Celentano v. Grudberg

• Decision Date: 08 April 2003
• Docket Number: (AC 22656).
• Citation: 76 Conn. App. 119,818 A.2d 841
• Parties: JOSEPH E. CELENTANO ET AL. v. IRA B. GRUDBERG ET AL.
• Court: Connecticut Court of Appeals

76 Conn. App. 119

818 A.2d 841

JOSEPH E. CELENTANO ET AL. v. IRA B. GRUDBERG ET AL.

(AC 22656).

Appellate Court of Connecticut.

Argued December 3, 2002.

Officially released April 8, 2003.

Lavery, C. J., and Dranginis and Peters, Js. David Toro, with whom, on the brief, was John R. Williams, for the appellant (plaintiffs).

David A. Leff, with whom were Trisha Morris Porto and, on the brief, Ira B. Grudberg, for the appellees (defendants).

Opinion

LAVERY, C. J.

This case concerns the failure of the plaintiffs to present expert testimony in a breach of contract action against their former attorney and his law firm, and the direction of a verdict by the trial court against the plaintiffs for their failure to present such testimony and for their failure to present evidence of damages. The dispositive issue in this appeal is whether the plaintiffs were required to present expert testimony to prove their breach of contract claim. Because we conclude that the plaintiffs' breach of contract claim required expert testimony to establish the defendants' standard of care and to assist the jury in determining whether the defendants' actions complied with that standard, we affirm the judgment of the trial court.

The following facts and procedural history are necessary for the disposition of the plaintiffs' appeal. This breach of contract claim arose out of an attorney-client relationship that was formed in December, 1987, between the plaintiffs, Joseph E. Celentano and Solid Waste Disposal, Inc. (Solid Waste), and the defendants, Ira B. Grudberg and his law firm, Jacobs, Grudberg, Belt and Dow.¹ Celentano and Joseph Latella (Latella) were principals and owners of Solid Waste, a closely held corporation that operated landfills in West Haven. Latella and his son, Peter Latella, were principals in Latella Carting Company, Inc. (Latella Carting), a company that dumped refuse in the two landfills operated by Solid Waste. In 1985, Celentano and Latella entered into an agreement (1985 agreement) relating to the operation of the landfills.²

At some point subsequent to the 1985 agreement, Celentano came to believe that he was being cheated at the landfills. Specifically, he believed that trucks operated by Latella Carting were dumping more refuse in the early mornings, before the opening of the scales, than was allowed under the 1985 agreement.³ In September, 1987, Celentano consulted with Grudberg regarding the possibility of pursuing a claim against certain individuals and entities with whom he was involved at the landfill, including the Latellas and Latella Carting. In December, 1987, Celentano again met with Grudberg and expressed his desire to proceed with a claim. On December 9, 1987, Grudberg sent a letter to Celentano, confirming their retainer agreement. Pursuant to that agreement, Celentano paid a $10,000 retainer to Grudberg.⁴ The 1985 agreement contained an arbitration provision that provided that any disputes "arising subsequent to the date of [the] Agreement over the operation of Solid Waste or the interpretation of [the] Agreement shall be submitted to private arbitration and the parties agree that the independent arbitrator shall be Joseph Dobrowolski ...." Grudberg made a strategic decision to institute an action against individuals who were not parties to the 1985 agreement to gain information through the utilization of discovery procedures. He did that because he wanted to take depositions of certain individuals who might have had pertinent information rather than to "subpoena them in, cold turkey, as part of an arbitration ...." Grudberg encountered numerous obstacles and delays in his attempt to obtain depositions of the various individuals.⁵ Ultimately, he had to obtain a court order to compel the depositions of certain individuals. In September, 1990, the depositions were completed, and Grudberg withdrew the case. In January, 1991, more than two years after taking the plaintiffs' case, Grudberg obtained a court order for arbitration. The arbitration was never completed.

In 1998, the plaintiffs filed the present action. In their complaint, the plaintiffs alleged that the defendants had breached their contract by (1) not obtaining a court order to compel arbitration for more than two years after the defendants were retained by the plaintiffs, and (2) never conducting the arbitration hearing and abandoning the plaintiffs' claims on or after June 29, 1994.

The case was tried to a jury. At the conclusion of the plaintiffs' case-in-chief, the defendants sought a directed verdict. The court granted the motion and directed the jury to return a verdict in favor of the defendants as a matter of law because it concluded that the plaintiffs had failed (1) to present expert testimony as to "[w]hether [Grudberg's] conduct in the performance of his duties met the standard of attorneys doing work of this nature or was deficient" and (2) to adduce any evidence of damages. This appeal followed. Additional facts will be set forth as necessary.

Initially, we set forth our standard of review with respect to directed verdicts. "The standards for reviewing a challenge to a directed verdict are well known. Generally, litigants have a constitutional right to have factual issues resolved by the jury.... Directed verdicts [therefore] are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion.... We review a trial court's decision to direct a verdict for the defendant[s] by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff[s].... A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict." (Citations omitted; internal quotation marks omitted.) Vona v. Lerner, 72 Conn. App. 179, 186-87, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).

On appeal, the plaintiffs claim that the court improperly directed the verdict in favor of the defendants. Specifically, the plaintiffs claim that the court improperly determined that they were required to present expert testimony to prove their breach of contract claim against the defendants.⁶ We disagree. The plaintiffs argue that this is a simple breach of contract claim, not a malpractice claim based on negligence, and, therefore, expert testimony was not required. Alternatively, citing Davis v. Margolis, 215 Conn. 408, 576 A.2d 489 (1990), the plaintiffs argue that even if expert testimony ordinarily would be required in a case such as this, such testimony was not required here because "there [was] present such an obvious and gross want of care and skill that the neglect is clear even to a lay-person." (Internal quotation marks omitted.) Id., 416 n.6.

The plaintiffs first argue that the court improperly determined that expert testimony was required to prove their breach of contract case. They argue that this is not a case in which they alleged incompetence or failure to meet a standard of care by the defendants, but that, instead, the only issue before the jury was "whether the defendant agreed to do a specific thing in exchange for consideration which was paid and then failed to do it." Although the plaintiffs' counsel conceded at oral argument that there was not an express contract between the parties, the plaintiffs, nevertheless, contend that the defendants "agreed, in exchange for a fee, to institute and to pursue to a conclusion a claim by the plaintiffs against certain persons and entities, and that they breached that contract by not pursuing the matter to a conclusion."⁷

It is well settled that an attorney may be subject to a claim for breach of contract arising from an agreement to perform professional services. See Mac's Car City, Inc. v. DeNigris, 18 Conn. App. 525, 530, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). In a claim such as this, "the client [usually] has the option to sue for either breach of an implied contract, negligence or both." 1 R. Mallen & J. Smith, Legal Malpractice (5th Ed. 2000) § 8.7, p. 820.

The difficulty with the plaintiffs' argument is that a breach of contract action against an attorney, on the basis of an implied contract is, essentially, governed by the same principles as a negligence action, and both are predicated on the standard of care applicable to the attorney. See Wong v. Ekberg, 148 N.H. 369, 376, 807 A.2d 1266 (2002); Peters v. Simmons, 87 Wash. 2d 400, 404, 552 P.2d 1053 (1976); 1 R. Mallen & J. Smith, supra, § 8.7, pp. 819-20. Contrary to the plaintiffs' position, an attorney does not, by agreeing to represent or to provide professional services to a client, impliedly contract to see the client's claim through to conclusion. To read an attorney-client relationship to contain an implied promise to pursue a claim to conclusion would lead to bizarre and untenable results. There are conceivably many valid reasons why an attorney might decide, after taking a case, to not pursue it to conclusion.

By agreeing to take on the representation of a client, the attorney promises to exercise ordinary skill and care in the representation of the client. 1 R. Mallen & J. Smith, supra, § 8.7, p. 819; see also Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal. 3d 176, 181, 491 P.2d 421, 98 Cal. Rptr. 837 (1971); Harris v. Magri, 39 Mass. App. 349, 352, 656 N.E.2d 585 (1995); Gorski v. Smith, 812 A.2d 683, 703 (Pa. Super. 2002); Peters v. Simmons, supra, 87 Wash. 2d 404. Thus, an attorney, "by accepting employment to give legal advice or to render other legal services, impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.... These principles are equally applicable whether the plaintiff's claim is based on tort or breach of...