Robert P. Peebles v. Steven E. Ayres, Mead, Bromley & Bishop et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 166)

FACTS

On March 9, 2012, the plaintiff, Robert P. Peebles, filed a twelve-count, second amended complaint against the defendants, Steven E. Ayres, Mead, Bromley & Bishop (Mead), and John E. Ackerman.¹  The complaint alleges the following facts as to his claims against Ackerman.²  Ayres represented the plaintiff as his attorney between February 2001 and July 2001, in the plaintiff's capacity as beneficiary and executor of the estate of the plaintiff's aunt.   In late 2002, Ayres informed an IRS agent that the plaintiff was involved with an estate with an annuity, and that there were possibly omitted assets in the estate.   During a meeting in November 2012, Ayres breached his fiduciary duty by disclosing the plaintiff's confidential information, obtained during the attorney-client relationship.   As a result of said disclosure, the Internal Revenue Service (IRS) initiated an audit of the estate.   Subsequently, the United States Attorney's Office brought charges against the plaintiff, and the plaintiff was forced to defend himself against the audit and criminal proceeding.

The complaint further alleges that Ackerman served as the plaintiff's accountant, and owed a fiduciary duty to the plaintiff.   Ackerman breached his fiduciary duty by disclosing confidential information to agents at the United States Attorney's Office, obtained during the confidential relationship with the plaintiff.   In addition, Ackerman had an agreement with the plaintiff that he would undertake a review of the plaintiff's documents and give the plaintiff notice of any problems before they are disclosed to the IRS. During the IRS audit of the plaintiff, Ackerman did not review the requested documents, but instead forwarded them all to the IRS. By failing to review the documents and failing to notify the plaintiff of any problems, Ackerman violated his fiduciary duty.   Furthermore, Ackerman did not inform the plaintiff of his disclosures of confidential information, thus fraudulently concealing his wrongful action.   As a result of Ackerman's actions, the plaintiff suffered damages, including emotion distress, anguish, inconvenience, embarrassment, and the expense of defending against audit and criminal proceedings.

In regard to the plaintiff's claim for negligence, the complaint also alleges that Ackerman's conduct, as described above, falls far short of the level of due care and diligence that apply to an accountant.   Moreover, in regard to the claim for negligent infliction of emotion distress, the plaintiff further alleges that Ackerman knew or should have known that his conduct would cause the plaintiff to suffer emotional distress, that the conduct did cause the plaintiff emotional distress, and that the emotional distress was severe enough to cause illness or bodily injury.   Finally, in regard to the claim for intentional infliction of emotional distress, the complaint adds that Ackerman's conduct was extreme and outrageous, that the conduct was intended to cause extreme emotional distress, and that it did cause extreme emotional distress.   On January 7, 2013, Ackerman filed a motion for summary judgment and a memorandum of law in support of the motion.   Ackerman also attached multiple exhibits.   On April 19, 2013, the plaintiff filed an objection to the motion for summary judgment.   The plaintiff attached exhibits in support.   On May 2, 2013, Ackerman filed a reply to the plaintiff's objection.   Finally, on May 9, 2013, the plaintiff filed a response to Ackerman's reply to the objection.   The matter was heard on short calendar on May 6, 2013.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the 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.   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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

“[T]he use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ․ [while the] granting of a motion to strike allows the plaintiff to replead his or her case.”  (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).   Accordingly, “the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.”  Id.

Ackerman moves for summary judgment on all counts directed at him, on the following grounds:  (1) there is no fiduciary duty between an accountant and a client requiring the accountant to refrain from producing the client's tax document as part of an IRS audit of the client's tax returns;  and (2) the plaintiff has offered no facts to support the allegation that the disclosure of his tax documents by Ackerman to the IRS pursuant to the audit resulted in, or contributed to, any harm to him.

In the accompanying memorandum, Ackerman argues that summary judgment should be granted as to the breach of fiduciary duty claim because no confidential information was disclosed, no confidential accountant-attorney privilege exists, and there is no indication as to what action Ackerman should have undertaken after reviewing the documents.   As to the claim regarding intentional infliction of emotional distress, Ackerman argues that, given the high threshold the courts have set on this claim, the plaintiff has not established that Ackerman's conduct was “unreasonable,” much less “outrageous.”   As to the claim regarding negligent infliction of emotional distress, Ackerman contends that his compliance with the IRS audit did not create an unreasonable risk of causing the plaintiff's emotional distress, and that the plaintiff's distress was not foreseeable from Ackerman's compliance with the audit.   Finally, as to the negligence claim, Ackerman argues that the plaintiff cannot establish that Ackerman's actions caused his injury.   Specifically, Ackerman contends that his actions did not deprive the plaintiff of the opportunity to properly disclose the annuity and raise an advice of counsel defense.   The plaintiff was interviewed after the meeting with Ackerman, and he failed to offer explanations consistent with a defense.   Violino, an IRS agent, did not refer the matter to the criminal investigation until after speaking to both the plaintiff and his attorney.   Ackerman concludes that the disclosures are far removed from any harm the plaintiff suffered, and such harm is not foreseeable.

In his response, the plaintiff counters that summary judgment is not appropriate because genuine issues of material fact exist that preclude Ackerman from being entitled to judgment as a matter of law.   The plaintiff argues that the evidence establishes the existence of a fiduciary duty between the plaintiff and Ackerman, and there is a genuine issue of material fact as to whether Ackerman's outrageous conduct constituted a breach of duty.   The plaintiff contends that Ackerman is a fiduciary (1) because the plaintiff relied on the superior knowledge, skill and expertise of Ackerman, (2) because Ackerman represented the plaintiff in the winding up of the estate, and (3) because Ackerman later acquired the power of attorney.   The plaintiff further argues that the fiduciary duty was violated by:  (1) disclosure of the plaintiff's confidential information to the IRS obtained during a confidential relationship;  (2) failure to review the documents submitted by Ackerman;  (3) and failure to notify the plaintiff of any problems or issues with said documents.

In addition, the plaintiff contends that the evidence creates a genuine dispute as to whether Ackerman's conduct caused the plaintiff's injury.   The plaintiff argues that he relied on a highly experienced and skilled trusts and estates attorney, and was told that the estate would have no tax liability as to the private annuity.   Ackerman's actions prohibited the early disclosure of a valid “advice of counsel” defense to the IRS examination.   The plaintiff argues that if such a defense was asserted at an early state of the investigation, he would probably not have been referred to the criminal division of the IRS. Finally, the plaintiff further argues that a genuine issue of material fact exists as to whether the defendant's conduct during the course of his representation of the plaintiff before the IRS intentionally or negligently inflicted emotional harm on the plaintiff.   In particular, a genuine issue of material fact exists as to whether Ackerman's conduct was extreme and outrageous.   Additionally, the plaintiff contends that there is a genuine issue of material fact as to whether the plaintiff's distress was foreseeable.

Breach of Fiduciary Duty

“The essential elements to pleading a cause of action for breach of fiduciary duty under Connecticut case law are:  (1) That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff;  (2)[T]hat the defendant advances his own interests to the detriment of the plaintiff;  (3) That the plaintiff sustained damages;  (4) That the damages were proximately caused by the fiduciary breach of his or her fiduciary duty.”   Stone v. Pattis, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 09 5011515 (May 9, 2013, Brazzel–Massaro, J.).

“[T]he determination of whether a [fiduciary] duty exists between individuals is a question of law.”  (Internal quotation marks omitted.)  Biller Associates v. Peterken, 269 Conn. 716, 721, 849 A.2d 847 (2004).  “The law does not provide a bright line test for determining whether a fiduciary relationship exists, yet courts look to well established principles that are the hallmark of such relationships.   Our Supreme Court has stated that [a] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ․ The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him ․ We have not, however, defined that relationship in precise detail and in such a manner as to exclude new situations, choosing instead to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other ․ [U]nder our case law, the fiduciary relationship is not singular.   The relationship between sophisticated partners in a business venture may differ from the relationship involving lay people who are wholly dependent upon the expertise of a fiduciary.   Fiduciaries appear in a variety of forms, including agents, partners, lawyers, directors, trustees, executors, receivers, bailees and guardians.  [E]quity has carefully refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations.”  (Internal quotation marks omitted.)  Iacurci v. Sax, 139 Conn.App. 386, 401, 57 A.3d 736 (2012), cert. granted, 308 Conn. 910, 61 A.3d 1100 (2013).

“Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations ․ we have recognized that not all business relationships implicate the duty of a fiduciary ․ In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary.”  (Internal quotation marks omitted.)  Id. “The fact that one party trusts another is not dispositive of whether a fiduciary relationship exists ․ rather, proof of a fiduciary duty requires an evidentiary showing of a unique degree of trust and confidence between the parties such that the [defendant] undertook to act primarily for the benefit of the plaintiff.”  (Internal quotation marks omitted.)  Id., 402.

The Appellate Court has recently addressed the issue of whether accountants owe a fiduciary duty to their clients.   In Iacurci v. Sax, supra, 139 Conn.App. 408, the court held:  “There is no Connecticut appellate authority that addresses whether an accountant who performs only tax preparation services is a fiduciary ․ [The] trial court authority, Pacheco v. Soto, Superior Court, judicial district of Fairfield, [Docket No. CV 03 0407184 (August 18, 2004, Karazin, J.) ] ․ is consistent with our reasoning that a defendant who provides a plaintiff with only tax preparation services is not a fiduciary.” ³

“Although Connecticut case law sufficiently guides our analysis, we look favorably on decisions from several federal courts holding that, generally, an accountant-client relationship is not fiduciary in nature.”  Iacurci v. Sax, supra, 139 Conn.App. 408–09, citing to RTR Technologies, Inc. v. Helming, 815 F.Sup.2d 411, 433 (D.Mass.2011);  Peterson v. H & R Block Tax Services, Inc., 971 F.Sup. 1204, 1214 (N.D.Ill.1997);  Fleet National Bank v. H & D Entertainment, Inc., 926 F.Sup. 226, 242 (D.Mass.), aff'd, 96 F.3d 532 (1st Cir.1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1335, 137 L.Ed.2d 495 (1997);  Stainton v. Tarantino, 637 F.Sup. 1051, 1066 (E.D.Pa.1986).   “Likewise, there is pertinent and persuasive authority from other state courts on the issue.”  Iacurci v. Sax, supra, 409, citing to Congregation of the Passion v. Touche Ross & Co., 224 Ill.App.3d 559, 590, 166 Ill.Dec. 642, 586 N.E.2d 600 (1991), aff'd, 159 Ill.2d 137, 636 N.E.2d 503, cert. denied, 513 U.S. 947, 115 S.Ct. 358, 130 L.Ed.2d 312 (1994);  Brown–Wilbert, Inc. v. Copeland Buhl & Co., Minnesota Court of Appeals, Docket No. A07–2762 (December 30, 2008);  Friedman v. Anderson, 23 App.Div.3d 163, 166, 803 N.Y.S.2d 514 (2005);  Harrold v. Dowd, 149 N.C.App. 777, 784, 561 S.E.2d 914 (2002);  Squyres v. Christian, 253 S.W.2d 470, 471–72 (Tex.Civ.App.1952);  Allen Realty Corp. v. Holbert, 227 Va. 441, 447, 318 S.E.2d 592 (1984).

However, the power of attorney creates a fiduciary relationship.  Brown v. Villano, 49 Conn.App. 365, 368, 716 A.2d 111, cert. denied, 247 Conn. 904, 720 A.2d 515 (1998).  “[A] fiduciary relationship has always demanded a high degree of scrutiny.   For example, we have held ․ that [p]roof of a fiduciary relationship ․ imposes a twofold burden upon the fiduciary.   Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary ․ Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof ․ by clear and convincing evidence.”   (Internal quotation marks omitted.)  Id.

In the present case, Ackerman is a licensed accountant, but has a background in multiple other fields.   More specifically, Ackerman is a certified financial planner, accredited estate planner, certified life underwriter, sheltered financial consultant, certified senior advisor, and certified senior auditor.   (Plaintiff's Exhibit D, Direct Examination of Ackerman, p. 3;  Plaintiff's Exhibit 2, Experience and Education of Ackerman.) ⁴  Furthermore, Ackerman was initially hired to “represent the estate [of the plaintiff's late aunt] in the settlement of the estate and the preparation of the tax returns.”   (Ackerman's Exhibit C, Deposition of Peebles, p. 49.)

The crux of the claims against Ackerman revolve around his alleged failure to properly review the documents that the plaintiff submitted to him, before sending these documents to the IRS for auditing.   The evidence demonstrates that, on May 30, 2003, Richard J. Violino, an IRS agent, mailed a letter to Ackerman, informing him that the IRS will conduct an examination of the plaintiff's estate tax return.  (Plaintiff's Exhibit J.) In the letter, the IRS requested the production of certain documents.  (Plaintiff's Exhibit J.) Furthermore, it is undisputed that, on June 10, 2003, the plaintiff executed a “Power of Attorney and Declaration of Representative,” wherein Ackerman was appointed to represent the plaintiff's interests before the IRS. (Plaintiff's Exhibit K.) After various delays, Ackerman received the requested documents from the plaintiff on August 22, 2003.⁵  (Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 15.)   On August 29, 2003, Ackerman sent the plaintiff an email, which informed the plaintiff that Ackerman has received the package of documents, and that he will drive to Bridgeport to drop off the documents and to meet with an IRS attorney.  (Plaintiff's Exhibit O;  Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 17.)   On September 6, 2003, Ackerman sent an email to the plaintiff, informing him that Ackerman has delivered the documents, along with his own records, to the IRS. (Plaintiff's Exhibit P;  Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 17.)

Upon providing Ackerman with the documents, including the private annuity documents, the plaintiff expected Ackerman to review these documents and to inform the plaintiff of any issues.  (Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 16.)   The plaintiff communicated this expectation to Ackerman in a cover letter to the documents, dated August 19, 2003.   The cover letter stated, in relevant part:  “I am sure I have forgotten something you will need, so please review and let me know as soon as possible, anything else you require.”  (Plaintiff's Exhibit M;  Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 16.)   The plaintiff was billed for Ackerman's review of the documents.  (Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 16;  Plaintiff's Exhibit N;  Plaintiff's Exhibit P.) Yet, Ackerman testified that the bill should not have been for a review of the documents, that this was a misstatement, and that the bill should have been for the delivery of the documents to the IRS. (Plaintiff's Exhibit D, Direct Examination of Ackerman, p. 99.)   However, Ackerman also acknowledged that there was an email sent to the plaintiff, stating that he is being billed for the document review and not for the delivery.  (Plaintiff's Exhibit D, Direct Examination of Ackerman, p. 99.)

On October 23, 2003, Violino had a meeting with Ackerman.   During the meeting, Violino presented Ackerman with the information regarding the plaintiff's undisclosed private annuity.  (Plaintiff's Exhibit U, Testimony of Violino, p. 50;  Plaintiff's Exhibit D, Direct Examination of Ackerman, p. 99.)   Ackerman claimed that he was not aware of the private annuity, and called a prominent criminal attorney, while Violino was still present.  (Plaintiff's Exhibit U, Testimony of Violino, p. 52.)   After finishing the phone conversation with the attorney, Ackerman drafted a letter of resignation in Violino's presence.   (Plaintiff's Exhibit U, Testimony of Violino, p. 53.)   In the letter, dated October 23, 2003, Ackerman informed the plaintiff that he is no longer representing the plaintiff before the IRS, and revoked his power of attorney.   (Plaintiff's Exhibit T.)

During the meeting and prior to his resignation, Ackerman did not call the plaintiff to ask him questions regarding the annuity, or to inform him regarding the situation.  (Plaintiff's Exhibit U, Testimony of Violino, p. 54;  Plaintiff's Exhibit D, Direct Examination of Ackerman, p. 100.)   After Ackerman's resignation, the plaintiff attempted to contact Violino upon receiving the letter, but there was no reply.  (Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 17.)   The plaintiff also attempted to speak with Ackerman, but received no reply.  (Plaintiff's Exhibit D, Direct Examination of Ackerman, p. 103.)   Subsequently, the plaintiff retained an attorney, Brian Dooley, to represent him before the IRS. (Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 17.)   Dooley scheduled a conference with Violino, but was not informed of the IRS's concerns.  (Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 17.)   As a result, the plaintiff was not prepared for the inquiry that was made during the meeting as to the private annuity.  (Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 17.)   The plaintiff was later audited, which resulted in an indictment against the plaintiff, and then a trial.  (Plaintiff's Exhibit D, Affidavit of Peebles, ¶ 17.)   The plaintiff believes that the prosecution was based on his failure to disclose the private annuity.  (Ackerman's Exhibit C, Deposition of Peebles, p. 87.)

The first question before the court is whether Ackerman owed the plaintiff a fiduciary duty.   Pursuant to the holding in Iacurci, there was no fiduciary duty to the extent that Ackerman served only as an accountant who provided tax preparation services to the plaintiff.   However, the evidence shows that, in addition to serving as a tax accountant, Ackerman was also initially hired to represent the estate in the settlement of the estate.   More importantly, at the time that Ackerman received the papers from the plaintiff, Ackerman was representing the plaintiff in his dealings with the IRS, and had power of attorney.   Such a relationship goes beyond that of a mere accountant-client relationship.   As a general matter, pursuant to the holding in Brown, the power of attorney creates a fiduciary relationship.   Hence, the relationship between Ackerman and the plaintiff is a type of relationship that, as a matter of law, imposes the duty of a fiduciary.

The next question before the court is whether there is a genuine issue of material fact as to whether Ackerman breached his fiduciary duty.⁶  “Professional negligence alone ․ does not give rise automatically to a claim for breach of fiduciary duty.   Although an attorney-client relationship imposes a fiduciary duty on the attorney ․ not every instance of professional negligence results in a breach of that fiduciary duty ․ Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty.”  (Internal quotation marks omitted.)  Iacurci v. Sax, supra, 139 Conn.App. 402.   In order for there to be a breach of fiduciary duty in the context of a claim that involves allegations of professional negligence, Connecticut courts have generally required allegations of fraud, self-dealing, or immoral conduct on the part of the defendant.  Sherwood v. Danbury Hospital, 278 Conn. 163, 196, 896 A.2d 777 (2006) (“[A]lthough [our Supreme Court] [has] not expressly limited the application of these traditional principles of fiduciary duty to cases involving only fraud, self-dealing or conflict of interest, the cases in which [our Supreme Court] [has] invoked them have involved such deviations.”   [Internal quotation marks omitted] );  see also Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 96, 63 A.3d 1011 (2013) (affirming trial court's grant of summary judgment, in part on the alternative ground that there is no genuine issue of material fact as to whether the defendant's conduct constituted fraud, self-dealing or conflict of interest);  see also Da Graca v. Sarra, Superior Court, judicial district of Waterbury, Docket No. CV 11 6008867 (July 3, 2012, Dooley, J.) (holding that allegations of fraud, self-dealing, immoral or corrupt conduct on the part of an attorney are required when both professional negligence and breach of fiduciary duty claims are brought).  “[I]n those cases analyzing breach of fiduciary duty generally, an actionable breach is based on a conflict of interest the fiduciary himself has with the purpose of his duties on behalf of his client.”   Lavitt v. Meisler, Superior Court, complex litigation docket at New London at Norwich, Docket No. X04 CV 0127150 (July 15, 2003, Quinn, J.) (35 Conn. L. Rptr. 133, 134).

In the present case, the claims against Ackerman center around the alleged failure to review the plaintiff's documents, and notify the plaintiff of any issues with the documents, before sending them to the IRS for auditing.   Even if the evidence raises a genuine issue of material fact as to whether there was a breach of the duty of care, the plaintiff has failed to provide evidence that would support a finding that there was a breach of the duty of loyalty and honesty.   Specifically, the plaintiff failed to present any evidence that Ackerman, at the time that he was in possession of the documents, had a conflict of interest with the purpose of his duties on behalf of the plaintiff.   In the end, the plaintiff has not presented any evidentiary foundation to support a claim for fraud, self-dealing, or conflict of interest.

The plaintiff also argues that there was a disclosure of confidential information.   However, although Connecticut courts have not ruled on the matter, “ ‘no confidential accountant-client privilege exists under federal law, and no state-created privilege has been recognized in federal cases.’   [Couch v. United States, 409 U.S. 322, 335, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973) ].   A taxpayer has no legitimate expectation of privacy ‘where records are handed to an accountant, knowing that mandatory disclosure of much of the information therein is required in an income tax return.’  “ Id. United States v. Hallee, Inc., United States District Court (D.Conn. December 22, 1982);  see also United States v. Arthur Young & Co., 465 U.S. 805, 817, 104 S.Ct. 1495, 79 L.Ed.2d 826 (1984).   Furthermore, the IRS guidelines, cited by both parties, require that the accountant submit records requested by the IRS.⁷ I.R.S. Publication 947.   The only confidentiality privilege in the guidelines relates to communications regarding tax advice between the accountant and client.   I.R.S. Publication 947.   The evidence presented by the plaintiff makes no mention of disclosure of privileged communications between the parties.

Moreover, the specific facts in this case do not suggest that the disclosure of the plaintiff's documents to the IRS breaches a fiduciary duty.   Ackerman was required to disclose certain documents to the IRS, pursuant to the audit.   (I.R.S. Publication 947;  Plaintiff's Exhibit J.) In addition, the plaintiff's own testimony fails to raise a genuine issue of material fact as to whether any privileged confidential information was sent to the IRS. Specifically, the plaintiff's testimony is that he sent Ackerman documents that he thought were requested by the IRS. (Ackerman's Exhibit C, Deposition of Peebles, p. 67.)   The plaintiff further acknowledged that he could not identify any document that Ackerman should not have produced to the IRS. (Ackerman's Exhibit C, Deposition of Peebles, p. 71–72.)   The mere unsupported assertion that there may be a document that Ackerman sent that was privileged and confidential, does not raise a genuine issue of material fact as to the breach of fiduciary duty.⁸

For the foregoing reasons, there is no genuine issue of material fact that there was no breach of fiduciary duty, and that Ackerman is entitled to judgment as a matter of law.

Intentional Infliction of Emotional Distress

“In order for the plaintiff to prevail in a case for liability under ․ [intentional infliction of emotional distress], four elements must be established.   It must be shown:  (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).  “Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”  (Internal quotation marks omitted.)  Id., 211.  “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.   Generally, the case is one in which recitation of the facts to an average member of community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!   “ ‘ Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 20, 597 A.2d 846 (1991).  “The issue of whether the defendant's conduct rises to the level of extreme and outrageous behavior is a question of law to be decided by the court.”  (Internal quotation marks omitted.)   Zabensky v. Lawrence & Memorial Hospital, Superior Court, judicial district of New London, Docket No. 545872 (August 5, 1999, Martin, J.).

“Where an intentional infliction of emotional distress claim is based on allegations that sound in professional negligence ․ the superior courts have focused on whether the alleged actions meet the level of extreme and outrageous conduct required to maintain the cause of action.   The majority of these decisions hold that the allegations that give rise to a cause of action for legal malpractice are not extreme and outrageous.   See Pipkin v. Glenn, Superior Court, judicial district of New Haven, Docket No. CV 09 5025808 (September 25, 2009, Keegan, J.) (granting the defendant's motion to strike a cause of action for intentional infliction of emotional distress against legal counsel because ‘the type of behavior contemplated by this tort has been much more personal in nature, and often involves the victim's peculiar susceptibility to emotional distress by reason of some physical or mental condition, or actions by the defendant likely to cause the victim to experience shock or fright of enormous proportions.’  [Internal quotation marks omitted.] )  ․ Fiamengo v. Burgdorf, Superior Court, judicial district of New Haven, Docket No. CV 06 5002388 (December 19, 2007, Cosgrove, J.) (granting the defendant's motion to strike the plaintiff's cause of action for intentional infliction of emotional distress where allegations of fraud did not amount to extreme and outrageous conduct) ․ Smulewicz–Zucker v. Zucker, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 02 0076353 (June 28, 2005, Stevens, J.) (granting the defendant's motion for summary judgment on a cause of action for intentional infliction of emotional distress because, in part, the defendant attorney's coercion and pressure of the plaintiff into accepting custody agreements did not meet the standard of extreme and outrageous conduct), aff'd, 98 Conn.App. 419, 909 A.2d 76 (2006), cert. denied, 281 Conn. 905, 916 A.2d 45 (2007), [overruled on other grounds by Watts v. Chittenden, 301 Conn. 575, 22 A.3d 1214 (2011) ].”   Noon v. Brencher, Superior Court, judicial district of New Haven, Docket No. CV 09 6003694 (June 12, 2012, Young, J.).

In the present case, Ackerman argues that his necessary compliance with the IRS request does not rise to “unreasonable,” much less “outrageous” conduct.   Ackerman was required to disclose certain documents to the IRS, pursuant to the audit.  (I.R.S. Publication 947;  Plaintiff's Exhibit J.) Ackerman has met his initial burden of showing that there is no genuine issue of material fact as to whether his conduct was outrageous.

In reply, the plaintiff contends that Ackerman's conduct was extreme and outrageous.   The plaintiff argues that Ackerman's conduct prevented the plaintiff from asserting the advice of counsel defense at an early stage in the IRS examination process.  (Plaintiff's Exhibit Z, Affidavit of Mancinone, ¶ 7.)   While citing to Ackerman's testimony, the plaintiff also argues Ackerman made incriminating statements to Violino in order to protect himself from a criminal investigation or prosecution.   In further support, the plaintiff cites to Violino's evidence that, during the meeting, Ackerman stated “I'm getting a sense why this [communication with the plaintiff] was done long distance.”   (Plaintiff's Exhibit U, Testimony of Violino, p. 53.)   The plaintiff argues that putting a fiduciary's interest over a client's is outrageous.

The evidence presented by the plaintiff is not sufficient to establish a genuine issue of material fact as to whether Ackerman's conduct was extreme and outrageous.   Even if Ackerman's conduct was negligent and/or a breach of fiduciary duty, the conduct does not rise to the exceptionally high level of extreme and outrageous conduct.   The conduct is not “so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”   This conclusion is also consistent with comparable cases, cited above, that have held that allegations that give rise to a cause of action for professional malpractice generally are not extreme and outrageous.   As a result, the evidence presented by the plaintiff is not sufficient to establish a genuine issue of material fact as to whether Ackerman's conduct was extreme and outrageous, and Ackerman is entitled to judgment as a matter of law.

Negligent Infliction of Emotional Distress

In order for the plaintiff to prevail on a claim of negligent infliction of emotional distress, a plaintiff must plead and prove the following elements:  “(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).  “[T]he plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm ․ [T]here is no appellate authority deciding the legal sufficiency of a negligent infliction of emotional distress claim based upon alleged legal malpractice ․ [but] the Connecticut Supreme Court has expressly limited emotional distress claims to those claims in which the conduct [of the defendant(s) ] involved an unreasonable risk of causing emotional distress and that distress, if it were caused might result in bodily harm ․ The requirement of forseeability in negligent infliction of emotional distress claims is different from that required in general negligence actions ․ [T]he defendant is not responsible for the plaintiffs' emotional distress unless it or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress ․ [which] might result in illness or bodily harm.”  (Emphasis added;  internal quotation marks omitted.)   Borla v. Guion, Stevens, & Ryback, Superior Court, judicial district of Litchfield, Docket No. CV 11 6004792 (October 20, 2011, Pickard, J.).

In the present case, the plaintiff has alleged the four elements of a negligent infliction of emotional distress claim.   However, these are mere legal conclusions, and the evidence regarding Ackerman's alleged failure to review the documents and inform the plaintiff of any discrepancies does not raise a genuine issue of material fact as to whether Ackerman knew or should have realized that his conduct involved an unreasonable risk of causing emotional distress to the plaintiff, which might result in illness or bodily harm.   Thus, Ackerman has met his burden to show that there is no genuine issue of material fact as to whether Ackerman actions negligently inflicted emotional distress on the plaintiff.   As a result, Ackerman is entitled to judgment as a matter of law on the count of negligent infliction of emotional distress.⁹

Negligence

“[E]ssential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”   (Internal quotation marks omitted.)  Winn v. Posades, 281 Conn. 50, 56, 913 A.2d 407 (2007).¹⁰  “[A] plaintiff must establish that the defendant's conduct legally caused the injuries ․ The first component of legal cause is causation in fact.   Causation in fact is the purest legal application of ․ legal cause.   The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct ․ The second component of legal cause is proximate cause ․ [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries ․ Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct] ․ The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ․ This causal connection must be based upon more than conjecture and surmise ․ An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm ․ The finding of actual cause is thus a requisite for any finding of proximate cause.”  (Citation omitted;  internal quotation marks omitted.)  Id. “[T]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion;  if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  (Internal quotation marks omitted.)  Alexander v. Vernon, 101 Conn.App. 477, 485, 923 A.2d 748 (2007).   As a result, “[i]ssues of proximate cause may be determined by way of summary judgment only in rare circumstances.”   Amica Mutual Insurance Co. v. Abar Development, LLC, Superior Court, judicial district of New Haven, Docket No. CV 09 5032593 (April 3, 2013, Wilson, J.).

In the parties' arguments on the question of whether there is a genuine issue of material fact as to causation (both proximate and actual), the focus is on whether Ackerman's actions deprived the plaintiff of the opportunity to provide an explanation or excuse for his failure to properly disclose the annuity through an advice of counsel defense.   Ackerman contends that the plaintiff was interviewed after Violino's meeting with Ackerman, and the plaintiff failed to offer explanations consistent with a defense.   In particular, according to Violino's testimony at the hearing, Violino did not refer the matter to the criminal investigation until after speaking to both the plaintiff and his attorney.  (Ackerman's Exhibit L, p. 36.)   As a result, Ackerman has met his initial burden to show that there is no genuine issue of material fact as to causation by presenting evidence that his actions did not cause harm to the plaintiff, since the plaintiff had an opportunity to present his defense before the criminal investigation began.

The plaintiff counters by presenting evidence that he received extensive advice from a skilled trusts and estates attorney, who advised that the estate would have no tax liability as to the private annuity.  (Plaintiff's Exhibit D, Affidavit of Peebles ¶¶ 5–7.)   The plaintiff argues that Ackerman's actions prohibited the plaintiff from disclosing the information regarding the advice from counsel to the IRS during the IRS examination process.   The plaintiff offered expert testimony from Daniel Mancinone, an IRS Special Agent–Criminal Investigator, which states that when a defense of advice of counsel is asserted early in the investigation, the examination will rarely lead to referral to the criminal division of the IRS. (Plaintiff's Exhibit Z, Affidavit of Mancinone, ¶ 7.)   The plaintiff also provided expert testimony from Thomas Carlucci, a former federal prosecutor and trial attorney at the U.S. Department of Justice Tax Division, who stated that Ackerman's actions deprived the plaintiff from providing a perfectly legitimate explanation for why the annuity was not disclosed on the tax returns, which is because he relied on the advice of a highly skilled attorney who created this annuity and advised the plaintiff that it did not have to be disclosed on any of the estate's tax returns.   (Plaintiff's Exhibit Y, Affidavit of Carlucci.)   Ackerman admitted that, had he immediately reviewed the enclosed documents that the plaintiff provided, Ackerman would have had the opportunity to represent the plaintiff and communicate to the IRS that there was a private annuity that was not disclosed, and to provide the IRS with an explanation.  (Plaintiff's Exhibit D, Direct Examination of Ackerman, p. 102.)

The evidence ¹¹ presented by the plaintiff are sufficient to establish a genuine issue of material fact as to whether Ackerman's behavior caused the IRS to pursue a criminal investigation against the plaintiff.   Even though the plaintiff may have had an opportunity to speak with Violino before the agent referred the matter to the IRS criminal investigation, there is a genuine issue of material fact as to whether earlier contact with the IRS, coupled with the assertion of the defense, could have prevented the subsequent IRS criminal investigation.   As a result, there is a genuine issue of material fact as to causation, and Ackerman is not entitled to judgment as a matter of law.

CONCLUSION

For the forgoing reasons, (1) there is no genuine issue of material fact as to whether Ackerman breached his fiduciary duty, (2) there is no genuine issue of material fact as to whether Ackerman's conduct negligently inflicted emotional distress on the plaintiff, and (3) there is no genuine issue of material fact to whether Ackerman intentionally inflicted emotional distress on the plaintiff, Ackerman is, therefore, entitled to judgment as a matter of law as to counts nine, ten and twelve of the second amended complaint.   The plaintiff has established a genuine issue of material fact as to whether Ackerman caused the plaintiff's injuries through his negligent conduct.   Therefore, Ackerman is not entitled to summary judgment as to count eleven.

Brian T. Fischer, Judge

FOOTNOTES

FN1. Count one of the second amended alleges breach of fiduciary duty against Ayres, count two alleges negligent infliction of emotional distress against Ayres, count three alleges negligence against Ayres, count four alleges intentional infliction of emotional distress against Ayres, count five alleges breach of fiduciary duty against Mead, count six alleges negligent infliction of emotional distress against Mead, count seven alleges negligence against Mead, count eight alleges intentional infliction of emotional distress against Mead, count nine alleges breach of fiduciary duty against Ackerman, count ten alleges negligent infliction of emotional distress against Ackerman, count eleven alleges negligence against Ackerman, and count twelve alleges intentional infliction of emotional distress against Ackerman..  FN1. Count one of the second amended alleges breach of fiduciary duty against Ayres, count two alleges negligent infliction of emotional distress against Ayres, count three alleges negligence against Ayres, count four alleges intentional infliction of emotional distress against Ayres, count five alleges breach of fiduciary duty against Mead, count six alleges negligent infliction of emotional distress against Mead, count seven alleges negligence against Mead, count eight alleges intentional infliction of emotional distress against Mead, count nine alleges breach of fiduciary duty against Ackerman, count ten alleges negligent infliction of emotional distress against Ackerman, count eleven alleges negligence against Ackerman, and count twelve alleges intentional infliction of emotional distress against Ackerman.

FN2. Ackerman filed the present motion for summary judgment as to all counts against him, which includes counts nine through twelve..  FN2. Ackerman filed the present motion for summary judgment as to all counts against him, which includes counts nine through twelve.

FN3. Three subsequent federal district court decisions, all three written by Judge Bryant, distinguished the holding in Iacurci, and ruled that a fiduciary relationship may exist where the relationship between the parties was characterized with more than the usual interactions between an accountant hired to prepare annual tax returns and his or her client.   See Short v. Connecticut Community Bank, N.A., United States District Court, Docket No. 3:09 CV 1955 (D.Conn. March 26, 2013);  Davis v. Connecticut Community Bank, N.A., United States District Court, Docket No. 3:10 CV 261 (D.Conn. March 26, 2013);  Levinson v. Westport National Bank, United States District Court, Docket No. 3:09 CV 269 (D.Conn. March 26, 2013)..  FN3. Three subsequent federal district court decisions, all three written by Judge Bryant, distinguished the holding in Iacurci, and ruled that a fiduciary relationship may exist where the relationship between the parties was characterized with more than the usual interactions between an accountant hired to prepare annual tax returns and his or her client.   See Short v. Connecticut Community Bank, N.A., United States District Court, Docket No. 3:09 CV 1955 (D.Conn. March 26, 2013);  Davis v. Connecticut Community Bank, N.A., United States District Court, Docket No. 3:10 CV 261 (D.Conn. March 26, 2013);  Levinson v. Westport National Bank, United States District Court, Docket No. 3:09 CV 269 (D.Conn. March 26, 2013).

FN4. The plaintiff's exhibits A, B, C, and D each have two documents under the same label.   In order to avoid confusion, descriptive titles of these exhibits have been provided in the citations..  FN4. The plaintiff's exhibits A, B, C, and D each have two documents under the same label.   In order to avoid confusion, descriptive titles of these exhibits have been provided in the citations.

FN5. The plaintiff's deposition indicates that the documents were “produced” to Ackerman on August 19, 2003.  (Ackerman's Exhibit C, Deposition of Peebles, p. 67.).  FN5. The plaintiff's deposition indicates that the documents were “produced” to Ackerman on August 19, 2003.  (Ackerman's Exhibit C, Deposition of Peebles, p. 67.)

FN6. In footnote four of the plaintiff's objection to the motion to dismiss, the plaintiff correctly points out that Ackerman's memorandum mischaracterizes the analysis that is required in the case of a motion for summary judgment as to a breach of fiduciary duty count.   Ackerman argues that “there is no fiduciary duty between an accountant and a client requiring the accountant to refrain from producing the client's tax documents as part of an IRS audit of the client's tax returns.”   As the plaintiff explains, the first question is whether a fiduciary duty exists between Ackerman and the plaintiff.   If the answer is in the affirmative, then the trier of fact must determine whether Ackerman breached his fiduciary duty.   Although Ackerman has incorrectly worded his ground for summary judgment, the question of whether there is a genuine issue of material fact as to the breach of fiduciary duty is fairly before the court..  FN6. In footnote four of the plaintiff's objection to the motion to dismiss, the plaintiff correctly points out that Ackerman's memorandum mischaracterizes the analysis that is required in the case of a motion for summary judgment as to a breach of fiduciary duty count.   Ackerman argues that “there is no fiduciary duty between an accountant and a client requiring the accountant to refrain from producing the client's tax documents as part of an IRS audit of the client's tax returns.”   As the plaintiff explains, the first question is whether a fiduciary duty exists between Ackerman and the plaintiff.   If the answer is in the affirmative, then the trier of fact must determine whether Ackerman breached his fiduciary duty.   Although Ackerman has incorrectly worded his ground for summary judgment, the question of whether there is a genuine issue of material fact as to the breach of fiduciary duty is fairly before the court.

FN7. I.R.S. Publication 947, states in relevant part:Practitioners must promptly submit records or information requested by officers or employees of the IRS, except when the practitioner believes on reasonable belief and good faith that the information is privileged.   Communications with respect to tax advice between a federally authorized tax practitioner and a taxpayer generally are confidential to the same extent that communication would be privileged if it were between a taxpayer and an attorney if the advice relates to:Noncriminal tax matters before the IRS, orNoncriminal tax proceedings brought in federal court by or against the United States..  FN7. I.R.S. Publication 947, states in relevant part:Practitioners must promptly submit records or information requested by officers or employees of the IRS, except when the practitioner believes on reasonable belief and good faith that the information is privileged.   Communications with respect to tax advice between a federally authorized tax practitioner and a taxpayer generally are confidential to the same extent that communication would be privileged if it were between a taxpayer and an attorney if the advice relates to:Noncriminal tax matters before the IRS, orNoncriminal tax proceedings brought in federal court by or against the United States.

FN8. Also, the plaintiff argues that he asked that Ackerman review the documents before sending them to the IRS in the cover letter.   However, the cover letter indicates only that Ackerman should review the documents to see if anything was missing.   Specifically, the cover letter states in relevant part:  “I am sure I have forgotten something you will need, so please review and let me know as soon as possible, anything else you require.   I put the package together in a big hurry, so please excuse omissions.”  (Emphasis added.)  (Plaintiff's Exhibit M.) The plaintiff did not ask Ackerman to review the documents in order to retain privileged information..  FN8. Also, the plaintiff argues that he asked that Ackerman review the documents before sending them to the IRS in the cover letter.   However, the cover letter indicates only that Ackerman should review the documents to see if anything was missing.   Specifically, the cover letter states in relevant part:  “I am sure I have forgotten something you will need, so please review and let me know as soon as possible, anything else you require.   I put the package together in a big hurry, so please excuse omissions.”  (Emphasis added.)  (Plaintiff's Exhibit M.) The plaintiff did not ask Ackerman to review the documents in order to retain privileged information.

FN9. In his reply memorandum, the plaintiff does not present any new evidence to show that there is a genuine issue of material fact.   Instead, the plaintiff repeats the evidence regarding Ackerman's allegedly negligent failure to properly review the plaintiff's documents before sending them to the IRS for review.   In addition, the plaintiff only presents evidence to support the argument that Ackerman should have known that his conduct in relation to the examination would cause the plaintiff severe emotional distress.   In order to prevail, however, the plaintiff must show that there is a genuine issue of material fact as to whether should have realized that his conduct involved an unreasonable risk of causing emotional distress to the plaintiff, which might result in illness or bodily harm..  FN9. In his reply memorandum, the plaintiff does not present any new evidence to show that there is a genuine issue of material fact.   Instead, the plaintiff repeats the evidence regarding Ackerman's allegedly negligent failure to properly review the plaintiff's documents before sending them to the IRS for review.   In addition, the plaintiff only presents evidence to support the argument that Ackerman should have known that his conduct in relation to the examination would cause the plaintiff severe emotional distress.   In order to prevail, however, the plaintiff must show that there is a genuine issue of material fact as to whether should have realized that his conduct involved an unreasonable risk of causing emotional distress to the plaintiff, which might result in illness or bodily harm.

FN10. The complaint labels “negligence” as the cause of action.   However, the plaintiff's memorandum objecting to the motion for summary judgment argues that there is no genuine issue of material fact as to whether Ackerman's “professional negligence” caused the plaintiff's harm.  “There are four essential elements to a malpractice action ․ (1) the defendant must have a duty to conform to a particular standard of conduct for the plaintiff's protection;  (2) the defendant must have failed to measure up to that standard;  (3) the plaintiff must suffer actual injury;  and (4) the defendant's conduct must be the cause of the plaintiff's injury.” LaBieniec v. Baker, 11 Conn.App. 199, 202–03, 526 A.2d 1341 (1987)..  FN10. The complaint labels “negligence” as the cause of action.   However, the plaintiff's memorandum objecting to the motion for summary judgment argues that there is no genuine issue of material fact as to whether Ackerman's “professional negligence” caused the plaintiff's harm.  “There are four essential elements to a malpractice action ․ (1) the defendant must have a duty to conform to a particular standard of conduct for the plaintiff's protection;  (2) the defendant must have failed to measure up to that standard;  (3) the plaintiff must suffer actual injury;  and (4) the defendant's conduct must be the cause of the plaintiff's injury.” LaBieniec v. Baker, 11 Conn.App. 199, 202–03, 526 A.2d 1341 (1987).

FN11. Ackerman argues that the expert testimony by Mancinone and Carlucci is inadmissable because it is not based on personal knowledge and would not be admissible evidence at trial.   See Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995);  Practice Book § 17–46.   Ackerman contends that Carlucci and Mancione are using affidavits to testify as to their personal opinion of the conduct of the IRS agents, and why those agents decided to refer the plaintiff's case to the criminal division.   Ackerman further argues that the affiants cannot be permitted to submit testimony that speaks to the intent, mindset, opinions, action or motivations of a third party.Ackerman's argument is misguided, as it overlooks the fact that the personal knowledge requirement does not always apply to expert opinions.   See Barrett v. Danbury Hospital, supra, 232 Conn. 252.   Instead, for the purposes of an expert opinion, “personal knowledge” and “facts” is compromised of those materials on the basis of which an expert may properly render his opinion.  Id. “Thus, an expert's opinion may be based on second hand sources, such as his training and experience, and information obtained by others ․ Although an expert's opinion must be based on facts, there is no rule of law declaring the precise facts which must be proved before [his] opinion may be received in evidence.”  DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 612–14, 2 A.3d 963, cert. granted, 299 Conn. 920, 10 A.3d 1053 (2010).In the present case, the affidavits of Carlucci and Mancione clearly state that they are familiar with the facts of the case.   Moreover, both experts are knowledgeable of the policies and procedure of the IRS investigations and prosecutions.   Therefore, these experts have the reliable basis from which to render an opinion on whether the criminal proceedings against the plaintiff would have gone forward had Ackerman acted differently.   Mancione, in particular, does not claim that he can understand the subjective mindset and motivations of the particular IRS agents involved in the plaintiff's case.   Rather, he is simply expressing an opinion as to whether, based on his experience, an earlier disclosure of the defense is objectively more or less likely to lead to a prosecution by the IRS..  FN11. Ackerman argues that the expert testimony by Mancinone and Carlucci is inadmissable because it is not based on personal knowledge and would not be admissible evidence at trial.   See Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995);  Practice Book § 17–46.   Ackerman contends that Carlucci and Mancione are using affidavits to testify as to their personal opinion of the conduct of the IRS agents, and why those agents decided to refer the plaintiff's case to the criminal division.   Ackerman further argues that the affiants cannot be permitted to submit testimony that speaks to the intent, mindset, opinions, action or motivations of a third party.Ackerman's argument is misguided, as it overlooks the fact that the personal knowledge requirement does not always apply to expert opinions.   See Barrett v. Danbury Hospital, supra, 232 Conn. 252.   Instead, for the purposes of an expert opinion, “personal knowledge” and “facts” is compromised of those materials on the basis of which an expert may properly render his opinion.  Id. “Thus, an expert's opinion may be based on second hand sources, such as his training and experience, and information obtained by others ․ Although an expert's opinion must be based on facts, there is no rule of law declaring the precise facts which must be proved before [his] opinion may be received in evidence.”  DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 612–14, 2 A.3d 963, cert. granted, 299 Conn. 920, 10 A.3d 1053 (2010).In the present case, the affidavits of Carlucci and Mancione clearly state that they are familiar with the facts of the case.   Moreover, both experts are knowledgeable of the policies and procedure of the IRS investigations and prosecutions.   Therefore, these experts have the reliable basis from which to render an opinion on whether the criminal proceedings against the plaintiff would have gone forward had Ackerman acted differently.   Mancione, in particular, does not claim that he can understand the subjective mindset and motivations of the particular IRS agents involved in the plaintiff's case.   Rather, he is simply expressing an opinion as to whether, based on his experience, an earlier disclosure of the defense is objectively more or less likely to lead to a prosecution by the IRS.

Fischer, Brian T., J.