Stuart v. Freiberg

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STUART v. FREIBERG—DISSENT
EVELEIGH, J., dissenting. I respectfully disagree with
the majority’s conclusion that the claims of fraud, negli-
gent misrepresentation, and accounting malpractice set
forth in the complaint filed by the plaintiffs, William A.
Stuart and Jonathan Stuart,1 do not present material
issues of fact for the jury. In my view, the majority is
really questioning the reasonableness of the parties’
claimed reliance on the professional advice of the defen-
dant, Richard M. Freiberg. The majority states that ‘‘the
plaintiffs did not present sufficient counterevidence to
show how they were otherwise able to rely on a false
statement or misrepresentation . . . .’’ We have pre-
viously stated, however, that the reasonableness of a
reliance is a matter of fact for the trier. Further, the
majority inserts its own opinion of causation although
this court has repeatedly held that, in the absence of
extraordinary circumstances, causation is a matter of
fact for the trier. Therefore, I respectfully dissent from
the majority opinion.
I agree with the majority’s recitation of the facts.
Therefore, I will not repeat the facts for the purposes
of this opinion. I will insert additional facts only as
needed as part of the discussion.
I
I disagree with the majority that the trial court appro-
priately applied the summary judgment standard to the
facts of this case. ‘‘Pursuant to Practice Book § 17-49,
the party seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under applicable principles of substantive
law, entitle him to a judgment as a matter of law . . .
and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . . [A] party oppos-
ing [a motion for] summary judgment must substantiate
its adverse claim by showing that there is a genuine
issue of material fact together with evidence disclosing
the existence of such an issue. . . . On a motion by
the defendant for summary judgment, the burden is on
the defendant to negate each claim as framed by the
complaint . . . . It necessarily follows that it is only
[o]nce the defendant’s burden in establishing his or
her entitlement to summary judgment is met [that] the
burden shifts to the plaintiff to show that a genuine
issue of fact exists justifying a trial.’’ (Citations omitted;
internal quotation marks omitted.) Iacurci v. Sax, 313
Conn. 786, 808–809, 99 A.3d 1145 (2014). ‘‘[I]n deciding
a motion for summary judgment, the trial court must
view the evidence in the light most favorable to the
nonmoving party.’’ (Internal quotation marks omitted.)
DiPietro v. Farmington Sports Arena, LLC, 306 Conn.
107, 116, 49 A.3d 951 (2012).
Respectfully, in my view, both the trial court and the
majority have failed to view the evidence regarding
fraud, negligent misrepresentation and accounting mal-
practice in the light most favorable to the plaintiffs.
The majority concludes that there is no issue of material
fact regarding the fraud and negligent misrepresenta-
tion counts because there is no showing of reliance on
the part of the plaintiffs. The majority states that
‘‘[a]side from William’s affidavit, the plaintiffs do not
direct our attention to any counterevidence outside of
the pleadings that could support their essential element
of reliance.’’ (Emphasis omitted.) I respectfully dis-
agree. In my view, the facts that one of the plaintiffs had
a telephone call with the defendant in which financial
matters were discussed and that the defendant for-
warded financial statements to the plaintiffs, is suffi-
cient to raise a genuine issue of material fact as to the
fraud and negligent misrepresentation claims.
I further agree with the majority of the Appellate
Court, which stated that ‘‘[u]nder these circumstances,
it is of no legal significance that the plaintiffs had no
direct contact with the defendant. In sum, the record
available to the court, particularly Judge Adams’ deci-
sion in Stuart v. Stuart, [Superior Court, judicial district
of Stamford-Norwalk, Complex Litigation Docket,
Docket No. X08-CV-02-0193031-S (June 28, 2004) (37
Conn. L. Rptr. 367), aff’d, 112 Conn. App. 160, 962 A.2d
842 (2009), rev’d in part, 297 Conn. 26, 996 A.2d 259(2010)], provides sufficient counterbalance to the
defendant’s filings in support of his motion for summary
judgment to render resolution of the issue of reliance
to the adjudication of fact finders and not to summary
disposition by the court short of trial.’’ Stuart v. Frei-
berg, 142 Conn. App. 684, 702, 69 A.3d 320 (2013). I
note, as did the Appellate Court, that Judge Adams’
memorandum of decision in Stuart v. Stuart, supra,
was submitted to the trial court in the present case by
the defendant, as it was appended to his motion for
summary judgment. Stuart v. Freiberg, supra, 699 n.13.
The Appellate Court further noted that ‘‘the court’s
detailed and fact-laden memorandum of decision in Stu-
art v. Stuart, supra, [37 Conn. L. Rptr.] 367, makes
clear the court’s finding that the defendant provided
accounting assistance to [Kenneth] while that lengthy
litigation was pending and that, during the litigation,
improper acts were committed by [Kenneth] with the
assistance of the defendant, to the detriment of the
beneficiaries of [Stuart’s] estate.’’ Stuart v. Freiberg,
supra, 142 Conn. App. 700. ‘‘For example, in its memo-
randum of decision, the court, Adams, J., noted: ‘[Ken-
neth’s] record keeping was haphazard at best. John
Slade, an accountant hired by [Kenneth] to assist with
the books and records of the [family trust] and partner-
ship from early 1992 to 1994, told [Kenneth] that he
had to be more organized in keeping records. . . . The
plaintiffs’ expert, John [D.] Dempsey, a [certified public
accountant], found that the lack of record keeping was
notable and that he had never seen a case where the
books were so incomplete and funds so commingled.
. . . Dempsey also described the work of [the defen-
dant] . . . who worked for [Kenneth] from 1994 to
2001, as designed to hide, rather than disclose the truth.
. . . Furthermore, [Kenneth] failed to produce the
annual accountings required by the [trust]. Although
certain partial information was given out from time to
time it was incomplete and unverified. The court was
never shown a complete [t]rust accounting for any
period of time.’ . . . Elsewhere in its memorandum of
decision the [trial] court noted: ‘[T]he regularity and
extent that [Kenneth] directed the use of partnership
funds for his personal benefit is staggering. This course
of action was explicitly articulated by both [the defen-
dant and Kenneth]. In a letter dated February 26, 1998,
[the defendant] advised New Milford Savings Bank . . .
that [Kenneth] received from [Stuart’s estate, the trust,
the partnership and others, certain] non taxable funds
related to executive perks, deferred compensation and
loans. . . . About two weeks later, [the defendant]
elaborated: Basically all of [Kenneth’s] living expenses
are paid from the above referenced entities . . . and
are charged or reclassified at the end of each year.
These amounts have been in excess of $90,000 per
annum.’ ’’ (Citation omitted.) Id., 700–701 n.14.
In addition, I am persuaded that William’s affidavit,
which was submitted in opposition to the motion for
summary judgment, also raises a genuine issue of mate-
rial fact that he relied on the financial advice from the
defendant.2 In my view, the content of this affidavit
provides more than a sufficient basis to justify the denial
of the motion for summary judgment on the three sepa-
rate counts. A material issue of fact clearly exists
regarding the fictitious credit of $490,755 (i.e., fraud),
the two different versions of the accounting statements
(i.e., fraud or at the very least negligent misrepresenta-
tion), and the commingling of personal and estate funds
(i.e., malpractice). Certainly, when considering these
facts in a light most favorable to the nonmoving party,
the summary judgment motion must fail.
In addition, Dempsey submitted an affidavit in oppo-
sition to the motion for summary judgment, detailing
aspects of the defendant’s accounting practices that did
not comply with professional standards.3 In my opinion,
Dempsey’s affidavit also supports the plaintiffs’ claim
that he established a genuine issue of material fact
sufficient to survive summary judgment.
The majority appears to rely on the issue of reliance
for its conclusion regarding the accounting malpractice
count, as it did in the fraud and negligent misrepresenta-
tion count. Specifically, the majority states that ‘‘the
plaintiffs have not presented any arguments that would
allow us to reach a different result here from that
already reached on the fraud and negligent misrepresen-
tation counts.’’ However, reliance or the reasonableness
thereof has never been an element of a professional
malpractice claim. Instead, in my view, the majority
inserts its own opinion into an area that has classically
been left for the jury—causation. I would therefore
affirm the judgment of the Appellate Court on the
ground that the affidavits and records in the present
case clearly establish that a material issue of fact exists
with regard to all three counts within the plaintiffs’
complaint, namely, fraud, negligent misrepresentation
and accounting malpractice.
The majority appears to discard William’s affidavit
as conclusory. In my view, however, William is entitled
to state that he relied on the financial statements that
were sent to him, if for no other reason than to establish
the fact that something was being done regarding the
estate, which lulled the plaintiffs to forbear seeking the
ouster of the executor. It has long been established
that the reliance, which is necessary to establish both
negligent representation and fraud, may take the form
of forbearance. See Stewart v. Cendant Mobility Ser-
vices Corp., 267 Conn. 96, 112, 837 A.2d 736 (2003).4
Further, this court has held that forbearance need not
be proven by direct evidence, but may be proven by
circumstantial evidence. See First Federal Savings &
Loan Assn. of Rochester v. Charter Appraisal Co., 247
Conn. 597, 614, 724 A.2d 497 (1999). It appears that the
majority discounts William’s statement that he relied
on both the financial statements and the telephone call
by stating this could not possibly be true since William
and Johnathan did not examine the financial state-
ments. In my view, however, the majority’s conclusion
is really based on a finding that it was not reasonable
for William to rely on the financial statement and
rejecting that reliance out of hand.
We have stated, however, that the reasonableness
of reliance is a question for the trier of fact. Coppola
Construction Co. v. Hoffman Enterprises Ltd. Partner-
ship, 309 Conn. 342, 352 n.6, 71 A.3d 480 (2013).
‘‘Although we conclude that no special relationship is
required to state a claim of negligent misrepresentation,
the plaintiff must allege and prove that the reliance on
the misstatement was justified or reasonable. We have
consistently held that reasonableness is a question of
fact for the trier to determine based on all of the circum-
stances.’’ Williams Ford, Inc. v. Hartford Courant Co.,
232 Conn. 559, 579–80, 657 A.2d 212 (1995). Thus, in
Williams Ford, Inc., when the defendant made certain
misstatements to the plaintiff we stated that: ‘‘[w]e
believe that both of these arguments go to the issue of
whether the reliance on the misstatements was justified
rather than to the existence of a duty. . . . In making
this determination, the fact finder certainly could take
into account the casualness of the allegedly false state-
ments and the context in which they were made.
Although the reliance upon casual misstatements might
not be reasonable in a given case, we are not persuaded
that the absence of a special relationship between the
parties is justification for precluding a cause of action
based on negligent misrepresentation in all cases involv-
ing casual misstatements.’’ (Citations omitted.) Id. Fur-
ther, in Coppola Construction Co. v. Hoffman
Enterprises Ltd. Partnership, supra, 352 n.6, when
dealing with a motion to strike, we stated that ‘‘[t]he
complaint does not expressly state that the plaintiff’s
reliance on [the individual defendant’s] misrepresenta-
tions was reasonable, but, given [his] position with
respect to [the corporate defendant], and the lack of any
argument to the contrary . . . we read the pleadings to
be inclusive of that element of the negligent misrepre-
sentation tort. In any event, we note that the reasonable-
ness of the plaintiff’s reliance will be a question of fact
for the trier.’’ In effect, by stating that the matter of
reliance is conclusory in the affidavit, the majority is
foreclosing the plaintiffs from making allegations
regarding an essential element of proof in their case—
reliance. Instead, I would conclude that the reasonable-
ness of the reliance is a question for the trier of fact,
rather than summarily disposing of the case.
Furthermore, in his affidavit, William explained that
‘‘[a]s a result of [the defendant’s] creation of the ficti-
tious credit, the property known as 434–436 Hurlbutt
Street was transferred out of the [e]state, and resulted
in a direct monetary loss to me and Jonathan.’’ William
also averred that the defendant ‘‘began combining the
transactions of all entities and [Kenneth] personally,
such that we had to engage a forensic accountant at a
cost to Jonathan and me of over $400,000, to untangle
the web of deceit that [the defendant] had created.’’
Thus, contrary to the majority’s assertion, William’s
affidavit was not conclusory, but explained what
actions the plaintiffs took as a result of the defen-
dant’s actions.
In view of the fact that I disagree with the majority
regarding the sufficiency of the documentation to create
an issue of fact, I must reach an issue which the major-
ity, in view of its conclusions, did not need to address.
Therefore, with regard to the second and third counts,
negligent misrepresentation and accounting malprac-
tice, I will now discuss my view that the defendant,
although hired by Kenneth as executor of Stuart’s
estate, owed a legal duty to the plaintiffs as the
estate’s beneficiaries.5
II
The majority concludes that ‘‘the plaintiffs did not
present sufficient counterevidence to demonstrate that
there existed a genuine issue of material fact with
respect to their accounting malpractice count.’’ I dis-
agree and would conclude that the plaintiffs established
a prima facie case of professional negligence sufficient
to defeat the defendant’s motion for summary judgment
as to that count.
As this court stated, in the context of attorney mal-
practice claims, in Krawczyk v. Stingle, 208 Conn. 239,
244, 543 A.2d 733 (1988), ‘‘[a]s a general rule, attorneys
are not liable to persons other than their clients for the
negligent rendering of services. A number of jurisdic-
tions have recognized an exception to the general rule
when the plaintiff can demonstrate that he or she was
the intended or foreseeable beneficiary of the attorney’s
services.’’ The same reasoning applies with equal force
to an accountant hired by the executor of an estate. In
Krawczyk, this court acknowledged the exception to
the rule recognized in other states and noted that
‘‘[a]ccordingly, courts have held that the intended bene-
ficiary has a cause of action against an attorney who
failed to draft a will in conformity with a testator’s
wishes . . . . The question before us is whether such
liability should be further expanded to encompass negli-
gent delay in completing and furnishing estate planning
documents for execution by the client.’’ (Citations omit-
ted.) Id., 245. This court seemed to accept, sub silencio,
the fact that Connecticut would acknowledge the initial
exception. This court then proceeded to indicate the
factors that would be important in any consideration of
expanding the exception. ‘‘Determining when attorneys
should be held liable to parties with whom they are not
in privity is a question of public policy. . . . In
addressing this issue, courts have looked principally to
whether the primary or direct purpose of the transac-
tion was to benefit the third party. . . . Additional fac-
tors considered have included the foreseeability of
harm, the proximity of the injury to the conduct com-
plained of, the policy of preventing future harm and
the burden on the legal profession that would result
from the imposition of liability.’’ (Citations omitted.)
Id., 245–46. This court in Krawczyk declined to expand
the extension because it held that the time constraint
might conflict with the attorney’s duty to properly repre-
sent his client. In other words, if he felt that he might
be liable to the beneficiaries, the attorney, whom did
not have all of the information that was needed to make
a considered decision, might rush the testator into a
decision that was not warranted. There is no time con-
straint issue presented in this case.
With these principles in mind, I turn to an analysis
of the facts in the present case in comparison to the
relevant principles of law. I note at the outset that a
few states have already acknowledged that an action
by beneficiaries of an estate or trust may lie against an
accountant. See Estate of Smith v. Underwood, 127
N.C. App. 1, 5, 487 S.E.2d 807 (1997) (action by trust
beneficiaries against accountant for breach of fiduciary
duty); see also Jewish Hospital v. Boatmen’s National
Bank, 261 Ill. App. 3d 750, 766, 633 N.E.2d 1267 (1994)
(finding that accountant owed duty to remainder benefi-
ciaries of decedent’s estate, despite fact that beneficiar-
ies were not clients of accountant). Further, other states
have found attorneys for an estate liable to the benefici-
aries. ‘‘It is the duty of a fiduciary of an estate to serve
as representative of the entire estate. Such fiduciary,
in the administration of an estate, owes a duty to benefi-
ciaries to act in a manner which protects the beneficiar-
ies’ interests. We believe that this duty places the
beneficiaries in privity with the executor.’’ Elam v.
Hyatt Legal Services, 44 Ohio St. 3d 175, 176, 541 N.E.2d
616 (1989); see also Bucquet v. Livingston, 57 Cal. App.
3d 914, 916–17, 129 Cal. Rptr. 514 (1976).
A
Intended Beneficiaries
The plaintiffs certainly have presented a material
issue of fact regarding whether the plaintiffs were the
intended or foreseeable beneficiaries of the defendant’s
actions. The evidence shows that the defendant was
hired by the executor, paid by estate funds, had at least
one conversation regarding financial statements with
one of the plaintiffs, and forwarded the financial state-
ments of the estate to the plaintiffs. Furthermore, it
was established that the defendant knew that he was
working on behalf of the estate, and he was also aware
that the plaintiffs, along with Kenneth, were the
remaining beneficiaries of the estate.
The preparation of accurate financial statements
would have been a direct benefit to the estate and,
therefore, to the plaintiffs. Accurate information would
have allowed the plaintiffs to fully appreciate the extent
of their distribution. According to the information set
forth in the affidavits, the defendant produced inaccu-
rate financial statements, and, in some instances, dual
financial statements showing different figures. These
documents served to deceive the beneficiaries and
worked to Kenneth’s advantage. The fact that the defen-
dant was willing to talk to one of the plaintiffs and
forwarded the financial statements to both of them
indicates his knowledge that the statements were pre-
pared for, and intended to benefit, the plaintiffs.
On the basis of the foregoing, I would conclude that
the plaintiffs have established a genuine issue of mate-
rial fact regarding whether they were the intended bene-
ficiaries of the defendant’s professional advice.
B
Foreseeability of Harm
The plaintiffs also established a genuine issue of
material fact as to whether the harm to them was fore-
seeable. If the accountant presented two different finan-
cial statements for the same period of time, created a
fictitious credit for the benefit of one beneficiary, and
commingled estate funds with the personal funds of
one beneficiary, it certainly presents an issue of fact
for the jury whether it was foreseeable that harm would
be caused to the other two beneficiaries, both of whom
were unaware of the fictitious account, commingling
of funds and the two financial statements.
C
Proximity of Injury
Dempsey’s affidavit clearly establishes a genuine
issue of material fact that the defendant breached the
standard of care. As stated previously in this opinion,
Dempsey’s affidavit states that: the accounting records
kept by the defendant ‘‘fell short of the typical standard
[Dempsey] would expect of a [c]ertified [p]ublic
[a]ccountant’’; the defendant ‘‘prepared two sets of con-
solidated financial statements for the same fiscal year’’;
several checks written to pay for Kenneth’s personal
expenses were not recorded by the defendant on the
books of the estate or its related entities; the defendant
had created a fictitious entry on the estate’s books in
which he gave Kenneth a credit of $490,755; the defen-
dant’s records were ‘‘designed to hide, rather than dis-
close the truth’’; and there were significant ‘‘lynchpin
documents’’ that were never produced, which pre-
cluded Dempsey from establishing additional damages.
See footnote 3 of this dissenting opinion.
Further, William’s affidavit establishes a question of
fact as to the injury and its causal connection to the
breach of the standard of care. As stated previously in
this opinion, William’s affidavit states that: the defen-
dant created a fictitious credit in the amount of $490,755
on the books of the partnership despite the fact that
there was no legitimate basis for such a credit; the
defendant misrepresented the true state of the estate’s
assets and liabilities by creating this fictitious credit;
‘‘the property known as 434–436 Hurlbutt Street was
transferred out of the [e]state,’’ causing the plaintiffs a
direct monetary loss; and the defendant combined the
transactions of the estate and its related entities with
Kenneth’s personal finances such that the plaintiffs
‘‘had to engage a forensic accountant at a cost . . . of
over $400,000 . . . .’’ See footnote 2 of this dis-
senting opinion.
On the basis of the foregoing, I would conclude that
there is sufficient evidence to establish a genuine issue
of material fact regarding all of the required elements
of a professional malpractice claim. I note further that
‘‘[t]he issue of proximate causation is ordinarily a ques-
tion of fact for the trier. . . . Conclusions of proximate
cause are to be drawn by the jury and not by the court.
. . . It becomes a conclusion of law only when the
mind of a fair and reasonable [person] could reach
only one conclusion; if there is room for a reasonable
disagreement, the question is one to be determined by
the trier as a matter of fact.’’ (Internal quotation marks
omitted.) Grenier v. Commissioner of Transportation,
306 Conn. 523, 558, 51 A.3d 367 (2012). In light of the
affidavits submitted in the present matter, in my view,
there is room for reasonable disagreement and the mat-
ter should be presented to the jury.
D
Preventing Future Harm
The malpractice of any professional, along with negli-
gent misrepresentation, have been recognized as justifi-
able causes of action in Connecticut for decades. The
purpose of allowing such causes of action is not only
to restore the injured party, but also to provide notice
to a class of defendants that similar conduct may be
subject to civil penalties, in the hope of preventing such
conduct in the future. The allowance of this type of
cause of action will place accountants, and all profes-
sionals who work for estates, on notice that they must
conduct their actions in an effort to represent all benefi-
ciaries, not any one beneficiary in particular.
E
Burden on Accounting Profession by Imposing Liability
While the imposition of this type of claim might result
in additional claims against accountants, it is the type
of claim that can be covered by the accountant’s mal-
practice insurance, which any accountant would nor-
mally carry in regard to the representation of his clients.
While the number of claimants may increase, the actual
liability may not change in a case, such as this one,
where an accountant represents an estate. For instance,
if the accountant made an error in preparing an estate
tax return such that the estate had to pay $300,000 more
in taxes than necessary, the accountant could be the
subject of a civil action to recover the moneys brought
by the executor of the estate. In a case such as this
one, the beneficiaries would be allowed to join that
action. If there were a recovery on behalf of the estate,
however, there would be no additional recovery by the
beneficiaries. Thus, there would be no additional bur-
den imposed on the accountant.
In the present case, however, if the facts as alleged
were proven, it would be evident that an accountant
was working with an executor to the detriment of the
beneficiaries. In such a case, the executor would proba-
bly not bring an action against the accountant. There-
fore, the beneficiaries would have the ability to bring an
action against the accountant to recoup the distributive
share that they lost as the result of the accountant’s
negligence. The public policy of compensating victims
through a tort complaint is, therefore, satisfied.
In light of these considerations, I would conclude
that the public policy dictates that the accountant who
represents an executor in the preparation of financial
statements or tax returns is liable to the beneficiaries
of the estate.
III
I would conclude that the plaintiffs raised genuine
issues of material fact as to the claims of fraud, negligent
misrepresentation, and accounting malpractice and
would, accordingly, affirm the judgment of the Appel-
late Court. Therefore, I respectfully dissent.
1
Like the majority, in the interest of simplicity, I refer to the plaintiffs
and their elder brother, Kenneth J. Stuart, Jr., individually by first name and
to their father, Kenneth J. Stuart, Sr., by the family surname. See footnote
5 of the majority opinion.
2
This affidavit provided in relevant part: ‘‘5. [The defendant] was hired
by Kenneth . . . when he was acting in the capacity of executor of [Stu-
art’s] [e]state.
‘‘6. Jonathan and I previously brought suit against [Kenneth], and proved
that he illegally commingled funds of the [e]state, stole monies from the
[e]state for his personal use, and unduly influenced [Stuart] when he was
mentally incompetent.
‘‘7. During the course of our litigation against [Kenneth], [the defendant]
was the accountant for the [e]state and its related entities.
‘‘8. [The defendant] regularly assisted [Kenneth] and his counsel in prepar-
ing accounting reports for the [e]state and its related entities.
‘‘9. [The defendant] addressed his [e]state [a]ccounting reports to the
‘beneficiaries of the [e]state of . . . Stuart’ and sent them to Jonathan and
me through [Kenneth’s] counsel.
‘‘10. [The defendant] also sent certain [e]state accounting reports to vari-
ous third parties, which facilitated [Kenneth’s] ability to continue to steal
monies from the [e]state and its related entities.
‘‘11. In at least one accounting report, [the defendant] prepared two differ-
ent versions, submitting one to a third party to induce them to loan money
to [Kenneth] and the [e]state entities, and providing the other copy to Jona-
than and me through counsel.
‘‘12. In one accounting report that he prepared, [the defendant] designated
a payment to Smith College, which was for the benefit of [Kenneth’s] daugh-
ter and not an [e]state expense, as an arbitration expense.
‘‘13. In another accounting report that he prepared, [the defendant] desig-
nated the purchase of a Rolex watch for [Kenneth’s] wife as a purchase of
inventory, as if it had actually been an [e]state expense.
‘‘14. [The defendant] created a fictitious credit in the amount of $490,755
on the books of [the partnership], despite that there was no legitimate basis
for that credit.
‘‘15. By creating the fictitious credit of $490,755, [the defendant] misrepre-
sented the true state of the [e]state’s assets and liabilities.
‘‘16. As a result of [the defendant’s] creation of the fictitious credit, the
property known as 434–436 Hurlbutt Street was transferred out of the
[e]state, and resulted in a direct monetary loss to me and Jonathan.
‘‘17. I had at least one conversation with [the defendant] in which we
discussed the accounting for the [e]state and its related entities.
‘‘18. In a conversation with me, [the defendant] admitted that he was
unable to determine the true value of the [e]state monies that [Kenneth]
had spent on himself.
‘‘19. [The defendant] prepared reports for the [e]state and its related
entities, and I relied on those accounting reports. . . .
‘‘22. As the accountant for . . . the [e]state [and its related] entities, [the
defendant] began combining the transactions of all entities and [Kenneth]
personally, such that we had to engage a forensic accountant at a cost to
Jonathan and me of over $400,000, to untangle the web of deceit that [the
defendant] had created.
‘‘23. I relied on [the defendant], as a [c]ertified [p]ublic [a]ccountant, to
provide accurate accounting information for the [e]state and its related
entities.
‘‘24. As a result of my reliance of [the defendant’s] reports, I suffered
pecuniary damages, as we delayed pursuing removal of [Kenneth] as [e]xecu-
tor of the [e]state.
‘‘25. Jonathan and I have suffered personal financial losses as a result of
[the defendant’s] actions, by both the reduction of the [e]state’s assets and
by the monies we expended to unravel the complex and deceitful accounting
reports he had prepared.’’
3
In his affidavit Dempsey averred as follows: ‘‘8. I found the accounting
records kept by [the defendant] for the [e]state fell short of the typical
standard I would expect of a [c]ertified [p]ublic [a]ccountant. For example:
‘‘a. The [d]efendant prepared two sets of consolidated financial statements
for the same fiscal year (2000). Both were addressed to the beneficiaries
of the [e]state. One set was delivered to [Kenneth’s] bank in support of a loan
application; the other was delivered several months later to the beneficiaries.
‘‘b. The [d]efendant failed to account for all transactions recorded in the
[partnership] checking account . . . I found that several checks written to
pay [Kenneth’s] personal expenses were not recorded by [the defendant]
on the books of the [e]state entities.
‘‘c. I found that the [d]efendant had created a fictitious entry on the
[e]state’s books in which he gave [Kenneth] a credit of $490,755, despite
that there was no legitimate basis for that credit.
‘‘9. I testified on October 21, 2003 that I believed [the defendant’s] records
to be designed to hide, rather than disclose the truth.
‘‘10. In addition to the inadequate accounting, there were significant
lynchpin documents that were never produced, which precluded me from
establishing additional damages that I believe existed.’’
‘‘Summary judgment is a method of resolving litigation when 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.) Grenier v. Commis-
sioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). The
majority places great emphasis on the operative complaint and its usage of
the term reliance as opposed to the term causation. However, while the
complaint may have been inartfully drawn, it can always be amended either
prior to trial, or after trial to conform to the proof. Dempsey’s affidavit,
however, in my view, creates an issue of fact regarding accounting malprac-
tice count. Since we rely on not only the pleadings, but affidavits and any
other proof, I believe that an issue of fact has been created in this count.
Indeed, William averred in his affidavit that ‘‘as a result of [the defendant’s]
creation of the fictitious credit, the property known as 434–436 Hurlbutt
Street was transferred out of the [e]state, and resulted in a direct monetary
loss to me and Jonathan.’’ Further, Dempsey’s mention of a $490,755 fictitious
credit would further indicate a loss to the plaintiffs, and a causal connection
to the accounting malpractice.
4
The plaintiffs’ complaint clearly contains a forbearance allegation. Specif-
ically count one of the operative complaint explicitly alleges that ‘‘[t]he
aforesaid representations were in fact, misrepresentations, and the plaintiffs
relied on [the defendant’s] misrepresentations as aforementioned, in that
they, including without limitation, delayed pursuing the removal of [Kenneth]
from his position as fiduciary of the [e]state . . . because they believed
[the defendant’s] statements to be true, and that they delayed pursuing their
claims in Superior Court against [Kenneth] in reliance on [the defendant’s]
misrepresentations.’’ This allegation was subsequently incorporated, by ref-
erence, in both the second and third counts of the operative complaint.
5
The issue of duty is not relevant to the fraud count.