Tobias C. Anderson v. LLP (2010)

MEMORANDUM OF DECISION

The defendant Jon Schoenhorn, the only remaining defendant in this matter, seeks summary judgment on count thirty-one, the sole count remaining of a forty-four-count complaint.

The following are the undisputed facts of this case, as described in Anderson v. Gordon, Muir & Foley, LLP, 108 Conn.App. 410, 411-15, cert. denied, 289 Conn. 927, 958 A.2d 156 (2008).

“In August 1996, the plaintiff [Tobias Anderson] retained attorney Jon L. Schoenhorn to represent him in connection with a petition for a writ of habeas corpus that the plaintiff previously had filed pro se.   In furtherance of his representation of the plaintiff, Schoenhorn acquired approximately thirteen boxes that contained materials from the trials and other proceedings that had resulted in the plaintiff's incarceration.   Sometime thereafter, the attorney-client relationship deteriorated, and on November 27, 2000, the habeas court granted Schoenhorn permission to withdraw as the plaintiff's counsel.

“By letter dated April 1, 2001, the plaintiff informed Schoenhorn that ‘[s]omeone from and/or associated with the public defender's office [would] pick up [the boxes in Schoenhorn's possession].’   Schoenhorn responded by letter dated April 3, 2001, that he would ‘turn over the files to anyone from the public defender's office who contacts [him] on [the plaintiff's] behalf ․’ On May 17, 2001, attorney Ellin A.M. Grenger left a message for Schoenhorn indicating that her employer, Scott W. Sawyer of the Sawyer Law Firm, LLC, had been appointed as the plaintiff's special public defender for his habeas petition.   Grenger also requested that Schoenhorn send her an unspecified transcript but did not request that Schoenhorn send her the entire set of boxes in his possession.   Schoenhorn, however, received no confirmation of Sawyer's appointment as the plaintiff's new attorney in the habeas matter.

“In the meantime, Schoenhorn was served with a complaint that the plaintiff had filed against him, alleging that he had committed malpractice in connection with his representation of the plaintiff from August 1996, to November 2000.   In early June 2001, Schoenhorn retained [a law firm] to represent him in the malpractice action and transferred possession of the boxes to the [firm], as his agents and counsel, for their use in defending the plaintiff's lawsuit and for safekeeping until the boxes were transferred to the plaintiff's new counsel in the habeas proceeding.

“On July 18, 2001, Grenger informed Schoenhorn ․ during a telephone conversation, that Sawyer might decline his appointment as the plaintiff's special public defender.   At that time, Grenger requested that the [firm] retain custody of the boxes until further notice.   On approximately August 15, 2001, [the firm] received a letter from Sheila Butch, requesting that [it] send her certain cassette tapes that were contained in the boxes.¹  On September 12, 2001, [it] responded to Butch by telephone and explained that [it] could not release the cassette tapes to her without either a written authorization by the plaintiff or a court order.  [The firm] never received any such authorization or order.

“In early October 2001, Schoenhorn received a letter from the public defender's office confirming Sawyer's appointment as the plaintiff's counsel in the habeas matter and requesting the transfer of boxes to Sawyer.   Less than one week later, Schoenhorn instructed the defendants to transfer the boxes and their contents to Sawyer.   Before transferring the boxes to Sawyer, the defendants, through a copying service, TMG, Inc., made copies of the voluminous written documents in the boxes.   The defendants retained the copies and transferred most of the boxes with the original documents to Sawyer on October 23, 2001.   One remaining box with some of the plaintiff's personal items, which inadvertently had been left out of the initial delivery, was given to Sawyer on November 9, 2001.

“On July 31, 2003, the plaintiff filed the forty-four count complaint underlying this appeal, alleging that Schoenhorn ․ committed acts of theft, larceny, conversion, negligence, breach of contract, tortious interference with business expectancy, civil conspiracy and deprivation of the plaintiff's civil rights under 42 U.S.C. §§ 1983 and 1985(3), all in connection with the [defendant's] possession of the boxes between May 17 and November 9, 2001.   On November 15, 2005, ․ Schoenhorn filed a revised motion for summary judgment as to all remaining counts of the complaint.”   The trial court granted the defendant's motion for summary judgment on all counts except count thirty-one.  Id., 414.   The Appellate Court affirmed.  Id., 418.

The sole surviving count of the plaintiff's complaint, entitled “Breach of Contract Implied in Fact,” alleges that the defendant breached an implied contract to turn over the plaintiff's files so “as not to cause delays in his case” because he refused to release them to the plaintiff's new attorney.   He claims damages consisting of “loss of the money to reclaim his legal property from the [defendant], delay in the resolution of his case, emotional and mental anguish, [and] loss of use of his legal property.”

On April 5, 2010, the defendant filed a motion for summary judgment on the ground that the parties did not have an enforceable contract as a matter of law.   In the alternative, the defendant argues that, even if an enforceable contract existed, the plaintiff has not suffered any compensable damages.   In support of his motion, the defendant submits the following:  the April 1, 2001 letter from the plaintiff to the defendant;  the response letter from the defendant to the plaintiff, dated April 3, 2001;  the certified transcript of Sawyer's deposition;  a copy of a form indicating that the plaintiff withdrew his habeas action on October 1, 2002;  the defendant's affidavit, dated April 7, 2004;  and a copy of the remaining count.

The plaintiff filed an objection to the motion on May 6, 2010.   He included his objections to the previous motion for summary judgment as a reference.   Thereafter, the defendant filed a response.   The parties were heard at short calendar on August 23, 2010.

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 791, 936 A.2d 625 (2007).   However, when a party moves for summary judgment “and there [are] are no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).

The defendant asserts that there is no genuine issue of material fact with respect to the existence of an implied contract, and therefore, he is entitled to judgment as a matter of law.   Specifically, the defendant argues that his statement that he would provide the files to successor counsel was not supported by any promise or consideration.   Therefore, as consideration was missing, his promise was not enforceable.   In the alternative, the defendant argues that, even if the court finds an enforceable contract, summary judgment is appropriate because any alleged delay did not cause recoverable harm.

The plaintiff responds that the defendant violated the rules of professional conduct when he, inter alia, did not surrender the paperwork and files.   Thus, the plaintiff asserts that the defendant should be estopped by the doctrine of clean hands from requesting judgment as a matter of law.   He also argues that the defendant's agreement to do more than what is mandated by the rules of professional conduct provided the requisite consideration.

If the exchange of letters created a contract, it would be an express one.  “A contract is an agreement between parties ․ Contracts may be express or implied ․ If the agreement is shown by the direct words of the parties, spoken or written, the contract is said to be an express one.   But if such agreement can only be shown by the acts and conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances, then the contract is an implied one.”  (Emphasis added;  internal quotation marks omitted.)  Boland v. Catalano, 202 Conn. 333, 336-37, 521 A.2d 142 (1987).   Moreover, “[an implied in fact] contract arises where a plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and the defendant, knowing such circumstances, avails himself of the benefit of those services.”  (Internal quotation marks omitted.)  Janusauskas v. Fichman, 264 Conn. 796, 804-05, 826 A.2d 1066 (2003).

The defendant is correct that the exchange of letters between the plaintiff and the defendant did not create an enforceable contact because it lacked consideration.   Consideration is “a benefit to the party promising, or a loss or detriment to the party to whom the promise is made.”  (Internal quotation marks omitted.)  Sokaitis v. Bakaysa, 105 Conn.App. 663, 938 A.2d 1278 (2008), aff'd, 293 Conn. 17, 975 A.2d 51 (2009).  “The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable.”   (Internal quotation marks omitted.)  New England Rock Services, Inc. v. Empire Paving, Inc., 53 Conn.App. 771, 776, 731 A.2d 784, cert. denied, 250 Conn. 921, 731 A.2d 784 (1999).   The defendant did not receive any benefit in exchange for a promise to send the files.   Therefore, his failure to do so, if any, cannot be the basis for a breach of contract action based solely on the exchange of letters.

Nevertheless, viewed in the light most favorable to the nonmoving party, the court finds that the complaint alleges that an implied contract of bailment was created between the plaintiff as the bailor and the defendant as the bailee when the defendant retained possession of the plaintiff's legal materials for the purpose of providing representation.²  Accordingly, as discussed further below, there was a contractual obligation to return the files when the representation was done.

In a bailment action, the bailee's breach sounds in contract.   See, Barnett Motor Transportation.   Co. v. Cummins Diesel Engines of Connecticut, Inc., 162 Conn. 59, 63, 291 A.2d 234 (1971).  “The essential element of a bailment is the express or implied assumption of control over the property by the bailee.”   Lissie v. Southern New England Telephone Co., 33 Conn.Sup. 540, 543, 359 A.2d 187 (1976).  “A bailment involves the delivery of the thing bailed into the possession of the bailee, under a contract to return it to the owner according to the terms of the agreement ․ A relationship of bailor-bailee arises when the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to otherwise deal with the goods according to the bailor's directions ․ In a bailment, the owner or bailor has a general property [interest] in the goods bailed ․ The bailee, on the other hand, has mere possession of items left in its care pursuant to the bailment.”  (Citations omitted;  internal quotation marks omitted.)  B.A. Ballou & Co. v. Citytrust, 218 Conn. 749, 753, 591 A.2d 126 (1991).

It is irrelevant whether the defendant received consideration for maintaining possession of the plaintiff's files.   Our Appellate Court has held that a bailment for mutual benefit “does not require that actual money or other consideration pass between the parties, nor does it require the demonstration of a specific tangible benefit or compensation ․ A mutual benefit bailment may be premised on the expectation of benefits expected to accrue as a result of the bailment.”  (Citation omitted.)  Hartmann v. Black & Decker Mfg. Co., 16 Conn.App. 1, 7, 547 A.2d 38 (1988).   A bailment for mutual benefit exists “whenever it appears that both the parties receive a benefit from the transaction.”  Id. Here, the purpose of the bailment was to mutually benefit both parties;  the defendant agreed to review the files in exchange for the opportunity to represent the plaintiff.

A claim for breach of a bailment contract does not arise until the defendant fails to return the bailed property in its original condition upon request.  “A bailor can maintain an action against the bailee when the bailee fails or refuses to return the property bailed pursuant to the bailment contract, or on proper demand by the bailor ․ In an action against a bailee for the failure to return bailed property, the bailor may proceed on alternate theories of general negligence of the bailee, specific negligence of the bailee, or breach of the bailment contract.”   8A Am.Jur.2d 723, Bailments § 216 (2009).

Notwithstanding this lenient reading of the plaintiff's complaint, the court concludes that it must grant the defendant's request for judgment as a matter of law because there does not exist a question of fact regarding whether the defendant failed to return the property in its original condition upon request and the plaintiff has not suffered any damages that may be recovered.³  The first question is whether there exists an issue of fact regarding the failure to return the plaintiff's property upon request.   There is simply no evidence that the defendant refused to return the files, as alleged in the complaint.   As explained above, the defendant promptly responded two days after receiving the plaintiff's initial correspondence and agreed to release the plaintiff's files to anyone from the public defender's office.   Thereafter, he received a message from Grenger, requesting an unspecified transcript.   Grenger, however, never requested the entire set of boxes in the defendant's possession.   Moreover, Grenger never provided the defendant with written authorization to release the files, nor did the defendant receive official confirmation that a special public defender had, in fact, been appointed.   Indeed, contrary to the plaintiff's allegations, Grenger asked the defendant to maintain possession of the files in July 2001, because it was uncertain whether Sawyer's office would accept appointment as the plaintiff's public defender.

In fact, after the defendant received the letter confirming Sawyer's appointment, he made the necessary arrangements to deliver the majority of the boxes.   Some boxes containing the plaintiff's personal belongings were inadvertently left behind, but were ultimately delivered on November 9, 2001.   These boxes were not relevant to the matter because they did not contain any legal material.

Although the plaintiff cannot establish that there is a question of fact with respect to whether the defendant refused to return his property, summary judgment is also appropriate here because the evidence shows that the plaintiff has not suffered any recoverable damages.  “It is well settled that in order to recover for breach of contract, a plaintiff must prove that he or she sustained damages as a direct and proximate result of the defendant's breach.”   Warning Lights & Scaffold Service, Inc. v. O & G Industries, Inc., 102 Conn.App. 267, 271, 925 A.2d 359 (2007).

To illustrate, the plaintiff alleges that he was harmed in three ways.   First, he claims that he was forced to spend money to reclaim his legal property.   Second, he argues that the resolution of his case was delayed because he was deprived the use of his property.   Finally, he argues that he suffered emotional distress as a result of the delay.   As a matter of law, the plaintiff cannot recover these damages based on the submitted evidence.   Therefore, the defendant is entitled to judgment in this matter.

There is no dispute that the defendant was instructed to retain possession of the plaintiff's documents in July 2001.   There is also no dispute that the defendant had the files delivered to the plaintiff's new counsel upon demand in October 2001.   Thus, the alleged delay would have occurred between the time he received Grenger's initial message in May and his conversation with her in July. Notwithstanding his allegations, there is no evidence that the plaintiff spent any money in an attempt to reclaim his property during these months and, therefore, there are no costs to recover.   See, e.g., Warning Lights & Scaffold Service, Inc. v. O & G Industries, Inc., supra, 102 Conn.App. 272 (directed verdict appropriate because the plaintiff did not establish damages resulting from breach of contract;  notwithstanding its allegations, plaintiff did not present any evidence suggesting that it actually spent money on attorneys fees).

In addition, even if he was forced to expend money to recover his files, he is not entitled to damages.  “[A]ttorney's fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.”  Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 652-53, 529 A.2d 702 (1987).   The plaintiff has not provided evidence of a specific contractual term that references the cost of litigation to enforce the agreement.   Morever, he has not cited any statute that allows him to recover these amounts.   Thus, as a matter of law, he cannot claim the amounts he spent in his attempts to enforce the contract.

Similarly, the undisputed facts show that the defendant's possession of the boxes between May and July did not affect the outcome of the defendant's habeas matter, nor did it create a delay in its resolution.   Attorney Sawyer testified at his deposition that the delay did not cause any impact on the habeas matter.   In fact, the matter proceeded after Sawyer received the files.   While the plaintiff did withdraw his habeas petition a year after the files were delivered to new counsel, there is no evidence, however, that such withdrawal resulted from any delay on the defendant's part.⁴

Finally, there is insufficient evidence to establish a genuine issue of material fact with regard to the plaintiff's emotional distress.   In order to obtain such damages in a breach of contract action, the plaintiff must establish that the defendant “intentionally and unreasonably subjected the [plaintiff] to emotional distress which he should have recognized as likely to result in illness or other bodily harm.   If the plaintiff did not intend to cause emotional distress, he is liable in damages only if he should have realized that his conduct involved an unreasonable risk of causing the distress and from the facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm.”  Bertozzi v. McCarthy, 164 Conn. 463, 469, 323 A.2d 553 (1973).   See 3 Restatement (Second), Contracts § 353 p. 149 (1981) (mental distress damages are only allowed where the breach of contract also caused bodily harm, or the contract or the breach is of such a kind that serious emotional disturbance was particularly likely to occur).

“Damages for emotional disturbance are not ordinarily allowed [in a breach of contract action].   Even if they are foreseeable, they are often particularly difficult to establish and to measure.   There are, however, two exceptional situations where such damages are recoverable.   In the first, the disturbance accompanies a bodily injury ․ In the second exceptional situation, the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.   Common examples are ․ contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of messages concerning death.   Breach of such a contract is particularly likely to cause serious emotional disturbance.   Breach of other types of contracts, resulting for example in sudden impoverishment or bankruptcy, may by chance cause even more severe emotional disturbance, but, if the contract is not one where this was a particularly likely risk, there is no recovery for such disturbance.”  (Emphasis added.)  Id., comment (a).

In other words, the breach must rise to the level of being extreme and outrageous because it was likely that it would cause serious emotional distress.   See, e.g., Pelizari v. Pisciotta, Superior Court, judicial district of Tolland, Docket No. CV 08 5002792 (May 8, 2009, Sferrazza, J.) (“allegations of emotional distress flowing from a breach of contract, without more, fall short of setting forth a viable cause of action for negligent infliction of emotional distress.   The conduct under scrutiny must be ‘egregious.’ ”);   Muniz v. Kravis, 59 Conn.App. 704, 709-10, 757 A.2d 1207 (2000) (actor's knowledge regarding likeliness of emotional harm supports allegations of extreme and outrageous conduct).  “Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ․ Only where reasonable minds disagree does it become an issue for the jury.”  (Internal quotation marks omitted.)   Petitte v. DSL.net, Inc., 102 Conn.App. 363, 376 (2007).

Reasonable minds could not disagree here.   First, the plaintiff has not alleged, much less presented any evidence, that the defendant either intentionally subjected the plaintiff to any sort of distress, unreasonably created a risk of distress or should reasonably have foreseen that distress might result from any action on his part.   It is true that summary judgment is inappropriate where the inferences to be drawn deal with intent.   See, e.g., Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).   However, “even with questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.”  Wadia Enterprises, Inc. v. Hershfield, 224 Conn. 240, 250, 618 A.2d 506 (1992).   For instance, if there was some evidence that the defendant knew that the plaintiff would miss an important deadline as a result of the delay, then, perhaps a question of fact would exist with regard to whether the defendant should have foreseen that the plaintiff's distress was likely.   That is not the case here.

Additionally, the defendant's conduct does not meet the threshold finding of extreme and outrageousness.   Extreme and outrageous conduct is conduct that goes “beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  (Internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).   As mentioned previously, prior to October 2001, there was never an actual request for the plaintiff's files.   At first, Grenger requested a transcript, but never clarified what type of transcript, and then later, in July, she made it clear that Sawyer's office did not want any files until further notice.   Also, even if the defendant failed to respond to Grenger's initial communication, he never blocked counsel's access to the files.   Accordingly, the material was available at all times to plaintiff's new counsel.

Not only has the plaintiff not presented any evidence that the alleged failure to obtain the files in the brief two month window caused harm, there is no evidence that the plaintiff was aware of any possible prejudice that would have resulted from not delivering the files in May. In fact, without an authorization or actual confirmation that Sawyer was appointed special public defender, the defendant would have had an ethical obligation to decline, to release the files to Grenger, as his firm did upon Butch's request.   See Rules of Professional Conduct 1.9(c).⁵  Most importantly, there is no dispute that the defendant actually delivered the files to plaintiff's counsel upon request and confirmation of appointment in October 2001.

On a final note, plaintiff's argument that the doctrine of clean hands precludes the defendant from seeking judgment as a matter of law bears no merit.  “The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue.”  (Internal quotation marks omitted.)  Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001).  “The [defendant] seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation.”  (Internal quotation marks omitted.)   Monetary Funding Group, Inc. v. Pluchino, 87 Conn.App. 401, 407, 867 A.2d 841 (2005).   Thus, the doctrine of unclean hands is used as a defense to bar equitable relief because he who seeks equity must do equity.   The doctrine is inapplicable in this case because the plaintiff is not seeking equitable relief.   He is seeking legal relief in a contract action, and therefore, the doctrine does not apply.   Additionally, even if the action were one for equitable relief, such defense would, in this case, be available to the defendant.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion for summary judgment as to count thirty-one of the plaintiff's complaint.

PELLEGRINO, JTR

FOOTNOTES

FN1. “The plaintiff asserts that the cassette tapes were recordings of certain police interrogations of him.   The plaintiff hired Butch to create a transcription of the cassette tapes for him.”.  FN1. “The plaintiff asserts that the cassette tapes were recordings of certain police interrogations of him.   The plaintiff hired Butch to create a transcription of the cassette tapes for him.”

FN2. The court is cognizant that the plaintiff did not title count thirty-one “implied breach of a bailment contract.”   Nevertheless, in determining whether the facts would support a cause of action, the facts, and not the label, or title, affixed to them by the parties, are dispositive.   See, e.g., Lattanzio v. WVIT NBC-30, Superior Court, judicial district of New London, Docket No. CV 05 5000082 (May 15, 2007, Martin, J.).   Moreover, “[u]nder the circumstances this court will ․ exhibit some degree of leniency towards the [parties], who have appeared pro se, although we cannot, and will not, entirely disregard the established rules of procedure, adherence to which is necessary in order that ․ the real issues in controversy may be presented and determined.”  (Internal quotation marks omitted.)  Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149-50 n.8, 448 A.2d 829 (1982)..  FN2. The court is cognizant that the plaintiff did not title count thirty-one “implied breach of a bailment contract.”   Nevertheless, in determining whether the facts would support a cause of action, the facts, and not the label, or title, affixed to them by the parties, are dispositive.   See, e.g., Lattanzio v. WVIT NBC-30, Superior Court, judicial district of New London, Docket No. CV 05 5000082 (May 15, 2007, Martin, J.).   Moreover, “[u]nder the circumstances this court will ․ exhibit some degree of leniency towards the [parties], who have appeared pro se, although we cannot, and will not, entirely disregard the established rules of procedure, adherence to which is necessary in order that ․ the real issues in controversy may be presented and determined.”  (Internal quotation marks omitted.)  Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149-50 n.8, 448 A.2d 829 (1982).

FN3. It would also appear that summary judgment is appropriate because the claim attempts to relitigate a matter that occurred within the scope of the attorney-client relationship, namely, the bailment.   The plaintiff filed an action against the defendant dated April 12, 2001 relating to his representation in the habeas case which alleged, inter alia, malpractice, breach of contract, and breach of fiduciary duty.   See Anderson v. Schoenhorn, 89 Conn.App. 666, 668, 874 A.2d 798 (2005).   That action was disposed of in two stages;  summary judgment as to most counts, and a trial verdict as to the remaining counts.  Id. Because the bailment arose from the attorney-client relationship, the plaintiff should be precluded from raising this as an issue.   See Masy v. Brandford, 119 Conn.App. 453, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010) (“[r]es judicata bars ․ subsequent relitigation of any claims relating to the same cause of action ․ which might have been made” [internal quotation marks omitted] )..  FN3. It would also appear that summary judgment is appropriate because the claim attempts to relitigate a matter that occurred within the scope of the attorney-client relationship, namely, the bailment.   The plaintiff filed an action against the defendant dated April 12, 2001 relating to his representation in the habeas case which alleged, inter alia, malpractice, breach of contract, and breach of fiduciary duty.   See Anderson v. Schoenhorn, 89 Conn.App. 666, 668, 874 A.2d 798 (2005).   That action was disposed of in two stages;  summary judgment as to most counts, and a trial verdict as to the remaining counts.  Id. Because the bailment arose from the attorney-client relationship, the plaintiff should be precluded from raising this as an issue.   See Masy v. Brandford, 119 Conn.App. 453, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010) (“[r]es judicata bars ․ subsequent relitigation of any claims relating to the same cause of action ․ which might have been made” [internal quotation marks omitted] ).

FN4. In his response, the plaintiff argues that if he would have had the use of his legal property he would have prevailed in his original suit against the defendant.   The plaintiff is referring to the malpractice action against the defendant dated April 12, 2001, relating to his representation in the habeas case.   The court rejects the plaintiff's argument for two reasons.   First, the argument is not related to the action because the complaint seeks damages for the temporary loss of use of the plaintiff's files in the underlying habeas action, and not in the malpractice suit.   Second, the plaintiff had an opportunity to litigate his malpractice action and could have addressed the defendant's alleged failure to produce the plaintiff's files in the manner allowed by the rules of practice.   He is now precluded from raising this as an issue in the current litigation.   See footnote 3..  FN4. In his response, the plaintiff argues that if he would have had the use of his legal property he would have prevailed in his original suit against the defendant.   The plaintiff is referring to the malpractice action against the defendant dated April 12, 2001, relating to his representation in the habeas case.   The court rejects the plaintiff's argument for two reasons.   First, the argument is not related to the action because the complaint seeks damages for the temporary loss of use of the plaintiff's files in the underlying habeas action, and not in the malpractice suit.   Second, the plaintiff had an opportunity to litigate his malpractice action and could have addressed the defendant's alleged failure to produce the plaintiff's files in the manner allowed by the rules of practice.   He is now precluded from raising this as an issue in the current litigation.   See footnote 3.

FN5. Rules of Professional Conduct 1.9(c)(2) provides:  “A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter reveal information relating to the representation except as these Rules would permit or require with respect to a client.”.  FN5. Rules of Professional Conduct 1.9(c)(2) provides:  “A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter reveal information relating to the representation except as these Rules would permit or require with respect to a client.”

Pellegrino, Joseph H., J.T.R.