Costello & McCormack, P.C. v. Manero ( 2019 )

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COSTELLO AND MCCORMACK, P.C. v.
CONSTANCE MANERO
(AC 41927)
Lavine, Elgo and Moll, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for, inter alia,
breach of contract in connection with its representation of the defendant
in a dissolution of marriage proceeding. After the trial court granted
the defendant’s motion to implead three third-party defendants, F, W
and M Co., F filed a cross complaint against the plaintiff, W and M.
Co., alleging, inter alia, that they had committed legal malpractice in
connection with the defendant’s dissolution of marriage proceeding.
The trial court thereafter granted motions to preclude expert testimony
filed by the plaintiff and W and M Co., and subsequently granted their
motions for summary judgment and rendered judgment thereon. Follow-
ing the trial court’s denial of his motion for reconsideration, F appealed
to this court. Held:
1. The trial court properly concluded that F’s cross complaint set forth a
claim of legal malpractice against the plaintiff, W and M Co.; the operative
complaint was F’s answers, defenses and cross claim, not his amended
motion to implead response, which was filed before F became a party
to the action, and the only claim in the operative complaint, when
construed liberally, sounded in legal malpractice.
2. The trial court properly rendered summary judgment in favor of the cross
claim defendants on the legal malpractice claim; despite having ample
opportunity to do so, F, the cross claim plaintiff, failed to properly
disclose expert witnesses in accordance with the requirements of our
rules of practice, and in the absence of such testimony, F could not
establish a prima facie case of legal malpractice because he could not
prove either a breach of the applicable standard of care or the element
of causation.
Argued September 10—officially released November 19, 2019
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Fairfield and transferred
to the judicial district of Stamford-Norwalk; thereafter,
the court, Hon. A. William Mottolese, judge trial referee,
granted the defendant’s motion to implead Arik B.
Fetscher et al. as third-party defendants; subsequently,
Arik B. Fetscher filed a cross claim against the plaintiff
et al.; thereafter, the court granted the motions to pre-
clude expert testimony filed by plaintiff et al.; subse-
quently, the court, Genuario, J., granted the motions
for summary judgment filed by the plaintiff et al., denied
the motion to reargue filed by Arik B. Fetscher and
rendered judgment thereon, from which Arik B.
Fetscher appealed to this court. Affirmed.
Arik B. Fetscher, self-represented, the appellant
(cross claim plaintiff).
Robert C. E. Laney, with whom was Karen L. Allison,
for the appellee (cross claim defendant Costello and
McCormack, P.C.).
Nadine Pare, for the appellees (cross claim defen-
dant William Westcott et al.).
Opinion
ELGO, J. The cross claim plaintiff, Arik B. Fetscher,1
appeals from the summary judgment rendered by the
trial court in favor of the cross claim defendants, Cos-
tello and McCormack, P.C. (Costello), Attorney William
Westcott, and Maya Murphy, P.C. (Maya).2 On appeal,
Fetscher claims that the court improperly (1) construed
his cross claim as one sounding in legal malpractice
and (2) concluded that no genuine issue of material
fact existed with respect to that claim. We disagree
and, accordingly, affirm the judgment of the trial court.
In 2012, Fetscher commenced a civil action against
his then stepfather, Nicholas Manero, Jr., and a business
known as Nick Manero’s II, Inc. In response, Nick Man-
ero’s II, Inc., brought a countersuit against Fetscher
alleging breach of fiduciary duty, unjust enrichment,
and conversion.3 The cases were consolidated and, prior
to trial, Fetscher retained the services of the Maya
defendants.4 Following a trial, the court found that
Fetscher ‘‘breached his fiduciary obligations to defen-
dant Nick Manero’s II, Inc. . . . through a long series
of misappropriations of corporate funds,’’ that he
‘‘knowingly and wrongfully converted [corporate
assets] to his own use,’’ and that he ‘‘was unjustly
enriched at the corporation’s expense . . . .’’ Fetscher
v. Manero, Superior Court, judicial district of Stamford-
Norwalk, Docket No. CV-XX-XXXXXXX-S (May 21, 2014).
The court thus rendered judgment in favor of Nick
Manero’s II, Inc. Id. No appeal was taken from that
judgment.
In January, 2015, Costello commenced an unrelated
action sounding in breach of contract and unjust enrich-
ment against Constance Manero5 to collect unpaid fees
for legal services rendered on her behalf in a dissolution
of marriage proceeding. Appearing in a self-represented
capacity, Manero filed a handwritten response to that
complaint and Costello filed a certificate of closed
pleadings on March 25, 2015. On April 8, 2016, a hearing
was held before an attorney fact finder pursuant to
General Statutes § 52-549n.6
On May 16, 2016, Manero filed a motion to implead
Fetscher, Westcott, and Maya as third-party defendants.
In granting that motion on May 31, 2016, the court noted
that Manero had set forth ‘‘assertions of harm caused
by specific acts and/or omissions committed by the
proposed third parties.’’ Manero then filed a ‘‘Third
Party Plaintiff/Defendant Complaint’’ on June 29, 2016,
which named Fetscher, Westcott, and Maya as third-
party defendants.7
On August 1, 2016, the attorney fact finder filed a
report on Costello’s breach of contract action, in which
he concluded that Costello had proven its entitlement
to $45,438.05 in unpaid legal fees from Manero. When
Manero filed no objection thereto, the court rendered
judgment in favor of Costello ‘‘in accordance with the
fact finder’s report.’’
On August 2, 2016, Fetscher filed what he titled an
‘‘Answer Defenses and Cross Claim’’ in response to his
mother’s third-party complaint. Costello filed an answer
and three special defenses to Fetscher’s cross claim on
November 4, 2016. Those special defenses alleged that
(1) Fetscher ‘‘lacks standing to make any claims against
[Costello] as [Fetscher] has never been represented by
[Costello]’’; (2) Fetscher’s cross claim ‘‘fails to state a
claim for which relief can be granted’’; and (3) Costello
‘‘owed no duty’’ to Fetscher.8 On February 7, 2017, the
Maya defendants filed an answer and a special defense,
in which they alleged that ‘‘it is not possible for Fetscher
to prevail on his claims, as he was cocounsel in the
[Fetscher v. Manero, supra, Superior Court, Docket No.
CV-XX-XXXXXXX-S] case that he claims was mishandled
and as cocounsel Fetscher was jointly and severally
responsible for the decisions that were made in his case,
which he fully considered and agreed to at the time.’’
On January 25, 2017, the court ordered that the pre-
trial discovery period on Fetscher’s cross claim would
conclude on February 7, 2017, at which time all expert
witnesses were to be disclosed. A certificate of closed
pleadings was filed on February 7, 2017. On that date,
Fetscher filed an expert witness disclosure, in which
he disclosed four experts: Attorney Daniel F. McGuire,
Attorney Daniel M. Young, Attorney Salvatore Meli, and
Walter McKeever, a certified public accountant.
In response, the Maya defendants filed a motion to
preclude that expert testimony due to Fetscher’s failure
to comply with the strictures of Practice Book § 13-4.
They further averred that McGuire, Young, and Meli
were unaware of Fetscher’s disclosure and had no inten-
tion of acting as experts on his behalf. Appended to that
pleading were copies of correspondence from McGuire,
Young, and Meli, in which all three individuals dis-
claimed any interest in serving as an expert witness for
Fetscher.9 Costello filed a separate motion to preclude
a day later, in which it alleged that Fetscher had failed
to comply with the requirements of § 13-4 and had
‘‘knowingly and intentionally made material misrepre-
sentations in his disclosure of expert witnesses, and
essentially committed a fraud upon this court.’’ By order
dated April 3, 2017, the court ruled that Fetscher’s Feb-
ruary 7, 2017 disclosure was timely ‘‘but fail[ed] to meet
the requirements of [§] 13-4. The motion [to preclude
expert testimony] is granted . . . unless within [ten]
days the disclosures are revised to satisfy [§] 13-4.’’
Fetscher filed a revised expert witness disclosure on
April 5, 2017. After reviewing that pleading, the court
issued an order precluding Fetscher from offering
expert testimony. The court at that time explained that
it had ‘‘reviewed [Fetscher’s amended expert witness
disclosure] and finds it woefully inadequate to satisfy
the requirements of [Practice Book] § 13-4. The only
reference to opinions is a statement that opinions will
be given and that an ‘accounting was needed and hired’
and that the opinion is necessary. No other reference
is made to any of the requirements of [§] 13-4 (b) (1)
and no effort is made to satisfy them. The court notes
further that the final sentence of [§ 13-4 (b) (3)] does
not excuse compliance with subsection (b) (1). In con-
clusion, the court has given ample time and opportunity
to comply with the result that the revised disclosure
is wholly lacking in even a semblance of compliance.
Therefore the only proper and proportional remedy is
preclusion.’’ The court nonetheless indicated, in a sub-
sequent order issued on May 22, 2017, that Fetscher
‘‘may in a timely manner further revise the disclosure
[of expert witnesses] in an attempt to comply with
[Practice Book] § 13-4.’’ The record before us indicates
that Fetscher did not avail himself of that opportunity,
as it is bereft of any compliant disclosure on his part.10
On January 9, 2018, the court set a trial date of April
24, 2018. The court further ordered that ‘‘[b]y January
23, 2018, any requests to file a motion for summary
judgment . . . shall be filed . . . .’’ In accordance
therewith, Costello and the Maya defendants sought
permission to file motions for summary judgment on
Fetscher’s cross claim, which the court granted. They
then filed respective motions for summary judgment,
predicated primarily on Fetscher’s failure to properly
disclose expert testimony in accordance with Practice
Book § 13-4 to substantiate his legal malpractice claim
against them.
Fetscher did not file an opposition to the motions
for summary judgment or a memorandum of law.
Instead, he filed a three page objection, in which he
insisted that ‘‘[t]he requests and motion for summary
judgment should be denied as they fail as a matter of
law to address any issue or claim besides the negligence
claim solely. The claims for breach of contract, breach
of fiduciary duty, intentional torts are not addressed by
the moving parties . . . in [their] motions for summary
judgment.’’ Apart from reciting the general standard
that governs motions for summary judgment, Fetscher
provided no discussion of legal authority in that objec-
tion. He further provided no affidavits or supporting
documentation of any kind. The court overruled Fetsch-
er’s objection on June 11, 2018.
On that date, the court also granted the motions for
summary judgment filed by Costello and the Maya
defendants. In rendering judgment in favor of the Maya
defendants, the court ruled that Fetscher’s failure to
disclose an expert in accordance with Practice Book
requirements foreclosed, as a matter of law, any recov-
ery on his ‘‘legal malpractice’’ action. With respect to
Costello’s motion for summary judgment, the court reit-
erated that noncompliance and also emphasized that
Fetscher’s complaint ‘‘does not allege facts which give
rise to an attorney-client relationship [between
Fetscher and Costello] which is an essential element
of a legal malpractice [action].’’11 Fetscher filed a motion
for reargument and reconsideration, which the court
denied, and this appeal followed.
I
On appeal, Fetscher claims that the court improperly
construed his cross claim as one sounding in legal mal-
practice. We do not agree.
‘‘[I]nterpretation of the pleadings . . . is always a
question of law over which our review is plenary.’’ Mey-
ers v. Livingston, Adler, Pulda, Meiklejohn & Kelly,
P.C., 311 Conn. 282, 290, 87 A.3d 534 (2014). It is well
established that ‘‘[t]he pleadings determine which facts
are relevant and frame the issues for summary judgment
proceedings or for trial. . . . The principle that a plain-
tiff may rely only [on] what he has alleged is basic. . . .
It is fundamental in our law that the right of a plaintiff
to recover is limited to the allegations [in the] com-
plaint. . . . A complaint must fairly put the defendant
on notice of the claims . . . against him. . . . The pur-
pose of the complaint is to limit the issues to be decided
at the trial of a case and is calculated to prevent surprise.
. . . Only those issues raised by the [plaintiff] in the
latest complaint can be tried before the jury.’’ (Citations
omitted; internal quotation marks omitted.) White v.
Mazda Motor of America, Inc., 313 Conn. 610, 621, 99
A.3d 1079 (2014). In the summary judgment context, our
Supreme Court has explained that although ‘‘a court’s
ability to review the evidence, in order to determine
whether a genuine issue of fact exists, is not limited
to the pleadings,’’ Connecticut law is ‘‘clear [that] a
plaintiff’s theories of liability, and the issues to be tried,
are limited to the allegations [in the] complaint.’’ (Inter-
nal quotation marks omitted.) Id., 622 n.5; see also id.
(allowing ‘‘[the] plaintiff [to] rely on a theory of liability
that he has not raised in his [operative] complaint . . .
ignores our foundational pleading requirements’’); Ste-
vens v. Helming, 163 Conn. App. 241, 247, 135 A.3d 728
(2016) (‘‘[t]he trial court, in ruling on the defendants’
motion for summary judgment, was limited to the facts
alleged in the complaint standing alone’’).
We begin, therefore, with Fetscher’s operative com-
plaint, his August 2, 2016 ‘‘Answer Defenses and Cross
Claim.’’ That two paragraph pleading states in full: ‘‘This
answer is filed pursuant to [Practice Book §§] 10-6, 10-
50, 10-51, 10-53 and 10-54. [Fetscher], an implead [third-
party] defendant, as previously stated concurs with
[Manero] in her pleadings of fact and asserts his special
defenses and asserts both a cross claim and a counter-
claim and set off against attorneys Westcott and Cos-
tello. [Fetscher] raised the issue several times with both
Attorney Westcott and Attorney Costello concerning
both [Manero’s] interest in the companies as well as
the issue of a conflict in having Gilbride, Tusa, Last and
Spellane represent both [Manero’s husband] as well as
the companies of which by their own request (see
exhibit A, item 6, page 9) [Manero] had an interest
in the results of the case between [Fetscher] and the
companies for which she would have to approve any
settlement offer. Absent experts or [Manero’s] attor-
neys involvement, despite being given notice by both
[Fetscher] as well as being apprised of the interest by
[the attorney for Manero’s husband], both Attorney
Westcott and Attorney Costello were willfully derelict
in their representation.
‘‘Exhibit A attached (page 9 of proposed settlement
offer), clearly shows in item 5 a conflict between the
attorney, accountant, [Manero’s husband] and the com-
pany and in their representation on behalf of the Manero
companies and item 6 clearly states that [Manero] had
an interest in the companies and in the outcome of the
case for which both Attorney Costello and Attorney
Westcott failed to abide by their clients’ lawful requests
or follow up and/or file any motions concerning the
issue. I alone tried to raise the issue before the [c]ourt
by filing a verbal objection prior to trial but absent the
efforts and assistance of either Attorney Costello or
Attorney Westcott was judged unbelievable a fact which
the evidence and their support could have clearly cor-
rected.’’12
It is axiomatic that ‘‘[a] complaint must fairly put the
defendant on notice of the claims . . . against him.’’
Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557,
525 A.2d 954 (1987). We further are mindful that ‘‘[t]he
burden is on a plaintiff to plead his case clearly and
not to expect the court or his opposing counsel to have
to wade through a poorly drafted complaint to glean
from it the plaintiff’s theories of relief.’’ Fort Trumbull
Conservancy, LLC v. Alves, 286 Conn. 264, 277 n.13,
943 A.2d 420 (2008). Liberally construing Fetscher’s two
paragraph complaint, we conclude that the only claim
contained therein is one sounding in legal malpractice.
That pleading does not specify any particular cause of
action. Rather, it simply alleges that ‘‘Attorney Costello’’
and ‘‘Attorney Westcott’’ were ‘‘willfully derelict in their
representation’’ in light of an alleged conflict of interest.
The complaint further alleges that ‘‘Attorney Costello
and Attorney Westcott failed to abide by their clients’
lawful requests or follow up and/or file any motions
concerning the issue.’’ In our view, those factual allega-
tions can only be construed as ones advancing claims
of legal malpractice. For that reason, the trial court
properly concluded that Fetscher’s operative complaint
set forth claims of legal malpractice against Attorneys
Westcott and Costello.
Fetscher nonetheless maintains that a document he
filed on April 13, 2016, titled ‘‘Amended Motion to
Implead Response,’’ and not his August 2, 2016 ‘‘Answer
Defenses and Cross Claim,’’ should be construed as the
basis of the ‘‘claims and rationale’’ for his action against
Costello and the Maya defendants.13 That contention is
problematic for at least two reasons. First, Fetscher
was not a party to these proceedings until the court
granted Manero’s motion to implead on May 31, 2016.
He thus could not have properly filed a cross claim of
any kind more than one month earlier. Second, the
court took no action on his April 13, 2016 filing in light
of Fetscher’s status as a nonparty. The record indicates
that the court issued an order on April 25, 2016, advising
all parties that ‘‘no action [was] necessary’’ on Fetsch-
er’s filing. Fetscher’s reliance on that improper filing is
thus unavailing.14
On our plenary review of the pleadings before us, we
conclude that Fetscher’s operative complaint was his
August 2, 2016 ‘‘Answer Defenses and Cross Claim.’’
We further conclude that this pleading sets forth a claim
of legal malpractice against Costello and the Maya
defendants.
II
The remaining question is whether the court properly
rendered summary judgment in favor of the cross claim
defendants on the legal malpractice claim. We answer
that query in the affirmative.
The standard governing our review is well estab-
lished. ‘‘Summary judgment shall be rendered forthwith
if the pleadings, affidavits and 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. . . . The scope of our appellate
review depends upon the proper characterization of the
rulings made by the trial court. . . . When . . . the
trial court draws conclusions of law, our review is ple-
nary and we must decide whether its conclusions are
legally and logically correct and find support in the
facts that appear in the record.’’ (Internal quotation
marks omitted.) Northrup v. Witkowski, 332 Conn. 158,
167, 210 A.3d 29 (2019). ‘‘[W]hether expert testimony
is needed to support a claim of legal malpractice pre-
sents a question of law.’’ (Internal quotation marks omit-
ted.) Moore v. Crone, 114 Conn. App. 443, 446, 970 A.2d
757 (2009).
‘‘A defendant’s motion for summary judgment is prop-
erly granted if it raises at least one legally sufficient
defense that would bar the plaintiff’s claim and involves
no triable issue of fact.’’ Perille v. Raybestos-Manhat-
tan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555
(1985). When the trial court grants a motion for sum-
mary judgment, our review of that determination is
plenary. See Lucenti v. Laviero, 327 Conn. 764, 772–73,
176 A.3d 1 (2018).
‘‘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 . . . . Generally, a plaintiff alleging legal mal-
practice 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.’’ (Citation omitted; emphasis altered;
internal quotation marks omitted.) Bozelko v. Papas-
tavros, 323 Conn. 275, 283, 147 A.3d 1023 (2016). To
prevail, a plaintiff generally is obligated to furnish
expert testimony to establish both (1) the standard of
care ‘‘against which the attorney’s conduct should be
evaluated’’ and (2) the element of causation.15 Id., 284–
85. Our decisional law is replete with cases in which
motions for summary judgment have been granted on
legal malpractice claims when the defendant failed to
offer such testimony. See, e.g., id., 290; Grimm v. Fox,
303 Conn. 322, 337, 33 A.3d 205 (2012); Law Offices of
Robert K. Walsh, LLC v. Natarajan, 124 Conn. App.
860, 863–64, 7 A.3d 391 (2010); Byrne v. Grasso, 118
Conn. App. 444, 448, 985 A.2d 1064 (2009), cert. denied,
294 Conn. 934, 987 A.2d 1028 (2010); Moore v. Crone,
supra, 114 Conn. App. 447; Dixon v. Bromson & Reiner,
95 Conn. App. 294, 299–300, 898 A.2d 193 (2006); Vona
v. Lerner, 72 Conn. App. 179, 189, 804 A.2d 1018 (2002),
cert. denied, 262 Conn. 938, 815 A.2d 138 (2003); Solo-
mon v. Levett, 30 Conn. App. 125, 128, 618 A.2d 1389
(1993); Somma v. Gracey, 15 Conn. App. 371, 374–75,
544 A.2d 668 (1988).
Despite having ample opportunity to do so, Fetscher
failed to properly disclose expert witnesses in accor-
dance with the requirements of our rules of practice.
Absent such testimony, the finder of fact could not
properly evaluate Fetscher’s claims that Costello and
the Maya defendants were ‘‘willfully derelict in their
representation’’ and ‘‘failed to abide by their clients’
lawful requests or follow up and/or file any motions
concerning the [conflict of interest] issue.’’ Because
Fetscher could not establish a prima facie case of legal
malpractice without the introduction of expert testi-
mony to prove either a breach of the applicable standard
of care or the element of causation, we conclude that
the trial court properly rendered judgment in favor of
Costello and the Maya defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For purposes of clarity, we refer to the cross claim plaintiff by his
surname. In addition, we note that Fetscher has appeared before this court
in a self-represented capacity. Although currently licensed to practice law
in this state, his license was under suspension at the time of argument
before this court. See Office of Chief Disciplinary Counsel v. Fetscher,
Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket
No. CV-XX-XXXXXXX-S (March 25, 2019).
2
We refer to Westcott and Maya individually by name and collectively as
the Maya defendants.
3
Because it provides context for the present action, we take judicial
notice of the record of those proceedings. See, e.g., Jewett v. Jewett, 265
Conn. 669, 678 n.7, 830 A.2d 193 (2003) (‘‘[t]here is no question that the
[court] may take judicial notice of the file in another case’’ [internal quotation
marks omitted]); Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn.
863, 865 n.4, 675 A.2d 441 (1996) (taking judicial notice of outcome of criminal
trial); State v. Allen, 205 Conn. 370, 382, 533 A.2d 559 (1987) (‘‘judicial notice
can be taken at any stage of the proceedings including on appeal’’). Moreover,
a copy of the court’s decision in Fetscher v. Manero, Superior Court, judicial
district of Stamford-Norwalk at Stamford, Docket No. CV-XX-XXXXXXX-S (May
21, 2014), was submitted as an exhibit to the Maya defendants’ motion for
summary judgment.
4
The Maya defendants filed an appearance on January 28, 2014. Pursuant
to the retainer agreement between the parties, the scope of their representa-
tion was ‘‘unique insofar as [Fetscher] is a licensed attorney in the State of
Connecticut, he has filed a pro se appearance in the litigation, and he fully
intends to act as co-counsel in the litigation.’’ It is undisputed that Fetscher
actively participated in those proceedings, including trial.
5
Constance Manero is Fetscher’s mother. Although she is a party to the
action underlying this appeal, Manero has not participated in this appeal,
which concerns Fetscher’s cross claim against Costello and the Maya defen-
dants. In an attempt to bring some clarity to the convoluted procedural
history of this case, we refer to Constance Manero by her surname in
this opinion.
6
General Statutes § 52-549n provides: ‘‘In accordance with the provisions
of section 51-14, the judges of the Superior Court may make such rules as
they deem necessary to provide a procedure in accordance with which the
court, in its discretion, may refer to a fact-finder for proceedings authorized
pursuant to this chapter, any contract action pending in the Superior Court,
except claims under insurance contracts for uninsured and underinsured
motorist coverage, in which only money damages are claimed and which
is based upon an express or implied promise to pay a definite sum, and in
which the amount, legal interest or property in controversy is less than fifty
thousand dollars exclusive of interest and costs. Such cases may be referred
to a fact-finder only after the certificate of closed pleadings has been filed,
no claim for a jury trial has been filed at the time of reference, and the time
prescribed in section 52-215 for filing a jury trial claim within thirty days
of the return day or within ten days after the issue of fact has been joined
has expired.’’
7
That complaint concerned the alleged failure of the third-party defen-
dants to protect Manero’s interests in the litigation among her son, her
former husband, and her former husband’s business entity. Although she
testified as a witness at trial, Manero was not a party to that litigation. The
record of those proceedings further indicates that Manero unsuccessfully
attempted to intervene therein more than one year after the court had
rendered judgment in that case.
8
Costello subsequently filed a motion to dismiss Fetscher’s cross claim
for lack of standing, which the court denied. On appeal, Fetscher argues
that the doctrine of res judicata bars the entry of summary judgment in
light of that ruling. We disagree. Costello’s motion to dismiss concerned
the issue of Fetscher’s standing, which presented a jurisdictional question
for the court. See, e.g., Fairfield Merrittview Ltd. Partnership v. Norwalk,
320 Conn. 535, 552, 133 A.3d 140 (2016) (‘‘a plaintiff’s lack of standing is a
jurisdictional defect’’). That motion did not challenge the sufficiency of the
allegations of Fetscher’s operative complaint, nor did it raise the question
of precisely which causes of action were contained therein. Moreover, the
proper construction of that complaint remains a question of law subject to
our plenary review, irrespective of any interpretation applied by the trial
court. See Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C.,
311 Conn. 282, 290, 87 A.3d 534 (2014); Caron v. Connecticut Pathology
Group, P.C., 187 Conn. App. 555, 564, 202 A.3d 1024, cert. denied, 331 Conn.
922, 206 A.3d 187 (2019). Fetscher’s reliance on the doctrine of res judicata,
therefore, is misplaced.
9
In his February 13, 2017 correspondence, Young stated in relevant part:
‘‘I had no knowledge that I would be or had been disclosed as an expert
in [this] matter, and I have not been retained by any party to provide expert
witness testimony.’’ In his February 10, 2017 correspondence, Meli similarly
stated: ‘‘I have not been engaged as an expert, nor will I agree to act as an
expert on behalf of any party in the referenced litigation. I also will not
voluntarily appear as a fact witness in this matter.’’
In a letter dated February 9, 2017, McGuire stated in relevant part: ‘‘Simply
put, I did not, nor did anyone associated with my firm agree to be an expert
in this case. . . . When I discovered (today) that Mr. Fetscher had falsely
designated me as his expert, I immediately called him and demanded that
he withdraw my name. Mr. Fetscher, begrudgingly, agreed to do so and
informed me that he ‘had no choice’ but to submit my name because of the
February 7 . . . disclosure deadline. I told him that submitting my name
without my permission (or knowledge) was unprofessional and that he had
probably committed a fraud on this [c]ourt by representing that he was in
compliance with [the court’s] February 7 . . . deadline . . . . Disturbingly,
Mr. Fetscher did not seem to care. . . .’’
Two days after the court-ordered deadline for disclosure of expert wit-
nesses, Fetscher filed what he titled an ‘‘Expert Witness Disclosure
Amended,’’ in which he again disclosed Young, Meli, and McKeever as expert
witnesses, while also indicating that he was removing McGuire from his list
of experts. Fetscher did not request permission from the court to submit
that untimely filing, and there is no indication in the record before us that
the court authorized or otherwise considered it.
10
On appeal, Fetscher argues that the court improperly precluded him
from offering expert testimony. We disagree. Appellate review of the trial
court’s decision to preclude expert testimony is governed by the abuse of
discretion standard; Weaver v. McKnight, 313 Conn. 393, 405, 97 A.3d 920
(2014); a deferential standard under which we indulge every reasonable
presumption in favor of the court’s ruling. State v. Campbell, 328 Conn. 444,
522, 180 A.3d 882 (2018). On our review of the record before us, we perceive
no abuse of discretion by the trial court.
11
In support of its motion for summary judgment, Costello submitted,
inter alia, a copy of its January 28, 2013 retainer agreement with Manero
and the affidavit of Attorney Kiernan J. Costello, in which he averred that
neither he nor his law firm had provided legal representation to Fetscher
in any matter.
12
That pleading does not contain ‘‘a plain and concise statement of the
material facts . . . to be divided into paragraphs numbered consecutively,
each containing as nearly as may be a separate allegation,’’ as required by
Practice Book § 10-1, nor does it contain a demand for relief of any kind,
in contravention of Practice Book § 10-20. To the extent that Fetscher asserts
that his cross claim contains multiple distinct causes of action, his complaint
does not comport with Practice Book § 10-26, which provides: ‘‘Where sepa-
rate and distinct causes of action, as distinguished from separate and distinct
claims for relief founded on the same cause of action or transaction, are
joined, the statement of the second shall be prefaced by the words Second
Count, and so on for the others; and the several paragraphs of each count
shall be numbered separately beginning in each count with the number one.’’
13
The procedural morass of this case deepened on March 29, 2016, when
Fetscher filed an appearance on behalf of Manero and then took steps on
her behalf to implead himself as a third-party defendant.
14
Throughout the course of this litigation, the trial court admonished
Fetscher for his failure to comply with the rules governing the practice of
law in this state. For example, Fetscher filed a motion for a protective order
due to Costello’s alleged noncompliance with a discovery request. In denying
that motion, the court stated: ‘‘[Fetscher’s] motion makes no mention of
interrogatories or requests for production with which the defendants have
failed to comply. Under our rules discovery is not initiated by e-mail corre-
spondence but rather by compliance with [Practice Book §§] 13-6 and 13-
9. The procedure employed [by Fetscher] shows either a disregard for or
ignorance of our rules of practice with which even self-represented parties
are expected to comply.’’ In another instance, Fetscher filed a motion for
reconsideration on the basis of ‘‘supplemental information,’’ which the court
denied. In sustaining Costello’s objection to that motion, the court explained
that ‘‘[t]here is no provision in the Practice Book which permits a supplemen-
tation to a motion that has been previously adjudicated. Accordingly,
[Fetscher’s motion] is stricken from the docket. Pursuant to Practice Book
§ 1-25, [Fetscher] is cautioned not to assert a claim or file a document unless
there is a basis in law and fact for doing so that is not frivolous. Should
[Fetscher] continue to file documents or pleadings which are not authorized
by the rules the court will consider sanctions including but not limited to
fines pursuant to [General Statutes §] 52-84, orders requiring the offending
party to pay the costs and expenses including attorney’s fees, orders
restricting the filing of papers with the court, nonsuit or default, [and] orders
mandating continuing education in the art of pleading in civil matters.’’
15
That expert testimony requirement is subject to an exception that ‘‘is
limited to situations in which [an] attorney essentially has done nothing
whatsoever to represent his or her client’s interests . . . .’’ (Internal quota-
tion marks omitted.) Grimm v. Fox, 303 Conn. 322, 335, 33 A.3d 205 (2012).
Fetscher did not invoke this exception before the trial court and has not
raised such a claim before this court. On the undisputed facts of this case,
in which Fetscher never maintained an attorney-client relationship with
Costello and served as cocounsel at all relevant times with the Maya defen-
dants, that limited exception is plainly inapplicable.