Richard M. Reice v. Christine O'Sullivan (2014)

MEMORANDUM OF DECISION re MOTION FOR SUMMARY JUDGMENT (# 132.00)

Nature of the Proceeding

This is a legal malpractice action brought by the self-represented plaintiff.   Defendant, a duly licensed attorney in the State of Connecticut, represented plaintiff in connection with a marriage dissolution action commenced in 2005 (King v. Reice, FST–FA05–4003957–S).  That underlying action went to judgment on November 28, 2006, and according to the court docket (of which the court can take judicial notice), post-judgment proceedings commenced less than two months later.¹

Plaintiff's claims of legal malpractice have two major components.   The first component relates to the separation agreement, which was incorporated into the judgment of dissolution (first and fourth counts of operative complaint—# 128.00).   The second component relates to post-judgment hearings in 2008, and the conduct of defendant as relates to those proceedings (second and third counts;  see footnote 1).

Defendant has moved for summary judgment.²  With respect to the separation agreement counts, defendant contends that the statute of limitations is a bar, in that the conduct claimed to form the basis of that component of this action occurred more than three years prior to the commencement of this action, and that as a matter of law, plaintiff cannot establish a breach of a duty owed to him.   She also claims that she provided proper advice with respect to the two aspects of the separation agreement at issue.

With respect to the conduct relating to post-judgment proceedings in 2008, defendant's principal claim is that expert testimony would be required to establish liability, and plaintiff has not identified any expert he intends to call as a witness, for that purpose (see, Practice Book § 13–4).   Defendant also claims that plaintiff cannot establish any harm resulting from her conduct.

Plaintiff contends that there is no need for an expert, at least as of this point in the proceeding;  and that the ongoing representation of plaintiff by defendant precludes summary judgment on the issue of the statute of limitations—the continuing representation concept, if not a clear bar to that claim, at least raises a material factual issue.   He also claims that he was harmed by defendant's conduct, notwithstanding defendant's claim to the contrary.

The court heard argument on the motion on November 25, 2013.   Both sides submitted memoranda and supporting documentation.

Legal Standards

Summary Judgment

“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.)  Sherman v. Ronco, 294 Conn. 548, 553–54 (2010).

“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 (2008).

“A material fact ․ [is] a fact that will make a difference in the result of the case ․” Hurley v. Heart Physicians P.C. (278 Conn. 305, 314 (2006) (internal quotation marks omitted).

Discussion

1. Preliminary

A motion for summary judgment is not intended to resolve factual issues.   The motion can be granted only if the court first determines that there are no material factual issues, and then identifies the required outcome based on that undisputed factual presentation.   Accordingly, to the extent that plaintiff challenges factual predicates for defendant's arguments, if those challenges create material factual issues, the court cannot grant the motion.   A material fact, of course, is one that makes a difference, Hurley, supra, so with respect to any factual conflict raised by plaintiff's submission, the court must necessarily determine whether the factual conflict pertains to a material issue.

A number of contentions identified by defendant fail to satisfy the required threshold.   Defendant claims that plaintiff's ex-wife and her attorney never would have agreed to incorporation into the agreement of a provision automatically terminating alimony based on cohabitation, thereby attempting to eliminate the existence of one instance of claimed-culpable conduct.   Plaintiff disputes that position.   Assuming that it even is a factual issue for which either or both parties are competent to testify,³ the conflicting submissions create a factual issue that cannot be resolved “on the papers.”   In the absence of definitive information as to what the ex-wife would have done, the court cannot accept defendant's proffer that there would have been no difference in outcome and that defendant provided appropriate and competent advice to plaintiff in this regard.

An analogous analysis applies to the mediation/arbitration issue.   Plaintiff claims that the mandatory mediation, coupled with a mandate to follow the advice of the mediator, is the equivalent of an arbitration provision.   Defendant contends that it is not an arbitration provision.   Although the meaning of a contractual provision (provision in the separation agreement) is subject to interpretation by the court, neither side has engaged in a full analysis of the provision, including the extent to which the “shall follow” provision truly is mandatory as opposed to directory, and the consequential issue of what happens should a party fail to follow the decision or recommendation of the mediator under such a provision.   Plaintiff claims that had he known the limitations on compulsory compliance, he would have sought other protective provisions in the agreement;  whether such alternatives exist and whether they would have been productive (e.g. would the ex-wife have agreed to such an alternative?) are matters that are not susceptible to resolution by way of summary judgment (and neither party has addressed the existence or feasibility of alternatives in any meaningful manner).

II. Separation Agreement issues (2006)

Plaintiff does not dispute that this action was commenced more than three years after the drafting of the separation agreement about which he complains, and more than three years after its incorporation into the dissolution judgment.   Plaintiff also does not question that General Statutes § 52–577 is the controlling statute of limitations—limiting the right to recover to three years.⁴  Plaintiff's primary argument is that the continuing course of conduct of defendant in representing him tolls the statute of limitation such that his action was timely.   For purposes of this motion, the issue is whether there is a material factual issue as to whether the statute of limitations has been tolled on that basis.

In DeLeo v. Nusbaum, 263 Conn. 588 (2005), our Supreme Court adopted and adapted the continuous representation doctrine that had been recognized (about a year earlier) by the Appellate Court in Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.App. 151, 166 (2002).   As something of a cautionary note, the court recognized that its decision was in the context of litigation, effectively reserving its ability to fine-tune the doctrine in non-litigation situations.⁵

More recently, the Appellate Court had an opportunity to discuss the principle in connection with a claim of malpractice that had its origin in the drafting of documents in connection with a land transaction, Targonski v. Clebowicz, 142 Conn.App. 97 (2013).   Discussing an earlier case, the court stated:

“The clear implication ․ is that even after an attorney's representation of a client ends, he owes a duty to his client, which relates back to his original wrong of rendering negligent services to the client, to correct the results of such prior negligence if he later learns of the negligence at a time when he has the power to remedy the problems arising from it ․ By force of simple logic, this duty continues until such time as he takes action to cure his prior negligence or the opportunity to cure such prior negligence ceases to exist.”   142 Conn.App. 110 (citations, omitted).

In theory, then, Targonski partially undercuts defendant's reliance on the claimed cessation of representation as “the” benchmark for when any tolling of the statute of limitations must have ended.   The decision creates a modest tension between the imprecision based on the specific scenario in Targonski and the seemingly hard line drawn by the Supreme Court in DeLeo, likely attributable to the fact that Targonski was not a litigation case (see footnote 5, above)—the alleged initial wrongful conduct related to the failure to include an easement in the paperwork relating to a real estate transaction.   This case lies somewhere between DeLeo and Targonski insofar as the events occurred in the course of litigation, but with a focus on the drafting of an end-product document associated with the conclusion of the litigation—but probably much closer to DeLeo.⁶

In DeLeo, the Supreme Court stated that there were two prongs in the continuous representation doctrine, as being adopted in Connecticut.   The second prong, less the focus of the motion at issue, is that “either the plaintiff did not know of the alleged malpractice or the attorney could still mitigate the harm allegedly caused by that malpractice.”  263 Conn. 597 (emphasis as in original).   The first prong, the apparent primary focus of defendant's argument, is “that the defendants continue to represent [the plaintiff] with regard to the same underlying matter.”  Id.

In explaining that first prong, the court stated that

we conclude 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.   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 court grants the attorney's motion to withdraw from the representation.   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 ․ 263 Conn. 597.

Defendant's focus appears to be the condition “the matter for which the attorney was hired comes to a conclusion.”

Before getting into a detailed analysis of DeLeo and how it does or does not apply to this case, the court notes that defendant cited and relied upon Sanborn v. Greenwald, 39 Conn.App. 289 (1995), for the proposition that the continuous representation doctrine “was not suited to ‘legal malpractice arising from negligent drafting of the written word’ “ (p. 10 of brief).   Sanborn predates both DeLeo and Targonski, and defendant does not attempt to demonstrate how this broadbrush statement/holding can be harmonized with either or both of the more recent cases.   This court believes that such an analysis would be essential before considering application of this claimed holding of Sanborn,⁷ given the explicit statement by the Supreme Court in DeLeo that it was both adopting and modifying the concept as previously articulated (presumably referring to Rosenfield, supra ), and given the fact that DeLeo and Targonski both involved, at least in part, issues relating to drafting of documents.  (As to DeLeo, see footnote 6;  as to Targonski, as previously mentioned, it pertained to drafting of paperwork in a real estate transaction.)   Accordingly, the court does not give any weight to defendant's reliance on Sanborn.⁸

A timeline of events in DeLeo is helpful in understanding the extent to which a matter of days can make a difference.

Unspecified dates in 1992—defendant attorney engaged in the conduct forming the basis for the malpractice claim, explicitly including a stipulated agreement relating to visitation on November 4, 1992.⁹  (263 Conn. 590.)

June 22, 1993—plaintiff writes letter that trial court interpreted as reflecting proof that attorney-client relationship “had broken down irretrievably.”  (263 Conn. 592.)

June 28, 1993—defendant attorney continues to represent plaintiff, appearing at deposition (263 Conn. 592).

June 30, 1993—defendant attorney files motion to withdraw (263 Conn. 592).

July 6, 1993—motion to withdraw is granted (263 Conn. 592).

June 27, 1996—defendants are served with the malpractice action (263 Conn. 590).

In DeLeo, the trial court had treated the June 22, 1993 letter as conclusive/determinative.   That date was more than three years prior to the date of service of process on defendants (June 27, 1996), thereby warranting the granting of a directed verdict on the basis of the statute of limitations.   The Supreme Court concluded that the trial court had applied an inappropriate standard, and remanded “the case with direction to consider, in light of the continuous representation doctrine we adopt today, whether the plaintiff's claim is barred by the statute of limitations.”  263 Conn. 600–01.¹⁰

In this case, there are complementary bases for the claim that the representation had ended in 2006, within the contemplation of DeLeo.   Defendant relies upon the retainer agreement which explicitly provided for representation as ending when judgment entered in connection with the marriage dissolution.   Additionally, the entry of judgment in 2006 itself inherently constituted a conclusion to the proceedings for which defendant was hired (with the necessary consequence that there no longer was an opportunity for defendant to mitigate any harm that might have resulted from her conduct).

Plaintiff's response is that notwithstanding the terms of the retainer agreement, defendant continued to represent him in connection with post-judgment proceedings, including/especially contempt proceedings that stretched out over the next couple of years.

In DeLeo, the court recognized the importance of relatively clear guidance as to when this doctrine would apply, in order to avoid extensive disputes concerning qualitative or subjective factors.   As noted earlier, DeLeo was primarily concerned with a litigation context while recognizing that the principles being enunciated probably would be applicable more generally.   The concept of conclusion of a matter, when considered in the realm of litigation, can only avoid the uncertainty that the court sought to prevent, if conclusion of the litigation was “the” benchmark.   Conclusion of litigation might allow for motions to reargue, appeals, or other matters that might impact the finality of a decision, but seemingly would not and could not include disputes that, while perhaps grounded in the earlier matter/judgment, cannot be considered to be the same matter.

In this case, plaintiff recites that the issue relating to mediation did not arise until some two years after the date of judgment.   He further states that the cohabitation issue did not arise until approximately 4 years after judgment (to the extent that his initial complaint in 2010 treated the topic in largely anticipatory terms).   Plaintiff's theory, then, is that for statute of limitations purposes, allegedly-continued representation of plaintiff by defendant, in connection with contempt and other matters derived from an earlier-but-concluded matter, tolled the statute of limitations until such time as there was a complete termination of relationship between the parties.   This appears to be a substantial departure from the Supreme Court's goal of avoiding uncertainty.   It is not clear whether it is an oversimplification to say that plaintiff's position is that so long as defendant represented him at any time after the dissolution action went to judgment, for anything related in any way to the dissolution, the statute of limitations relating to events leading up to that dissolution would be tolled.   That is far broader than a standard predicated on conclusion of the matter for which the attorney was retained, when the engagement was for purposes of litigation that has gone to judgment.

The court believes that plaintiff's interpretation would eviscerate the Supreme Court's choice of words in promulgating a new principle.   The Supreme Court did not state that the statute of limitations was tolled during the course of an attorney's continued representation, but rather qualified and limited that prong:  “(1) that the defendant continued to represent him with regard to the same underlying matter;  and (2) ․” (Emphasis added.)   Instead, plaintiff repeatedly refers to the fact that he continued to be represented by defendant in divorce-related matters, but does not address the narrower issue contained in the quoted requirement from DeLeo— that there be continued representation with respect to the same underlying matter.   To put it in a different way, utilizing a framework of plaintiff's choosing:  the issue is not whether defendant's duty to her client had terminated, but rather whether the continued representation rationale for a tolling of the statute of limitations had terminated.   The narrow issue before the court is not whether an attorney continues to have a duty to a client under these circumstances (as plaintiff argues), but rather how to apply the statute of limitations should there be a claimed breach of that duty in an earlier stage or phase of representation.   Plaintiff's position seems to disregard the distinction between the analysis in Rosenfield— the statute of limitations is tolled if there is continued representation and the representation “related to the same transaction or subject matter as the alleged negligent acts” (see, 263 Conn. 594)—and the continuous representation concept as actually adopted/adapted by the Supreme Court (“same underlying matter”).

Notwithstanding plaintiff's insistence that the defendant continued to represent him beyond the entry of judgment, the retainer agreement recited the entry of judgment as a terminal date for representation.   Plaintiff again refers to a more general concept, when he invokes professional codes and responsibilities that extend beyond the life of a particular contract.   The court in DeLeo did not look to the broader concept of professional obligations to a client but particularly in a litigation context, identified a clear end of representation or a departure from the “underlying matter” as the endpoint for any claimed tolling of the statute of limitations.

Entry of judgment is a relatively clearly-unambiguous marker for purposes of determining when “the same underlying matter” ends, which can only promote finality and certainty.   The court is cognizant of the prevalence of post-judgment proceedings in litigation, and especially in marriage dissolution actions—allowing the limitations period for pre-judgment conduct to be tolled during a possibly extended period of post-judgment proceedings likely would fall prey to the law of unintended consequences:  The only way an attorney would be able to cut off a possibly long tail of potential liability would be to sever all contact with the client, promptly after judgment is entered.   That would entail a significant cost both monetarily and in efficiency in the judicial system, as new counsel would have to get up to speed in the post-judgment context, and would need time to do so.   The alternative would be “wink and a nod” termination followed by re-representation, which then would return to the problem of uncertainty as to true termination of representation.

The court concludes that for purposes of statute of limitations analysis, the “underlying matter” terminated in 2006 as did the contractual term of representation, and therefore defendant's representation of plaintiff with respect to the “underlying matter” terminated in 2006.   Evidence of a continuing course of representation does not extend the statute of limitations beyond 2009 for conduct that occurred prior to and in connection with the marriage dissolution.   As it is undisputed that this action was commenced in 2010, the claims relating to events in and before 2006—specifically, the provisions embodied in the separation agreement—are barred by the statute of limitations (§ 52–577) as invoked by defendant.

III. 2008 proceedings

A. May 12, 2008

Defendant has claimed that the delay/postponement of the hearing in May 2008, did not result in any harm to plaintiff.   Defendant takes great pains in her affidavit to point out that no fee was charged in connection with the May postponement/delay.   Plaintiff has failed to identify any aspect of harm he suffered as a result of the delay, seemingly pointing to it as something symbolic of the nature of the defendant's representation of him.   As this appears to be the sole focus of the Second Count, defendant has established that plaintiff did not suffer any harm as a result of the events of that date.   Actual injury is an essential element of a cause of action sounding in negligence, Roe v. Boy Scouts of America Corp., 147 Conn.App. 622, 641 (2014), and in the absence of an actual injury, defendant is entitled to judgment on the second count.

B. July 21, 2008

Defendant claims that she is entitled to judgment on the third count because the conduct about which plaintiff complains was proper, caused no harm to plaintiff, and requires expert testimony to be deemed actionable.   Again, the court is guided by the principle that it is not charged with resolving factual issues, but rather determining whether there are any material factual issues in the first instance.   Only to the extent that there are no material factual issues can the court then proceed to consider whether judgment in favor of defendant is appropriate.

Subject to the discussion of expert testimony below, the issue of whether defendant's conduct was proper would seem to present a factual issue.   Most obviously, defendant claims that she did nothing wrong whereas plaintiff says the opposite.   Plaintiff quotes defendant as having acknowledged that at least some of what she did was a “mistake,” and absent authorities suggesting that the dispute can be resolved as a matter of law (e.g. that the court can rule that the admission of making a mistake was rhetorical rather than legal), it would appear that this is an issue of fact for determination by a factfinder.   Notably, because this is a motion for summary judgment, the burden is on defendant to establish that which she contends, before plaintiff has any burden of opposing the motion.   For defendant to prevail on the premise that what she did was proper, then, she must establish that there is no factual issue in that regard—not that plaintiff's case is weak but rather that it is nonexistent.   The court does not believe that she has sustained that burden.

Defendant also claims that plaintiff cannot establish that any harm was caused by the conduct on July 21, 2008 about which he complains.   Specifically, Defendant claims that there is no factual predicate for harm;  that in particular, nothing happened at court and defendant did not bill plaintiff for that time and that he was credited so as to make him whole.   Plaintiff does not specifically rebut the claim that he was not charged for the time, and that he otherwise was made whole.   He does not offer any fact(s) that might suggest that he was harmed in any way by that occurrence.   He only provides conclusory assertions of harm and embarrassment—essentially, boilerplate claims—which the court deems inadequate as a rebuttal of the specific factual assertions of defendant.

Indeed, plaintiff does not make a significant effort to distinguish between the events of July 21 and July 22, 2008—his response effectively focuses on the latter date, rather than the earlier date for which defendant claims to have made him whole.   Procedurally more important, the third count also does not differentiate between the dates, such that defendant's ability to negate any harm on July 21, 2008 simply narrows the issues without entitling defendant to judgment on any count.¹¹  Accordingly, although defendant has established the non-compensability of the events of July 21, there is no corresponding count on which judgment can be entered (without also addressing the events of July 22, 2008).

C. July 22, 2008

Focusing on July 22, 2008, plaintiff again claims that he suffered harm and embarrassment—and an adverse ruling.   At this point, some detailed review of submissions is required.

In ¶ 43 of the third count of the operative (amended) complaint, plaintiff asserts that as a consequence of defendant's malpractice, he “suffered harm in the form of additional attorney and other fees, suffered an adverse ruling for contempt of court, and considerable and unnecessary disruption to the relationships with his children as a result of prolonged [and unnecessary] litigation related to the Divorce Action causing Reice to suffer damages in excess of $15,000.” ¹²

The actual assertions set forth in his affidavit in opposition to the motion for summary judgment, relating to the 2008 events are set forth in ¶ 21:

21.  O'Sullivan's ‘mistakes' resulted in harm to [me] in the form [of] my having to pay damages to my ex-wife that were simply not supported by the record.   O'Sullivan failed to exercise the contracted for care and diligence when she failed to inform Reice that a court hearing on July 21 and July 22, 2008 would require his testimony and she called Reice to the stand without any warning or preparation whatsoever.   This failure to prepare her witness was [appalling] and led to an adverse ruling and cost me considerable harm and [embarrassment].

There does not appear to be any dispute concerning the existence of an adverse ruling as a result of the July 22, 2008 hearing.   There is no specificity as to the “harm and embarrassment” allegedly suffered.   The claim that he had “to pay damages to my ex-wife that were simply not supported by the record” appears to be a collateral attack on the proceedings in 2008;  while the court believes it to be appropriate to entertain a claim that there might have been a better result under different circumstances, a claim that the result was “not supported by the record” is a legal attack on the earlier result rather than a claim of malpractice against an attorney.

The final submission to be considered is plaintiff's brief.   In the argument section of the brief, there is absolutely no mention of the 2008 events.   On that basis, the court arguably could treat the issue as abandoned given the lack of attention given.   However, in the factual recitations portion of the brief, plaintiff paraphrases and/or quotes from his affidavit relating to the 2008 events, and in both locations, the factual presentation does have an argumentative quality.   Accordingly, despite the absence of any discussion of the issue where a discussion ordinarily would be found, the court will not treat this aspect of the case as having been abandoned.

The issue for the court is not whether plaintiff's position that he was harmed by defendant's conduct is weak or strong, but rather whether it is something amenable to determination at this time, or needs to be resolved via a factfinder.   Defendant raises a serious issue concerning whether an attorney could be deemed the cause of an adverse decision in a scenario such as this, based on alleged lack of preparation by counsel, when the transcript attached to defendant's submission makes it clear that the judge's decision had been based on her perception of a protracted pattern of improper conduct.¹³  The court believes that it does not need to address further the merits of that issue because it presents an appropriate segue to the dispositive issue—the need for expert testimony.

The claim of malpractice in connection with the events of July 22, 2008 presents an issue appropriate for consideration by way of summary judgment—the claimed need for plaintiff to have an expert and the consequences of his failure to have an expert if one is required.

It is axiomatic in our jurisprudence that [generally, to prevail on a legal malpractice claim ․ a [party] must present expert testimony to establish the standard of proper professional skill or care ․ Not only must the [party] establish the standard of care, but [she] must also establish that the [attorney's] conduct legally caused the injury of which [she] complain[s] ․

Our courts have carved out a limited exception to this general rule in cases in which 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.   Simply put, [i]n legal malpractice litigation, expert evidence is required for most cases but not for all.

Finally, we set forth the rationale behind the need of expert testimony, as established by the appellate courts of this state.   The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the [attorney's] actions in light of that standard.   Ackerly & Brown, LLP v. Smithies, 109 Conn.App. 584, 588–89 (2008) (internal quotation marks and citations, omitted).

Defendant has observed that this case is over three years old (at the time this decision is being written, 3 1/2 years old), and plaintiff has not filed a formal disclosure relating to any expert he intends to utilize, cf.   Practice Book § 13–4.   Plaintiff does not address the need for expert testimony in his brief in any substantive manner;  his only mention of the possible need for an expert is set forth in footnote 2, where he states:  “Plaintiff has every intention of, and is in the process of sourcing and designating an expert witness and will propound a draft proposed schedule for expert disclosure pursuant to Practice Rule 13.4(g)(1).”   That brief was filed on November 20, 2013, and more than two months later, there is nothing on the court docket reflecting any follow-up to that stated intent.   Plaintiff has not made a request under Practice Book § 17–47 (in form or substance) for additional time to obtain an expert.¹⁴

As something of a procedural overlay, this case appeared on a dormancy-type calendar for November 15, 2013, at which time the presiding judge ordered that this motion go forward on November 25, 2013, the date of argument before the undersigned.   At no time did plaintiff alert the court on November 15 that he might need additional time to get an expert, in order to respond properly to the motion for summary judgment.   Further, despite the implicit (if not explicit) message that the case needed to get on track, promptly, there has been no filing of a proposed schedule for expert discovery nor any filing indicating that the parties cannot agree on such a schedule, in accordance with Practice Book § 13–4(g)(1).

Under the circumstances, while recognizing the fact that plaintiff is self-represented,¹⁵ the court feels that it is appropriate to proceed to address the motion for summary judgment on the merits, relying on the current state of the record—particularly, that plaintiff has no expert with respect to legal malpractice.

Again, plaintiff has identified three dates in 2008, on which dates events of malpractice allegedly occurred.   The court has already addressed May 12, 2008 as well as July 21, 2008, as dates on which nothing of substance happened, and defendant claims to have made plaintiff whole such that no harm accrued to plaintiff on those dates.   Again, as previously discussed, plaintiff has not refuted those contentions in a factual manner, and in any event, those contentions would merely narrow the issues rather than resulting in defendant's entitlement to judgment.¹⁶

It appears that the real issue is in connection with the hearing that took place on July 22, 2008, a hearing that resulted in an adverse outcome for plaintiff.   In his complaint, plaintiff has described the outcome of that hearing as a finding of contempt, but he has backed off from the “contempt” characterization in more recent filings.   More narrowly, he has not disputed the accuracy/authenticity of the transcript provided by defendant, indicating that the judge explicitly stated that she was not finding plaintiff in contempt (although also reflecting her statement that she could have done so, on the record before her).

The court need not address the question of whether the failure to prepare a client for a hearing, in some circumstances, is or may be a sufficient dereliction of responsibility as to obviate the need for an expert as to duty.   Similarly, the court need not address the question of whether the failure to prepare a client for a contempt-type hearing, in some post-judgment marital disputes, is or may be a sufficient dereliction of responsibility as to obviate the need for an expert as to duty.   The specifics of this case involve the alleged failure to prepare a client who was himself an attorney (albeit out-of-state and with no apparent expertise in marital matters), who was contemplating if not in the process of taking over his own representation,¹⁷ and the issue being addressed by the court at the subject hearing related to arguably-contemptuous conduct over an extended period of time.   Under these circumstances, the scope of an attorney's duty to her client would seem to require expert testimony, e.g. to what extent can and should an attorney prepare a legally-trained client (an attorney) for a contested (contempt) hearing, based, inter alia, on his claimed continued failure to provide required records/information to his ex-spouse?

More significantly—and therefore, all the more dispositive—the issue of causation of damages would need to be addressed by an expert.  Beecher v. Greaves, 73 Conn.App. 561 (2002).   Would a more favorable result have been likely, had defendant better prepared plaintiff?   According to the trial judge, plaintiff could have been found in contempt, but wasn't.   Would better preparation have altered the court's determination that plaintiff had failed to disclose that which he was required to disclose, and that he was engaged in a pattern of conduct indicative of attempts to exert continued control over his former spouse, such that something, even if short of contempt, had to be done?   What possible better outcome might have been the result, and what would the likelihood have been of such a result?   For example, is plaintiff suggesting that with better preparation, the trial judge would not have concluded that he should have disclosed financial records that he didn't disclose?   Or that the trial judge would not have concluded that he was engaged in a pattern of conduct designed to continue to exert control over his ex-wife?

Absent expert testimony, the factfinder would not be able to determine the scope of duty to plaintiff and more importantly how an alleged breach of that duty caused plaintiff any harm.

“We are not persuaded that this is a case in which an attorney has done nothing to protect the interests of a client;  or the trial judge's knowledge of the rules of practice eliminates the need for expert testimony.   Instead, the court properly concluded that the general rule requiring expert testimony in a legal malpractice action applied, and, in the absence of such testimony, the defendant's [counterclaim] of legal malpractice failed.”  Ackerly & Brown, supra, 109 Conn.App. 590.

Given the circumstances of this case both the submissions of the parties and the procedural context described earlier—the court must conclude that plaintiff's failure to identify an expert relating to legal malpractice is fatal to the claims set forth in the second and third counts.

Conclusion

This action was commenced in 2010, and the continuous representation concept did not toll the statute of limitations with respect to the first and fourth counts beyond the termination of the dissolution proceedings (entry of judgment).   The first and fourth counts relate to conduct arising during the course of representation of plaintiff in his marriage dissolution proceeding, and that proceeding resulted in a judgment in 2006.   This matter was commenced approximately 4 years later, and that is outside the time limits set forth in the applicable statute of limitations, § 52–577, even assuming a tolling until the date of judgment.   Defendant is entitled to judgment, on this basis, with respect to the first and fourth counts.

With respect to the claims set forth in the second and third counts, relating to events in 2008, plaintiff has failed to identify any cognizable harm resulting from the events of May 12 and July 21, 2008, entitling defendant to judgment on the second count.   He also has failed to identify any legal malpractice expert expected to testify on his behalf relating to both the standard of care of defendant as well as causation of damages plaintiff claims to have suffered as a result of the events of July 22, 2008.   This is not a simple matter involving an obvious dereliction of duty with obvious consequences;  it is far from clear, even to the court, what more-favorable result likely would have resulted, had plaintiff been better prepared for the July 22, 2008 hearing.   Absent an expert, plaintiff cannot prevail, as a matter of law, entitling defendant to judgment on the third count.  (The lack of an expert also would warrant judgment in favor of defendant as to the second count;  see footnote 16.)

For all these reasons, then, defendant's motion for summary judgment is granted as to all counts.

POVODATOR, J.

FOOTNOTES

FN1. In just over 12 months, starting in late January of 2007, each side filed two motions for contempt.   The last of those four contempt motions was filed in early February 2008, and court entries suggest that there was a great deal of activity in 2008..  FN1. In just over 12 months, starting in late January of 2007, each side filed two motions for contempt.   The last of those four contempt motions was filed in early February 2008, and court entries suggest that there was a great deal of activity in 2008.

FN2. There was an earlier motion for summary judgment (# 120.00) which motion only addressed the claims arising from the drafting of the separation agreement (first and fourth counts).   There is no indication that the motion was argued and/or considered on the merits..  FN2. There was an earlier motion for summary judgment (# 120.00) which motion only addressed the claims arising from the drafting of the separation agreement (first and fourth counts).   There is no indication that the motion was argued and/or considered on the merits.

FN3. What each party thought the ex-wife's position was might be admissible with respect to the state of mind of each party, assuming that were in issue;  what the ex-wife actually would have done if the issue had been pressed may not be a matter that either party is competent to address, absent a proper foundation (and nothing in that regard has been submitted to the court for purposes of this motion)..  FN3. What each party thought the ex-wife's position was might be admissible with respect to the state of mind of each party, assuming that were in issue;  what the ex-wife actually would have done if the issue had been pressed may not be a matter that either party is competent to address, absent a proper foundation (and nothing in that regard has been submitted to the court for purposes of this motion).

FN4. “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”.  FN4. “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

FN5. In footnote 4 at 263 Conn. 597, after broadly stating that “we anticipate that these standards would be applicable to all attorney malpractice cases,” the court narrowed its position by qualifying its ruling with the observation that “our holding today is limited to cases in which an attorney is alleged to have committed malpractice during the course of litigation.”.  FN5. In footnote 4 at 263 Conn. 597, after broadly stating that “we anticipate that these standards would be applicable to all attorney malpractice cases,” the court narrowed its position by qualifying its ruling with the observation that “our holding today is limited to cases in which an attorney is alleged to have committed malpractice during the course of litigation.”

FN6. In DeLeo, the only specifically-identified claim of malpractice was related to a visitation agreement—but that appears to have been a pendente lite matter, entered more than six months prior to the end of representation and more than a year prior to the entry of a final judgment.   The court has taken judicial notice of the underlying marriage dissolution action, which indicates that the visitation agreement appears to have been entered on November 4, 1992 (DeLeo v. DeLeo, FST 91–0118718).   The file indicates that judgment was entered on January 11, 1994.   See timeline, below, for further dates, particularly relating to the end of representation..  FN6. In DeLeo, the only specifically-identified claim of malpractice was related to a visitation agreement—but that appears to have been a pendente lite matter, entered more than six months prior to the end of representation and more than a year prior to the entry of a final judgment.   The court has taken judicial notice of the underlying marriage dissolution action, which indicates that the visitation agreement appears to have been entered on November 4, 1992 (DeLeo v. DeLeo, FST 91–0118718).   The file indicates that judgment was entered on January 11, 1994.   See timeline, below, for further dates, particularly relating to the end of representation.

FN7. The court notes that “not suited to” does not necessarily mean inapplicable.  (The court actually said that the concept was “better suited” to situations other than “legal malpractice arising from negligent drafting of the written word,” 39 Conn.App. 298.).  FN7. The court notes that “not suited to” does not necessarily mean inapplicable.  (The court actually said that the concept was “better suited” to situations other than “legal malpractice arising from negligent drafting of the written word,” 39 Conn.App. 298.)

FN8. The court also rejects defendant's reliance on her vindication after plaintiff had filed a grievance against her, based on some or all of the conduct alleged in his complaint.   Defendant has not provided a legal framework nor cited any legal authority indicating why the court should give weight or conclusive weight (analogous to collateral estoppel) to the determination made by the grievance tribunal.  (Unless entitled to dispositive weight, it would seem to be evidentiary in nature, which ordinarily would not suffice for summary judgment—assuming it were to be entitled to any weight).  FN8. The court also rejects defendant's reliance on her vindication after plaintiff had filed a grievance against her, based on some or all of the conduct alleged in his complaint.   Defendant has not provided a legal framework nor cited any legal authority indicating why the court should give weight or conclusive weight (analogous to collateral estoppel) to the determination made by the grievance tribunal.  (Unless entitled to dispositive weight, it would seem to be evidentiary in nature, which ordinarily would not suffice for summary judgment—assuming it were to be entitled to any weight)

FN9. See footnote 6..  FN9. See footnote 6.

FN10. On remand, the trial court again found that June 22, 1993, had been the date on which tolling ceased, based on knowledge of claimed malpractice;  49 Conn.Sup. 366 (2004);  aff'd, 276 Conn 143 (2005) (adopting trial court decision)..  FN10. On remand, the trial court again found that June 22, 1993, had been the date on which tolling ceased, based on knowledge of claimed malpractice;  49 Conn.Sup. 366 (2004);  aff'd, 276 Conn 143 (2005) (adopting trial court decision).

FN11. For the balance of the discussion of this issue, the court will focus on July 22, 2008.   The analysis would seem to be the same for the earlier date, subject only to the recognition that the fact that there was no injury obviates the need for a more detailed treatment..  FN11. For the balance of the discussion of this issue, the court will focus on July 22, 2008.   The analysis would seem to be the same for the earlier date, subject only to the recognition that the fact that there was no injury obviates the need for a more detailed treatment.

FN12. Paragraph 40, of the second count, contains virtually the same language (omitting the language “causing Reice to suffer” but otherwise seemingly identical, including typographical errors), notwithstanding the absence of any legal proceedings that resulted in an adverse ruling on May 12, 2008, the subject of that second count.  (The language in ¶ 40 also is contained in ¶ 34 (incorporated into all counts but not part of any particular count) and in ¶ 37 of the first count.).  FN12. Paragraph 40, of the second count, contains virtually the same language (omitting the language “causing Reice to suffer” but otherwise seemingly identical, including typographical errors), notwithstanding the absence of any legal proceedings that resulted in an adverse ruling on May 12, 2008, the subject of that second count.  (The language in ¶ 40 also is contained in ¶ 34 (incorporated into all counts but not part of any particular count) and in ¶ 37 of the first count.)

FN13. As emphasized by defendant, plaintiff was not held in contempt although the presiding judge made it clear that plaintiff's conduct was sufficiently egregious that the judge believed she would have been justified in holding him in contempt..  FN13. As emphasized by defendant, plaintiff was not held in contempt although the presiding judge made it clear that plaintiff's conduct was sufficiently egregious that the judge believed she would have been justified in holding him in contempt.

FN14. Practice Book § 17–47 requires that reasons be given for an inability to respond in a timely manner, which in these circumstances would require plaintiff to give a reason why no expert had been identified or retained, three years after the action was commenced.   The court does not consider a footnote in a brief to be the substantive equivalent of compliance with Practice Book § 17–47..  FN14. Practice Book § 17–47 requires that reasons be given for an inability to respond in a timely manner, which in these circumstances would require plaintiff to give a reason why no expert had been identified or retained, three years after the action was commenced.   The court does not consider a footnote in a brief to be the substantive equivalent of compliance with Practice Book § 17–47.

FN15. “Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties.   Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice[,] the purpose of which is to provide a just determination of every proceeding.”  Argentinis v. Fortuna, 134 Conn.App. 538, 539 (2012) (internal citations, omitted)..  FN15. “Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties.   Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice[,] the purpose of which is to provide a just determination of every proceeding.”  Argentinis v. Fortuna, 134 Conn.App. 538, 539 (2012) (internal citations, omitted).

FN16. To the extent that the events of May 12 and/or July 21 might go to a factfinder (jury) despite the conclusions in this memorandum relating to lack of any harm, expert testimony seemingly would be essential, as the issues would relate to practices relating to short calendar markings, professional courtesy, and other “informal” workings of the bar..  FN16. To the extent that the events of May 12 and/or July 21 might go to a factfinder (jury) despite the conclusions in this memorandum relating to lack of any harm, expert testimony seemingly would be essential, as the issues would relate to practices relating to short calendar markings, professional courtesy, and other “informal” workings of the bar.

FN17. Defendant seems to be arguing that the anticipated takeover of representation somehow exonerates her from responsibility.   The court does not believe that it can treat that disputed takeover as anything other than a factor potentially accentuating the need for expert input..  FN17. Defendant seems to be arguing that the anticipated takeover of representation somehow exonerates her from responsibility.   The court does not believe that it can treat that disputed takeover as anything other than a factor potentially accentuating the need for expert input.

Povodator, Kenneth B., J.