195 Conn. 211 | Conn. | 1985
The sole issue in this appeal is whether a stipulated judgment should be opened because one of the parties thereto claims that she did not consent to its terms. The underlying litigation alleged that the plaintiffs had been defrauded by the defendant Craig F. White’s wrongful transfers of property interests in a partnership known as Manchester Professional Park Associates. That law suit named as defendants various transferees of the property at issue, including Craig White’s wife, Andrea S. White. After several days of testimony, a stipulated judgment settling that litigation was entered by Spada, J., in open court. Thereafter, the defendant Andrea White filed a timely
The stipulated judgment that the appellant Andrea White seeks to open was entered in open court with Attorney Richard Robinson representing both Craig White and the appellant. As part of the stipulated judgment, Craig White and Andrea White agreed to relinquish entirely whatever their interests were or might have been in and to Manchester Professional Park Associates. Other defendants retained designated shares in the partnership. Craig White was present in the courtroom at the time of the stipulated judgment. Andrea White, who had attended the trial earlier, was not present.
In her motion to open and to set aside the stipulated judgment under § 326 of the Practice Book, the appellant claimed that she had not given her consent, either as a matter of fact or as a matter of law, to total divestiture of her interest in Manchester Professional Park Associates. She asked the trial court to exercise its discretion in her favor and to open the judgment for two reasons allegedly showing her lack of consent: first, that she had not consented to the specific terms of the stipulated judgment; and, second, that she was not bound by her attorney’s agreement to the stipulated judgment because of the conflict of interest created by his joint representation of herself and Craig White.
The trial court denied the motion to open. Relying on the testimony of the appellant Andrea White, Craig White and Robinson, the court found that the appellant did in fact consent to the terms of the settlement that was the basis for the stipulated judgment. The court concluded further that the allegations of conflict of interest, because they did not raise questions of fraud or of mutual mistake, furnished no basis for setting the judgment aside. The appellant challenges the validity of both of these rulings. We find no error.
Before we examine the claims that the appellant pursues on her appeal, it is useful to make clear what claims the appellant is not making. She does not attack the stipulated judgment on the ground of fraud, duress, accident or mistake. See Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 558, 468 A.2d 1230 (1983); Celanese Fiber, Division of Celanese of Canada, Ltd. v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981); Kenworthy v. Kenworthy, 180 Conn. 129, 131-32, 429 A.2d 837 (1980); Bryan v. Reynolds, 143 Conn. 456, 460-61, 123 A.2d 192 (1956); 3 Freeman, Judgments (5th Ed. 1925) § 1352. She does not argue that her attorney lacked all authority to enter into a settlement on her behalf
The claims which the appellant has chosen to pursue must be considered, in this court, with due regard to the limited nature of our review of motions arising under Practice Book § 326. “A motion to open and vacate a judgment filed during the four months after which judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasona
Viewed against this background, the appellant’s claim of lack of actual consent to the stipulated judgment is unsupportable. The appellant concedes that Robinson, Craig White and the appellant met to discuss the contours of a possible settlement on January 20,1983. She also concedes that the trial court was presented with conflicting evidence about what transpired at that meeting. The trial court was entitled, in its role as the arbiter of credibility, to believe Robinson’s testimony that the appellant had agreed to the divestiture which was incorporated into the stipulated judgment on January 25,1983. Varley v. Varley, 189 Conn. 490, 493, 457 A.2d 1065 (1983). The trial court might reasonably have concluded that her consent to divestiture
The appellant’s more troublesome claim is her assertion that her actual consent was fatally tainted, as a matter of law, by a clear conflict of interest arising out of Robinson’s joint representation of the appellant and Craig White. The appellant argues that she could not make an informed choice about the desirability of the terms of the stipulated judgment with the advice of counsel whose primary concern was the protection of her co-defendant Craig White.
The trial court responded to this claim without finding whether Robinson’s joint representation constituted a conflict of interest. The court held, instead, that if such a conflict existed, it involved a question of the ethics of Robinson’s representation of the appellant and Craig White. The court further held that such ethical considerations, in the absence of fraud or mutual mistake, would not warrant the opening of a stipulated judgment, because the other parties thereto were entitled to rely upon the fact that Robinson had entered his appearance for, and was defending, both the appellant and Craig White. The record contains nothing to indicate that the appellant, after the announcement of the memorandum of decision, sought from the trial
In this court, the parties now disagree vigorously whether Robinson’s joint representation of the appellant and Craig White led to a conflict of interest with regard to the settlement underlying the stipulated judgment. The appellant claims that Robinson primarily consulted with Craig White, instructed the appellant not to worry about the plaintiffs’ complaint, did not discuss possible defenses with her, and discouraged her from obtaining independent counsel. The plaintiffs, however, claim that there was a continuous mutuality and unity of interest between the appellant and Craig White, that her defense was inextricably linked to her husband’s, her property interest was derivative of his, and her confidence in her husband’s fiduciary conduct was never repudiated. This is a disagreement that we cannot resolve. Although each party purports to rely on testimony that was allegedly uncontradicted, we cannot determine what testimony the trier of fact would have found credible. It is a well established principle that “[a] fact is not admitted or undisputed simply because it is uncontradicted.” Friedson v. Westport, 181 Conn. 230, 233, 435 A.2d 17 (1980); Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983). On this record, we cannot conclude that the appellant has proven the existence of a clear conflict of interest.
Without the factual predicate of a conflict of interest, we cannot adjudicate the appellant’s claim that she
The appellant has failed to establish her lack of consent, either as a matter of fact or as a matter of law, to the stipulated judgment whose validity she challenges. We therefore conclude that the trial court did not abuse its discretion in denying her motion to open the judgment.
There is no error.
In this opinion the other judges concurred.
“[Practice Book] Sec. 326. setting aside or opening judgments
“Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.”
Craig F. White simultaneously filed a separate motion to open. He has not appealed the decision of the trial court denying his motion.
In the trial court, Andrea White argued that the judgment should be set aside, regardless of her consent, for three reasons, all of which the trial court rejected. She claimed that the stipulated judgment could not validly order relief that had not been sought by the plaintiffs’ complaint. She claimed that the stipulated judgment could not treat her differently than other defendants allegedly similarly situated, just because she was Craig White’s wife. Finally, she claimed that the trial court lacked jurisdiction to enter the stipulated judgment since that judgment purported to adjudicate the rights of individuals not before the court.
An attorney who is authorized to represent a client in litigation does not automatically have either implied or apparent authority to settle or otherwise to compromise the client’s cause of action. Cole v. Myers, 128
The Code of Professional Responsibility permits an attorney to represent multiple clients only “if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.” Code of Profes
The defendants other than Craig White and Andrea White were purchasers for value who had no familial ties to Craig White. Craig White was trustee for Andrea White only.
In her reply brief, the appellant suggests, for the first time, that the trial court erred in refusing to permit the appellant to introduce evidence on the question of conflict of interest. No evidentiary question is raised in her statement of issues; see Practice Book § 3060F (a); and no such question is addressed in her brief-in-chief, which assumes that there is “a clear conflict of interest.” The evidentiary question was not pursued on oral argument to this court, nor was it presented in the reply brief in the manner required by Practice Book § 3060F (c) (3). See State v. Vass, 191 Conn. 604, 621, 469 A.2d 767 (1983). In these circumstances, we decline to consider this question further.
Code of Professional Responsibility DR 5-106 (A) provides: “DR 5-106 SETTLING SIMILAR CLAIMS OP CLIENTS.
“(A) A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against his clients, unless each client has consented to the settlement after being advised of the existence and nature of all the claims involved in the proposed settlement, of the total amount of the settlement, and of the participation of each person in the settlement.”