Bozelko v. Papastavros

CHANDRA A. BOZELKO v. ANGELICA N. PAPASTAVROS

AC 36330

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued November 20, 2015

March 17, 2015

DiPentima, C. J., and Sheldon and Norcott, Js.

officially released March 24, 2015

(Appeal from Superior Court, judicial district of New Haven, A. Robinson, J.)

Chandra A. Bozelko, self-represented, the appellant (plaintiff).

Daniel J. Krisch, with whom, on the brief, were Thomas P. Lambert and Brian E. Tims, for the appellee (defendant).

Opinion

DiPENTIMA, C. J. In this legal malpractice action, the self-represented plaintiff, Chandra A. Bozelko, appeals from the summary judgment rendered by the trial court in favor of the defendant, Angelica N. Papastavros. On appeal, the plaintiff claims that the court erred when it (1) concluded that the allegations in the complaint did not state a claim falling within the gross negligence exception to the expert witness testimony requirement for legal malpractice claims; (2) concluded that the defendant's affidavit presented evidence of undisputed material fact; and (3) did not adjudicate the plaintiff's two requests for adjudication of discovery disputes in a timely manner. In addition, the plaintiff claims that requiring her—an indigent party—to retain an expert witness in order to adjudicate her claim of legal malpractice violated her right to due process.¹ We are not persuaded by these claims and affirm the judgment of the court.

The following facts and procedural history are relevant to this appeal. The plaintiff brought this claim of legal malpractice against the defendant, alleging that the defendant had inadequately represented her in criminal proceedings.² On February 10, 2011, the plaintiff filed the operative amended complaint (complaint) containing three counts.³ In count one, the plaintiff alleged that on June 7, 2007, she retained the defendant to represent her with respect to criminal charges that were pending against her, and that the defendant was negligent in representing the plaintiff prior to and during trial. In count two, the plaintiff alleged that the defendant breached the fiduciary duty that she owed to the plaintiff as a result of their attorney-client relationship.

On March 28, 2013, the defendant filed a motion for permission to file a summary judgment motion, which the court denied, concluding that there was "insufficient time for the motion to be filed, responded to, argued and decided before the June [27, 2013] trial date." In its order denying the defendant's motion, however, the court also ordered the plaintiff to disclose her expert witness "no less than forty-five days before trial," because "the issue of expert disclosure may prove dispositive in this matter . . . ." In addition, the court specifically stated that failure "to comply with this order will result in the preclusion of the expert from testifying." The court's order also stated that the defendant would be able to renew her motion for summary judgment should the plaintiff fail to comply with the disclosure requirement.

On May 17, 2013, the plaintiff filed her expert witness disclosure, stating that she intended to call James J. Ruane, her habeas counsel, as an expert witness. The defendant moved to preclude Ruane from testifying, arguing that the plaintiff had failed to comply with theexpert disclosure order. While the ruling on that motion was pending, the defendant renewed her motion for summary judgment.

On June 11, 2013, the court held a hearing on the motion to preclude. During that hearing, Ruane testified that he had not been retained as an expert witness by the plaintiff, and that he had no opinion to offer in the case. On the basis of Ruane's testimony, the court found that the plaintiff had failed to comply with the court's expert disclosure order and issued an order precluding her from offering expert testimony in the case.⁴

The plaintiff filed a motion to reargue the preclusion order, which was granted by the court. During the subsequent hearing on June 27, 2013, the plaintiff advanced three arguments: (1) that her expert disclosure had been timely and adequate; (2) that she could use the defendant as her expert witness instead of Ruane; or, in the alternative, (3) that this case was exempt from the expert witness requirement for legal malpractice actions because the defendant's actions fell within the gross negligence exception to the general rule. Upon the conclusion of the hearing, the court found that, as a matter of law, the plaintiff was required to support her allegations with expert witness testimony because the allegations in the complaint did not rise to the level of gross negligence. The court then stated that although it was "solicitous of self-represented parties and [tried] to give deference to the fact that they do not have legal training, they are still bound by the Connecticut rules of practice. Under those rules, when there is expert testimony required, [Practice Book §] 13-4 requires that the disclosures be made that provide not only the identity of the expert but also the nature of the testimony that is going to be provided." The court then concluded that the plaintiff could neither use Ruane, who had testified to not having an opinion to offer, nor use the defendant, whom the plaintiff had failed to timely and properly disclose in accordance with the requirements of our rules of practice on expert witness disclosure. In conclusion, the court stated that, "despite being given ample opportunity . . . over a period of over six years" to "fully and fairly to disclose" an expert, the plaintiff had not done so, and that she failed to provide the court "with any reason to believe that given more time [she] would get an expert." On the basis of these conclusions, the court declined to vacate the preclusion order, determined that it was not required to hold an evidentiary hearing on the defendant's motion for summary judgment because there was no genuine issue of material fact that the plaintiff did not have the required expert witness, and rendered judgment in favor of the defendant. The court, sua sponte, immediately stayed the entry of the order for judgment until the plaintiff's unresolved discovery issues were adjudicated. The court's order specifically stated that, pending the resolution of the discovery issues, it "will consider whether it isappropriate to enter final judgment for the defendant or to vacate the order." The court ultimately rendered judgment in favor of the defendant on September 23, 2013. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the applicable standard of review. 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." (Internal quotation marks omitted.) Byrne v. Grasso, 118 Conn. App. 444, 447, 985 A.2d 1064 (2009), cert. denied, 294 Conn. 934, 987 A.2d 1028 (2010). It is well settled that 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. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Internal quotation marks omitted.) Id., 447-48.

I

The plaintiff first claims that the court erred in concluding that the allegations in the complaint did not fall within the gross negligence exception to the expert witness testimony requirement for legal malpractice claims. We are not persuaded.

It is well established that "[i]n 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. . . . When proof of the existence of an attorney-client relationship is conceded, proof of the second element, a wrongful act or omission, normally involves expert testimony as to the existence of a professional duty on the part of the attorney and a departure from it by some negligent act or omission. . . .

"As to causation: In legal malpractice actions, the plaintiff typically proves that the defendant attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent." (Internal quotation marks omitted.) Id., 448-49. The requirement of expert witness testimony in legal malpractice cases "serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evalu-ate the [attorney's] actions in light of that standard." Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990). "[T]he determination of whether expert testimony is needed to support a claim of legal malpractice presents a question of law." (Internal quotation marks omitted.) Byrne v. Grasso, supra, 118 Conn. App. 448.

Despite this general requirement, our courts have carved out "a limited exception to this general rule in cases in which there is present such an obvious and gross want of care and skill that the neglect [to meet the standard of care] is clear even to a layperson." (Emphasis added; internal quotation marks omitted.) Moore v. Crone, 114 Conn. App. 443, 447, 970 A.2d 757 (2009). The exception, however, "is limited to situations in which the defendant attorney essentially has done nothing whatsoever to represent...