Bozelko v. Papastavros ( 2015 )

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CHANDRA A. BOZELKO v. ANGELICA N.
PAPASTAVROS
(AC 36330)
DiPentima, C. J., and Sheldon and Norcott, Js.
Argued November 20, 2014—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 appel-
lee (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 mal-
practice 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 rele-
vant to this appeal. The plaintiff brought this claim of
legal malpractice against the defendant, alleging that
the defendant had inadequately represented her in crim-
inal proceedings.2 On February 10, 2011, the plaintiff
filed the operative amended complaint (complaint) con-
taining 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 negli-
gent in representing the plaintiff prior to and during
trial. In count two, the plaintiff alleged that the defen-
dant 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 ‘‘insuffi-
cient 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, how-
ever, 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 dis-
positive 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 testi-
fying.’’ The court’s order also stated that the defendant
would be able to renew her motion for summary judg-
ment should the plaintiff fail to comply with the disclo-
sure 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 the
expert 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 sub-
sequent 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 iden-
tity 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, deter-
mined that it was not required to hold an evidentiary
hearing on the defendant’s motion for summary judg-
ment 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 defen-
dant. The court, sua sponte, immediately stayed the
entry of the order for judgment until the plaintiff’s unre-
solved discovery issues were adjudicated. The court’s
order specifically stated that, pending the resolution
of the discovery issues, it ‘‘will consider whether it is
appropriate 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 judg-
ment, 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 show-
ing 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 con-
cluding 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 pro-
fessional duty on the part of the attorney and a depar-
ture 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 testi-
mony 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 his or her client’s inter-
ests . . . .’’ Pagan v. Gonzales, 113 Conn. App. 135,
141, 965 A.2d 582 (2009); see also Cammarota v. Guer-
rera, 148 Conn. App. 743, 751–52, 87 A.3d 1134 (conclud-
ing that attorney’s act of giving check payable to client
to another individual constituted negligence within
common experience of lay jury not requiring expert
testimony), cert. denied, 311 Conn. 944, 90 A.3d 975(2014); Paul v. Gordon, 58 Conn. App. 724, 728, 754 A.2d
851 (2000) (holding that no expert testimony required
where attorney allegedly did absolutely nothing to pro-
tect plaintiff’s interests).
In this case, the plaintiff’s complaint alleged, inter
alia, that the defendant failed to ‘‘institute a written fee
agreement . . . within a reasonable period of time,’’
misrepresented her trial experience and the length of
her legal career, and initiated contact with the news
media without the plaintiff’s consent. The complaint
further alleged that the defendant failed to familiarize
herself with the underlying facts; to become competent
in criminal trial procedure and laws; to exhibit compe-
tency in the practice of law; to deliver a coherent closing
argument; and to maintain attorney-client confiden-
tiality.
The court, viewing the allegations in the complaint
liberally, concluded that ‘‘none of [the] claims assert
allegations that might fairly be read as gross negli-
gence.’’ The court further determined that the ‘‘case
does not involve a claim that [the defendant] did noth-
ing—or essentially nothing in representing [the plain-
tiff]. On the contrary, the plaintiff’s own claims allege
that [the defendant] did many things in her representa-
tion of the plaintiff, albeit they claim she did them
improperly or unprofessionally.’’ Furthermore, the
court found that even if the plaintiff did not need an
expert as to the standard of care, she ‘‘has not addressed
nor provided an expert as to the causation issue’’; (inter-
nal quotation marks omitted); which was her burden
as the plaintiff.
Having reviewed the record in the case, we conclude,
as did the trial court, that the allegations in the plaintiff’s
complaint did not state a claim of gross negligence and
therefore required expert witness testimony to assist
the trier of fact in determining the applicable standard
of care and to help evaluate the defendant’s actions in
light of that standard.5 The alleged failures all suggest
actions taken by the defendant that constituted efforts
to represent the plaintiff and were not within the com-
mon knowledge of the lay jury. The court properly
determined that the exception to the general require-
ment of expert testimony in legal malpractice claims
did not apply to this case and that, given the inability
of the plaintiff to present such expert testimony, her
claims of legal malpractice and breach of fiduciary duty
could not have been proven at trial. Thus, the plaintiff’s
first claim must fail.6
II
The plaintiff next claims that the court erroneously
rendered summary judgment in favor of the defendant
because the affidavit filed in support of the motion for
summary judgment failed to establish that there was no
genuine issue of material fact in dispute. The defendant
counters that it was an undisputed material fact in the
case that the plaintiff could not establish her prima
facie case due to a lack of expert witness testimony.
We agree with the defendant.
‘‘Because litigants ordinarily have a constitutional
right to have issues of fact decided by the finder of
fact, the party moving for summary judgment is held
to a strict standard. [It] must make a showing that it is
quite clear what the truth is, and that excludes any
real doubt as to the existence of any genuine issue of
material fact. . . . A material fact is a fact that will
make a difference in the result of the case. . . . [T]he
burden of showing the nonexistence of any material
fact is on the party seeking summary judgment . . . .
It is not enough for the moving party merely to assert
the absence of any disputed factual issue; the moving
party is required to bring forward . . . evidentiary
facts, or substantial evidence outside the pleadings to
show the absence of any material dispute. . . . The
party opposing summary judgment must present a fac-
tual predicate for [its] argument to raise a genuine issue
of fact. . . . Once raised, if it is not conclusively
refuted by the moving party, a genuine issue of fact
exists, and summary judgment is inappropriate.’’ (Cita-
tions omitted; emphasis altered; internal quotation
marks omitted.) Barasso v. Rear Still Hill Road, LLC,
81 Conn. App. 798, 802–803, 842 A.2d 1134 (2004).
In her affidavit supporting the motion for summary
judgment, the defendant averred that no genuine issue
of material fact existed as to whether the plaintiff could
establish her prima facie case of legal malpractice with-
out expert testimony. To substantiate her allegations,
the defendant provided evidence outside the pleadings
establishing that the plaintiff had failed to comply with
the court’s order mandating the expert’s disclosure and,
as a result, was precluded from introducing an expert
witness. Having reviewed the record, we agree with the
court that despite her burden to provide an evidentiary
foundation demonstrating the existence of a genuine
issue of material fact, the plaintiff failed to provide such
evidence in support of her opposition to the motion for
summary judgment; the plaintiff failed to refute the
material fact that she did not have an expert witness.
Accordingly, we conclude that the court did not err in
its determination that the defendant’s affidavit brought
forward evidentiary facts outside the pleadings estab-
lishing an absence of a genuine issue of material fact.
Therefore, the plaintiff’s claim must fail.
III
The plaintiff next claims that the court abused its
discretion by delaying the resolution of her two requests
for adjudication of her discovery dispute. We are not
convinced.
We first note that the plaintiff’s claim concerns mat-
ters of judicial economy, docket management and con-
trol of courtroom proceedings that are particularly
within the province of a trial court. Marshall v. Mar-
shall, 71 Conn. App. 565, 575, 803 A.2d 919, cert. denied,
261 Conn. 941, 808 A.2d 1132 (2002). Thus, our review
of this claim is governed by the abuse of discretion
standard. See id., 574.
‘‘There is no hard and fast rule by which an abuse
of discretion may be determined but, in general, for an
exercise of discretion not to amount to an abuse, it
must be legally sound and there must be an honest
attempt by the court to do what is right and equitable
under the circumstances of the law, without the dictates
of whim or caprice.’’ (Internal quotation marks omit-
ted.) Sullivan v. Yale-New Haven Hospital, Inc., 64
Conn. App. 750, 754, 785 A.2d 588 (2001). ‘‘Reversal is
required only where an abuse of discretion is manifest
or where injustice appears to have been done.’’ (Internal
quotation marks omitted.) Id.The following facts and procedural history facilitate
our discussion. The defendant first objected to the
plaintiff’s interrogatories on July 28, 2009, which was
almost four years before the June 27, 2013 trial date.
The plaintiff did not raise the issue with the court until
March 4, 2013, when she filed a request, asking the court
to schedule a hearing on the subject. In her request,
however, the plaintiff did not ask for a specific date on
which she wanted the hearing to be held. The court
granted the plaintiff’s request on March 11, 2013, with-
out setting a date. Thereafter, the plaintiff did not file
a request for adjudication of discovery until May 3,
2013. On May 6, 2013, the court ordered the discovery
and other outstanding matters to be adjudicated on May
20, 2013, unless the defendant objected before May 10,
2013. The defendant objected on May 9, 2013. There-
after, the plaintiff filed her second request for adjudica-
tion of discovery on May 20, 2013. On June 3, 2013, the
court ordered the matters to be adjudicated on June
11, 2013. At the June 11 hearing, the court found that
the plaintiff had failed to comply with the expert witness
disclosure order and granted the defendant’s motion to
preclude the plaintiff from offering an expert witness
to support her claims. The defendant then renewed her
motion for summary judgment. The plaintiff raised the
issue of the outstanding discovery, but the court stated
that it would not address discovery before deciding the
legal issue in the case—whether or not the plaintiff
could, as a matter of law, meet her burden of proof
in the case. On June 28, 2013, the court ordered the
outstanding discovery issues to be adjudicated on or
before July 22, 2013, and granted the defendant’s motion
for summary judgment, staying the judgment until after
the adjudication of the discovery dispute. Thereafter,
the issues were adjudicated by the court on July 3, 2013.
Having reviewed the record, we are convinced that
the court did not abuse its discretion in adjudicating
discovery issues. The plaintiff did not raise the issue
with the court until March, 2013—almost four years
after the defendant had objected to her interrogatories.
The court is not responsible for this delay. See Practice
Book § 13-8 (b). The record further reveals that once
the plaintiff had filed her request for adjudication, the
court promptly granted her requests and scheduled
hearings to resolve the matter. We also conclude that
the court did not abuse its discretion by declining to
consider the discovery issues before it had an opportu-
nity to consider the dispositive legal issue in the case,
and the plaintiff could not have been harmed by the
court’s decision because an earlier resolution of the
discovery dispute would not have affected the issue of
expert witness preclusion. Simply stated, our review
does not uncover a manifest abuse of discretion, and no
injustice appears to have been done. Moreover, having
reviewed the record and the transcripts, we note that
the court remained attentive and patient with the plain-
tiff throughout the proceedings and afforded her more
than sufficient opportunities to present her case. Thus,
the plaintiff’s claim must fail.
IV
The plaintiff’s final claim is that the court violated
her constitutional right to due process by requiring her
to present an expert witness in order to litigate her
claim. Specifically, the plaintiff argues that requiring an
indigent litigant to procure expert witness testimony in
a legal malpractice action ‘‘essentially locks out indigent
plaintiffs and leaves them no way to get redress in [the
courts].’’ We conclude that this claim is inadequately
briefed and decline to afford it review.
In her brief, the plaintiff cites Boddie v. Connecticut,
401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), for
the proposition that ‘‘due process of law prohibits a
[s]tate from denying, solely because of inability to pay
court fees and costs, access to its courts to indigents
who, in good faith seek redress in the courts.’’ (Internal
quotation marks omitted.) She does not, however, indi-
cate whether her claim concerns procedural due pro-
cess, substantive due process or both, and provides no
meaningful legal analysis under either. See Columbia
Air Services, Inc. v. Dept. of Transportation, 293 Conn.
342, 358 n.7, 977 A.2d 636 (2009) (party should indicate
and provide separate cases and analysis on procedural
and substantive due process claims); see also Bohon-
non Law Firm, LLC v. Baxter, 131 Conn. App. 371,
383, 27 A.3d 384 (same), cert. denied, 303 Conn. 902,
31 A.3d 1177 (2011). It is axiomatic that ‘‘[w]e are not
required to review issues that have been improperly
presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly.’’ (Internal quotation marks
omitted.) State v. Carpenter, 275 Conn. 785, 826, 882
A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct.
1578, 164 L. Ed. 2d 309 (2006); see also Frauenglass &
Associates, LLC v. Enagbare, 149 Conn. App. 103, 111,
88 A.3d 1246 (‘‘[a] claim that does no more than assert
a due process violation without legal analysis is deemed
abandoned’’), cert. denied, 314 Conn. 927, 101 A.3d 273(2014). Accordingly, we decline to review this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that even though the court did not make a specific finding as
to the plaintiff’s financial status, it approved several motions to waive the
entry fee and pay the cost of service where the plaintiff certified that she
had no equity and received only a small income from her employment
in prison.
2
Ultimately convicted, the plaintiff was sentenced to ten years incarcera-
tion, execution suspended after five years, followed by four years of proba-
tion. State v. Bozelko, 154 Conn. App. 750, 756, A.3d (2015).
3
The third count alleged negligent infliction of emotional distress. The
plaintiff withdrew this count on December 19, 2011.
4
The court also concluded that the disclosure was late and inadequate.
5
In addition, the plaintiff claims that the court violated her due process
rights when it declined to hold ‘‘ ‘a trial-like hearing’ ’’ before it engaged in
a ‘‘factual finding’’ on the issue of gross negligence. As we have stated, the
court’s determination was not a factual finding but a legal conclusion that
did not require a hearing. Thus, this claim is without merit.
6
We also agree with the court’s conclusion that the plaintiff’s claims of
breach of fiduciary duty likewise required expert witness testimony. Having
reviewed the plaintiff’s allegations of breach of fiduciary duty and legal
malpractice, we are convinced, as was the court, that ‘‘they mirror one
another; they essentially argue and claim the same thing.’’ As our cases have
held, ‘‘[a]lthough every attorney-client relationship imposes a fiduciary duty
on the attorney . . . a plaintiff cannot avoid [the] burden to present expert
testimony to articulate the contours of that relationship by styling [the]
cause of action as one for breach of fiduciary duty.’’ (Citation omitted.)
Marciano v. Kraner, 126 Conn. App. 171, 178–79, 10 A.3d 572, cert. denied,
300 Conn. 922, 14 A.3d 1007 (2011).