Tracey Andreucci v. Law Offices of Paul E. Farren, Jr. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 123)

FACTS

This action was commenced on November 9, 2009, by service of process on Paul E. Farren, Jr., and the Law Offices of Paul E. Farren, Jr., P.C. They will be referred to collectively as the defendants.   On December 16, 2009, the plaintiff, Tracey Andreucci, filed a six-count complaint.   Pursuant to a request to revise, the plaintiff filed her revised complaint on June 17, 2010, which is the operative complaint for purposes of the present motion.

This is a legal malpractice action arising from the defendants' alleged mishandling of the plaintiff's 2002 divorce.   The plaintiff alleges the following facts in her revised complaint.   The plaintiff retained the defendants to represent her in her divorce (the divorce action) against her then husband, Steven Andreucci (Steven).¹  The defendants provided legal services to the plaintiff through the conclusion of the divorce and continuously through a series of postjudgment matters until January 10, 2007.   The defendants remained counsel to the plaintiff until the plaintiff hired replacement counsel in July 2009.

The plaintiff alleges that during the divorce action, the defendants advised her that a limited liability company purportedly owned by Steven and his brother, V & T Realty, LLC (V & T), could and should be used to pay for her children's educational expenses.   The plaintiff repeatedly voiced her concerns to the defendants as to whether V & T could be compelled to pay in accordance with a court-ordered dissolution agreement due to the fact that it was owned jointly by Steven and his brother.   The defendants assured the plaintiff that it could, the plaintiff relied on this advice, and the plaintiff agreed to settle the divorce action under the belief that V & T could be legally compelled to pay for her children's education.   The plaintiff subsequently learned that any obligation against V & T was ultimately unenforceable because Steven did not have a controlling interest in V & T. Because the plaintiff was unable to compel V & T to pay the children's educational expenses, the plaintiff alleges she has been damaged.   Specifically, she alleges she has incurred educational expenses on behalf of her children, as well as legal expenses in attempting to compel V & T to pay.

On May 14, 2013, the defendants filed the present motion for summary judgment, together with a supporting memorandum of law and exhibits.   The plaintiff filed a memorandum in opposition on October 15, 2013.   Appended to the plaintiff's opposition is the plaintiff's affidavit.   The defendants replied to the plaintiff's objection on October 31, 2013.   The matter was heard at short calendar on November 4, 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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).  “[S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Internal quotation marks omitted.)   Id., 535.

“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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).  “As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ 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.)  Id.

The defendants argue that they are entitled to summary judgment on four grounds.   First, the defendants state that the plaintiff's position in the present case is incompatible with the position she took in the divorce action.   Because of the inconsistency of these positions and the representations made by the plaintiff, the defendants argue that the plaintiff should be equitably estopped from pursuing this action.   Second, the defendants argue that the plaintiff's claims for legal malpractice are barred by the statute of limitations.   Third, the defendants argue that the plaintiff cannot prove damages or causation, two indispensable elements of a malpractice action.   Finally, the defendants argue that the plaintiff cannot substantiate her claims of damages or causation with expert testimony, which is generally required in a legal malpractice action.   Each argument will be addressed in turn.

I

EQUITABLE ESTOPPEL

The defendants first argue that they are entitled to summary judgment on the ground of equitable estoppel.   The defendants argue that the plaintiff's position in the present case is irreconcilably inconsistent with the position she took in the divorce action.   Specifically, the defendants argue that during the divorce action, the plaintiff took the position that V & T was not a part of the marital estate and that the plaintiff's children and their cousins, not Steven or his brother, were the owners of V & T. The defendants state that the plaintiff takes a new position in the present case:  that V & T is owned by Steven and his brother and, accordingly, V & T could not be compelled to pay the plaintiff's children's educational expenses because Steven does not possess a majority or controlling interest in V & T. The defendants argue that the plaintiff's position during the divorce action, and the consequent representations she made to the defendants at that time—all on the record and under oath—shaped the defendants' representation of the plaintiff.   Because she now takes a position wholly inconsistent with her prior position, the defendants argue that the plaintiff should be equitably estopped and that summary judgment should enter in their favor.

“[W]here one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is [precluded] from averring a different state of things as existing at the time.”  Blackwell v. Mahmood, 120 Conn.App. 690, 694–95, 992 A.2d 1219 (2010).  “[I]n Connecticut, the doctrine of equitable estoppel ․ requires proof of two essential elements:  [First] the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief;  and [second] the other party must change its position in reliance on those facts, thereby incurring some injury.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 547–48, 791 A.2d 489 (2002).  “The party claiming estoppel ․ has the burden of proof.”  (Internal quotation marks omitted.)  Celentano v. Oaks Condominium Association, 265 Conn. 579, 614, 830 A.2d 164 (2003).  “It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge.”   (Emphasis added.)  Connecticut National Bank v. Voog, 233 Conn. 352, 367, 659 A.2d 172 (1995).

In the present case, the defendants have submitted the following evidence in support of their equitable estoppel argument.   The plaintiff's testimony at the dissolution hearing on September 24, 2002, where the plaintiff acknowledged on the record and under oath before Judge Gruendel that her children are the owners of V & T and that V & T was being used to provide for the children's educational expenses.   See Defs.' Ex. 3. A copy of the plaintiff's dissolution agreement, which states that “[t]he parties['] children are members of V & T, LLC. The parties shall by mutual agreement choose a person to review anticipated transactions which may effect the interests of the children to protect those interests.”   Defs.' Ex. 12, Section 6.1(H).  The plaintiff's revised complaint, which states that V & T was “owned jointly by her husband and her husband's brother.”   Pl.'s Rev. Compl., ¶ 6.   Finally, the plaintiff's deposition testimony, where she states that Farren “was hiding the knowledge of the fact that I could not obtain anything from [V & T] due to the way it was structured.”   Defs.' Ex. 10 (page 73;  lines 21–23).

Based on the evidence presented, the defendants have not met their burden on summary judgment with respect to the issue of equitable estoppel.   The defendants presented a good deal of evidence to support their argument that the plaintiff's position in the present case is inconsistent with her position from the divorce action.   That said, the defendants have presented no evidence to prove that they “did not know the true state of things”;  Connecticut National Bank v. Voog, supra, 233 Conn. 367;  during the divorce action, as is required for purposes of equitable estoppel.   In fact, the defendants do not argue that they were impervious to the “true state of things” during the divorce action.   Instead, the defendants argue that the plaintiff was aware of the “true state of things” during the divorce action but now seeks to assert an alternate “state of things” in the present action.   In other words, the defendants' position is that they knew the truth of V & T's ownership structure during the divorce action, that the plaintiff knew it too, but that the plaintiff is now positing an alternate ownership structure in order to bring this action against them.   There is no evidence that the plaintiff misled the defendants, induced them to believe a false “state of things,” and thereby caused the defendants to change their position.

Additionally, there is no evidence presented that the defendants “lacked any reasonably available means of acquiring knowledge”;  id.;   of the “true state of things” during the divorce action.   In fact, the evidence submitted by the defendants demonstrates that they were able to obtain, and did in fact obtain, ample information regarding the ownership structure of V & T, such as V & T's operating agreement (see Defs.' Ex. 7), documents assigning interests in V & T to the plaintiff's children (see Defs.' Ex. 9), V & T's tax returns (see Defs.' Ex. 8), and the plaintiff's daughter's tax returns (see Defs.' Ex. 17).   Farren swore in an affidavit that all of these documents were obtained through discovery during the divorce action.   See Defs.' Ex. 19.   Therefore, the defendants clearly had ample means of acquiring, and did acquire, knowledge of the “true state of things.”

“The party claiming estoppel ․ has the burden of proof.”  (Internal quotation marks omitted.)  Celentano v. Oaks Condominium Association, supra, 265 Conn. 614.   The defendants have not sustained this burden.   Accordingly, the court denies the defendants' motion for summary judgment on the ground of equitable estoppel.

II

STATUTE OF LIMITATIONS

The defendants' second argument is that the plaintiff's claims are barred by the statute of limitations.   The defendants state that the applicable statute of limitations for legal malpractice claims, General Statutes § 52–577, provides a three-year window to file suit.   The defendants note that the plaintiff initiated this action in late 2009, more than seven years after the plaintiff's September 2002 divorce.   The defendants argue that unless the plaintiff can demonstrate that the statute of limitations tolled, the plaintiff's claims are time barred.   The plaintiff responds that the statute was tolled by the continuous representation doctrine.   The plaintiff states that the defendants continued representing the plaintiff through a number of postjudgment matters after the dissolution agreement was entered.   Because the defendants continued representing the plaintiff until 2007, the plaintiff argues that the limitations period provided by § 52–577 was tolled and, therefore, her claims are not time barred.   The defendants counter that in order to utilize the continuous representation doctrine, the plaintiff must haves been continuously represented with regard to the same underlying matter, and that the plaintiff either did not know of the alleged malpractice or that the defendants could still mitigate the alleged harm.   The defendants argue that their representation of the plaintiff formally terminated, pursuant to Practice Book §§ 3–9(c) and 25–3, in April 2004, and therefore the postjudgment representation was not representation in the same underlying matter.   The defendants also argue that the plaintiff was both aware of the alleged malpractice throughout the representation and that the defendants could not have done anything to mitigate whatever harm the plaintiff may have suffered.

“Although allowing a statute of limitations defense may result in meritorious claims being foreclosed, that must be so.”  Piteo v. Gottier, 112 Conn.App. 441, 450, 963 A.2d 83 (2009).  “Summary judgment may be granted where the claim is barred by the statute of limitations.”  Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).   Summary judgment is appropriate on statute of limitation grounds when the “material facts concerning the statute of limitations [are] not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

“Actions for legal malpractice based on negligence are subject to § 52–577, the tort statute of limitations.”  Weiner v. Clinton, 106 Conn.App. 379, 386, 942 A.2d 469 (2008).  Section 52–577 provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”  “Section 52–577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues ․ [S]ection 52–577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.”  (Internal quotation marks omitted.)  LaBow v. Rubin, 95 Conn.App. 454, 468, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).

The defendants have recited the correct legal standard for tolling § 52–577 in a legal malpractice claim under the continuous representation doctrine.   In the landmark case of DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003), the Supreme Court held that:  “a plaintiff may invoke the [continuous representation] doctrine, and thus toll the statute of limitations, when the plaintiff can show:  (1) that the defendant continued to represent him with regard to the same underlying matter;  and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period.”  (Emphasis in original;  footnote omitted.)   The court explained its rationale for adopting the doctrine when it stated that “the continuous representation doctrine furthers the goal of enabling the attorney to correct, avoid or mitigate the consequences of an apparent error.”  Id., 595–96.

Each of the prongs on the continuous representation doctrine have received judicial treatment.  “With regard to the first prong ․ the representation continues for the purposes of the continuous representation doctrine until either the formal or the de facto termination of the attorney-client relationship.”  Id., 597.  “The formal termination of the relationship occurs when the attorney is discharged by the client, the matter for which the attorney was hired comes to a conclusion, or a court grants the attorney's motion to withdraw from the representation.”  Id. “A de facto termination occurs if the client takes a step that unequivocally indicates that he has ceased relying on his attorney's professional judgment in protecting his legal interests, such as hiring a second attorney to consider a possible malpractice claim or filing a grievance against the attorney.”  (Footnote omitted.)   Id., 597–98.

The defendants' argument is that their representation of the plaintiff terminated automatically pursuant to Practice Book §§ 3–9(c) ² and 25–3.³  Section 3–9(c) deals with an attorney's appearance before a court and provides for circumstances that will terminate that appearance.   Section 25–3 deals with the custody of minor children in certain actions.   The defendants argue that these rules of practice automatically terminate an attorney-client representation after 180 days of inactivity.   The defendants presented evidence that showed that the divorce action was inactive from October 28, 2003, until August 12, 2004, and argue that this period of inactivity terminated their representation of the plaintiff.   They suggest that a new representation commenced on August 12, 2004, when Steven filed an application for a rule to show cause, but argue that this new representation does not entail representation in the underlying divorce action.

The defendants cite no authority for the proposition that the withdrawal of an appearance equates to the termination of an attorney-client relationship.   Practice Book § 3–9(c) does not state that a withdrawal of appearance, as a matter of law, automatically terminates the representation and relationship between a litigant and the appearing attorney.   The defendants also cite no authority to explain how Practice Book § 25–3 operates to terminate an attorney-client representation.   The law regarding the continuous representation doctrine clearly states that “the representation continues for the purposes of the continuous representation doctrine until either the formal or the de facto termination of the attorney-client relationship.”  DeLeo v. Nusbaum, supra, 263 Conn. 597.   Because the defendants have represented to the court that “[d]e facto termination of the attorney-client relationship is not at issue in the instant case”;  Defs.' Mem. Supp. Mot. Summ. J., 16 n.10;  this memorandum will address only whether the attorney-client relationship between the parties was formally terminated, as that term is defined in DeLeo and its progeny.

As discussed above, the DeLeo court held that, for purposes of the continuous representation doctrine, an attorney-client relationship formally terminates in one of three scenarios:  the relationship ends either “when the attorney is discharged by the client, the matter for which the attorney was hired comes to a conclusion, or a court grants the attorney's motion to withdraw from the representation.”  DeLeo v. Nusbaum, supra, 263 Conn. 597.   With respect to the third scenario, there is no evidence that the defendants ever filed a motion to withdraw, much less evidence that a court granted it.

With respect to the second scenario, regarding when the matter for which the defendants were hired came to a conclusion, the plaintiff alleges, and the defendants do not deny, that the defendants were retained to represent the plaintiff in the divorce action.   The divorce was entered on September 24, 2002.   However, the defendants continued representing the plaintiff in postjudgment matters related to the divorce action after that date.   There is ample evidence in the record to support this.   For instance, Farren filed a motion for order postjudgment on behalf of the plaintiff in October 2003.   He filed motions for contempt and counsel fees postjudgment on behalf of the plaintiff on September 15, 2004.   Farren was also sent a copy of a motion for modification/termination of alimony postjudgment by Steven's attorney on August 9, 2006.   See Defs.' Ex. 16.   Thus, the evidence suggests that the defendants continued representing the plaintiff in postjudgment matters relative to the underlying matter at least until August 2006.   However, because it is not clearly established, it is an issue of fact.

Finally, with respect to the first scenario, there is no evidence in the record establishing the precise time the defendants were discharged by the plaintiff.   The plaintiff alleges it occurred sometime in 2007.   The defendants allege that it occurred much earlier.   The plaintiff stated in her deposition transcript that she eventually terminated Farren and subsequently hired Anthony Solomine as replacement counsel.   See Defs.' Ex. 10 (page 59;  lines 19–25).   However, the plaintiff does not state when she discharged Farren.   The defendants produced copies of a number of postjudgment motions filed by Attorney Solomine, the first of which is a motion for contempt filed January 10, 2007.   Based on this evidence, the plaintiff likely discharged the defendants sometime between August 15, 2006—when the defendants received the postjudgment motion from Steven's counsel—and January 10, 2007—when Attorney Solomine filed his first postjudgment motion on behalf of the plaintiff.   Precisely when this occurred is an issue of fact, and a material one.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. 556.   Because the present action was commenced on November 9, 2009, and because the discharge likely occurred sometime in late 2006 or early 2007, it is possible that the plaintiff discharged the defendants within the three-year limitations period.   Without further evidence, however, the issue is not proper for summary judgment.

Because the defendants have not established that it is “quite clear what the truth is”;  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11;  with respect to when the attorney-client relationship between the parties formally terminated, and because the defendants offer no support for their proposition that Practice Book §§ 3–9(c) and 25–3 terminate an attorney-client relationship as a matter of law, the defendants have not sustained their burden on summary judgment.   The court denies the motion for summary judgment on the ground of statute of limitations.

III

CAUSATION AND DAMAGES

The defendants next argue that they are entitled to summary judgment because the plaintiff cannot prove damages or causation.   With respect to damages, the defendants argue that “the children's income from [V & T] was sufficient to pay their educational expenses.   The plaintiff testified that she has paid a total of only $18,000 for her children's educational expenses, all of which were for her daughter's ․ tuition at Sacred Heart [Academy] ․ Over the years, however, [her daughter] received more than $91,000 from [V & T].” Defs.' Mem. Supp. Mot. Summ. J., 21.   Because of these disbursements, the defendants argue that “there is no evidence to suggest that [V & T] distributions to the children were insufficient to pay their educational expenses.”   Defs.' Mem. Supp. Mot. Summ. J., 22.   With respect to causation, the defendants make a number of arguments.   The common thread of each of these arguments is that the plaintiff, not the defendants, caused her own injury.   The failure to secure educational expenses from V & T, the defendants state, occurred because of a number of conscious choices made by the plaintiff.   For instance, the defendants claim that the plaintiff was aware that V & T's income fluctuated from year to year and that “any reasonable person would understand that [V & T's] financial ability to pay educational expenses depended upon economic and commercial factors beyond their divorce lawyer's control.”   Defs.' Mem. Supp. Mot. Summ. J., 22.   Because the plaintiff agreed to utilize V & T notwithstanding this knowledge of V & T's financial wherewithal, the defendants argue that they cannot be deemed to have caused the plaintiff's injury.   Further, the defendants argue that the plaintiff did not pursue a number of other avenues to secure payment of their educational expenses, such as liquidating her children's interest in V & T pursuant to General Statutes § 34–207 ⁴ or selling their interest pursuant to Article 9.2 of V & T's operating agreement.   Because the plaintiff did not opt to secure payment of educational expenses in these ways, the defendants argue that the plaintiff is the cause of her own injury.

“In general, the plaintiff in an attorney malpractice action must establish:  (1) the existence of an attorney-client relationship;  (2) the attorney's wrongful act or omission;  (3) causation;  and (4) damages.”  (Emphasis added.)  Mayer v. Biafore, Florek & O'Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998).   With respect to causation, “[o]rdinarily, the determination of proximate cause is a question of fact for the trier ․ When the mind of a fair and reasonable person could reach only one conclusion, however, it becomes a question of law.”  (Citations omitted.)  Hughes v. National Car Rental Systems, Inc., 22 Conn.App. 586, 590, 577 A.2d 1132, cert. denied, 216 Conn. 817, 580 A.2d 57 (1990).  “Questions regarding the existence of a causal link classically are reserved for determination by the trier of fact.”  Sharp v. Wyatt, Inc., 31 Conn.App. 824, 835, 627 A.2d 1347 (1993), aff'd, 230 Conn. 12, 644 A.2d 871 (1994).  “The question [of causation] should be submitted to the trier of fact if there is room for a reasonable disagreement.”  (Internal quotation marks omitted.)  Hall v. Winfrey, 27 Conn.App. 154, 158, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992).

The defendants have failed to sustain their burden of proof with regard to the issues of damages and causation.   With respect first to damages, the defendants have failed to make it “quite clear what the truth is”;  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 10–11;  regarding the plaintiff's damages.   The plaintiff has alleged that she has suffered monetary damages because she had to pay her children's educational expenses that V & T has not paid.   In arguing that there is no genuine issue of material fact regarding the plaintiff's damages, the defendants have submitted the following evidence:  income tax returns for the plaintiff's daughter, Alyssa Andreucci (Defs.' Ex. 17);  income tax returns for V & T (Defs.' Ex. 8);  and deposition transcripts (Defs.' Ex. 10 & 14).   This evidence falls short of proving the defendants' argument that there was sufficient money available for the plaintiff's children's education from V & T. For one, the financial statements provided by the defendants in no way make it clear exactly how much income has been produced by V & T over the years.   The V & T tax returns submitted as the defendants' exhibit 8 only cover the years 1997 and 1999.   Alyssa Andreucci's tax returns submitted as the defendants' exhibit 17 only cover the years 1997, 2000, and 2002.   More importantly, the defendants have produced no evidence of what the children's educational costs have been as of the filing of the present motion.   It is impossible to say that there was sufficient money to cover educational costs when there is no evidence before the court establishing what those costs were and how much money was available.   In the absence of such evidence, there is an issue of fact as to the plaintiff's damages.

The defendants have also failed to produce any evidence to support their causation argument.   The defendants' causation argument hinges on the premise that it was the plaintiff, not the defendants, that caused her own injuries.   Had the plaintiff made better choices, the argument goes, she would have been able to secure money for her children's education.   The defendants' argument is completely unsupported by the record.   There is no evidence, for example, as to how much money the plaintiff could have procured if she liquidated her children's interest in V & T pursuant to General Statutes § 34–207.   There is also no evidence as to how much money the plaintiff could have procured if she sold their interest in V & T pursuant to Article 9.2 of V & T's operating agreement.   Moreover, even if this evidence were presented, there is no evidence that these purportedly better alternate channels of funding would have sufficiently covered the educational costs as there is no evidence establishing what those costs were.   Due to the dearth of evidence presented by the defendants on the issue of damages and causation, the court denies the motion on these grounds and leave these issues to the trier of fact.

IV

EXPERT TESTIMONY

Finally, the defendants argue that they are entitled to summary judgment because there is no genuine issue of material fact with respect to the plaintiff's ability to prove her claims because she lacks the expert testimony to do so.   The defendants argue in their memorandum that expert testimony is generally required to sustain legal malpractice claims and that the plaintiff has not disclosed an expert witness.   The defendants argue that, absent an exception to the general rule requiring expert testimony, the plaintiff's claims must fail.

“[I]n a legal malpractice case such as this, an expert witness is necessary to opine whether the defendant's alleged breach of care proximately caused the plaintiff's alleged loss or damages.”  Dixon v. Bromson & Reiner, 95 Conn.App. 294, 299–300, 898 A.2d 193 (2006).  “The 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 interests, resulting in such an obvious and gross want of care and skill that the neglect would be clear even to a layperson.”  (Internal quotation marks omitted.)  Pagan v. Gonzalez, 113 Conn.App. 135, 141, 965 A.2d 582 (2009).

In the present case, after the defendants filed the present motion and the parties submitted their respective memoranda, the plaintiff filed a disclosure of expert witness on November 26, 2013.   In said disclosure, the plaintiff identifies Mark H. Swerdloff as an attorney specializing in family law in Connecticut who will testify regarding the applicable standard of care.   The plaintiff states that Swerdloff will testify that the defendants breached the standard of care and how their conduct constituted a breach.   Subsequently, the defendants filed a motion to preclude the plaintiff's expert witness on December 19, 2013.   In their supporting memorandum, the defendants argue that permitting the plaintiff to disclose Swerdloff, or any expert, this late in litigation and this close to trial ⁵ would be prejudicial because it leaves the defendants with insufficient time to find a rebuttal witness.   The defendants also argue that permitting the plaintiffs to disclose or use Swerdloff, or any expert, would cause unnecessary delay and will negatively impact the orderly progression of trial.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony ․” (Internal quotation marks omitted.)  State v. Billie, 250 Conn. 172, 180, 738 A.2d 586 (1999).  “Expert testimony should be admitted when:  (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.”  (Internal quotation marks omitted.)  Prentice v. Dalco Electric, Inc., 280 Conn. 336, 342, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S.Ct. 1494, 167 L.Ed.2d 230 (2007).  “A trial court's decision on whether to impose the sanction of excluding the testimony of a party's expert witness rests within the court's sound discretion.”  (Internal quotation marks omitted.)  Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 28, 60 A.3d 222 (2013).

At the present moment, the dispute over the plaintiff's expert testimony is no longer whether the plaintiff is able to produce an expert witness, but is rather whether the plaintiff's proposed expert testimony should be precluded due to concerns over its prejudicial impact and judicial efficiency.   This issue shall be resolved in the motion to preclude.   Accordingly, the court declines to consider this issue in the present motion.

CONCLUSION

Connecticut courts hold the summary judgment movant to a strict standard of proof.   See Grenier v. Commissioner of Transportation, supra, 306 Conn. 523, 535.   The burden of proof only shifts to the nonmoving party if the moving party has met this burden.   See Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.   In any event, the “court must view the evidence in the light most favorable to the nonmoving party.”  Gold v. East Haddam, 290 Conn. 668, 677, 966 A.2d 684 (2009).   In the present case, the defendants have failed to meet their strict burden of showing the court that it is “quite clear what the truth is ․”;  Ramirez v. Health Net of the Northeast, Inc., supra, 10;  on all theories presented.

For the foregoing reasons, the defendants' motion for summary judgment is denied.

Brian T. Fischer, Judge

FOOTNOTES

FN1. It is unclear when the plaintiff first established an attorney-client relationship with the defendants.   The revised complaint inconsistently describes when the plaintiff retained the defendants and for what purpose.   In paragraph three, for instance, it states “[i]n or about 2005, the [p]laintiff ․ retained [Farren] in order to institute a divorce action against her then husband.”   Pl's Rev. Compl., ¶ 3.   In paragraph five, the revised complaint states “[i]n 2002, the [p]laintiff retained the [d]efendant to represent her in her divorce.”   Pl.'s Rev. Compl., ¶ 5.   Thus, the face of the revised complaint leaves a question as to when the parties' professional relationship began.   Subsequent filings are likewise inconsistent.   The plaintiff testified in a deposition that she retained Farren in 2002.   See Def.'s Ex. 10 (page 11:  line 25;  page 12:  lines 1–3).   The plaintiff also states that it was Steven, not her, who instituted the divorce action.   See Def.'s Ex. 10 (page 14:  lines 2–5).   However, in her memorandum opposing the present motion, the plaintiff states that she retained the defendants in 2000.   See Pl.'s Mem. Opp. Mot. Summ. J., 1. Although it is unclear precisely when the parties' relationship began, it is clear that the divorce action commenced in 2000 and that the parties executed a dissolution agreement in the divorce action on September 23, 2002.   See Defs.' Ex. 1, 12..  FN1. It is unclear when the plaintiff first established an attorney-client relationship with the defendants.   The revised complaint inconsistently describes when the plaintiff retained the defendants and for what purpose.   In paragraph three, for instance, it states “[i]n or about 2005, the [p]laintiff ․ retained [Farren] in order to institute a divorce action against her then husband.”   Pl's Rev. Compl., ¶ 3.   In paragraph five, the revised complaint states “[i]n 2002, the [p]laintiff retained the [d]efendant to represent her in her divorce.”   Pl.'s Rev. Compl., ¶ 5.   Thus, the face of the revised complaint leaves a question as to when the parties' professional relationship began.   Subsequent filings are likewise inconsistent.   The plaintiff testified in a deposition that she retained Farren in 2002.   See Def.'s Ex. 10 (page 11:  line 25;  page 12:  lines 1–3).   The plaintiff also states that it was Steven, not her, who instituted the divorce action.   See Def.'s Ex. 10 (page 14:  lines 2–5).   However, in her memorandum opposing the present motion, the plaintiff states that she retained the defendants in 2000.   See Pl.'s Mem. Opp. Mot. Summ. J., 1. Although it is unclear precisely when the parties' relationship began, it is clear that the divorce action commenced in 2000 and that the parties executed a dissolution agreement in the divorce action on September 23, 2002.   See Defs.' Ex. 1, 12.

FN2. Practice Book § 3–9(c) provides:  “All appearances of counsel shall be deemed to have been withdrawn 180 days after the entry of judgment in any action seeking a dissolution of marriage or civil union, annulment, or legal separation, provided no appeal shall have been taken.   In the event of an appeal or the filing of a motion to open a judgment within such 180 days, all appearances of counsel shall be deemed to have been withdrawn after final judgment on such appeal or motion or within 180 days after the entry of the original judgment, whichever is later.   Nothing herein shall preclude or prevent any attorney from filing a motion to withdraw with leave of the court during that period subsequent to the entry of judgment.   In the absence of a specific withdrawal, counsel will continue of record for all postjudgment purposes until 180 days have elapsed from the entry of judgment or, in the event of an appeal or a motion to open a judgment is filed within such 180 day period, until final judgment on that appeal or determination of that motion, whichever is later.”.  FN2. Practice Book § 3–9(c) provides:  “All appearances of counsel shall be deemed to have been withdrawn 180 days after the entry of judgment in any action seeking a dissolution of marriage or civil union, annulment, or legal separation, provided no appeal shall have been taken.   In the event of an appeal or the filing of a motion to open a judgment within such 180 days, all appearances of counsel shall be deemed to have been withdrawn after final judgment on such appeal or motion or within 180 days after the entry of the original judgment, whichever is later.   Nothing herein shall preclude or prevent any attorney from filing a motion to withdraw with leave of the court during that period subsequent to the entry of judgment.   In the absence of a specific withdrawal, counsel will continue of record for all postjudgment purposes until 180 days have elapsed from the entry of judgment or, in the event of an appeal or a motion to open a judgment is filed within such 180 day period, until final judgment on that appeal or determination of that motion, whichever is later.”

FN3. Practice Book § 25–3 provides in relevant part:  “Every application in an action for custody of a minor child, other than actions for dissolution of marriage or civil union, legal separation or annulment, shall state the name and date of birth of such minor child or children, the names of the parents and legal guardian of such minor child or children, and the facts necessary to give the court jurisdiction ․ Such application shall be commenced by an order to show cause.   Upon presentation of the application and an affidavit concerning children, the judicial authority shall cause an order to be issued requiring the adverse party or parties to appear on a day certain and show cause, if any there be, why the relief requested in the application should not be granted.”.  FN3. Practice Book § 25–3 provides in relevant part:  “Every application in an action for custody of a minor child, other than actions for dissolution of marriage or civil union, legal separation or annulment, shall state the name and date of birth of such minor child or children, the names of the parents and legal guardian of such minor child or children, and the facts necessary to give the court jurisdiction ․ Such application shall be commenced by an order to show cause.   Upon presentation of the application and an affidavit concerning children, the judicial authority shall cause an order to be issued requiring the adverse party or parties to appear on a day certain and show cause, if any there be, why the relief requested in the application should not be granted.”

FN4. General Statutes § 34–207 provides:  “On application by or for a member, the superior court for the judicial district where the principal office of the limited liability company is located may order dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.”.  FN4. General Statutes § 34–207 provides:  “On application by or for a member, the superior court for the judicial district where the principal office of the limited liability company is located may order dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.”

FN5. Trial in the present case is scheduled to begin January 15, 2014..  FN5. Trial in the present case is scheduled to begin January 15, 2014.

Fischer, Brian T., J.