Opinion
No. CV07 500 2316 S
November 18, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Factual Background
The governing complaint of February 26, 2007, asserts the defendant attorney represented both plaintiffs in personal and commercial matters until August 2004, and that thereafter the plaintiffs repeatedly demanded the defendant "return to them all files and documents belonging to them which the defendant had taken into his custody during the course of the aforesaid representation." Count One, ¶ 4. The plaintiffs further asserted the defendant, "without cause or excuse, has failed and refused to return certain of the plaintiffs' aforesaid property, including but not limited to maps, plans, and drawings." Id., ¶ 5. As to Paragraph 4, the defendant, in his Answer filed July 3, 2007 (#103), pled no knowledge and left the plaintiffs to their proof. As to Paragraph 5, the defendant has denied the allegation.
It is relevant to a resolution of this motion that this action is the second of two (2) lawsuits filed by the plaintiffs as against this defendant. The first action (" Garamella I") asserted a claim of legal malpractice only. During the pendency of that action, the plaintiffs served the defendant with a Request for Production which requested the defendant produce "a complete copy of all his files concerning either of the plaintiffs herein . . ." The defendant objected, stating that, because the legal malpractice claim solely arose out of the defendant's representation of the plaintiffs in a file bearing DN CV-02-0346070-S, only files relating to that case were relevant and that only those files would be produced unless, as to the other files in the defendant's possession, the plaintiffs provided written assurance those files were "not relevant" to the legal malpractice action. There is no question that the defendant did in fact ultimately produce all such files in his possession free of charge. Exhs. C, D, E, and F to this motion. Thus, the discovery dispute in Garamella I was resolved. Garamella I resulted in a judgment of non-suit for the plaintiffs' failure to respond to the defendant's discovery requests and a motion to re-open that non-suit was denied. The plaintiffs have appealed that decision (It bears docket number A.C. 29254 and is awaiting oral argument). The instant action ( Garamella II) was brought by the plaintiffs within two weeks of the defendant having provided all of the files in his possession relating to the plaintiffs. See Exh. H, defense counsel's letter of February 15, 2007, advising plaintiff's counsel that all files in Atty. Garamella's possession were being retrieved from storage, being copied, and were to be provided. Though it invited further response from plaintiffs' counsel, plaintiffs' counsel has offered no response.
In this second action ( Garamella II), the plaintiffs have asserted three (3) causes of action. Count One asserts a breach of fiduciary duty; Count Two pleads a claim of larceny of property and asks for treble damages under C.G.S. § 52-564; Count Three avers the defendant is liable for professional (legal) malpractice.
On September 10, 2008, the defendant filed a Motion for Summary Judgment as to all counts to which he attached: 1) the plaintiffs' request for production (of all files and records excepting only documents protected by the attorney-client privilege and the defendant's objection thereto; 2) a letter to plaintiffs' counsel from defense counsel (dated January 9, 2007) stating the conditions under which the files and records would be produced; 3) a further letter (of January 26, 2007) from defense counsel detailing what had already been produced, stating other documents would be available to the plaintiffs for inspection, and stating that other requested files then presently in storage would be produced upon the plaintiffs' agreement to pay the storage fees incurred; 4) correspondence from defense counsel (dated February 15, 2007), which letter was accompanied by the "remaining files" which defense counsel had by then retrieved from storage and copied; 5) correspondence from plaintiffs' counsel in response to defense counsel's earlier letter of January 9, 2007); 6) an affidavit dated September 10, 2008, which affidavit was executed by the defendant on September 9, 2008; 7) a certified copy of the deposition testimony by Edward Tuccio on June 25, 2008; and 8) a reprint of a case cited in the defendant's motion for summary judgment. The plaintiffs, on November 3, 2008, filed a three-page memorandum of law in opposition to the motion for summary judgment and an affidavit of Edward Tuccio which, in Paragraph 3, asserted all files and/or documents had not been returned. The matter was assigned for trial on Tuesday, November 4; the Motion for Summary Judgment was referred to this court, at which time the lawyers requested it be decided on the papers — to which the court agreed.
Applicable Law
Summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. P.B. § 17-49. The moving party has the burden of showing the absence of any genuine issue of material fact and therefore his/her entitlement to judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980). The non-moving party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Appleton v. Board of Directors, 254 Conn. 205, 209 (2000). It must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). "A material fact . . . [is] a fact which will make a difference in the result of the case." H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560 (2001). A conclusory assertion [in an affidavit] does not constitute evidence sufficient to establish the existence of a disputed material fact for purposes of summary judgment. Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793-94 (2000). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. (Internal quotation marks omitted.) Cummings Lockwood v. Gray, 26 Conn.App. 293, 296-97 (1991). In ruling on this motion, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1998).
APPLICATION OF LAW TO FACTS Count One
The factual predicate of Count One is limited solely to the allegation that the plaintiffs, in "November and December of 2006 and in January and February of 2007," repeatedly "demanded that the defendant return to them all files and documents belonging to them which the defendant had taken into his custody during the course of the aforesaid representation."¶ 4. The "aforesaid representation" ended in August 2004. ¶ 3. The "files and documents" included "maps, plans and drawings."¶ 5. Paragraph 6 alleges the defendant breached his fiduciary duty "to keep, care for and return upon demand all of the plaintiffs' property in his custody." No other conduct by the defendant is alleged nor is there anywhere in Count One an assertion the plaintiffs have been damaged as a result of the alleged breach; therefore, it follows that Count One provides no specification of the way(s) in which the plaintiffs have been damaged.
If, however, a jury were to find in favor of the plaintiffs on this count, nominal damages for such breach could be awarded given the request for damages in the Prayer for Relief.
While "an attorney-client relationship imposes a fiduciary duty on the attorney . . . not every instance of professional negligence results in a breach of that fiduciary duty . . . Professional negligence implicates a duty of care, while a breach of fiduciary duty implicates a duty of loyalty and honesty." (Internal citations omitted.) Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kotkin, 247 Conn. 48, 56-57 (1998). While our Supreme Court has stated it has not "expressly" limited the application of these traditional principles of fiduciary duty to cases which involve only fraud, self-dealing or conflict of interest, the Court has also stated, "[T]he cases in which we have invoked them have involved such deviations." Murphy v. Wakelee, 247 Conn. 396, 400 (1998).
The plaintiff, Edward Tuccio, a thirty-five percent (35%) owner of the plaintiff corporation, when asked at a deposition on June 25, 2008, whether he made any claim here other than that, when asked to return plaintiffs' files, the defendant failed to do so, responded, "No." Exh. H, p. 5. This case, therefore, is predicated upon what began as a discovery dispute in Garamella I and is here again asserted in Garamella II following a court's denial of the plaintiffs' request to re-open the judgment of non-suit entered against them. When defense counsel advised plaintiffs' counsel, by letter dated February 15, 2007, that all of the "remaining" files had been "retrieved from storage and copied," and were that date being provided "within approximately two weeks of your request" (Exh. E), no refutation of that claim was ever advanced by way of written correspondence — or otherwise. Despite the claim here asserted by Mr. Tuccio, it is in fact the case that Mr. Tuccio did not — even as late as June 25, 2008, when he was deposed (and despite all Tuccio files having been provided in February of 2007) know what was contained within the files that had been turned over. When asked if he "looked at the files" sent (to his present lawyer) on February 15, 2007, he responded "Yes"; yet, when asked if he was still claiming the defendant had never returned documents related to his prenuptial agreement, Tuccio's response was, "You know what, I didn't even look at it." Exh. H, p. 13.
Mr. Tuccio could, for example, have filed a motion directed to the defendant's failure to provide all of his (Tuccio's) files despite a request to do so. He never did that; in fact the plaintiffs have never filed any discovery other than the single production request that requested Attorney Garamella turn over all Tuccio files.
Thus, the plaintiff cannot identify which files he claims were not turned over. In that deposition, Tuccio claimed the defendant had an obligation to turn over to him all of the monthly bills the defendant had sent him; when asked whether his claim was that he had never received those monthly bills, his response was, "No. I received the bills." Id. at 5. He then went on to state it was his claim the defense lawyer had an obligation to provide again copies of bills already received — even though he conceded he (Tuccio) never made copies of the bills the defendant sent him ( Id., at 6), that he could have sent the billing records on to another lawyer who later represented him and who was also sued by Tuccio ( Id., at 5), and that he could not recall whether he had ever asked that other lawyer for those billings ( Id., at 6). He claims the defendant had "maps" of his; when, after the defendant had retrieved and copied all of the remaining files from a storage facility and discovered there were no maps in any of those files, the plaintiff offered no evidence at deposition that he had in fact provided any maps to the defendant (and, as above stated, the plaintiff conducted no discovery directed to the same). Plaintiff Tuccio testified that, in another case he brought against a (different) former lawyer, he was cross-examined by a defense attorney who confronted him with "900 pieces of paper" he (Tuccio) had turned over to his other counsel — the implication being that this defendant (Atty. Garamella) must have provided those 900 documents to the other (former) attorney or that former attorney's defense counsel because Tuccio was certain he never gave the "900 pieces of paper" to anyone. Yet, when asked whether it was his belief the other former attorney had provided defense counsel with those documents, he responded, "I have no idea." Id., at 15.
As to damages sustained with regard to all of the three asserted counts, Mr. Tuccio, when asked to describe damages, said, "I'm spending time here (at the deposition in the instant lawsuit). I have spent money and time on this matter, and I can't really put a number on the damages of documents (sic) so I'll let a jury decide." Id. at 13. He testified, "I guess there is some financial aspect to this whole case." Id. at 14. Later, when asked to quantify the alleged damages, he stated, "I don't know how you put a number on that. I really can't do that." Id.
There must be an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Appleton, supra, at 209. It cannot be based on this plaintiff's naked claim that documents were never returned to him when he can cite to no such document — largely because he never looked at the files that were turned over to him. Exh. H, at 6. Nor can he base any claim this defendant demonstrated disloyalty to him by turning over his (Tuccio's) documents to a defense attorney representing a former lawyer Tuccio had sued since, when asked if he claimed the former lawyer had given the documents to his (the former lawyer's) defense counsel, Tuccio responded, "I have no idea." Additionally, if the plaintiff himself cannot prove damages with reasonable certainty, damages cannot present an issue for the jury since a verdict may not be based on speculation, conjecture, or surmise.
No evidentiary foundation having been offered to support a claim for fraud, self-dealing, or conflict of interest, there is presented no genuine issue of material fact as to Count One's claim of breach of fiduciary duty.
CT Page 18321
Count Two
The claim advanced in this count is that the defendant's alleged failure to return Mr. Tuccio's files constitutes larceny. Our courts have stated the essential elements of larceny as: 1) the wrongful taking or carrying away of another's personal property; 2) the existence of a felonious intent to permanently deprive the property owner of such property; and 3) the owner's lack of consent. See e.g., State v. Calonico, 256 Conn. 135, 153 (2001); State v. Flowers, 69 Conn.App. 57, 69 (2002). There is no claim — nor is there any evidence to support such claim — that this defendant came into possession of the plaintiff's files wrongfully. Garamella came into possession of all that he had relating to Tuccio's various lawsuits as counsel retained by Tuccio; the documents were either given to him by Tuccio or were created either by this defendant or opposing counsel during the pendency of the various Tuccio lawsuits; clearly, the defendant came into possession of the documents rightfully and without any felonious intent. Furthermore, the letter returning all "remaining" files — to which no response denying their return was ever made — is dated February 15, 2007 ("within two weeks of your request"); the summons is dated March 1, 2007; the return date is April 10, 2007. During the years the defendant represented Tuccio, the defendant did not need the plaintiff's consent to hold his files; the defendant required continued possession of the files to fulfill his obligation as counsel to Tuccio and the latter's consent is presumed. Nowhere — either in the complaint, in Tuccio's deposition testimony, or in the motion in opposition to the instant motion — is there the identification of any file or document therein contained as never returned to Mr. Tuccio. The plaintiff has an obligation to do more than assert a claim; he has an obligation to provide concrete evidence to support the alleged existence of a genuine issue of material fact to successfully oppose summary judgment. He has not done so. No such issue presents and the motion is granted as to Count Two.Count Three
The sole claim of Count Three is that, in not immediately returning to Mr. Tuccio all files in Atty. Garamella's possession when first requested, the defendant breached the standard of care a lawyer owes to his client and is thus liable to him for legal malpractice. Because jurors cannot know legal procedures, methods, or strategies and cannot be expected to know the demands of proper legal representation, expert testimony is generally required to define the standard of care or the duty a lawyer owes his client, whether that duty was breached, and whether that breach of duty caused the damages claimed. See e.g. Young v. Rutkin, 79 Conn.App. 355, 363-64 (2003), and cases cited therein. The single exception to this rule is where there is "such an obvious and gross want of care and skill that the neglect is clear even to a lay person." Dubreuil v. Witt, 80 Conn.App. 410, 421 (2003). The plaintiff, in his opposing memorandum to the instant motion, neither addresses the need for an expert to establish the elements of a legal malpractice claim nor does he claim this case does not require expert testimony. This court concludes such testimony is required both to assist jurors to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard. See Davis v. Margolis, 215 Conn. 408, 416 (1990).
Furthermore, for reasons above discussed, the plaintiff's own deposition testimony precludes his recovery on this count. Assuming arguendo that Mr. Tuccio can establish not only that there had been an attorney-client relationship between the parties but also the failure to immediately return all files upon plaintiff's request (to include those that needed to be retrieved from storage and copied), causation and damages cannot be established. The plaintiff did not — as of his deposition on June 25, 2008, — know yet what files had been returned to him and thus cannot contradict the defendant's claim in his affidavit that all files had been returned. Exh. G., ¶ 10. Though Tuccio testified that having all of his files would assist him in his other legal malpractice lawsuits against "other attorneys who had taken advantage of" him (Exh. H, at 19), he refused to identify those other cases ( Id., at 19) and cannot establish damages with the reasonable probability required so as to remove that issue from mere conjecture by a jury.
The plaintiff's citation, on p. 3 of his memorandum, to Marsh, Day Calhoun v. Solomon, 204 Conn. 639 (1987), is not applicable since the issue before that Court was whether Connecticut law recognized a common law, self-executing attorney's retaining lien ( Id., at 642-43) — which, as plaintiff there concedes, is not at issue here. Additionally, this court rejects the plaintiff's assertion that the law of summary judgment requires her, in the present case to "assume that the defendant has not returned the plaintiff's property and continues to hold it wrongfully." Opp. Memo, at 3. The plaintiff's assertion has been refuted by the defendant's affidavit. The defendant has offered evidence the materials were in fact returned; the plaintiff does not refute the defendant's evidence except by naked assertion. To the contrary, the plaintiff's deposition testimony was that he had not even looked at all that was returned to him. Exh. H, at 13. He has retained no expert to testify to the applicable standard of care and he cannot establish causation or quantify any damages. The plaintiff has not established a genuine issue of fact as to this count.
Summary judgment enters for the defendant on all three counts for the above referenced reasons.