Cammarota v. Guerrera

• Decision Date: 18 March 2014
• Docket Number: No. 34521.,34521.
• Citation: 148 Conn.App. 743,87 A.3d 1134
• Court: Connecticut Court of Appeals
• Parties: Domenic CAMMAROTA v. Anthony M. GUERRERA.

148 Conn.App. 743

87 A.3d 1134

Domenic CAMMAROTA

v.Anthony M. GUERRERA.

No. 34521.

Appellate Court of Connecticut.

Argued Sept. 18, 2013.

Decided March 18, 2014.

John R. Williams, New Haven, for the appellant (plaintiff).

Dennis J. Kokenos, Trumbull, for the appellee (defendant).

BEACH, BEAR and KELLER, Js.

BEACH, J.

The plaintiff, Domenic Cammarota, appeals following the judgment of the trial court directing a verdict in favor of the defendant, Anthony M. Guerrera. The plaintiff claims that the court erred in granting the motion for a directed verdict as to the counts of his complaint alleging (1) professional negligence and (2) breach of fiduciary duty.¹ We agree with his first claim and disagree with his second claim.

Evidence introduced at trial includes the following relevant facts, which we construe in the light most favorable to the plaintiff. See Curran v. Kroll, 303 Conn. 845, 855–56, 37 A.3d 700 (2012). The plaintiff and his brother, Alfonso Cammarota, were involved in the development of real property. They retained the defendant as counsel, and the defendant prepared an agreement that was agreed to by the plaintiff and by Alfonso Cammarota, who signed it both individually and on behalf of Bella Investors, LLC, his construction company, in December, 2004. The agreement conveyed real estate known as 3404 Madison Avenue in Bridgeport (property), in which the plaintiff and Alfonso Cammarota each owned a 50 percent interest, to 3404 Madison Avenue, Inc. The plaintiff was president, secretary and treasurer of the stock corporation, 3404 Madison Avenue, Inc.; the plaintiff and Alfonso Cammarota each owned 50 percent of the shares of stock in 3404 Madison Avenue, Inc. The agreement further provided that Bella Investors, LLC, would construct six condominium units on the property and that “the net proceeds of the first three units nearest Madison Avenue would belong to [the plaintiff] and the net proceeds of the three units further from the street shall belong to [Alfonso Cammarota].” The agreement provided for the payment of construction costs.

Following the construction of the condominium units, a check for $215,000 payable to the plaintiff was handed to Alfonso Cammarota by either the defendant or an employee in the defendant's law office. Three checks payable to 3404 Madison Avenue, Inc., in the amounts of $269,003.68, $12,558.41, and $189,005.48, respectively, were also delivered to Alfonso Cammarota. The check payable to the plaintiff was deposited, without proper endorsement, into the account of Alfonso Cammarota in May, 2005. The plaintiff's action is based on the supposition that the defendant tortiously delivered the plaintiff's check to Alfonso Cammarota.

The plaintiff testified that he had had “concern[s] about [Alfonso Cammarota] which I expressed to [the defendant].” ² The plaintiff did not discover that the checks had been given to Alfonso Cammarota until he went to the defendant's office to collect his share of the proceeds, where the defendant informed him that he had previously handed the checks, including the one payable to the plaintiff, to his brother.

The plaintiff initiated an action against the defendant alleging legal malpractice,³ conversion and breach of fiduciary duty. At a jury trial, the plaintiff's counsel offered evidence through the testimony of the plaintiff, the defendant, and Vincent Longo, an employee at the bank where the check was deposited. After the plaintiff had rested, the defendant moved for a directed verdict as to all three counts of the plaintiff's complaint. The court granted the motion. This appeal followed.

“Whether the evidence presented by the plaintiff was sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary.... Directed verdicts are not favored.... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion.... In reviewing the trial court's decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff.... Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation.... A directed verdict is justified if ... the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Citation omitted; internal quotation marks omitted.) Curran v. Kroll, supra, 303 Conn. at 855–56, 37 A.3d 700.

“A verdict may be directed ... where the claim is that there is insufficient evidence to sustain a favorable verdict.... [T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove.... [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor.... [W]hether the plaintiff has established a prima facie case is a question of law, over which our review is plenary.” (Citations omitted; internal quotation marks omitted.) Schweiger v. Amica Mutual Ins. Co., 110 Conn.App. 736, 739, 955 A.2d 1241, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).

I

The plaintiff first claims that the court erred in granting the motion for a directed verdict as to the count of the complaint alleging professional negligence or legal malpractice. The plaintiff raises two reasons why in his view the court erred in dismissing this count. The court erred, he argues, in dismissing the claim on the grounds that expert testimony, required in most professional negligence or legal malpractice actions, was lacking and any delict on the part of the defendant did not proximately cause harm to the plaintiff. We agree with the plaintiff.

A

The plaintiff argues that the court erred in holding that he was required to present expert testimony to prove his claim of professional negligence. We agree.

First, it is not at all clear that the count actually sounded in professional negligence. In order for a claim to sound in professional negligence, it must be alleged that (1) the defendant is sued in his or her capacity as a professional, (2) the alleged negligence is of a specialized professional nature that arises out of the professional relationship, and (3) the alleged negligence is substantially related to the professional conduct and involved the exercise of professional judgment. See Tri–mel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).⁴

The plaintiff alleged legal malpractice, but the labeling of the claim is not necessarily dispositive. “[T]he interpretation of pleadings is always a question of law for the court.... Our review of the trial court's interpretation of the pleadings therefore is plenary.... Furthermore, in determining the nature of a pleading filed by a party, we are not bound by the label affixed to that pleading by the party.” (Citation omitted; internal quotation marks omitted.) Selimoglu v. Phimvongsa, 119 Conn.App. 645, 651–52, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).

The count alleged that the defendant prepared contractual documents outlining the plans for construction of the condominium units and distribution of the eventual proceeds. Assets from the sale of the units were deposited in the defendant's trust account. Certain amounts were due to the plaintiff individually. Without right, the defendant delivered all proceeds to Alfonso Cammarota. The plaintiff claimed that this behavior on the part of the defendant was negligent and fell below the minimum standard of care.

The evidence in dispute at trial did not involve an arcane issue implicating professional judgment. Rather, evidence was introduced to show that the defendant prepared a check payable to the plaintiff, but handed it to Alfonso Cammarota, who arranged to have it deposited in a bank account not belonging to the plaintiff. Although the language in the complaint could reasonably be construed to describe the exercise of professional judgment—such as contract interpretation and professional obligations—the evidence, also consistent with the complaint, suggested a more straightforward scenario easily understandable by one not versed in the law.

There may be some ambiguity, then, as to whether the action realistically sounded in professional negligence or in ordinary negligence. If the case ultimately required resolution of the question of whether the defendant committed professional negligence, then ordinarily expert testimony would be required to prove the applicable standard of care and, perhaps, deviation from the standard of care. “The determination of whether expert testimony is needed to support a claim of legal malpractice presents a question of law.... Accordingly, our review is plenary.... Generally, to prevail on a legal malpractice claim, in Connecticut, a plaintiff must present expert testimony to establish the standard of proper professional skill or care.... Not only must the plaintiffs establish the standard of care, but they must also establish that the defendant's conduct legally caused the injury of which they complain.” (Citation omitted; internal quotation marks omitted.) Moore v. Crone, 114 Conn.App. 443, 446, 970 A.2d 757 (2009). If, on the other hand, the case realistically required resolution of an issue of ordinary negligence, then the usual rule is that expert testimony is not required, but rather the jury is to apply the standard of the reasonably prudent person in the same circumstances. See, e.g., Marfyak v. New England Transportation Co., 120 Conn. 46, 48, 179 A. 9 (1935). Even in cases clearly alleging professional negligence, however, expert testimony is not required if the issues in...