Bent v. Green, 1254

• Decision Date: 24 June 1983
• Docket Number: No. 1254,1254
• Citation: 39 Conn.Supp. 416,466 A.2d 322
• Court: Connecticut Superior Court
• Parties: C. Frederick BENT III v. Edward J. GREEN.

Page 322

466 A.2d 322

39 Conn.Supp. 416

C. Frederick BENT III v. Edward J. GREEN.

No. 1254.

Superior Court of Connecticut,

Appellate Session.

Argued Feb. 17, 1983.

Decided June 24, 1983.

Michael Grossman, Hartford, with whom was Philip K. Meister, Hartford, for appellant (plaintiff).

Robert C. Danaher, Hartford, for appellee (defendant).

COVELLO, Judge.

The plaintiff commenced this action to recover fees for legal and financial services rendered to the defendant at his request. The defendant denied having hired the plaintiff, denied the value of the services alleged by the plaintiff and further claimed by way of special defense that "[t]he opinion, proffered by the plaintiff, was so ill-advised that the defendant deemed it a rip-off."

The matter was tried to a jury which returned a general verdict for the defendant. The plaintiff has appealed the denial of his motion to set aside the verdict claiming that the court erred in its charge to the jury. We agree and remand the matter for a new trial.

The jury might reasonably have found that the plaintiff is an attorney who specializes in tax and financial planning for professional athletes. The defendant, a native of Canada, was a professional hockey player. During the 1974-75 season, he was a member of the New England Whalers Hockey Club.

In January, 1975, the plaintiff met the defendant in a Hartford restaurant. Shortly thereafter, the defendant hired the plaintiff to prepare his 1974 federal income tax return. Thereafter, the plaintiff handled an immigration matter for the defendant. Those services were billed and paid for and are not in dispute here.

In the spring of 1975, the defendant asked the plaintiff the cost of obtaining an overall tax and financial plan and was informed by the plaintiff that he charged a flat fee of $3000 to prepare such a plan and $2000 to implement it. In May, 1975, the defendant signed a three year contract with the Winnipeg Jets Hockey Club. Thereafter in June, he went to the plaintiff's office in Boston and furnished him with a full financial disclosure. As a result of those discussions, the plaintiff began work on a tax plan for the defendant which contemplated the preparation of several trusts for his children, the creation of a Canadian corporation to receive his hockey salary and the establishment of a Bahamian residency.

On July 11, 1975, the plaintiff went to the defendant's home in Avon, discussed the plan with the defendant and his wife and left with him a number of documents which required his signature in order to effectuate the proposed plan. The parties scheduled a meeting in Boston for July 14, 1975, which was rescheduled to July 17, 1975. On that date the defendant telephoned the plaintiff, cancelled the appointment and told him he would no longer require his services. The plaintiff thereafter sent the defendant a bill for his services which remains unpaid.

The plaintiff first assigns as error the court's charge to the jury concerning the special defense that "[t]he opinion, proffered by the plaintiff, was so ill-advised that the defendant deemed it a rip-off." The court instructed the jury as follows: "Now, if you find that the services performed by the plaintiff were ill-advised and that they might subject the defendant to problems were he to proceed with the recommended approach and if a reasonable person would therefore have told the plaintiff not to proceed further, then the defendant would be justified in stopping the plaintiff from performing the services. However, it is incumbent upon the defendant to establish that advice given by the plaintiff was so ill-advised to be unreasonable and any finding thereon must be based upon the preponderance of the evidence and not upon surmise, conjecture or sympathy."

The court further charged that "if you find by a fair preponderance of the evidence that the plaintiff's advice, that is that a financial plan presented to the defendant was not what the defendant agreed to or bargained for with the plaintiff or that the services performed by the plaintiff were ill-advised with regard to the defendant's situation, then you must enter a verdict for the defendant."

The plaintiff argues that the court should have instructed the jury not to consider the special defense at all as there was no expert testimony that the plaintiff's opinion was "ill-advised." We agree.

Although curiously worded, the special defense effectively claims that the plaintiff failed to perform the contract with the degree of skill and care required of his calling. "Ill-advised" means that which results from or shows a lack of wise and sufficient counsel or deliberation. Webster's Third New International Dictionary. The special defense is, in essence, a claim of professional malpractice. By specially pleading this defense, the defendant assumed the burden of proving it. Practice Book § 164; DuBose v. Carabetta, 161 Conn. 254, 262, 287 A.2d 357 (1971).

The duty of the plaintiff in his capacity as an attorney specializing in taxation and financial planning was to exercise reasonable care, skill and diligence in the performance and execution of the legal services being furnished to the defendant. The level of that duty was to exercise the same degree of care, skill and diligence which other attorneys in the same or similar locality and in the same line of practice would have exercised in similar circumstances. Wright v. Williams, 47 Cal.App.3d 802, 809-10, 121 Cal.Rptr. 194 (1975).

The general rule is that where the exercise of proper professional skill and care is in issue, expert testimony tending to establish the want of such skill and care is essential to recovery. Cf. Grody v. Tulin, 170 Conn. 443, 449, 365 A.2d 1076 (1976); Decho v. Shutkin, 144 Conn. 102, 106, 127 A.2d 618 (1956). The rationale underlying this rule is that "in most such cases the lay person, including the members of the jury and the presiding judge, does not and can not have the requisite knowledge as to whether proper treatment was given, proper procedure was followed, or proper care was used. Decho v. Shutkin, 144 Conn. 102, 106, 127 A.2d 618 [1956]; Marchlewski v. Casella, [141 Conn. 377, 380, 106 A.2d 466 (1954) ]; Chubb v. Holmes, 111 Conn. 482, 486, 150 A. 516 [1930]; Holden & Daly, Connecticut Evidence § 119(d)." Fitzmaurice v. Flynn, 167 Conn. 609, 617, 356 A.2d 887 (1975).

The only exception to this rule is where there is present such an obvious and gross want of care and skill that the neglect is clear even to a layperson. Levett v. Etkind, 158 Conn. 567, 574, 265 A.2d 70 (1969); Console v. Nickou, 156 Conn. 268, 273, 240 A.2d 895 (1968); Snyder v. Pantaleo, 143 Conn. 290, 292, 122 A.2d 21 (1956); Ardoline v. Keegan, 140 Conn. 552, 557, 102 A.2d 352 (1954). That is not the case here.

The defendant offered no evidence in support of his claim. The plaintiff on the other hand testified that his plan consisted of the establishment of three trusts each for a term of ten years and two months for the benefit of the defendant's three children. The trusts would be funded through use of the defendant's assets, principally stocks and bonds. While these assets were so held, their income would be chargeable to the defendant's children who would presumably be in a lower income tax bracket. At the end of the trusts' terms, the assets would revert to the defendant. ² His plan further contemplated the formation of a Canadian corporation which would receive the income for the defendant's services as a hockey player and pay him a salary. This would presumably permit the defendant to spread out his earning over a period of years, thereby causing him to be in a lower income tax bracket. Although there was evidence that the plaintiff was advised to establish a Bahamian residency, the reasons for this do not appear in the record.

We find that proposals of such intricacy and their suitability to the defendant's unique needs involving specialized knowledge of United States, Canadian and possibly Bahamian tax and corporate law, go well beyond the scope of what a lay person could fairly construe as negligent. We therefore conclude that expert testimony was essential for the establishment of the defendant's malpractice defense.

The defendant argues that even if there was a requirement for expert testimony, such testimony was supplied through the cross-examination of Jeffrey Crown, an attorney called in behalf of the plaintiff. We do not agree.

The witness testified that "Clifford" trusts are no longer executed and that they went out with the Tax Reform Act of 1976. The defendant claims that this "demonstrated a failure by the Plaintiff to meet recognized standards." Although the term "Clifford" trust is no longer used, this type of arrangement continues to be used and is in fact authorized under the grantor trust provisions of the Internal Revenue Code. See 26 U.S.C. §§ 671 through 678. Moreover, at the time the plaintiff rendered the services to the defendant, i.e., 1975, "Clifford" trusts were still employed as a tax limiting device.

The defendant complained throughout of the manner in which the documents were thrust upon him by the plaintiff accompanied by a request that they be executed forthwith....