other construction that would include a garage; (4) interfering with the planting and maintenance of shrubs and other vegetation; (5) erecting a fence; (6) barring his participation as a member in LPMC; (7) collecting previously levied fines, penalties and assessments; (8) interfering with his peaceful and quiet enjoyment of the premises; (9) interfering with his proposed use of existing waterfront improvements; (10) discriminating in the application of the rules, regulations and sublease provisions of LPMC; and (11) any proposed eviction.

       The plaintiffs amended complaint contained four counts. The first purported to set forth a cause of action under 42 U.S.C. § 1983 for violation of the plaintiffs federal constitutional and state constitutional rights. The second claimed that LPMC was improperly organized under the Connecticut nonstock corporation laws. The third alleged the breach of the terms of a sublease contract executed by LPMC and assigned to the plaintiff. Finally, the fourth count claimed that LPMC had established and sought to enforce rules and regulations that were impermissibly vague and contrary to the Connecticut nonstock corporation laws.

       In 1981-1982 the docks were taxed as separate entities for the first time.

       General Statutes § 47-25 provides: “No occupant of real estate may acquire, by adverse occupation, the right to keep, sustain or enjoy any window or light, so as to prevent the owner of adjoining premises from erecting and maintaining any building thereon.”

       Section R-17 of the LPMC bylaws provides: “All plans for construction, reconstruction or additions shall have the prior written approval of the Board of Directors, subject to appeal in the same manner as provided in Section 11 of these By-Laws.”

        Latimer Point Management Corporation v. Anderson, 1 Conn. App. 310, 471 A.2d 670 (1984).

       General Statutes § 42-150bb provides: “attorney’s fees in action based ON consumer contract OR lease. Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. Except as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorney’s fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorney’s fee under this section and in which the commercial party is represented by its salaried employee, the attorney’s fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party. For the purposes of this section, ‘commercial party’ means the seller, creditor, lessor or assignee of any of them, and ‘consumer’ means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.”

       Title 42 of the United States Code, § 1988, provides: “proceedings IN VINDICATION OF CIVIL RIGHTS; ATTORNEY’S FEES
      “The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title ‘CIVIL RIGHTS,’ and of Title ‘CRIMES,’ for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty. In any action or proceeding to enforce a provision of sections 1981,1982,1983,1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

       Title 42 of the United States Code, § 1983, provides: “civil action for DEPRIVATION OF RIGHTS
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”