Gottesman v. Gottesman

Decision Date15 March 2022
Docket NumberAC 44297, (AC 44388)
Parties Amy B. GOTTESMAN v. Mark M. KRATTER Amy B. Gottesman v. Mark M. Kratter et al.
CourtConnecticut Court of Appeals

Kenneth A. Votre, New Haven, for the appellant in Docket Nos. AC 44297 and AC 44388 (plaintiff).

Raymond J. Plouffe, Shelton, for the appellee in Docket No. AC 44297 (defendant).

Raymond J. Plouffe, Shelton, for the appellees in Docket No. AC 44388 (defendant Law Offices of Mark M. Kratter, LLC, et al.).

Elgo, Alexander and Harper, Js.

HARPER, J.

These two appeals arise from actions brought by the plaintiff, Amy B. Gottesman, concerning an underlying marital dissolution action. In Docket No. AC 44297, the plaintiff appeals from the judgment of the trial court granting (1) the motion for summary judgment filed by the defendant, Mark M. Kratter, on the plaintiff's claim for legal malpractice against Kratter and (2) the motion to strike count two of the revised complaint alleging breach of contract. Specifically, she claims that the court erred in granting summary judgment for failure to disclose an expert witness when she had not been precluded from disclosing an expert and because the time in which she was required to disclose had not yet expired. With respect to the motion to strike, she claims that the court erred in concluding that the allegations in the revised complaint failed to allege that the defendant breached an agreement to reach a specified result. In Docket No. AC 44388, the plaintiff appeals from the judgment of the trial court granting the motion for summary judgment filed by the defendant law firms, the Law Offices of Mark M. Kratter, LLC, and Kratter & Gustafson, LLC,1 as to counts one and thirteen of the third revised complaint, which alleged claims against the law firms for legal malpractice and transferee liability, respectively. Specifically, she claims that the court improperly rendered summary judgment because the law firms failed to demonstrate the absence of a genuine issue of material fact and because the time in which she had to disclose an expert witness in support of her claim of legal malpractice against the law firms had not yet expired. Although the appeals have not been consolidated,2 we write one opinion for purposes of judicial economy in which we assess the claims raised in both appeals. We affirm the judgments of the trial court.

The following facts, viewed in the light most favorable to the plaintiff, and procedural history are relevant to our resolution of these appeals. The plaintiff had retained Kratter,3 acting through his law firm Kratter & Gustafson, LLC,4 to represent her in a divorce action against her former husband, Amir Sibboni. During the representation, Kratter prepared a settlement agreement that he recommended the plaintiff sign. The agreement provided for the division of assets, alimony, parental responsibilities, titles to vehicles and real estate, and interests in real and personal property. The four real properties that were subject to the agreement were located in Norwalk. The properties were subject to mortgages that the plaintiff argues were created, "by virtue of a scheme established by [Sibboni] and his business counsel to borrow [money] against the property and leave her with the debt." The plaintiff alleges that Kratter, as her counsel in the marital dissolution matter, committed legal malpractice when he failed to address the issue of the fraudulent loans. The crux of her claim is that Kratter, acting on behalf of the law firms, negligently advised her to accept the settlement agreement.

The plaintiff claims that the settlement agreement had several shortcomings, including leaving her without sufficient funds to carry the mortgages on the four real properties subject to the agreement. In addition, the plaintiff claims that Kratter failed to put forth an adequate effort to secure for her other items of marital property, failed to obtain a fair division of personal property, and negligently advised her to take possession of the property located at 20 Woodbury Avenue despite the fact that the mortgages were secured fraudulently with her forged signature.

On April 10, 2017, the plaintiff commenced the first underlying action, which concerns the appeal in AC 44388, against five defendants: Kratter; the law firms; Sibboni; and Anthony E. Schwartz, doing business as the Law Offices of Anthony E. Schwartz, who had represented Sibboni in certain real estate transactions related to the plaintiff's actions. On May 2, 2017, the action was withdrawn as against Kratter after Kratter had filed a bankruptcy action. The operative complaint, a third revised complaint dated February 9, 2018, alleges six counts as to the law firms, including count one sounding in legal malpractice, count two sounding in breach of contract, count six sounding in equitable tolling, count nine sounding in intentional misrepresentation, count ten sounding in negligent misrepresentation, and count thirteen sounding in transferee liability.5

After the court struck count two, the law firms filed a motion for summary judgment on December 17, 2019, as to the remaining counts against them, which was granted on July 20, 2020, as to counts one, six, nine and ten but denied as to count thirteen. On August 12, 2020, the law firms again filed a motion for summary judgment as to count thirteen, the final remaining count, which was granted on November 2, 2020. The appeal in AC 44388 concerns the summary judgment rendered in favor of the law firms as to counts one and thirteen of the third revised complaint.

The plaintiff commenced the second underlying action, which concerns the appeal in AC 44287, on June 6, 2017, against Kratter in his individual capacity. The operative complaint, dated February 9, 2018, alleges five counts sounding in legal malpractice, breach of contract, equitable tolling, intentional misrepresentation, and negligent misrepresentation, respectively. On May 7, 2018, Kratter moved to strike the second count of the operative complaint—the claim for breach of contract. On August 10, 2020, the court granted the motion to strike the second count of the revised complaint.

On January 30, 2019, the court ordered that the "scheduling order filed and accepted in docket number FST-CV-17-6031889-S [the first underlying action] is hereby adopted as the scheduling order for this case (the parties have agreed to such adoption in a telephonic status conference on January 30, 2019.)" The scheduling order states that the plaintiff's deadline to disclose an expert witness was April 15, 2019.

Kratter filed a motion for summary judgment on December 17, 2019, as to counts one, three, four, and five of the revised complaint, arguing that there were no issues of material fact as to the claims alleged in those counts. The court granted the motion for summary judgment on July 20, 2020.6 Thereafter, the court, having previously granted Kratter's motion to strike count two, granted Kratter's motion for judgment as to count two and rendered judgment in his favor on that count. These appeals followed. Additional facts will be set forth as necessary.

IAC 44297

In AC 44297, the plaintiff challenges the court's granting of Kratter's motion for summary judgment as to count one of the revised complaint due to the plaintiff's failure to disclose an expert witness to support her claim for legal malpractice, as well as the court's granting of the motion to strike count two of the revised complaint, which sounded in breach of contract. With regard to the motion for summary judgment, specifically, the plaintiff argues that the time within which to disclose an expert witness had, in fact, not expired, and as such, the court violated Practice Book § 13-4 (h) when it rendered summary judgment in favor of Kratter. With regard to the motion to strike count two of the revised complaint, the plaintiff argues that the complaint alleged a legally sufficient cause of action for breach of contract against Kratter. In response, Kratter contends that the judgment rendered was proper, as the plaintiff failed to introduce an expert witness to support her legal malpractice claim, and count two was properly stricken, as it set forth a claim for a breach of the professional standard of care rather than a breach of contract. We agree with Kratter.

A

We first review the plaintiff's claim that the court erred in granting the motion for summary judgment in favor of Kratter as to count one of the revised complaint.7 We begin by setting forth the applicable standard of review and relevant legal principles.

"Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. ... Once the moving party has met its burden [of production] ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. ... The presence ... of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. ... Our review of the decision to grant a motion for summary judgment is plenary. ... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Internal quotation marks omitted.) Rousseau v. Weinstein , 204 Conn. App. 833, 839–40, 254 A.3d 984 (2021).

"Generally, a plaintiff alleging legal malpractice must prove all...

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