Miller v. Barber, No. 455605 (CT 5/20/2005)

Decision Date20 May 2005
Docket NumberNo. 455605,455605
CourtSupreme Court of Connecticut
PartiesDarius Miller v. Jerald Barber Opinion No.: 88971


The plaintiff, Darius Miller, brings this legal malpractice action against the defendant, his former special public defender, Jerald Barber. Distilled to its essence, the complaint alleges legal malpractice by the defendant for four reasons: (1) the defendant failed to communicate with the plaintiff as to important legal questions; (2) the defendant inadequately briefed legal issues for the plaintiff's criminal appeal; (3) the defendant failed to supply the Appellate Court with an adequate record to review certain legal issues; and (4) the defendant failed to raise the issue of juror misconduct in the plaintiff's appeal. According to the plaintiff, the defendant's conduct was negligent and reckless and violated his constitutional rights to due process and effective assistance of counsel as well as the Rules of Professional Conduct.

On March 25, 2004, during the pendency of these proceedings, the plaintiff obtained a default against the defendant for failure to plead, pursuant to Practice Book §17-32(a).1 On April 29, 2004, while the plaintiff's motions for judgment were pending but before they were granted, the defendant filed an answer. This automatically vacated the default pursuant to Practice Book §17-32(b), which provides in relevant part: "If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default . . ."

On the day of trial, the defendant filed a motion for judgment based on his having received a discharge from the bankruptcy court, a motion in limine to prevent the plaintiff from introducing expert testimony, and a motion for judgment on the basis that, if the motion in limine was granted, the plaintiff could not satisfy his burden of proof.

The court denied the defendant's motion for judgment based on the bankruptcy discharge because the defendant failed to plead the discharge as a defense, as required by Practice Book §10-50.2 To take advantage of a discharge in bankruptcy, a defendant must specially plead the discharge as a defense. Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 392, 132 A.2d 573 (1957); see Krondes v. O'Boy, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0135694 (February 3, 2003, Lewis, J.T.R.) (33 Conn. L. Rptr. 689); Corriveau v. Glastonbury Land Development Ltd. Partnership, Superior Court, judicial district of Tolland, Docket No. CV 98 65833 (June 21, 1999, Klaczak, J.) (24 Conn. L. Rptr. 645).

The court granted the defendant's motion in limine since the plaintiff did not disclose any expert prior to trial. Practice Book §13-4(4) provides: "In addition to and notwithstanding the provisions of subdivisions (1), (2) and (3) of this rule, any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial . . . If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subdivision . . . such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party." Therefore, when a plaintiff fails to comply with this rule, the court may grant a motion in limine in appropriate circumstances. Menna v. Jaiman, 80 Conn.App. 131, 134-37, 832 A.2d 1219 (2003). Practice Book §13-4(4) is clear, it was not complied with, and undue prejudice would have been visited upon the defendant had the plaintiff been permitted to adduce previously undisclosed expert testimony on the day of trial. Id., 136. The court's ruling, however, was academic; it was clear that the plaintiff did not have expert testimony to adduce.

The court, however, denied the defendant's motion for judgment based on the granting of the motion in limine. While "[g]enerally, to prevail in a case alleging legal malpractice, a plaintiff must present expert testimony to establish the standard of proper professional skill or care"; Dubreuil v. Witt, 80 Conn.App. 410, 420, 835 A.2d 477 (2003), aff'd, 271 Conn. 782, 860 A.2d 698 (2004); "[t]here is an exception to this rule . . . where there is such an obvious and gross want of care and skill that the neglect is clear even to a lay person." Id., 420-21. In addition, there are circumstances where a judge, sitting as the trier of fact may find "without the benefit of expert testimony that the defendant had violated the standard of care." Id., 422.

After the court denied the defendant's motions for judgment the plaintiff proceeded with the presentation of his case. After the plaintiff rested, the defendant moved for a judgment of dismissal for failure to make out a prima facie case. See Practice Book §15-8.3 "A prima facie case, in the sense in which that term is relevant to this case, is one sufficient to raise an issue to go to the trier of fact . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . In evaluating a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor . . ." (Citations omitted; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535, cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000); see Dubreuil v. Witt, supra, 80 Conn.App. 424. In order to make out a prima facie case of legal malpractice, a plaintiff must adduce sufficient evidence which, if credited, would "prove (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages." (Internal quotation marks omitted.) Dubreuil v. Witt, supra, 80 Conn.App. 420.4

The plaintiff's case consisted of his own testimony, a copy of his complaint which he submitted as an exhibit, a decision of a panel of the statewide grievance committee, which was included with the complaint and a letter to a Mrs. Natacha Miller from the defendant on which the plaintiff was copied, in which the defendant acknowledged that he had received $950. In addition, the court took judicial notice of the opinions of the Appellate Court in State v. Miller, 59 Conn.App. 406, 757 A.2d 69 (2000), cert. denied, 255 Conn. 942, 769 A.2d 60 (2001), and State v. Jones, 60 Conn.App. 866, 761 A.2d 789 (2000), cert. denied, 255 Conn. 942, 769 A.2d 59 (2001).

Accepting this evidence as true and interpreting it in the light most favorable to the plaintiff and drawing every reasonable inference in the plaintiff's favor, a trier could find the following. The plaintiff was tried and convicted together with Charles Jones and Jasper Dudley of the crimes of robbery in the first degree in violation of General Statutes §53a-134 (a)(4) and conspiracy to commit robbery in the first degree in violation of General Statutes §§53a-48 and 53a-134(a)(4). The plaintiff was sentenced to fourteen years imprisonment. The conviction arose out of an armed robbery of an auto parts store in which the plaintiff, Jones, Dudley and Michael Cappozziello participated. Capozziello subsequently confessed to the crime and implicated the plaintiff and the two others.

At trial, the plaintiff was represented by the office of the public defender. After his conviction, the plaintiff retained the defendant to prosecute his appeal to the Appellate Court, and paid him a total of $1,000.

On appeal, the defendant presented three issues to the Appellate Court: (1) that the trial judge improperly restricted his cross-examination of Capozziello, thereby depriving him of his right to confront a witness against him; (2) that the trial judge failed to admit a written receipt into evidence; and (3) that the verdict was not supported by the evidence. The Appellate Court reviewed the last two claims on their merits and held against the plaintiff.

The Appellate Court declined to review the plaintiff's first claim on appeal. Because that claim had not been preserved at trial by the plaintiff's trial counsel; State v. Miller, supra, 59 Conn.App. 409; the plaintiff could only obtain review of the claim "under the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book §60-5 . . ." State v. Miller, supra, 59 Conn.App. 409. In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court stated that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.)

Under the plain error doctrine, "[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of...

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