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WILLIAM LUKAS III v. JASON L. MCCOY ET AL.
(AC 36463)
Lavine, Keller and Harper, Js.
Argued February 10—officially released May 26, 2015
(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 defen-
dant, his former attorney, after his chapter 13 bank-
ruptcy 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 judg-
ment 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 plain-
tiff’s petition to determine whether to confirm or dis-
miss 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 represen-
tation. The plaintiff claimed, inter alia, that the defen-
dant failed to attend the June 13, 2006 hearing and to
communicate with and to provide the necessary docu-
mentation 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 negli-
gently, and he alleged a special defense of contribu-
tory 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 testi-
mony 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 ver-
dict rule case, the record is silent regarding whether
the jury verdict resulted from the issue that the appel-
lant 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 indi-
cate 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 quota-
tion 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 had
been 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 con-
tributory 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 contribu-
tory 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.) Mala-
guit 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.4
Accordingly, 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 perti-
nent to the plaintiff’s claims.
In his complaint, the plaintiff alleged that the defen-
dant 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 contributory
negligence as a special defense.
During the trial, portions of the bankruptcy court
hearing transcripts were read into the record. The fol-
lowing 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 [plaintiff’s] third filing.
There’s numerous reasons not to confirm, Your Honor,
including the fact that the [plaintiff] has hundreds of
thousands of dollars of debt which he cannot afford
to repay. He’s also over $7000 behind in his trustee
payment.’’ After the bankruptcy court dismissed his
petition with a 180 day bar on refiling, the plaintiff filed
a motion to vacate the dismissal. The trustee stated the
following before the bankruptcy court regarding the
plaintiff’s motion to vacate: ‘‘Your Honor, if it was just
a mistake that people didn’t show up on the right day,
I would probably not object to the motion to vacate the
dismissal of this case, but there are numerous problems
with this case that were above and beyond the fact that
no one appeared at the last hearing date. The biggest
is that I see no way [the plaintiff] could possibly ever
propose a feasible plan. . . . The information I do have
shows that there’s no way that [the plaintiff] could ever
propose a plan.’’ On the basis of the trustee’s opposition,
the bankruptcy court denied the motion to vacate.
Furthermore, the defendant testified that the plaintiff
failed to provide him with the necessary information
and documents to support a feasible chapter 13 bank-
ruptcy plan. The defendant testified: ‘‘[W]e thought we
had some type of plan that could get confirmed if we
could just get the material that would substantiate it.
We did not have it at that point for [the plaintiff]. . . .
He hadn’t got us the material. It was just we couldn’t
support a claim.’’
‘‘[T]o prove any legal malpractice claim, a plaintiff
must establish the four necessary elements: (1) an attor-
ney-client relationship; (2) a wrongful act or omission
by the attorney; (3) proximate cause; and (4) legal dam-
ages. . . . Put another way, a plaintiff must prove that
there existed an attorney-client relationship and that the
client sustained legal injury or damage that proximately
was caused by the attorney’s wrongful act or omission.’’
(Citation omitted.) Lee v. Harlow, Adams & Friedman,
P.C., 116 Conn. App. 289, 302, 975 A.2d 715 (2009).
Throughout the trial, the defendant denied that he
was negligent and put forth evidence that he did not
proximately cause the plaintiff’s injuries. Specifically,
the defendant argued that the plaintiff’s negligence led
to the dismissal of the plaintiff’s petition. In essence,
the element of proximate cause was governed by the
question of who was responsible for the dismissal of
the plaintiff’s petition.
The plaintiff argues, in his second claim, that the
court failed to apply the applicable bankruptcy statute,
11 U.S.C. § 1324, which authorizes a bankruptcy judge,
not a jury, to determine whether to confirm a chapter
13 bankruptcy plan. Thus, the plaintiff argues that in
deliberating on proximate cause, the jury improperly
ruled upon the validity of plaintiff’s petition, which only
could be determined by a judge. Contrary to the plain-
tiff’s contention, the issue before the jury was a factual
one that did not require the jury to resolve the issue of
the confirmability of the petition. Instead, the issue
was whether the acts or omissions of the plaintiff or
defendant proximately caused the dismissal of the
plaintiff’s petition. The defendant correctly argues that
there was sufficient evidence produced from which the
jury reasonably could have concluded that the plaintiff:
‘‘(1) was providing inaccurate information and failing
to provide requested information; (2) failed to make
required payments; (3) attempted to manipulate his
reported income; and (4) could not produce sufficient
supporting documentation to establish a feasible chap-
ter 13 [bankruptcy] plan, and that these factors resulted
in the dismissal of his bankruptcy case.’’ Because there
was a factual dispute about whether the plaintiff pro-
vided the defendant with the information necessary
to devise a chapter 13 bankruptcy plan, the issue of
proximate cause was an appropriate issue for the jury
to decide. See Cammarota v. Guerrera, 148 Conn. App.
743, 755, 87 A.3d 1134 (‘‘The question of proximate
causation . . . belongs to the trier of fact because cau-
sation is essentially a factual issue. . . . It becomes a
conclusion of law only when the mind of a fair and
reasonable [person] could reach only one conclusion;
if there is room for a reasonable disagreement the ques-
tion is one to be determined by the trier as a matter of
fact.’’ [Internal quotation marks omitted.]), cert. denied,
311 Conn. 944, 90 A.3d 975 (2014).
The plaintiff’s third claim is that even if the question
of the viability of his petition was properly before the
jury, the court failed to instruct the jury on the applica-
ble bankruptcy statute, 11 U.S.C. § 1325. Because the
issue of whether the plaintiff’s petition was confirmable
was not before the jury, the plaintiff’s third claim fails.
For the foregoing reasons, this case does not present
the type of extraordinary situation that warrants rever-
sal due to plain error. See footnote 3 of this opinion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Jason L. McCoy, Attorney, LLC,’’ and ‘‘McCoy Law Firm, LLC,’’ were
also named as defendants, but the plaintiff withdrew his action as to them
prior to trial. For convenience, we refer to Jason L. McCoy as the defendant
in this opinion.
2
The verdict stated: ‘‘We the jury, find the issues for the defendant, Jason
McCoy, d/b/a The Law office of Jason L. McCoy, and against the plaintiff,
William Lukas III.’’
3
‘‘[The plain error] doctrine, codified at Practice Book § 60-5, is an extraor-
dinary remedy used by appellate courts to rectify errors committed at trial
that, although unpreserved, are of such monumental proportion that they
threaten to erode our system of justice and work a serious and manifest
injustice on the aggrieved party. [T]he plain error doctrine . . . is not . . .
a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine
that this court invokes in order to rectify a trial court ruling that, although
either not properly preserved or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for reasons of policy.
. . . In addition, the plain error doctrine is reserved for truly extraordinary
situations [in which] the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in the judicial proceedings.
. . . Plain error is a doctrine that should be invoked sparingly.’’ (Internal
quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76–77, 60 A.3d
271 (2013).
4
The court provided both parties with a draft of its jury instructions for
review. The plaintiff did not take an exception to the court’s jury instructions
or object to the instructions.