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).