Aksomitas v. Aksomitas

529 A.2d 1314, 205 Conn. 93, 1987 Conn. LEXIS 984
CourtSupreme Court of Connecticut
DecidedAugust 25, 1987
Docket12886; 12887
StatusPublished
Cited by33 cases

This text of 529 A.2d 1314 (Aksomitas v. Aksomitas) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aksomitas v. Aksomitas, 529 A.2d 1314, 205 Conn. 93, 1987 Conn. LEXIS 984 (Colo. 1987).

Opinion

Santaniello, J.

This matter involves an action brought against the administratrix of an estate by an heir who sought double damages under General Statutes § 52-565 based on allegations of fraudulent concealment and forgery. The aétion was tried to a jury which returned a verdict in favor of the plaintiff. The trial court subsequently denied the plaintiffs claim for double damages. The defendant has appealed from the judgment rendered in accordance with the jury’s verdict and the plaintiff has cross appealed from the trial court’s denial of his motion for double damages.

The jury could reasonably have found the following facts. On July 17,1966, Domicely Aksomitas (decedent) died intestate leaving as her only heirs at law, her three children, Albert Aksomitas (plaintiff), Louise E. [95]*95Aksomitas (defendant), and William E. Aksomitas (William). The decedent’s estate included certain real estate located on Capitol Avenue in Hartford. At the time of the decedent’s death, and for some time prior thereto, the defendant resided on Capitol Avenue with the decedent and assisted her with the management of a rooming house business that was conducted on the premises. The three heirs had agreed that the defendant should be appointed administratrix of the estate, and that she should continue to live at the Capitol Avenue premises and manage the rooming house. Further, she was to retain for herself the profits and benefits generated by her management of the premises. The heirs also had agreed that when the Capitol Avenue property was sold, the proceeds therefrom would be divided equally among them. A mutual distribution agreement was signed by the heirs and approved by the Hartford Probate Court on October 15,1968. Subsequent thereto, William orally released his interest in the inheritance and expressed his desire that the proceeds from any eventual sale of the property should be divided equally between the plaintiff and the defendant.

In January, 1980, the property was sold and the defendant refused to pay to the plaintiff his share of the proceeds. Thereafter, the plaintiff instituted a suit against the defendant for “breach of promise.” During the pendency of that action, it was discovered that certain documents which purported to convey the Capitol Avenue property to the defendant outright apparently had been forged. The allegedly forged documents were: (1) an application for administration dated August 8,1966; (2) a quitclaim deed, dated February 3, 1967; (3) a quitclaim deed, dated May 25, 1968, with an attached document that has been referred to as a reaffirmation; and (4) a mutual distribution agreement dated August 16, 1968. The mutual distribution docu[96]*96ment represented that the heirs had agreed to convey the decedent’s estate, in its entirety, to the defendant. It had been filed in the Hartford Probate Court on October 18, 1968.

Following the discovery of the forged mutual distribution agreement the plaintiff withdrew the “breach of promise” action and instituted the action which forms the basis of the present appeal. This action was brought against the defendant both in her individual capacity and in her capacity as administratrix of the estate, and alleged fraudulent concealment and forgery.

Following a trial to the jury, judgment was rendered in accordance with the jury verdict in favor of the plaintiff. The trial court denied the defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict and the plaintiff’s motion for double damages pursuant to General Statutes § 52-565.

Originally, both the plaintiff and the defendant filed separate appeals from these judgments with the Appellate Court. These appeals were subsequently consolidated and, pursuant to Practice Book § 4023, transferred to this court. By agreement of the parties, the defendant is the appellant, the plaintiff is the appellee, and the plaintiff’s appeal is being treated as a cross appeal.

The defendant claims the court erred as follows: (1) in erroneously charging the jury on the issue of fraudulent concealment; and (2) in denying her motions to set aside the verdict and for judgment notwithstanding the verdict on the grounds that (a) the forged mutual distribution agreement, having been publicly recorded, could not have been fraudulently concealed as a matter of law, and (b) the evidence was insufficient to sustain the verdict. The plaintiff claims, in his cross appeal, that the trial court erred in denying his motion for double damages.

[97]*97The defendant first claims that the trial court committed plain error when it charged the jury on the issue of fraudulent concealment.1 The record reveals that the defendant never raised an objection to the charge in the trial court. Where a claimed error of a nonconstitu-tional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error. Practice Book § 4185; Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986); Rokus v. Bridgeport, 191 Conn. 62, 67,463 A.2d 252 (1983).

The plain error doctrine provides that an appellate court “may in the interests of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185. This doctrine should be invoked sparingly and made available in only the most exceptional circumstances. Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983); Cahill v. Board of Education, 187 Conn. 94, 99, 444 A.2d 907 (1982). Such exceptional circumstances may occur where the record supports a claim that the party has been deprived of a fundamental constitutional right and a fair trial; Cahill v. Board of Education, supra, 100; or where the error, in some way, directly affects the outcome of the case. Berchtold v. Maggi, supra.

[98]*98Reviewing the jury charge in is entirety, we are satisfied that it “fairly presented the case so that no injustice was done.” See Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 507, 481 A.2d 750 (1984). The trial court instructed the jury to consider all of the evidence presented: that the plaintiff had to prove his case by clear and convincing evidence, that he could not prevail against the statute of limitations defense unless it found that the defendant had fraudulently concealed the existence of the forged documents, and that the plaintiff instituted his action within the period of time provided for by the applicable statute of limitations.2 Reviewing the trial court’s charge to the jury, in its entirety, we are satisfied that it was not erroneous and therefore the doctrine of plain error is inapplicable.

The defendant next contends that the trial court erred in denying her motions to set aside the verdict and for judgment notwithstanding the verdict because the second mutual distribution agreement which was filed in the Hartford Probate Court and was a matter of public record, could not have been fraudulently concealed as a matter of law.

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Cite This Page — Counsel Stack

Bluebook (online)
529 A.2d 1314, 205 Conn. 93, 1987 Conn. LEXIS 984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aksomitas-v-aksomitas-conn-1987.