Dubreuil v. Witt, (AC 23915).

• Court: Appellate Court of Connecticut
• Writing for the Court: DRANGINIS, J.
• Citation: 80 Conn. App. 410,835 A.2d 477
• Parties: ALPHONSE T. DUBREUIL ET AL. v. OTTO P. WITT ET AL.
• Decision Date: 09 December 2003
• Docket Number: (AC 23915).

80 Conn. App. 410
835 A.2d 477

ALPHONSE T. DUBREUIL ET AL.
v.
OTTO P. WITT ET AL

(AC 23915).

Appellate Court of Connecticut.

Argued September 11, 2003.

Officially released December 9, 2003.

Foti, Dranginis and Dupont, Js.

80 Conn. App. 411

Otto P. Witt, pro se, the appellant (named defendant)

Joseph X. Du Mond, Jr., for the appellees (plaintiffs).

80 Conn. App. 412

Opinion

DRANGINIS, J.

In this legal malpractice action, we must determine whether following a trial to the court in which the plaintiffs failed to introduce expert testimony as to the standard of care applicable to attorneys who practice before the Superior Court, the trial court properly concluded that the defendant, an attorney licensed to practice in this state, breached the applicable standard of care. We conclude that in this trial to the court, the judge did not need the benefit of expert testimony to determine the standard of care applicable to an attorney engaged in litigation practice and whether the standard had been breached. We affirm the judgment of the trial court.

In his second appeal to this court,¹ the defendant Otto P. Witt, an attorney,² claims that it was improper for the court to (1) conclude that he had breached the standard of care applicable to attorneys who practice before the Superior Court, (2) allegedly deny him due process of law by failing to inform him that the court intended to take judicial notice of the applicable standard of care, (3) award damages outside the scope of the allegations of the complaint, (4) conclude that his negligence was the proximate cause of the plaintiffs' injury and (5) conclude that he was in breach of contract. We affirm the judgment of the trial court.

80 Conn. App. 413

In their two count amended complaint filed April 24, 1997, the plaintiffs³ alleged, in part, that they had retained the defendant to represent them in a collection action commenced by Deedy Construction Company (Deedy). The plaintiffs further alleged that the defendant had represented them in a negligent manner, violated the Rules of Professional Conduct and breached their contract by failing to attend a pretrial conference, a rescheduled pretrial conference and the short calendar argument on a motion to set aside a judgment of nonsuit that had been entered against them. As a result of the defendant's alleged negligence and breach of contract, Deedy obtained a judgment of foreclosure against the plaintiffs' real property. In addition, as a result of the defendant's negligence and his breach of contract, the plaintiffs suffered harm

Following the retrial; see footnote 1; held in November, 2002, at which only Alphonse T. Dubreuil and the defendant testified, the court found the following facts, many of which are historical in nature.⁴ In March, 1992, Alphonse Dubreuil was the president of A. Dubreuil and Sons, Inc. (corporation), which was a commercial construction business. The corporation used the services of Louis Levine Agency, Inc. (insurance agency), for insurance and bonding purposes. On March 10, 1992, an agent of the insurance agency asked Alphonse Dubreuil to come to the scene of a building fire in New London. A representative of the Aetna Casualty Insurance Company (Aetna) was also present. Due to the damage to the building, the corporation, through Alphonse Dubreuil, was asked to demolish the structure.

80 Conn. App. 414

Alphonse Dubreuil responded that the corporation did not perform demolition work, but that Deedy did. A representative of Deedy was called, and it was agreed that Deedy would perform the demolition and that Alphonse Dubreuil would serve as clerk of the works. The agreement was oral. Although its representative had agreed to pay for the demolition, shortly thereafter, Aetna denied liability on the ground of arson and refused to pay Deedy

Because Aetna did not pay, Deedy commenced an action against the corporation seeking payment of $67,277.88 for services rendered. Theodore A. Harris, an attorney, represented the corporation in the early stages of the litigation, but he withdrew his appearance in March, 1993. Prior to withdrawing from the case, it appears that Harris had some correspondence with Deedy's attorney about the plaintiffs personally signing a guarantee regarding the debts of the corporation. There is, however, no evidence that the plaintiffs signed the guarantee. At the trial, Alphonse Dubreuil denied that Harris was his attorney⁵ and denied that he had agreed to indemnify the corporation. Alphonse Dubreuil also filed an affidavit to that effect, after Deedy had secured a judgment against the plaintiffs.

About the time Deedy commenced its collection action, Alphonse Dubreuil was in failing health, and the corporation was in failing financial condition. Alphonse Dubreuil retained the defendant to represent the corporation in bankruptcy. Alphonse Dubreuil later informed the defendant of the Deedy action and asked him to represent the plaintiffs therein. The defendant filed an appearance in the Deedy action on May 7, 1993. During the summer of 1993, the defendant filed a cross complaint

80 Conn. App. 415

against the insurance agency and impleaded Aetna as a third party defendant. The pleadings in the action were closed, and the matter was scheduled for a pretrial conference in June, 1994. The defendant did not attend the pretrial. On the date of the pretrial, Alphonse Dubreuil was hospitalized in intensive care.

On June 22, 1994, the court, Hendel, J., entered the following order: "The defendants Alphonse Dubreuil and Marilyn Dubreuil are hereby defaulted on plaintiff's complaint and a nonsuit shall enter on their cross complaint and counterclaim for failure to attend a pretrial." On August 1, 1994, Deedy moved that judgment be rendered against the plaintiffs by reason of the default. On August 23, 1994, Judge Hendel rendered judgment of $67,277.88 against the plaintiffs. The defendant failed to attend the hearing on the motion for judgment.

On September 16, 1994, the defendant filed a motion to set aside the judgment against the plaintiffs, stating that he had informed the court that he would be slightly late for the pretrial on June 22, 1994, but that the default had been entered prior to his arrival at court.⁶ The defendant claimed that his late arrival was due to traffic, was neither intentional nor negligent and that the plaintiffs were not liable personally. The motion to set aside the judgment was scheduled for a short calendar hearing on February 6, 1995. The defendant failed to appear and to argue the motion to set aside, which was denied. According to the defendant, he failed to attend short calendar due to injuries he had sustained in a motor vehicle accident. Although he claimed that he had asked the court to decide the motion to set aside on the papers, counsel for Deedy was present for short calendar argument. The defendant made no further efforts to have

80 Conn. App. 416

the judgment set aside. The defendant testified that after the judgment was rendered against the plaintiffs, he attempted to compromise the litigation in the Bankruptcy Court.

The Deedy judgment was not satisfied. Deedy therefore instituted a foreclosure action against the plaintiffs' property in April, 1995. Alphonse Dubreuil discharged the defendant and retained the services of Robert G. Skelton, an attorney. A judgment of strict foreclosure was rendered against the plaintiffs on July 24, 1996, with a finding of debt in the amount of $80,818.20 plus fees. The property could be redeemed for $75,000 before September 24, 1996. The Bankruptcy Court approved a compromise of Deedy's claim against the corporation. The corporation, the insurance agency and Aetna paid Deedy $42,500. The plaintiffs paid Deedy $32,500 as their portion of the settlement and obtained a satisfaction of judgment in the foreclosure action.

The plaintiffs commenced this malpractice action against the defendant in August, 1996. The matter was tried to Judge Hurley; see footnote 1; who rendered judgment for the plaintiffs in May, 1998. The defendant appealed to this court, which reversed the judgment and remanded the case for a new trial. Dubreuil v. Witt, 65 Conn. App. 35, 781 A.2d 503 (2001) (Dubreuil I). The case was tried again to the court, Hon. Joseph J. Purtill, judge trial referee, in November, 2002. Judge Purtill also concluded that the defendant's representation of the plaintiffs as alleged in the complaint constituted legal malpractice. The defendant again appealed to this court. We agree that the defendant's conduct violated the standard of care applicable to attorneys who practice before the Superior Court, but for reasons somewhat different from those articulated by the trial court.

Before we address the defendant's claims, we set forth the proper standard of review. "The scope of our

80 Conn. App. 417

appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Hart v. Carruthers, 77 Conn. App. 610, 612-13, 823 A.2d 1284 (2003).

We also remember that the trier of fact determines the credibility of the witnesses. "It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible. . . . On appeal, we do not retry the facts or pass on the credibility of witnesses." (Internal quotation marks omitted.) United Technologies Corp. v...