548 A.2d 776
(6219)Appellate Court of Connecticut
SPALLONE, DALY and NORCOTT, Js.
Argued September 20, 1988
Decision released October 11, 1988
Action to set aside a deed, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and referred to John Keogh, Jr., attorney state trial referee who filed a report recommending judgment in favor of the plaintiffs against the defendant Stella Paklos; thereafter, the court, Lewis, J., rendered judgment accepting the report, from which the defendant Stella Paklos appealed to this court. Error; new trial.
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John F. Slane, Jr., with whom, on the brief, was Francis X. Lennon, Jr., for the appellant (defendant Stella Paklos).
Rocco R. P. Perna, for the appellees (plaintiffs).
PER CURIAM.
The defendant Stella Paklos is appealing from the judgment rendered by the trial court upon the report of the attorney trial referee.
In this action, the trial court found facts, drew legal conclusions and rendered judgment where there was a material variance between the pleadings and the proof. The plaintiff alleged that a deed was signed “under undue influence,” because of a “confidential relationship,” because of “coaxing” and as a consequence of “fraudulent misrepresentation.” The court found that the deed was never signed and that the alleged grantor was “completely lacking in mental capacity” (emphasis added) to execute a deed.
The variance between the pleadings and the proof was material and no amended complaint conforming the allegations to the proof was filed. A party may not recover on a theory or cause of action not pleaded. See, e.g., Reciprocal Exchange v. Altherm, Inc., 142 Conn. 545, 551, 115 A.2d 460
(1955); Spitz v. Abrams, 128 Conn. 121, 123, 20 A.2d 616 (1941); Collins v. Erdmann, 122 Conn. 626, 632, 191 A. 521 (1937); Francis v. Hollauer, 1 Conn. App. 693, 696-97, 475 A.2d 326 (1984).
There is error, the judgment is set aside and a new trial is ordered.
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