89 Conn. App. 666 | Conn. App. Ct. | 2005
Opinion
The pro se plaintiff, Tobias C. Anderson, appeals from the judgment rendered following the granting of partial summary judgment in favor of the defendants, Jon L. Schoenhom and the law office of Jon
At the plaintiffs request, two family members retained the defendants to serve as counsel for the plaintiff in his second habeas trial. Schoenhom and the family members, but not the plaintiff, entered into a guaranty and retainer agreement. Over the course of the representation, the plaintiff became dissatisfied with the defendants’ approach to and preparation for the habeas trial, as well as their responsiveness to his requests and concerns. The plaintiff eventually filed a grievance petition against Schoenhom, which led to his withdrawal as habeas counsel. The local grievance panel found no probable cause that Schoenhom’s actions constituted misconduct. The plaintiff subsequently withdrew his habeas petition.
By complaint dated April 12, 2001, the plaintiff filed suit against the defendants, alleging in counts one and two, legal malpractice; in counts three and four, breach of contract; in count five, breach of fiduciary duty; in counts six and seven, breach of an obligation owed by the defendants to the plaintiff as a third party beneficiary; in count eight, unjust enrichment; in count nine, statutory theft; in count ten, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; in counts eleven, twelve and thirteen, negligence; in count fourteen, personal injury; and in count fifteen, negligent infliction of emotional distress. The plaintiff claimed that the defendants’ acts or omissions caused him financial loss, delay in having his habeas petition heard, destruction of property, physical injuries and emotional and mental distress.
The court held that counts one, two, five, eleven, twelve and thirteen all sounded in negligence and concerned the duty of care a lawyer owes a client. The court concluded that in order to succeed on those claims, the plaintiff was required to present expert testimony on the duty of care owed, the nature of the breach, causation and the resulting damages. The court determined that counts three, four, six and seven, sounding in breach of contract, and counts fourteen and fifteen, alleging personal injury and negligent infliction of emotional distress, also required expert testimony as to the standard of care and breach thereof. The court found that the plaintiff, who intended to call as his experts lawyers involved in the underlying habeas case and the grievance proceeding, failed to provide any “specific testimony or facts to which any of these proposed experts would be able to testify.” As to count ten, in which the plaintiff alleged a violation of CUTPA, the court concluded that under controlling precedent, lawyers cannot be sued under the statute on the basis of malpractice or negligent breach of contract.
Counts eight and nine proceeded to trial, where the jury returned a verdict for the defendants, and judgment was rendered accordingly on February 11, 2004. The plaintiff appealed on February 23, 2004, challenging the April 14, 2003 decision granting partial summary
As a preliminary matter, we set forth the standard of review. “Our review of a trial court’s decision to grant [a] motion for summary judgment is plenary. . . . 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.) Lewis v. Chelsea G.C.A. Realty Partnership, L.P., 86 Conn. App. 596, 600-601, 862 A.2d 368 (2004), cert. denied, 273 Conn. 909, 870 A.2d 1079 (2005). “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... A material fact . . . [is] a fact which will make a difference in the result of the case.” (Internal quotation marks omitted.) Ace Equipment Sales, Inc. v. Buccino, 273 Conn. 217, 227, 869 A.2d 626 (2005). A party may not “rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002).
The plaintiff disclosed as expert witnesses Schoenhom, Jeanne M. Zulick, a former associate employed in Schoenhom’s law office, attorney Timothy H. Everett, the expert in the underlying habeas case, attorney Daniel B. Horwitch, statewide bar counsel, and attorney John J. Quinn, counsel for the local grievance panel. The plaintiff cites LePage v. Home, 262 Conn. 116, 132, 809 A.2d 505 (2002), for the proposition that a plaintiff may prove the standard of care through the testimony of a defendant. We need not decide whether that holding applies to a legal malpractice claim.
It remained, therefore, for the plaintiff to provide an evidentiary foundation sufficient to demonstrate that he could supply the expert testimony necessary to establish his claim. The court permitted the plaintiff to examine Schoenhom during the hearing on the cross motions for summary judgment. The plaintiffs examination of Schoenhom was extensive, running more than fifty transcript pages. It focused primarily on the merits of the underlying habeas case and the defendants’ preparation for that trial. The plaintiff was able to elicit from Schoenhom the standard of care an attorney should exercise under certain specific circumstances, although not the standard of care the defendants owed the plaintiff in pursuing his habeas claim in general. We are satisfied, after reviewing the transcript, that the plaintiff
The plaintiff makes a number of arguments to support his contention that there was sufficient evidence before the court to raise an issue of material fact.
The plaintiff finally claims that the court incorrectly found that CUTPA did not apply on the facts of this case. In general, CUTPA applies to attorney conduct, but only as to the entrepreneurial aspects of legal practice. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002). Professional negligence, or malpractice, does not fall under CUTPA. Id. Although “[m]any decisions made by attorneys eventually involve personal profit as a factor, but are not considered part of the entrepreneurial aspect of practicing law”; id., 783; the conduct of a law firm in obtaining business and negotiating fee contracts does fall within the ambit of entrepreneurial activities. Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 656, 850 A.2d 145 (2004). Except for a challenge to the content of the agreement and the firm’s billing practices, which arguably fall under the entrepreneurial aspect of practicing law, the allegations of misconduct raised in the plaintiffs CUTPA count pertain to the underlying claim of legal malpractice.
CUTPA prohibits anyone from engaging “in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
The judgment is affirmed.
In this opinion the other judges concurred.
Jeanne M. Zulick, a former associate of Schoenhom, was also a defendant before the trial court. On May 4, 2004, this court dismissed as untimely the plaintiffs appeal as to Zulick. We therefore refer in this opinion to Schoenhom and his law office as the defendants.
His first motion for summary judgment, filed in August, 2001, was denied.
There is no challenge to the judgment rendered on counts eight and nine.
The plaintiff does not appear to allege that the defendants’ conduct amounted to an obvious and gross want of care and skill.
LePage v. Home, supra, 262 Conn. 116, held in the context of a medical malpractice action, that a plaintiff may prove the standard of care through the testimony of a defendant. Id., 132 (“[A] plaintiff may prove the standard of care through the testimony of a defendant. . . . Moreover, as an expert witness, the defendant is not required specifically to have expressed an
The plaintiff also argues that whether he could provide expert testimony at trial was itself a question of fact that could have been resolved only at trial. In that regard the plaintiff cites three cases where the court directed a verdict for the defendant after the plaintiff failed to provide the necessary expert testimony at trial. We fail to see how these cases support his claim. In fact, it is clear from our case law that sufficiency of expert testimony is often addressed in the summary judgment context. See, e.g., Pekera v. Purpora, 80 Conn. App. 685, 836 A.2d 1253 (2003), aff'd, 273 Conn. 348, 869 A.2d 1210 (2005); Drew v. William W. Backus Hospital, 77 Conn. App. 645, 825 A.2d 810, cert. granted on other grounds, 265 Conn. 909, 831 A.2d 249 (2003) (appeal withdrawn December 22, 2003); Gordon v. Glass, 66 Conn. App. 852, 785 A.2d 1220 (2001), cert. denied, 259 Conn. 909, 789 A.2d 994 (2002).
The plaintiff also claims that he could have prevailed at trial under General Statutes § 52-470 on a claim of negligence per se. Without reaching any conclusion as to whether the plaintiff could in fact bring such a claim, we determine that he did not raise that claim before the trial court and, accordingly, we do not provide review. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 82, 848 A.2d 395 (2004).