Dunham v. Dunham

• Decision Date: 07 July 1987
• Docket Number: Nos. 12687,12754,s. 12687
• Citation: 528 A.2d 1123,204 Conn. 303
• Court: Connecticut Supreme Court
• Parties: Roger S. DUNHAM v. Carl M. DUNHAM, Jr.

Page 1123

528 A.2d 1123

204 Conn. 303

Roger S. DUNHAM v. Carl M. DUNHAM, Jr.

Nos. 12687, 12754.

Supreme Court of Connecticut.

Argued May 5, 1987.

Decided July 7, 1987.

Steven I. Traub, with whom, on the brief, was Steven J. Errante, New Haven, for appellant in the first case and appellee-appellant in the second case (plaintiff).

Wesley W. Horton, Hartford, with whom were Norman J. Voog, Ridgefield, and, on the brief, William R. Moller, Hartford, for appellee in the first case and appellant-appellee in the second case (defendant).

PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, SPALLONE and SPEAR, JJ.

PETERS, Chief Justice.

These appeals involve a number of claims regarding the propriety of the trial court's rulings in litigation between two brothers concerning the validity of probate proceedings and inter vivos transfers of family property. The plaintiff, Roger S. Dunham, brought an action in three counts against his brother, Carl M. Dunham, Jr., seeking to set aside the decree admitting into probate the will of their mother, Jessica Dunham, asking for specific performance of an alleged promise to convey real estate and claiming compensatory, punitive and exemplary damages. During a trial to a jury, the trial court directed a verdict in favor of the defendant on the second and third counts. The jury returned a verdict in favor of the plaintiff on the first count. Both parties have appealed from the trial court's judgment rendered in accordance with these verdicts. We find no error.

The jury could reasonably have found the following facts. Carl Dunham, Sr., and Jessica Dunham were husband and wife. They had three children, Joan, Carl, Jr., and Roger, the latter two being the parties to these appeals.

During his lifetime, Carl Dunham, Sr., had amassed extensive real estate holdings, totaling approximately 900 acres, located in New Milford, Sherman and Sharon. He had constructed on that property the family residence, an inn and a licensed airport (the airport). Upon the death of Carl Dunham, Sr., in 1969, his will left to his widow Jessica an outright one half interest in his estate and a trust interest, subject to her testamentary power of appointment, in the other one half of his estate.

In 1974, Jessica Dunham conveyed to the defendant 300 acres of the property she had inherited from the estate of her late husband. ¹ The defendant, a member of the bar of this state, acting as Jessica Dunham's lawyer, prepared all of the documentation in connection with the transaction. That conveyance included the family residence, the inn, the airport, and the office building in which the defendant conducted his law practice.

In 1978, Jessica Dunham executed, in the defendant's law office, a will that he had drafted for her. This will left her net residuary estate after taxes, approximately $30,000, to be divided equally among her three children. It also appointed the defendant the executor of her estate, forgave and cancelled all indebtedness of the defendant to Jessica Dunham, and exercised in favor of the defendant the power of appointment created by the will of Carl Dunham, Sr., thereby ensuring that the defendant would inherit the remaining 600 acres of property that Jessica Dunham had received under Carl Dunham, Sr.'s will. ² At the same time she executed the will, Jessica Dunham also executed a power of attorney, prepared by the defendant, which gave him complete control over her assets and affairs during her lifetime.

Jessica Dunham died of cancer on October 23, 1978. On October 31, 1978, the defendant asked the plaintiff to come to his office to discuss the administration of their mother's estate. During that meeting, the defendant asked the plaintiff to sign several documents to facilitate the administration of the estate. The plaintiff, in turn, expressed interest in acquiring title to the airport, which originally had been part of Carl Dunham, Sr.'s estate. He expected to inherit that property because the operation of the airport had been his domain and, on the basis of conversations he had had with his mother, he had understood that property to be part of his inheritance from her estate. The defendant replied that they would "have to start thinking about" arrangements for the transfer of the airport property. The parties had several similar discussions about the airport property on subsequent occasions. At no time during those discussions, however, did the defendant disclose that, as of 1974, he himself held title to the airport, and that under the terms of Jessica Dunham's will, he had acquired absolute fee simple title to the remainder of the property in their mother's estate.

Following this conversation at the defendant's office, the parties went to the New Milford town hall, where the plaintiff executed, in the presence of the probate clerk and the probate judge, a waiver of notice and objection to the admission to probate of Jessica Dunham's will. According to the plaintiff, although the defendant never explained the significance of the waiver, he signed it anyway, believing that the defendant was acting as his attorney and in his best interests. The validity of this waiver is the subject of dispute in the first count of the plaintiff's complaint.

In January, 1981, Jessica Dunham's estate was closed. Subsequently, in May, 1982, the defendant requested that the plaintiff leave the family residence, where he had been living since February, 1979. To date, the defendant has not conveyed to the plaintiff any of the property he received from the parties' mother in 1974, or subsequently from her estate.

The plaintiff initiated this action in 1982, by filing in the Superior Court an amended complaint in three counts. As subsequently amended, the first count, an equitable action to set aside the probate decree, alleged that the defendant had exercised undue influence over Jessica Dunham in preparing and securing the execution of her will. It further alleged that, in reliance upon the advice and promises of the defendant, the plaintiff had signed a waiver relinquishing his right to contest the admission of that will to probate. The second count, sounding in contract, alleged that the defendant had represented to the plaintiff that the plaintiff's share in the equitable distribution of Jessica Dunham's estate included the airport, and further alleged that the plaintiff had fully performed in accordance with an oral agreement between the parties concerning the equitable distribution of the property in their mother's estate. The third count, which the trial court construed as asserting a claim for legal malpractice, alleged that the defendant, while acting as the plaintiff's attorney, had engaged in various acts of professional misconduct, thereby causing harm to the plaintiff.

During the trial to a jury, after the plaintiff had rested, the defendant filed a motion for directed verdict on all three counts. After a hearing, the trial court granted the motion in part, directing a verdict for the defendant on the second and third counts for lack of sufficient evidence. The court treated those counts, respectively, as claims for breach of contract and legal malpractice. At the conclusion of the trial, the court submitted the first count to the jury, which rendered a verdict, by way of answers to three interrogatories, ³ in favor of the plaintiff, finding the defendant guilty of breach of a fiduciary or confidential relationship with the plaintiff. Accordingly, the trial court rendered judgment for the plaintiff on the first count, setting aside the decree admitting to probate the will of Jessica Dunham, and for the defendant on the second and third counts. The defendant thereafter filed posttrial motions to set aside the verdict on the first count and to render judgment in accordance with the defendant's motion for a directed verdict on that count, both of which were denied by the trial court.

On appeal to this court, the plaintiff claims that the trial court erred: (1) in directing a verdict in favor of the defendant on the second count, rather than submitting that count to the jury, because there was sufficient evidence of a promise by the defendant to convey the airport to the plaintiff to give rise to an enforceable contract; and (2) in directing a verdict in favor of the defendant on the third count, which, according to the plaintiff, was a dual claim for breach of fiduciary duty and for tortious interference with an expectancy or inheritance, and was supported by sufficient evidence to warrant its submission to the jury. In the defendant's cross appeal from the judgment on the first count, he essentially claims that the trial court erred in its charge to the jury and in certain evidentiary rulings it made. We will first address the plaintiff's appeal and will then consider the defendant's appeal. ⁴

I

In our consideration of the plaintiff's appeal we note, as a threshold matter, that under the circumstances of this case, our review is limited by virtue of the plaintiff's failure, at trial, to file a motion to set aside the jury verdict on the second and third counts of his complaint. See Practice Book § 320 and General Statutes § 52-228b. ⁵ We have stated repeatedly that such a motion is indispensable to ensure full appellate review of claims of error in civil jury cases. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 195, 520 A.2d 208 (1987); Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986); Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981); Gordon v. Feldman, 164 Conn. 554, 557, 325 A.2d 247 (1973). We insist upon this procedure for sound policy reasons, as it provides the trial court with an opportunity to correct any errors and to explain the basis for its rulings, thereby enhancing the appellate record, and implements our longstanding policy against review of questions not distinctly raised at trial. Practice Book § 4185; Pietrorazio v. Santopietro, s...