DiStefano v. Milardo

• Decision Date: 13 December 2005
• Docket Number: No. 17221.,17221.
• Citation: 276 Conn. 416,886 A.2d 415
• Court: Connecticut Supreme Court
• Parties: Olga J. DISTEFANO v. Joseph E. MILARDO, Jr., et al.

886 A.2d 415

276 Conn. 416

Olga J. DISTEFANO v. Joseph E. MILARDO, Jr., et al.

No. 17221.

Supreme Court of Connecticut.

Argued September 8, 2005.

Decided December 13, 2005.

Lawrence S. Dressler, New Haven, for the appellant (plaintiff).

Michael C. Conroy, Hartford, for the appellees (named defendant et al.).

SULLIVAN, C.J., and BORDEN, KATZ, PALMER and ZARELLA, Js.

SULLIVAN, C.J.

The sole issue in this certified appeal is whether the trial court properly instructed the jury that no attorney-client relationship existed between the named defendant, Joseph E. Milardo, Jr., a partner in the law firm of Jozus, Milardo and Thomasson (law firm),¹ and the plaintiff's son, Lawrence J. DiStefano, when it instructed the jury on the allegation of breach of fiduciary duty. The plaintiff, Olga J. DiStefano, appeals, following our grant of certification from the judgment of the Appellate Court affirming the trial court's judgment in favor of the defendants. DiStefano v. Milardo, 82 Conn.App. 838, 848, 847 A.2d 1034 (2004). The trial court directed a verdict in favor of the defendants on the malpractice and breach of contract counts, and the jury returned a verdict in favor of the defendants on the remaining counts of breach of fiduciary duty and negligent infliction of emotional distress. The Appellate Court affirmed the trial court's judgment. We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts and procedural history. "The plaintiff and her husband, Sebastian DiStefano, had three children: Steven DiStefano, Lawrence DiStefano and Luann Filer. The defendants represented both Sebastian DiStefano and the plaintiff on various legal matters from 1991 through 1995.

"In February, 1992, Milardo prepared a will for the plaintiff naming Sebastian DiStefano and Lawrence DiStefano as the beneficiaries. In March, 1995, Sebastian DiStefano died. Shortly thereafter, the plaintiff opened a joint checking account with Lawrence DiStefano. From May 5 through 8, 1995, she was hospitalized for alcoholism and related symptoms. On May 10, 1995, Milardo drafted a power of attorney, including a provision granting Lawrence DiStefano the right to make gifts to himself from her property or accounts. On the same day, Milardo drafted a living will and a document naming Lawrence DiStefano as conservator in the event of her future incapacity. The plaintiff executed all of those documents.

"The plaintiff was again hospitalized for alcoholism and related symptoms from September 22 through 28, 1995. During her hospitalization, Lawrence DiStefano warned her that his two siblings were attempting to take control of her financial affairs. While in the hospital, she requested that Milardo draft a trust agreement for her, naming Lawrence DiStefano as the trustee. She signed the trust agreement in the hospital.

"The agreement listed certain real property, located in Middletown and Rockfall, owned by the plaintiff. The plaintiff also created a trust account, not listed in the trust agreement, of which Lawrence DiStefano was named the trustee. At the time she signed the trust agreement, the plaintiff also signed two quitclaim deeds, prepared by Milardo, transferring the Middletown and Rockfall properties into Lawrence DiStefano's name. Milardo handled the subsequent sale of these properties. "After her release from the hospital, she requested that Milardo remove Lawrence DiStefano's authority from her financial affairs. She also spoke to Milardo about revoking the trust. Milardo reminded her that the trust was crafted to protect her assets from her other two children and to manage her real property.

"The plaintiff was hospitalized twice more for alcoholism and related symptoms in October, 1995, and was admitted for inpatient treatment for alcoholism and depression on June 21, 1996. On August 6, 1996, she revoked the trust agreement and closed the joint checking account.²

"On July 6, 1998, the plaintiff filed the four count complaint in this action alleging (1) legal malpractice, (2) breach of contract, (3) breach of fiduciary duty and (4) negligent infliction of emotional distress." Id., at 840-41, 847 A.2d 1034. In support of the breach of fiduciary duty claim, the plaintiff argued that there was an attorney-client relationship between Milardo and Lawrence DiStefano that created a conflict of interest.

"The case proceeded to trial before the jury. The court directed a verdict in favor of the defendants on the counts of legal malpractice and breach of contract on the ground that the plaintiff had failed to present expert testimony on the issue of proximate cause. The jury returned a verdict in favor of the defendants on the breach of fiduciary duty and negligent infliction of emotional distress counts." Id., at 841, 847 A.2d 1034.

On appeal to the Appellate Court, the plaintiff claimed that the trial court had "improperly (1) directed a verdict in favor of the defendants on the malpractice count, (2) instructed the jury that no attorney-client relationship existed between the defendants and the plaintiff's son, Lawrence J. DiStefano [when charging the jury on the breach of fiduciary count],³ and (3) refused to allow the jury to consider evidence of the standard of care for an attorney for breach of a fiduciary duty." Id., at 839, 847 A.2d 1034. The Appellate Court rejected the plaintiff's first and third claims, which are not at issue in this appeal. Id., at 844, 848, 847 A.2d 1034.

With regard to the second claim, the Appellate Court concluded that the trial court properly had charged the jury that no attorney-client relationship existed between Milardo and Lawrence DiStefano. Id., at 845-47, 847 A.2d 1034. We granted the plaintiff's petition for certification to appeal limited to the following issue: "Did the Appellate Court properly determine that the trial court properly had instructed the jury that no attorney-client relationship existed between the named defendant, Joseph E. Milardo, Jr., and Lawrence J. DiStefano?" DiStefano v. Milardo, 270 Conn. 908, 853 A.2d 524 (2004).

"Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.... [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper." (Internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 400, 880 A.2d 151 (2005).

"The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding." (Internal quotation marks omitted.) Wrinn v. State, 234 Conn. 401, 407-408, 661 A.2d 1034 (1995). "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." (Internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 803, 826 A.2d 1066 (2003). The court should, however, submit to the jury "the issues as outlined by the pleadings and as reasonably supported by the evidence." 1 D. Wright, Connecticut Jury Instructions (2d Ed. 1970) § 2, p. 3; see Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993).

When reviewing a trial court's decision that the evidence was not sufficient to support the submission of an issue to the jury, we must consider the evidence produced by the plaintiff in the light most favorable to him. See Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 135-36, 757 A.2d 516 (2000). Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary. See Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983).

"An attorney-client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession." Somma v. Gracey, 15 Conn.App. 371, 379, 544 A.2d 668 (1988). The burden of establishing an attorney-client relationship is on the party claiming the existence of such a relationship. See Solomon v. Aberman, 196 Conn. 359, 384, 493 A.2d 193 (1985). Evidence of either a retainer agreement or a contract between the parties is relevant to the determination of its existence. See, e.g., Dubreuil v. Witt, 65 Conn.App. 35, 43-44, 781 A.2d 503 (2001).

In her brief, the plaintiff cites the following facts as evidence that Milardo had an attorney-client relationship with Lawrence DiStefano during the period in which Lawrence DiStefano withdrew funds from her account: (1) Milardo prepared a power of attorney for the plaintiff giving Lawrence DiStefano unlimited gift giving authority; (2) Milardo drafted the plaintiff's will naming Lawrence DiStefano as the sole beneficiary; (3) Milardo prepared a living will for the plaintiff naming Lawrence DiStefano as conservator in the event that the plaintiff became incapacitated; (4) Milardo prepared a trust agreement for the plaintiff naming Lawrence DiStefano as the trustee; (5) Milardo prepared two quitclaim deeds transferring real property from the plaintiff to a trust with Lawrence DiStefano as trustee; (6) Milardo was involved in the sale of the trust properties to third persons, resulting in the transfer of sale proceeds to Lawrence DiStefano as trustee; (7) Milardo provided Lawrence DiStefano with fatherly advice⁴ about his mother's alcoholism; and (8) Milardo prepared a...