Grimm v. Fox

• Decision Date: 10 January 2012
• Docket Number: No. 18814.,18814.
• Citation: 303 Conn. 322,33 A.3d 205
• Court: Connecticut Supreme Court
• Parties: Robert GRIMM v. John Wayne FOX, et al.

303 Conn. 322

33 A.3d 205

Robert GRIMM

v.John Wayne FOX, et al.

No. 18814.

Supreme Court of Connecticut.

Argued Sept. 20, 2011.Decided Jan. 10, 2012.

Robert Grimm, pro se, the appellant (plaintiff).

Frederick L. Murolo, with whom was Karen T. Murolo, Cheshire, for the appellees (defendants).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN and VERTEFEUILLE, Js.

NORCOTT, J.

The plaintiff, Robert Grimm, appeals ¹ from the trial court's grant of a motion for judgment in favor of the defendants, John Wayne Fox and Curtis, Brinckerhoff and Barrett, P.C., in this legal malpractice action. On appeal, the plaintiff claims that the trial court improperly: (1) granted the defendants' motion for judgment, determining that the critical statements concerning the defendants made by this court in its opinion in Grimm v. Grimm, 276 Conn. 377, 886 A.2d 391 (2005), cert. denied , 547 U.S. 1148, 126 S.Ct. 2296, 164 L.Ed.2d 815 (2006), were not sufficient “evidence of an expert nature” (expert evidence) of the defendants' malpractice; and (2) heard the defendants' motion for judgment one day after the motion was filed, and on the same day that trial was scheduled to begin. We disagree with the plaintiff and, accordingly, affirm the judgment of the trial court.

The record, viewed in the light most favorable to the nonmoving plaintiff, reveals the following relevant facts and procedural history. The defendants represented the plaintiff serving as local counsel in an action to dissolve his marriage. In January, 2003, the trial court rendered judgment dissolving the plaintiff's marriage to his former wife and issued various financial orders. Grimm v. Grimm, supra, 276 Conn. at 380–81, 886 A.2d 391. The trial court determined, among myriad other issues, that the plaintiff had diminished the marital estate by $2.9 million and also ordered him to pay $100,000 of the attorney's fees incurred by his former wife. Id., at 381, 886 A.2d 391. The plaintiff raised both of these issues along with four other issues in an appeal from the dissolution judgment to the Appellate Court,² which concluded that the trial court had improperly determined that the plaintiff had diminished the marital estate by $2.9 million, but that this incorrect finding was harmless and did not require reversal. Grimm v. Grimm, 82 Conn.App. 41, 52–53, 844 A.2d 855 (2004). That court also concluded that the trial court had abused its discretion in ordering the plaintiff to pay his wife's attorney's fees. Id., at 55, 844 A.2d 855.

This court granted the plaintiff's petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the trial court's improper findings in support of its financial award were harmless?” ³ Grimm v. Grimm, 270 Conn. 902, 903, 853 A.2d 519 (2004). We also granted his former wife's conditional cross-petition limited to the following question: “Did the Appellate Court improperly reverse the trial court's award of counsel fees?” Grimm v. Grimm, 270 Conn. 903, 853 A.2d 519 (2004). In that certified appeal, we determined that the award of attorney's fees was not an abuse of the trial court's discretion and reversed the judgment of the Appellate Court on that issue. Grimm v. Grimm, supra, 276 Conn. at 399, 886 A.2d 391. We affirmed the judgment of the Appellate Court with regard to the financial orders, however, determining that the plaintiff had abandoned his claims with respect to the $2.9 million because: (1) he had failed to move for an articulation or rectification of the trial court's factual findings on this point; and (2) he had failed to raise this issue until oral argument before the Appellate Court and only addressed that issue in the statement of facts section, rather than the argument section of his brief. Id., at 386–87, 390–91, 886 A.2d 391.

Thereafter, the plaintiff brought this legal malpractice action, relying solely on certain language from this court's opinion deciding his divorce appeal ⁴ to establish the defendants' breach of the standard of care. The plaintiff did not, however, disclose an expert witness, as is generally required to sustain an action for legal malpractice.⁵ The parties filed cross motions for summary judgment and responsive objections by the deadline specified in the court's scheduling order. Although the motions and objections were heard by the trial court, neither of these motions was decided prior to the scheduled start of the trial. The day before the trial was scheduled to begin in this case, the defendants filed four motions in limine, including one to preclude the plaintiff from making any mention, argument or claim at trial that the defendants had breached the standard of care in their representation of the plaintiff, as well as the motion for judgment that is the subject of this appeal. On the day of trial, prior to the start of jury selection, the trial court held a hearing on the motions before it, and granted the defendants' motion in limine precluding the plaintiff from presenting evidence that the defendants had breached the standard of care in their representation of him because the plaintiff had failed to disclose an expert witness. The trial court then granted the defendants' motion for judgment ⁶ because the plaintiff had not disclosed an expert when one was required and, therefore, could not establish a prima facie case for legal malpractice as to the defendants' breach of the standard of care. This appeal followed.

On appeal, the plaintiff claims that certain statements made by this court in its opinion on his divorce case, in which we indicated our disapproval of the defendants' actions in failing to provide an adequate record for review and in inadequately briefing the plaintiff's claims,⁷ are sufficient evidence upon which the jury could reasonably have found that the defendants breached the standard of care owed to the plaintiff. The plaintiff argues, therefore, that an expert witness was not required to establish his claim for legal malpractice.⁸ The defendants contend, however, that the language of this court's opinion is not sufficient, on its own, to establish that they breached the applicable standard of care. ⁹ We address the plaintiff's claims in turn.

I

The plaintiff first claims that the trial court improperly granted the defendants' motion for judgment because the language from our opinion in Grimm v. Grimm, supra, 276 Conn. 377, 886 A.2d 391, was sufficient expert evidence to support the plaintiff's action for legal malpractice. We disagree.

To begin, we set forth the applicable standard of review. “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.” (Internal quotation marks omitted.) Moore v. Crone, 114 Conn.App. 443, 446, 970 A.2d 757 (2009). Inasmuch as the defendants' motion for judgment is, in essence, a renewed motion for summary judgment; see footnote 6 of this opinion; we note that “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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... Our review of the trial court's decision to grant [the defendants'] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

“In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages.” Mayer v. Biafore, Florek & O'Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998). “As a general rule, for the plaintiff to prevail in a legal malpractice case in Connecticut, he must present expert testimony to establish the standard of proper professional skill or care.... The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury ... to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard.” (Citations omitted.) Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990).

“There is an exception to this rule, however, where there is such an obvious and gross want of care and skill that neglect is clear even to a lay person.” (Internal quotation marks omitted.) Paul v. Gordon, 58 Conn.App. 724, 727, 754 A.2d 851 (2000). Nevertheless, “[t]he exception to the need for expert testimony is limited to situations in which the defendant attorney essentially has done nothing whatsoever to represent his or her client's interests....” Pagan v. Gonzalez, 113 Conn.App. 135, 141, 965 A.2d 582 (2009). Finally, “summary judgment [is] proper when [a] plaintiff alleging legal malpractice fails to establish [his] claim by expert testimony.” Moore v. Crone, supra, 114 Conn.App. at 446, 970 A.2d 757.

Here, it is undisputed that the plaintiff did not retain or disclose an expert witness to testify concerning the standard of care to which the defendants' legal representation should be held. Instead, the plaintiff contends that expert testimony in this case is unnecessary because the language of our opinion in Grimm v. Grimm, supra, 276 Conn. 377, 886 A.2d 391, is sufficient expert evidence regarding the standard of care and the breach of that standard to establish that element of his claim. Relying on Dubreuil v. Witt, 80 Conn.App. 410, 421–22, 835 A.2d 477 (2003), aff'd, 271 Conn. 782, 860 A.2d 698 (2004), in which the Appellate...