Song v. Collins ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
JING HONG SONG v. KEVIN F. COLLINS
(AC 35861)
Beach, Bear and Schaller, Js.*
Argued April 8—officially released August 19, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Genuario, J.)
John R. Williams, for the appellant (plaintiff).
Jane S. Bietz, for the appellee (defendant).
Opinion
SCHALLER, J. In this legal malpractice action, the
plaintiff, Jing Hong Song, appeals from the judgment
of the trial court denying her motion to set aside the
verdict in favor of the defendant, Attorney Kevin F.
Collins. On appeal, the plaintiff claims that the court
improperly denied her motion to set aside the verdict.
We disagree and, accordingly, affirm the judgment of
the trial court.
The following facts and procedural history inform
our review. The defendant represented the plaintiff in
a contested matter with her former husband involving
the custody and visitation of their minor children. Dur-
ing that action, the plaintiff executed an agreement
with her former husband concerning the custody and
visitation of their minor children. Following the defen-
dant’s representation in that matter, the plaintiff filed
this action sounding in two counts of legal malpractice,
one count of breach of contract, and one count of unfair
trade practices. In count three of her complaint, which
concerned one of the two legal malpractice counts, the
plaintiff alleged that the defendant, in advising her that
the agreement concerning the custody and visitation
of their children was temporary and easily modifiable,
‘‘failed to act within the standard of care applicable to
family lawyers in Connecticut and thereby proximately
caused the plaintiff to expend large sums of money in
an effort to correct his errors and because she was
unaware of his errors, to suffer loss of the care, custody
and companionship of her children, and emotional dis-
tress which continues to the present.’’
The case was tried to a jury. Following the trial, the
jury returned a verdict in favor of the defendant. By
way of interrogatories with respect to count three, the
jury answered ‘‘no’’ to the interrogatory asking: ‘‘Did
the plaintiff prove, by a fair preponderance of the evi-
dence, the standard of care applicable to the defen-
dant?’’ The plaintiff subsequently moved to set aside
the verdict with respect to count three on the ground
that the jury’s answer to the interrogatory was against
the evidence, as ‘‘both the plaintiff’s expert witness and
the defendant’s expert witness testified unequivocally’’
as to the applicable standard of care.
The trial court denied the motion, concluding that
neither the jury’s verdict nor its determination in
response to the court’s interrogatories was ‘‘so clearly
against the weight of the evidence as to indicate that
the jury did not correctly apply the law to the facts of
the case.’’ In its decision, the court reasoned that ‘‘the
issue is not whether . . . there was evidence that
might have supported a plaintiff’s verdict. The issue is
whether . . . the jury [reasonably] could have . . .
reached the conclusion that it did. The fundamental
problem with the plaintiff’s claim is that the jury was
free to disbelieve, in whole or in part, the testimony of
either or both of the expert witnesses who testified at
trial. Moreover, the jury may well have been unsatisfied
with either the clarity or the completeness of the evi-
dence regarding the standard of care applicable to the
allegations of legal malpractice in the third count. It was
the plaintiff’s burden not just to elicit some evidence
regarding the standard of care but to sustain its burden
of proving by a preponderance of the evidence the stan-
dard of care applicable to the defendant with regard to
the allegations in the third count of the complaint.’’ On
the basis of the foregoing, the court denied the plaintiff’s
motion to set aside the verdict with respect to count
three and rendered judgment for the defendant. This
appeal followed.
We begin our analysis by setting forth the applicable
standard of review. ‘‘The proper appellate standard of
review when considering the action of a trial court in
granting or denying a motion to set aside a verdict is
the abuse of discretion standard. . . . In determining
whether there has been an abuse of discretion, every
reasonable presumption should be given in favor of the
correctness of the court’s ruling. . . . Reversal is
required only where an abuse of discretion is manifest
or where injustice appears to have been done.’’ (Cita-
tions omitted; internal quotation marks omitted.) Label
Systems Corp. v. Aghamohammadi, 270 Conn. 291, 303,
852 A.2d 703 (2004).
The legal standard governing the setting aside of a
verdict is well settled. ‘‘[T]he role of the trial court on
a motion to set aside the jury’s verdict is not to sit as
[an added] juror . . . but, rather, to decide whether,
viewing the evidence in the light most favorable to the
prevailing party, the jury could reasonably have reached
the verdict that it did. . . . The trial court’s decision
is significant because the trial judge has had the same
opportunity as the jury to view the witnesses, to assess
their credibility and to determine the weight that should
be given to [the] evidence.’’ (Citation omitted; internal
quotation marks omitted.) Hall v. Bergman, 296 Conn.
169, 179, 994 A.2d 666 (2010).
In the present case, the plaintiff claims that the court
abused its discretion in denying her motion to set aside
the verdict with respect to count three because the
jury’s determination that the plaintiff failed to establish
the standard of care applicable to the defendant was
against the evidence. Specifically, the plaintiff contends
that both her expert witness and the defendant’s expert
witness agreed and testified to the applicable standard
of care with respect to count three. Because the applica-
ble standard of care was undisputed and in evidence,
the plaintiff submits that the jury could not have reason-
ably determined that she failed to establish it. We are
not persuaded.
‘‘As a general rule, for the plaintiff to prevail in a
legal malpractice case in Connecticut, he [or she] must
present expert testimony to establish the standard of
proper professional skill or care. . . . The requirement
of expert testimony in malpractice cases serves to assist
lay people, such as members of the jury . . . to under-
stand the applicable standard of care and to evaluate the
defendant’s actions in light of that standard.’’ (Internal
quotation marks omitted.) Grimm v. Fox, 303 Conn.
322, 329–30, 33 A.3d 205 (2012).
The standard of care applicable to the defendant with
respect to count three in the present case was the
‘‘degree of skill and learning commonly applied under
all the circumstances in the community by the average
prudent reputable member of the profession . . . .’’
(Internal quotation marks omitted.) Dixon v. Brom-
son & Reiner, 95 Conn. App. 294, 297, 898 A.2d 193
(2006). In support of her contention that she established
this standard of care, the plaintiff directs our attention
to the testimony of both her expert witness and the
defendant’s expert witness during trial.
During the plaintiff’s case-in-chief, she called Attor-
ney Verna Lilburn as an expert witness. On direct exami-
nation, the plaintiff’s counsel asked Lilburn: ‘‘[D]o you
have an opinion whether . . . [the defendant] fell
below the standard of care of an attorney practicing
matrimonial law . . . [with respect to the allegations
in count three?]’’ Lilburn answered: ‘‘Yes, I do believe
it fell below the standard of care, in that, clients do
need a very, very thorough explanation about the stan-
dards to modify a custody agreement, as opposed to a
visitation agreement. It’s very, very important that they
understand that they must show a substantial change
in circumstances, in order to modify a custody
agreement . . . . She should have been—it should
have been explained to her that, visitation is modifiable
upon a showing of the best interests of the child. And
that is an entirely different standard to meet.’’
During the defendant’s case-in-chief, he called Attor-
ney Gaetano Ferro as an expert witness. On direct
examination, the defendant’s counsel asked Ferro:
‘‘[D]id [the defendant] breach the standard of care by
recommending that [the plaintiff] sign the agreement
in 2008?’’ Ferro answered: ‘‘No he did not . . . . Based
upon all of the circumstances . . . it was reasonable
to counsel her to enter into this agreement.’’
Although the foregoing reveals that both the plain-
tiff’s expert witness and the defendant’s expert witness
testified as to whether the defendant breached the stan-
dard of care, the plaintiff did not elicit testimony from
the expert witnesses that described, in general or spe-
cific terms, the standard of care applicable to the defen-
dant with respect to count three.1 In addition,
notwithstanding the absence of testimony describing
the standard of care itself, neither expert witness
expressly testified as to what an average prudent attor-
ney would have done under the circumstances.2 Thus,
even if the plaintiff is correct in her contention that both
expert witnesses agreed as to the applicable standard of
care, their testimony did not set forth for the jury, either
directly or by implication, any description of the stan-
dard of care itself.3
In viewing the evidence in the light most favorable
to the prevailing party, in this case, the defendant, it
was reasonable for the jury to determine that the plain-
tiff failed to establish the standard of care applicable
to the defendant with respect to count three and, by
extension, to return a verdict in favor of the defendant.
Accordingly, we conclude that the trial court did not
abuse its discretion in denying the plaintiff’s motion to
set aside the verdict with respect to count three.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Tellingly, the plaintiff’s brief to this court does not set forth the standard
of care applicable to the defendant with respect to count three.
2
Even assuming, arguendo, that Lilburn’s testimony that ‘‘clients . . .
need a very, very thorough explanation about the standards to modify a
custody agreement’’ and that the modification standard ‘‘should have been
explained to’’ the plaintiff may have suggested what an average prudent
attorney would or should have done under the circumstances, Lilburn did
not qualify her statement in a way that would have apprised the jury of
such a suggestion. Nor did the plaintiff elicit any testimony establishing the
baseline standard of care from which the jury could have measured the
defendant’s conduct. As a result, the jury could have interpreted Lilburn’s
testimony to reflect her personal beliefs as to what she would have done
under the circumstances as opposed to what the average prudent attorney
would have done under the circumstances.
3
In addition, even if either expert witness did testify as to the applicable
standard of care, the jury was free to disbelieve such testimony. ‘‘It is well
settled that the trier of fact can disbelieve any or all of the evidence proffered
. . . including expert testimony, and can construe such evidence in a man-
ner different from the parties’ assertions.’’ (Emphasis added; internal quota-
tion marks omitted.) Hayes v. Decker, 66 Conn. App. 293, 302, 784 A.2d 417
(2001), aff’d, 263 Conn. 677, 822 A.2d 228 (2003).