Bozelko v. Papastavros

323 Conn. 275

147 A.3d 1023

Chandra A. Bozelko

v.Angelica N. Papastavros

SC 19495

Supreme Court of Connecticut.

Argued May 4, 2016

Officially released September 27, 2016

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).

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.^*

ZARELLA, J.

This case raises the question of whether a plaintiff's failure to produce expert testimony on the issue of causation is fatal to her claims of legal malpractice and breach of fiduciary duty by an attorney. The plaintiff, Chandra A. Bozelko, appeals from the judgment of the Appellate Court, which affirmed the trial court's judgment in favor of the defendant, Angelica N. Papastavros. The trial court granted the defendant's motion for summary judgment after precluding the plaintiff from presenting expert testimony due to her failure to disclose an expert witness by a date previously ordered. The plaintiff contends, inter alia, that summary judgment was improper because expert testimony was unnecessary to prove her claims of legal malpractice and breach of fiduciary duty.¹ We disagree and, accordingly, affirm the judgment of the Appellate Court.²

The following facts and procedural history are relevant to this appeal. The defendant served as the plaintiff's defense counsel in a 2007 criminal jury trial. Following that trial, the plaintiff was convicted of fourteen offenses³ and acquitted of eight others, and she received a total effective sentence of ten years imprisonment, execution suspended after five years, and four years of probation. Her convictions were upheld on direct appeal; State v. Bozelko , 119 Conn.App. 483, 510, 987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d 867 (2010) ; and she thereafter unsuccessfully sought habeas relief on the basis of ineffective assistance of counsel.

In 2007, while awaiting sentencing, the plaintiff filed the present action against the defendant, alleging legal malpractice and breach of fiduciary duty in connection with the defendant's representation of the plaintiff in the criminal proceedings.⁴ The plaintiff's operative complaint sets forth a number of specific allegations, including the defendant's alleged delay in instituting a written fee agreement, misrepresentation of the length of her legal career and criminal trial experience, failure to familiarize herself adequately with the facts of the case and the relevant law and procedure, failure to interview potential witnesses, failure to file certain motions, failure to deliver a coherent closing argument, failure to prepare for trial, failure to maintain attorney-client confidentiality, failure to return the plaintiff's file upon request, and speaking with the press about confidential matters without the plaintiff's authorization.⁵ The plaintiff claimed that these alleged shortcomings had caused her to suffer damages, which resulted from her criminal convictions and incarceration.

On March 28, 2013, when the case had been pending for about six years, the defendant sought leave to file a motion for summary judgment, which the trial court denied in light of the fact that trial was scheduled to commence on June 27, 2013. The court ordered, however, that the plaintiff disclose an expert witness no less than forty-five days prior to trial, and it warned that her failure to do so would result in the preclusion of expert testimony.⁶ The court's order also indicated that the defendant could renew her motion for summary judgment in the event that the plaintiff failed to disclose an expert.

On May 17, 2013, the plaintiff filed an expert witness disclosure identifying her former habeas counsel as her expert witness. The defendant moved to preclude that individual from testifying due to various inadequacies in the disclosure, and she also renewed her motion for summary judgment. At a June 11, 2013 hearing, the plaintiff's former habeas counsel appeared and testified that he had not been retained as an expert and had no expert opinion to offer. The plaintiff failed to identify any other expert witness. Thereafter, the court issued an order precluding the plaintiff from offering expert testimony.

The trial court deferred any decision with respect to the defendant's summary judgment motion and permitted the plaintiff to reargue the preclusion order on the scheduled trial date. At that time, the plaintiff raised numerous arguments, including that expert testimony was unnecessary in the present case because her claims constituted allegations of gross negligence, a recognized exception to the general rule requiring expert testimony to establish the standard of care in a professional negligence action. See, e.g., Grimm v. Fox , 303 Conn. 322, 330, 33 A.3d 205 (2012). The trial court, after reviewing the allegations of the plaintiff's complaint, disagreed with the plaintiff's characterization and concluded instead that expert testimony would be necessary to prove her allegations of negligence. The court also concluded that an expert would be necessary to establish causation, namely, “that any of the things the defendant allegedly did wrong (whether [the result of] gross negligence or not) resulted in her conviction or any of the many harms [the plaintiff] alleges. Nor does the plaintiff have an expert to opine that different conduct of the defendant would have resulted in a different outcome ....”⁷ Because the plaintiff lacked an expert, the trial court granted the defendant's motion for summary judgment and rendered judgment thereon for the defendant.

The plaintiff appealed to the Appellate Court from the trial court's judgment, claiming, inter alia, that the trial court incorrectly had concluded that expert testimony was necessary to prove her allegations.⁸ See Bozelko v. Papastavros , 156 Conn.App. 124, 126, 111 A.3d 966 (2015). The Appellate Court rejected that claim; see id., at 132–33, 111 A.3d 966 ; and affirmed the trial court's judgment. Id. at 138, 111 A.3d 966. This appeal followed.

The plaintiff argues that the Appellate Court incorrectly concluded that her claims could not have been proven without expert testimony. She contends that an expert was unnecessary to establish the applicable standard of care because her allegations amounted to claims of gross negligence. The plaintiff also claims that an expert was unnecessary to prove causation because the only way to establish that the defendant's alleged conduct or omissions had resulted in the plaintiff's criminal convictions was through the introduction of testimony from the jurors in her criminal trial. According to the plaintiff, that testimony would have shown that, if the purported deficiencies in the defendant's performance had not existed, the jurors would not have found the plaintiff guilty of the offenses of which she was convicted. Even if we assume, without deciding, that the plaintiff raised allegations of gross negligence, we nevertheless conclude that an expert witness was required to prove that the defendant's alleged conduct and omissions, rather than the plaintiff's guilt of the crimes charged, were the cause of the plaintiff's convictions.⁹ Accordingly, the trial court properly granted the defendant's motion for summary judgment.

We begin with general principles and the 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. 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 defendant's motion for summary judgment is plenary.” (Internal quotation marks omitted.) Arras v. Regional School District No. 14 , 319 Conn. 245, 255, 125 A.3d 172 (2015). Summary judgment in favor of a defendant is proper when expert testimony is necessary to prove an essential element of the plaintiff's case and the plaintiff is unable to produce an expert witness to provide such testimony. See, e.g., Grimm v. Fox , supra, 303 Conn. at 330, 33 A.3d 205 ; see also Boone v. William W. Backus Hospital , 272 Conn. 551, 574–75, 864 A.2d 1 (2005).

“Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services ....” (Emphasis added; internal quotation marks omitted.) Updike, Kelly & Spellacy, P.C . v. Beckett , 269 Conn. 613, 649, 850 A.2d 145 (2004). Generally, a plaintiff alleging legal malpractice must prove all of the following elements: “(1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation ; and (4) damages.”¹⁰ (Emphasis added; internal quotation marks omitted.) Grimm v. Fox , supra, 303 Conn. at 329, 33 A.3d 205.

“The essential element of causation has two components. The first component, causation in fact, requires us to determine whether the injury would have occurred but for the defendant's conduct. ... The second component, proximate causation, requires us to determine whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries. ... That is, there must be an unbroken sequence of events that tied [the plaintiff's] injuries to the [defendant's conduct]. ... This causal connection must be based [on] more than conjecture and surmise. ... [N...