Kregos v. Stone

• Court: Connecticut Court of Appeals
• Writing for the Court: FLYNN, J.
• Citation: Kregos v. Stone, 88 Conn.App. 459, 872 A.2d 901 (Conn. App. 2005)
• Decision Date: 12 April 2005
• Docket Number: No. 24852.,24852.
• Parties: George L. KREGOS v. Mark P. STONE.

872 A.2d 901

88 Conn.App. 459

George L. KREGOS v. Mark P. STONE.

No. 24852.

Appellate Court of Connecticut.

Argued January 14, 2005.

Decided April 12, 2005.

Geoffrey S. Brandner, with whom, on the brief, was John Lino Ponzini, Stamford, for the appellant (defendant).

Jeffrey W. Keim, with whom, on the brief, was Eric M. Gross, Bridgeport, for the appellee (plaintiff).

PELLEGRINO, FLYNN and WEST, Js.

FLYNN, J.

The appeal before us involves a number of claims regarding the propriety of one of the trial court's evidentiary rulings, its charge to the jury and acceptance of the verdict. The plaintiff, George L. Kregos, brought a two count complaint sounding in legal malpractice against the defendant, Mark P. Stone, seeking damages. The defendant counterclaimed for legal fees owed by the plaintiff. After a trial, the jury awarded the plaintiff $206,576.40 on his complaint and the defendant $36,815.76 on his counterclaim. The trial court rendered judgment on the verdict and the defendant appealed. We affirm the judgment of the trial court.

On appeal, the defendant claims that the court improperly: (1) instructed the jury on legal malpractice, (2) instructed the jury that the offer of judgment statute permits interest to be calculated on the amount of compensatory damages as well as on punitive damages received by the plaintiff in the underlying federal court proceeding, (3) accepted an inconsistent verdict, (4) failed to admit testimony from the plaintiff about whether he had filed an offer of judgment in the legal malpractice case despite both documentation that he had not done so and inconsistent deposition testimony and (5) failed to set aside the verdict.

The jury reasonably could have found the following facts. The plaintiff, then doing business as American Sportswire, engaged the defendant, a lawyer who specialized in patent, trademark and intellectual property matters, in connection with a dispute with a company known as The Latest Line, Inc. (Latest Line), its principals, Susan McCarthy and Jolene McCarthy, and Tribune Media Services, Inc. (Tribune). The plaintiff sought damages against Latest Line and the McCarthys for breach of contract, and against Tribune for tortious inference with the contract that he had with Latest Line. The McCarthys owned Latest Line and had engaged the plaintiff's expertise to provide data for use in Tribune publications. At some point, Tribune demanded that the plaintiff cease doing similar work for other newspapers, despite the fact that the plaintiff had no contract with Tribune and the plaintiff was not barred from doing so by his contract with Latest Line.

On the plaintiff's behalf, the defendant brought an action in the United States District Court for the District of Connecticut against Latest Line, the McCarthys and Tribune. The defendant did not file an offer of judgment in the federal action. General Statutes § 52-192a(a) and (b) provide for a procedure whereby a plaintiff may file an offer of judgment with the clerk of the court, offering to settle the claim and may stipulate judgment for a sum certain. Under that statutory procedure, if a defendant declines to accept the offer and the judgment the plaintiff eventually recovers is equal in amount to or in excess of the amount for which the plaintiff offered to settle, the court is required to add interest at the rate of 12 percent per annum on the amount of the judgment from the date of the offer or, if the offer was filed within eighteen months of the date of the complaint, from the date of the complaint. While the litigation was proceeding, the plaintiff inquired whether an offer of judgment could have been filed in the federal action and was advised by the defendant that it could not.¹ The plaintiff nonetheless offered to settle the litigation for $280,000, which was accomplished by letter from the defendant to opposing counsel without filing any formal "offer of judgment" with the federal court clerk. The defendant finally withdrew as the plaintiff's counsel when the plaintiff was unable to pay in a timely manner monthly legal fees he owed to the defendant. New counsel represented the plaintiff in the trial of the federal case and recovered a judgment of $286,911.72 plus taxable costs. The plaintiff claimed in this legal malpractice action that because of the negligence of the defendant, he lost additional prejudgment interest which he might have been able to recover if the offer of judgment formally had been filed by the defendant with the clerk of the United States District Court in the underlying action against Latest Line and the other defendants in the underlying action.

I

The defendant first alleges that the trial court failed to mention in its charge the defendant's position that he did not file an offer of judgment on the plaintiff's behalf because the plaintiff did not want to settle his case. The defendant claims that the court's failure to do so did not present the case fairly so that no injustice was done. The defendant further claims that he had offered evidence that he did not file an offer of judgment in the underlying federal action against Latest Line and the other defendants because the plaintiff did not want to be bound to any settlement sum offered and authorized only a letter of demand rather than a statutory offer of judgment filed with the clerk, which, by statute, would be irrevocable for thirty days.

"The standard of review concerning claims of error in jury instructions is well settled.... We must review the charge as a whole to determine whether it was correct in law and [whether it] sufficiently guided the jury on the issues presented at trial.... [T]he trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict." (Internal quotation marks omitted.) Mariculture Products Ltd. v. Certain Underwriters at Lloyd's of London, 84 Conn.App. 688, 702-703, 854 A.2d 1100, cert. denied, 272 Conn. 905, 863 A.2d 698 (2004).

The challenged portion of the jury charge on legal malpractice stated that "to prove causation and damages, the plaintiff must establish that the defendant's failure to make an offer of judgment in accordance with § 52-192a of the Connecticut General Statutes caused him harm because he was entitled to interest on his judgment from July 9, 1992, to September 14, 1998." Although, viewed in isolation, this part of the charge would not suffice to guide the jury correctly, charges are not examined microscopically, but are read as a whole. Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 311, 819 A.2d 844 (2003). We conclude that the charge, as a whole, reasonably guided the jury in reaching a verdict.

The charge emphasized the elements of a prima facie case: "One. The defendant must have a duty to conform to a particular standard of conduct for the plaintiff's protection. Two. The defendant must have failed to measure up to that standard. Three. The plaintiff must suffer actual injury, and, four, the defendant's conduct must be the cause of the plaintiff's injury."² The court then reiterated: "To succeed in a legal malpractice action, the plaintiff must produce testimony, one, that a breach of the professional standard of care has occurred and, two, that the breach was a proximate cause of the injury suffered by the plaintiff. Expert testimony and circumstantial evidence can both be used in establishing legal malpractice.... If you have decided that the defendant was negligent and that the plaintiff suffered injury, then you must consider whether the negligence was the proximate cause of the injury." The court emphasized that there was evidence in conflict: "There is conflicting factual evidence as to whether certain conduct of the plaintiff and the defendant occurred." The court also instructed the jury that it is "not to single out any sentence or individual point or instruction ... and ignore others. You are to consider all the instructions as a whole and regard each in light of all the others."

The test is not whether jury instructions are perfect or technically accurate but, rather, when viewed in their entirety, whether the instructions are correct in the law and provide sufficient guidance to the jury. Matthiessen v. Vanech, 266 Conn. 822, 831-32, 836 A.2d 394 (2003). Here, the instructions correctly stated the elements of legal malpractice that the plaintiff was required to prove, and the charge gave the jury sufficient guidance.

II

We next address the defendant's claim that the court improperly instructed the jury that § 52-192a(a) and (b), the offer of judgment statute, permitted interest to be calculated not just on the compensatory damages awarded to the plaintiff, but also on the punitive damages. During jury deliberations, the jury questioned whether, with a properly filed offer of judgment, interest may be calculated on both the compensatory and punitive damages.

The defendant specifically claims that the court improperly instructed the jury that interest could be calculated on "the whole amount recovered in the federal action, which included money allocated to the defendant's legal fees," which the plaintiff had refused to pay. The plaintiff had admitted in his testimony that he probably owed the defendant $20,000 for legal fees that had not been paid.

Our review of this issue requires us to interpret § 52-192a(a) and (b). Review of questions requiring interpretation of a statute is plenary. Commissioner of Social Services v. Smith, 265 Conn. 723, 734, 830 A.2d 228 (2003).

The defendant first avers that "[t]he analysis of the offer of judgment statute used as such on a federal court verdict may not be correct." He cites no authority for this claim. We disagree and agree with the court's analysis of the statute. In Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 472 A.2d 316 (1984), our Supreme Court ruled that § 52-192a did not...