Somma v. Gracey

• Decision Date: 02 August 1988
• Docket Number: No. 5120,5120
• Citation: Somma v. Gracey, 15 Conn.App. 371, 544 A.2d 668 (Conn. App. 1988)
• Court: Connecticut Court of Appeals
• Parties: Edward SOMMA, et al. v. Jerome B. GRACEY, et al.

Page 668

544 A.2d 668

15 Conn.App. 371

Edward SOMMA, et al. v. Jerome B. GRACEY, et al.

No. 5120.

Appellate Court of Connecticut.

Argued Nov. 17, 1987.

Decided Aug. 2, 1988.

Paul E. Pollock, Bridgeport, for appellants-appellees (defendants).

Richard A. Fuchs, Bridgeport, for appellees-appellants (plaintiffs).

Before DUPONT, C.J., and DALY and NORCOTT, JJ.

NORCOTT, Judge.

The defendants appeal from the judgment rendered on a jury verdict in favor of the plaintiffs in an action for legal malpractice. The defendants claim that the trial court erred (1) in submitting certain of the claims of negligence to the jury, and (2) in denying the defendants' motion for judgment notwithstanding the verdict. In their cross appeal, the plaintiffs claim that the trial court erred (1) in instructing the jury that they could reduce the amount of the damage award to the plaintiffs if they found the plaintiffs to be comparatively negligent, and (2) in allowing the jury to reduce the amount of the damage award to Raymond Somma in the absence of any evidence of an agency relationship between Raymond Somma and Edward Somma. We find no error in either the appeal or the cross appeal.

This case involves the sale of a family business. In 1941, the plaintiffs' father opened a small tool shop in Waterbury. The plaintiff Edward Somma began working at the tool shop when it opened. At the time, he was fourteen years of age. Edward Somma continued to work at the shop until 1944 when he went away to college. After spending some time in the Navy and finishing college, Edward went back to work at the family business in 1950. In 1952, Edward was joined in the family business by his brother, the plaintiff Raymond Somma.

The two brothers continued to work at the tool shop as employees until 1960 when their father died. Upon the father's death, Edward Somma became president of the company and Raymond Somma became vice-president. At this time, the company employed approximately twenty people. In 1963, the brothers sold the company. The brothers were represented in the sale by the law firm of Reid and Riege. The Sommas first became acquainted with the firm in 1952, when they had consulted it about some estate matters.

In the years that followed the sale of the business, Edward Somma worked as an estate planner for an insurance company. In 1967, the plaintiffs opened a sign making company. When the company proved to be unprofitable, the plaintiffs dissolved the company. The plaintiffs were represented in the dissolution action by the law firm of Reid and Riege.

The plaintiffs then purchased another small company located in Waterbury. The plaintiffs were represented in this action by the law firm of Reid and Riege, particularly, Jerome Gracey. Thereafter, Edward Somma, acting without representation, sold his interest in this company, and he, along with his brother Raymond, repurchased the family business. The company's name had been changed to Grodel, Inc.

In 1978, the plaintiffs were approached about the sale of Grodel, Inc. At that time, the plaintiffs owned 90 percent of the shares in the company, the other 10 percent having been purchased by other people. Following some preliminary talks with the prospective purchasers, the plaintiffs agreed to the sale. After receiving a letter of intent from the prospective purchasers, Edward Somma engaged the services of the defendants, Reid and Riege, P.C., and particularly Jerome Gracey, to represent the plaintiffs in the sale of the company.

After Edward Somma had consulted with Gracey on several occasions and after Gracey had taken some action on the matter, the sale was consummated on October 4, 1978. The terms of the sale were that Grodel, Inc., would be sold for a price of $2,182,000. This amount was to be paid over a period of years, with $109,022.72 to be paid at closing, $1,491,008.88 to be paid by a series of promissory notes, and $582,000 to be paid to Edward Somma pursuant to a consulting contract. As security for this sale, the purchasers pledged the stock they received in Grodel, Inc. Further, the promissory notes were guaranteed by an entity known as THFIT, Inc., a trust of the purchaser.

After the closing, the plaintiffs received the first payment due on the promissory notes, but the buyers thereafter defaulted. The plaintiffs, however, did not get their stock back as they believed they would, the company went into bankruptcy, and the plaintiffs suffered a financial loss. Within one year, the buyers of the company had misappropriated over $1,000,000 from the assets of the company. The plaintiffs thereafter instituted the underlying action for malpractice against the defendants.

I

The defendants' first claim is that the trial court erred in submitting the following issues to the jury: (1) whether the defendants were negligent in failing to conduct, or advising the plaintiffs to conduct an adequate investigation of the buyers; (2) whether the defendants were negligent in failing to conduct an audit or to request sufficient financial information about the buyers and their guarantees; and (3) whether the defendants were negligent in failing to advise the plaintiffs not to accept nonnegotiable promissory notes. We disagree.

The defendants' claim is one of evidentiary sufficiency. "It is established law that it is error for a court to submit to the jury an issue which is wholly unsupported by the evidence. State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 [ (1975) ]." Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979). In determining whether the evidence is sufficient to support the submission of an issue to the jury, we must review the evidence produced by the plaintiff in the light most favorable to him. Hoyt v. Connecticut Company, 107 Conn. 160, 161, 139 A. 647 (1927). In a legal malpractice action, the plaintiff must produce expert testimony (1) that a breach of the professional standard of care has occurred, and (2) that the breach was the proximate cause of the injuries suffered by the plaintiff. Pearl v. Nelson, 13 Conn.App. 170, 173, 534 A.2d 1257 (1988); Campbell v. Pommier, 5 Conn.App. 29, 32, 496 A.2d 975 (1985). We find that the plaintiffs produced sufficient expert testimony to have these issues submitted to the jury.

The plaintiffs produced two witnesses who were qualified as experts in the field of business and corporate law. Each of the expert witnesses testified as to a lawyer's standard of care in a business purchase situation. Each of the witnesses also testified that the defendants had breached that standard of care, and that the defendants' breach was the proximate cause of the losses incurred by the plaintiffs. One of the expert witnesses specifically testified that the defendants had been negligent in allowing the security note to be nonnegotiable and in failing to conduct or failing to instruct the plaintiffs to conduct an investigation of the prospective purchasers. While this evidence was far from overwhelming on the issues of negligence in question, it was sufficient to support the submission of those issues to the jury. As we have noted before, "[a] party has the same right to submit a weak case as he has to submit a strong one...." Strickland v. Vescovi, 3 Conn.App. 10, 16, 484 A.2d 460 (1984); see also Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 548, 447 A.2d 406 (1982).

II

The defendants' second claim is that the trial court erred in failing to grant their motion for judgment notwithstanding the verdict. Specifically, the defendants contend that their motions should have been granted because the actions of the purchasers constituted a superseding, intervening cause which insulated them from liability. We disagree.

Our review of the trial court's denial of the defendants' motion for judgment notwithstanding the verdict is limited. " 'We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the "concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony...." ' Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986), quoting Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). The defendant[s] can prevail on this claim only if we find that the jury could not reasonably and legally have reached its conclusion. Bound Brook Assn. v. Norwalk, supra." Aksomitas v. Aksomitas, 205 Conn. 93, 100, 529 A.2d 1314 (1987). In this case, the defendants claim that the actions of the buyers were a superseding cause as a matter of law and that the jury could not reasonably have concluded as it did.

The Restatement of Torts provides that "[t]he act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime...." 2 Restatement (Second) Torts, § 448. The Restatement further provides, however, that the criminal acts of a third party will not constitute a superseding cause if "the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime." Id.

In this case, it is clear that the actions of the buyers were criminal in nature. It is also clear, however, that the defendants were aware that the plaintiffs, by entering into this contract for sale, might be subject to exactly the type of thievery that occurred. Attorney Gracey testified that he felt that the security offered by the buyers was insufficient to protect the plaintiffs'...