Glaser v. Pullman & Comley, LLC

• Citation: 871 A.2d 392,88 Conn. App. 615
• Decision Date: 26 April 2005
• Docket Number: (AC 24445).
• Court: Appellate Court of Connecticut
• Parties: KAREN GLASER ET AL. v. PULLMAN AND COMLEY, LLC, ET AL.

88 Conn. App. 615

871 A.2d 392

KAREN GLASER ET AL. v. PULLMAN AND COMLEY, LLC, ET AL.

(AC 24445).

Appellate Court of Connecticut.

April 26, 2005

January 5, 2005

Bishop, McLachlan and Dupont, Js.

David P. Atkins, with whom, on the brief, were David P. Friedman and Marcy Tench Stovall, for the appellees (defendants).

Opinion

DUPONT, J.

In this legal malpractice action, the plaintiffs, Karen Glaser, KLO Associates, Inc., and Glaser Realty Associates, LLC (Glaser Realty), appeal from the judgment of the trial court rendered after the jury's verdict in favor of the defendants, the law firm of Pullman & Comley, LLC (law firm), and Ronald C. Sharp, one of its members, on the plaintiffs' complaint and in favor of the law firm on its counterclaim. The sole issue on appeal is whether the court properly precluded the testimony of one of the plaintiffs' properly disclosed expert witnesses. We affirm the judgment of the trial court.

I PROCEDURAL AND FACTUAL BACKGROUND

The following factual and procedural history is relevant to our resolution of the plaintiffs' claim. This case arises from the plaintiffs' attempted purchase in 1995 of a commercial building in Wilton for use in the plaintiffs' marketing business. Sharp, having represented the plaintiffs in various matters for several years, undertook to represent them in connection with the purchase. In their one count substituted complaint, the plaintiffs sought damages from the defendants in connection with the defendants' representation of the plaintiffs, for lost business opportunities, relocation expenses, labor expenses and other related costs. Their claim for damages was based on alleged acts of legal malpractice.

In late June or early July, 1995, the plaintiffs located a property in Wilton that they considered appropriate for their needs. In July, 1995, counsel for the owner-seller of the property provided the defendants with a proposed real estate purchase and sale agreement, to which certain environmental reports were attached. The reports contained evidence of lead contamination on the property. In that same month, the real estate agent representing the owner-seller of the property provided an environmental affidavit to both the plaintiffs and to Sharp, which represented that there was no contamination on the property.

On August 16, 1995, Glaser Realty entered into a written purchase and sale agreement for the property. The agreement contained several contingencies, including final approval of a conditional commitment previously issued by Glaser Realty's lender to provide mortgage financing for the purchase of the property. The plaintiffs and the seller ultimately agreed to a closing date of September 29, 1995.

The plaintiffs' lender withdrew its conditional commitment to provide financing for the purchase of the property when it learned of lead contamination on the property. Without the necessary financing, the plaintiffs canceled the transaction. In their operative complaint, the plaintiffs alleged that the defendants had not adequately alerted them to the existence and contents of the reports, which indicated an isolated area of lead contamination. The plaintiffs alleged that this failure caused their lender to withdraw its conditional commitment to provide financing for the purchase, which, in turn, forced the plaintiffs to cancel the transaction. The plaintiffs further alleged that the defendants negligently failed to incorporate necessary and proper language in the purchase and sale agreement, including a requirement that "time was of the essence."

The defendants denied the plaintiffs allegations of professional negligence and asserted certain special defenses. In addition, the law firm asserted, by way of a counterclaim, breach of contract and quantum meruit claims against the plaintiffs for the recovery of the plaintiffs' unpaid account balance with the firm for attorney's fees and disbursed costs.

Proving allegations of legal malpractice usually requires expert testimony. St. Onge, Stewart, Johnson & Reens, LLC v. Media Group, Inc., 84 Conn. App. 88, 95, 851 A.2d 1242, cert. denied, 271 Conn. 918, 859 A.2d 570 (2004). Accordingly, the plaintiffs filed a disclosure of expert witness. In that disclosure, filed June 4, 2001, the plaintiffs gave notice of their intent to offer at trial the opinion testimony of attorney Eric I. Beller. The plaintiffs indicated that Beller would testify that the defendants breached the applicable standard of care in one or more of the following four ways: (1) failing to reveal, inquire, investigate, review or otherwise consider the environmental reports pertinent to the subject transaction, or to make sure the plaintiffs received the pertinent documents prior to advising them regarding their decisions concerning the commercial property; (2) failing to disclose, advise, inform or communicate with the plaintiffs regarding the various implications or potential consequences of the environmental status or condition of the subject property; (3) failing to protect the plaintiffs' interests in the negotiation and execution of the purchase and sale agreement at issue, and failing to reveal or to discuss with the plaintiffs the implications and risks of the environmental clause and terms used in the purchase and sale agreement; and (4) failing to discover the inconsistencies between the environmental questionnaire answers and the environmental reports in the defendants' possession. In September, 2001, counsel for the defendants conducted a deposition of Beller that focused on his qualifications to render an expert opinion on the applicable standard of care and the specific reasons for his belief that the defendants breached that standard of care. Beller was unavailable to testify at trial, on April 10 and 11, 2003, and the plaintiffs read to the jury virtually the entire transcript of his deposition without objection by the defendants.

On November 29, 2002, the plaintiffs filed a second "disclosure of expert witness," which gave notice that they anticipated offering at trial the opinion testimony of attorney Philip Sharfstein. The plaintiffs indicated that Sharfstein would testify that the defendants had deviated from the standard of care in precisely the same four specific ways that the plaintiffs had indicated Beller would testify. On February 14, 2003, the defendants filed a motion in limine to preclude the testimony of Sharfstein, asserting that he was not qualified to testify as an expert in the field of real estate law in Connecticut and that his testimony would be cumulative of Beller's. On April 15, 2003, after the transcript of Beller's deposition testimony had been read to the jury, the court, after a hearing, granted the defendants' motion in limine. In support of its ruling, the court found that Sharfstein was not qualified as an expert in real estate law in Connecticut and that his testimony was cumulative of Beller's, the plaintiffs' first expert.

On April 29, 2003, following a three week trial, the jury returned a verdict for the defendants on the plaintiffs' claim of professional negligence. The jury also returned a verdict in favor of the law firm on its counterclaim in the amount of $43,745.46. On May 9, 2003, the plaintiffs filed a motion to set aside the verdict and a motion for remittitur, which the court, following a hearing, denied. Judgment was rendered in accordance with the verdict,¹ plus costs in the amount of $971.78 in favor of the law firm and $325 in favor of Sharp. This appeal followed. Additional facts will be set forth as necessary.

II PRECLUSION OF PLAINTIFFS' SECOND EXPERT WITNESS

The plaintiffs assert three claims, all of which are based on the court's preclusion of the opinion testimony of Sharfstein: (1) the court violated the plaintiffs' right to due process under the federal constitution because they have a constitutionally protected right to present witnesses in support of their claims and that the court denied them that right without reason; (2) the court improperly granted the defendants' motion in limine to preclude Sharfstein's testimony; and (3) the court improperly denied the plaintiffs' motion to set aside the verdict. Claims two and three, insofar as they each directly refer to the court's decision to preclude the opinion testimony of Sharfstein, will be addressed together.

We begin with the plaintiffs' due process claim. The plaintiffs claim that by precluding the opinion testimony of Sharfstein, the court violated their right to due process under the federal constitution. Specifically, the plaintiffs claim that they have a constitutionally protected right to present witnesses in support of their claims and that the court denied them that right without reason. We disagree.

First, there is no authority of which we are aware, and the plaintiffs do not cite any, that guarantees to civil litigants the right to present duplicative or cumulative expert opinion testimony to a jury. Second, it is axiomatic that the determination of whether a witness is qualified to testify as an expert is an evidentiary matter, usually unrelated to constitutional issues, which rests in the discretion of the trial court. DiBella v. Widlitz, 207 Conn. 194, 202, 541 A.2d 91 (1988). The plaintiffs are simply attempting to "put a constitutional tag on a nonconstitutional evidentiary ruling. . . . We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.. . . The trial court's exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. . . ." (Internal quotation marks omitted.) State v. Carneiro, 76 Conn. App. 425, 430, 820 A.2d 1053, cert. denied, 264 Conn. 909, 826 A.2d 180, cert. denied, 540 U.S. 915, 124 S. Ct....