Chandra Bozelko v. Angelica Papastavros (2013)

MEMORANDUM OF DECISION RE CASEFLOW REQUEST # 327

The plaintiff filed a Caseflow Request (# 327) dated November 4, 2013, requesting rulings on filings # s 295, 305 and 312, as well as rulings on Motions # s 316 and 317.   For reasons more fully explained below, the court denies the request as to Motions # 295, 312, 316 and 317.   Motion # 305, which requests an order that the defendant be precluded from marking plaintiff's motions/filings “Ready,” is granted.   Further, the court provides articulation as to why Motions # 316 and 317 are denied.

The court finds that a ruling on Plaintiff's Motion for Order, # 295 and a ruling on Plaintiff's Request for Special Finding, # 312, are not necessary, given the reason the court entered judgment for the defendant, which was because of the plaintiff's lack of expert witness/evidence.   As previously stated, Motion for Order # 305 is granted.

Motion for Order, # 316, “moves for an order of a trial-like hearing on the issue of gross negligence.”   Motion to Vacate, # 317, requests that the court “vacate the finding that the defendant did not engage in gross negligence.”

Taking the Motion to Vacate, # 317, first, this court never made any factual findings regarding the negligence claims of the plaintiff.   Specifically, the court did not conclude, as the plaintiff argues, that the defendant did not engage in gross negligence.   Therefore, there is no requirement to vacate a ruling that the court did not make.   Instead, the court determined, based upon the facts and arguments alleged by the plaintiff, that the allegations of the plaintiff sounded in professional negligence or legal malpractice, which claims required expert testimony as to both the standard of care and causation.

Regarding Motion # 116, the plaintiff was afforded more than one hearing to present and rebut any evidence offered to the court.   After those hearings the court concluded:  (1) the plaintiff did not have an expert to support her claims;  (2) the plaintiff's claims required, as a matter of law, expert testimony to establish both deviations from the standard of care and causation;  and (3) the plaintiff's failure to disclose any expert evidence to support her claims, merited the imposition of the sanction of preclusion of expert testimony.   Therefore, the court denies the request of the plaintiff in Motion # 116.

By way of background, the plaintiff brought this action in 2007 as a Self–Represented Party, alleging various claims of professional negligence and breach of fiduciary duty against the defendant.¹  The plaintiff asserted claims of inadequate representation, similarly, in a Habeas Corpus action, Bozelko v. Warden, a case in which she was represented by counsel.   See, Bozelko v. Warden, Superior Court, judicial district of Tolland at Somers, Docket No. CV 104003804 (August 13, 2013, Sferrazza, J.).

In the instant action, the operative complaint is the Revised Complaint, # 153,² In that complaint the plaintiff alleges in paragraph 5 of the First Count that:

“Defendant attorney's wrongful acts or omissions included, but are not limited to, the following:

a) Failure to institute a written fee agreement with the Plaintiff within a reasonable period of time after entering into an oral agreement to represent Plaintiff.

b) Misrepresentation of Defendant's trial experience to Plaintiff.   At the first meeting between Plaintiff and Defendant on June 7, 2007, Defendant represented that she had represented criminal defendants in ‘dozens and dozens' of trials.   In a September 28, 2007 telephone call between Plaintiff and Defendant, Defendant represented that she had '16 years practicing law.’   In 2007, for Defendant to have been practicing law for 16 years she must have received her license in 1995(sic).

c) Misrepresentation of length of Defendant's legal career to Plaintiff.

d) Failure to familiarize herself with the underlying facts of the cases concerning client.

e) Failure to become competent in criminal trial procedure and laws.   Defendant failed to exhibit competency in the practice of law in ways including, but not limited to, the following:

i) Defendant failed to submit any motions or legal memorandum in support of Defendant Bozelko's positions on Joinder and Admissibility of Evidence of Uncharged Misconduct.

ii) Defendant failed to move to suppress fabricated and tampered evidence.

iii) Defendant failed to move to strike false testimony by witnesses and other problematic testimony.

iv) Defendant failed to deliver coherent closing argument.

v) Defendant failed to exhibit knowledge criminal defendants do not argue that evidence beyond a reasonable doubt has been presented by the State at trial.

f) Failure to interview potential witnesses for Plaintiff.

g) Failure to prepare for trial, including failing to prepare for closing argument.

h) Initiation of contact and exposure in the news media that Plaintiff never sought.

i) Failure to maintain Attorney–Client confidentiality when speaking to news reporters without Plaintiff's knowledge or consent.

j) Failure to return Plaintiff client's file when requested to do so.”   (Emphasis in the original.)

In paragraph 6, of the Revised Complaint, the plaintiff alleges that:  “Defendant attorney's wrongful acts and omissions were breaches of the standard of care by an attorney.”   And, in paragraph 7 of the Revised Complaint, the plaintiff alleges that:  “Defendant attorney's wrongful acts and omissions caused the Plaintiff damages.   Plaintiff's damages include, but are not limited to, the following:  criminal convictions, an increase in Plaintiff's bond requiring disbursements of cash, lengthy incarceration, abuse suffered during incarceration, financial losses related to hiring new counsel, opportunity costs, miscellaneous financial damages, injury to Plaintiff's health status before and during incarceration, emotional and mental anguish, physical distress and illness.”  (Emphasis in original.)

In March 2013, the defendant sought leave to file a Motion for Summary Judgment, which the trial court denied because there was insufficient time for the motion to be filed, responded to, argued and decided before the June trial date.   However, the court did order that:

[B]ecause the issue of expert disclosure may prove dispositive in this matter, the court enters the following discovery order related to expert disclosures.   The plaintiff's expert must be disclosed no less than forty-five days before trial in this matter ․ Failure to comply with this order will result in the preclusion of the expert from testifying.3

On May 17, 2013, in a document dated May 14, 2013, the plaintiff filed an Expert Witness Disclosure. # 256.⁴  In it she stated:

Plaintiff hereby discloses her expert witness for trial.   Plaintiff will call Attorney James J. Ruane of the Ruane Law Offices at One Enterprise Drive in Shelton, Connecticut, as her witness on Defendant's malpractice and breach of fiduciary duty.

The defendant moved to Preclude the Expert and pending the ruling of that motion, moved for judgment.   The court held a hearing on the issue of preclusion at which time the defendant produced Attorney Ruane as a witness.   Under oath, Attorney Ruane testified that he had no expert evidence to offer in this action.   The plaintiff failed to rebut this evidence, or to provide any facts to support any claim that she could or would produce expert testimony in compliance with the court order.   Therefore, in the absence of any facts in dispute regarding whether or not the plaintiff had properly and timely disclosed an expert, the court issued an order precluding the plaintiff from offering expert testimony.

Without expert testimony, the court concluded that the plaintiff was unable to make a prima facie case regarding her claims, and determined that judgment should enter for the defendant.   Before the entry of judgment, the court granted the plaintiff's motion to reargue the preclusion order.   Order # 277.10. (“Although the plaintiff was afforded opportunity to argue at the previous hearing, and although the plaintiff had filed an Objection to the Motion to Preclude, which the court reviewed, the plaintiff will be afforded one additional opportunity to reargue her Objection to the Motion to Preclude on the trial day, June 27, 2013.”)

In her new Objection, # 278, the plaintiff raised numerous arguments, among them that she could rely upon the defendant as an expert; ⁵  and that the court should have held a hearing on the Motion for Summary Judgment.   The plaintiff also filed a Supplemental Memorandum of Law regarding the Motion for Summary Judgment, # 283, in which she argued that expert testimony was not necessary in all malpractice actions;  and that the court erred in determining that expert testimony was required in this action.

Because the plaintiff is representing herself, and because she is incarcerated, the court granted her latitude not typically given to represented parties.   She received additional time and additional hearings to present evidence, and to address the legal and factual issues.   The plaintiff argued, variously, that she had timely and adequately disclosed an expert;  that she could use the defendant as her expert;  and finally, that she did not need an expert because her claims constituted “gross negligence” rather than the kind of professional negligence which requires expert evidence.

“As a general rule, for a plaintiff to prevail in a legal malpractice case in Connecticut, [she] must present expert testimony to establish the standard of professional skill or care.”  Davis v. Margolis, 215 Conn. 408, 416 (1990).  “The general rule is that where [an attorney's] exercise of proper professional skill and care is in issue, expert testimony tending to establish the want of such skill and care is essential to recovery ․ The rationale underlying that rule is that in most cases, the determination of an attorney's standard of care, which depends on the particular circumstances of the attorney's representation, is beyond the experience of the average layperson, including members of the jury and perhaps even the presiding judge ․ The only exception to this rule is where there is present such an obvious and gross want of care and skill that the neglect [to meet the standard of care] is clear even to a layperson.”  (Citations omitted.)  Celentano v. Grudberg, 76 Conn.App. 119, 126 (2003).

Additionally, Practice Book section 13–4 requires that all parties disclose:  “The name, address, and employer of each party that may be called as an expert ․ the field of expertise and subject matter on which the expert witness is expected to offer testimony ․ the expert opinions to which the witness is expected to testify ․ and the substance of the grounds for each such expert opinion.”   Failure to comply with these practice book requirements is proper grounds for the imposition of sanctions, including preclusion.   Practice Book section 13–4(h).

The court initially did not hold the plaintiff to the strict requirements of the Practice Book. Rather, the court merely required that the plaintiff disclose an expert.   The plaintiff did not object to this requirement, nor did she claim that no expert testimony was required.   In fact, the plaintiff disclosed an expert in May 2013.   That expert—Attorney James Ruane—testified under oath in court that he had no expert opinion to offer against the defendant in this case.⁶

It is clear from the arguments of the plaintiff and the allegations of her complaint that this is a case in which expert testimony is required.   Reading her allegations liberally, as the law requires, this court concludes that none of her claims assert allegations that might fairly be read as gross negligence.   However, the plaintiff had every right to seek leave to amend her complaint to allege gross negligence, if she believed that was a viable cause of action for her.   Even without a formal amendment, however, the gravamen of the plaintiff's claim remained unchanged:  she believed and alleged that the defendant provided her with inadequate representation.   The plaintiff never alleged or claimed that the defendant, who acted as trial counsel during her criminal trial, did “nothing.”

“There is an exception to this rule [requiring expert testimony], however, where there is such an obvious and gross want of care and skill that neglect is clear even to a layperson ․ Nevertheless, [t]he exception to the need for expert testimony is limited to situations in which the defendant attorney essentially has done nothing whatsoever to represent his or her client's interest ․” (Emphasis added).  Grimm v. Fox, 303 Conn 322, 330, 33 A.3d 205 (2012).   See, also, Paul v. Gordon, 58 Conn.App. 724 (2000) (Court held no expert testimony was required in a case where the allegation against the attorney was that he had done absolutely nothing to protect the interests of the client).   This case does not involve a claim that Attorney Papastavros did nothing—or essentially nothing in representing Chandra Bozelko.   On the contrary, the plaintiff's own claims allege that Attorney Papastavros did many things in her representation of the plaintiff, albeit they claim she did them improperly or unprofessionally.

“Even if the plaintiff did not need an expert as to the standard of care, the plaintiff however, has not addressed nor provided an expert as to the causation issue.   The plaintiff has the burden to demonstrate that if there was professional negligence that this negligence caused injury to the plaintiff.   In other words, the plaintiff must demonstrate what would have happened in the underlying action had the defendant not been negligent.”   Stone v. Pattis, Superior Court, judicial district of Stamford–Norwalk, Complex Litigation Docket, Docket No. CV 095011515 (May 28, 2013, Brazzel–Massaro, J.).   The plaintiff not only lacks expert testimony to as to the breach of the standard of care, but she also lacks expert testimony as to causation.   The plaintiff has no expert to opine that any of the things the defendant allegedly did wrong (whether gross negligence or not) resulted in her conviction or any of the many harms she alleges.   Nor does the plaintiff have an expert to opine that different conduct of the defendant would have resulted in a different outcome for her.

The plaintiff misconstrues the law when she argues that the court should have held “a trial-like” proceeding to determine whether or not her claims sounded in professional malpractice or gross negligence.   The breadth of the allegations in and of themselves set forth claims that require expert testimony.   And, the plaintiff provided no testimony and/or exhibits to remove from realm of conjecture or speculation whether she had facts to support a claim of gross negligence against the defendant.   In other words she did not proffer or offer any proof that her real claim was that Attorney Papastavros did virtually nothing in her legal representation of the plaintiff.   For this reason, an evidentiary hearing was not required in this case;  and the court was able to make its decision, as a matter of law, once the plaintiff was precluded from introducing expert testimony.⁷

Robinson, A., J.

FOOTNOTES

FN1. Although the plaintiff has a separate count for Breach of Fiduciary duty, the court concludes that these claims require expert testimony, too.  “Although every attorney client relationship imposes a fiduciary duty on the attorney ․ a plaintiff cannot avoid his burden to present expert testimony to articulate the contours of that relationship by styling his cause of action as one for breach of fiduciary duty.”  (Citation omitted.)  Marciano v. Kraner, 126 Conn.App. 171, 178, cert. denied 300 Conn. 922 (2011)..  FN1. Although the plaintiff has a separate count for Breach of Fiduciary duty, the court concludes that these claims require expert testimony, too.  “Although every attorney client relationship imposes a fiduciary duty on the attorney ․ a plaintiff cannot avoid his burden to present expert testimony to articulate the contours of that relationship by styling his cause of action as one for breach of fiduciary duty.”  (Citation omitted.)  Marciano v. Kraner, 126 Conn.App. 171, 178, cert. denied 300 Conn. 922 (2011).

FN2. The Revised Complaint asserts three counts.   On December 19, 2011, the plaintiff withdrew the Third Count of the Complaint. # 179..  FN2. The Revised Complaint asserts three counts.   On December 19, 2011, the plaintiff withdrew the Third Count of the Complaint. # 179.

FN3. The Order also set forth requirements for the disclosure of defense experts.   Though not directly relevant to the issues raised in the Caseflow Request, the court notes that the defendant disclosed two experts.   The defendant disclosed a liability expert, Neal Rogan (# 223);  and an expert regarding the authorship of documents (# 224)..  FN3. The Order also set forth requirements for the disclosure of defense experts.   Though not directly relevant to the issues raised in the Caseflow Request, the court notes that the defendant disclosed two experts.   The defendant disclosed a liability expert, Neal Rogan (# 223);  and an expert regarding the authorship of documents (# 224).

FN4. The document is also coded as # 264..  FN4. The document is also coded as # 264.

FN5. Having never deposed the defendant in this case, the plaintiff did not offer what testimony of the defendant she would rely upon to provide the necessary expert evidence..  FN5. Having never deposed the defendant in this case, the plaintiff did not offer what testimony of the defendant she would rely upon to provide the necessary expert evidence.

FN6. It is worthy of noting that the plaintiff, though represented by Attorney Ruane, a seasoned and experienced trial counsel, failed to present expert testimony to support her claim of inadequate representation against the defendant in the Habeas case, too.   Attorney Ruane acknowledged this fact when he testified in the instant matter before the undersigned.   And, in rendering its decision after the Habeas trial, the court noted that “[n]o expert witnesses were presented who criticized Attorney Papastavros' representation of the petitioner in any regard.   Also, perhaps more significantly, no credible evidence was adduced that the petitioner would have benefitted at her criminal trial even if Attorney Papastavros had represented the petitioner as she now claims she should have.”  Bozelko v. Warden, supra..  FN6. It is worthy of noting that the plaintiff, though represented by Attorney Ruane, a seasoned and experienced trial counsel, failed to present expert testimony to support her claim of inadequate representation against the defendant in the Habeas case, too.   Attorney Ruane acknowledged this fact when he testified in the instant matter before the undersigned.   And, in rendering its decision after the Habeas trial, the court noted that “[n]o expert witnesses were presented who criticized Attorney Papastavros' representation of the petitioner in any regard.   Also, perhaps more significantly, no credible evidence was adduced that the petitioner would have benefitted at her criminal trial even if Attorney Papastavros had represented the petitioner as she now claims she should have.”  Bozelko v. Warden, supra.

FN7. The plaintiff's briefs and arguments were primarily directed to whether she could use the defendant as an expert;  or whether an expert was required in this case.   Relatively scant time was spent challenging the preclusion order, itself.   In her June 7, 2013 Memorandum of Law, # 282, the plaintiff premised all of her arguments on a fact that she could not support—that Attorney Ruane would serve as her expert.   She argued that the defendant was not prejudiced by her disclosure of Ruane as an expert because she “had ample opportunity to depose Ruane thirty days before the anticipated trial date.”   Additionally, the plaintiff argued that preclusion of Ruane would be disproportionate to any alleged violation of the Order.   The court will not spend substantial time addressing these issues because it agrees that had Attorney Ruane actually been an expert, this court would not have ordered his preclusion, notwithstanding the arguably late and inadequate disclosure.   Had the plaintiff disclosed a real expert, any real expert, regarding liability, the court would not have issued an order precluding her from offering expert testimony.   But, the plaintiff did not offer such evidence, nor did she credibly argue that given more time she would be able to offer such evidence..  FN7. The plaintiff's briefs and arguments were primarily directed to whether she could use the defendant as an expert;  or whether an expert was required in this case.   Relatively scant time was spent challenging the preclusion order, itself.   In her June 7, 2013 Memorandum of Law, # 282, the plaintiff premised all of her arguments on a fact that she could not support—that Attorney Ruane would serve as her expert.   She argued that the defendant was not prejudiced by her disclosure of Ruane as an expert because she “had ample opportunity to depose Ruane thirty days before the anticipated trial date.”   Additionally, the plaintiff argued that preclusion of Ruane would be disproportionate to any alleged violation of the Order.   The court will not spend substantial time addressing these issues because it agrees that had Attorney Ruane actually been an expert, this court would not have ordered his preclusion, notwithstanding the arguably late and inadequate disclosure.   Had the plaintiff disclosed a real expert, any real expert, regarding liability, the court would not have issued an order precluding her from offering expert testimony.   But, the plaintiff did not offer such evidence, nor did she credibly argue that given more time she would be able to offer such evidence.

Robinson, Angela C., J.