Deroy v. Reck

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ALETA DEROY v. STEPHEN M. RECK ET AL.
(AC 40021)
Keller, Elgo and Bright, Js.
Syllabus
The plaintiff sought to recover damages for legal malpractice from the
defendant attorneys, who had represented the plaintiff’s mother, the
decedent, in connection with the decedent’s execution of a will that
was subsequently found to be null and void due to the decedent’s incom-
petence at the time she executed the will. The trial court granted in part
the defendants’ motion for summary judgment and rendered judgment
thereon, from which the plaintiff appealed to this court, claiming that the
trial court improperly concluded that expert testimony was necessary
to establish the standard of proper professional skill or care. Specifically,
the plaintiff claimed that the requirement for expert testimony in legal
malpractice cases was obviated because the defendants’ conduct demon-
strated such an obvious and gross want of care and skill that neglect
was clear even to a layperson. The plaintiff’s claim was based, in part,
on the fact that one of the defendant attorneys had referred the decedent
to be examined by T, a neuropsychologist, who authored a report con-
cluding that the decedent was suffering from dementia and that it was
unlikely that she could make fully informed, thoughtful judgments
regarding complex financial or legal issues. After reviewing that report,
the defendants decided to proceed with the execution of the decedent’s
will. Held that the trial court properly rendered summary judgment in
favor of the defendants, as their alleged malpractice was not so gross
and obvious that their failure to comply with the standard of care would
have been clear, even to a layperson: the plaintiff’s reliance on T’s report
as the basis for a fact finder to conclude, without expert testimony, that
the defendants violated the standard of care was misplaced, as this
court concluded previously that T’s conclusion in the report was not
determinative of whether the decedent was competent to execute the
will, the defendants’ knowledge of T’s report did not mean that they
obviously and grossly violated the standard of care by concluding that
the decedent was competent to execute the will, and, thus, expert testi-
mony was required to show what actions the defendants, as attorneys,
should have taken considering T’s report and the correct standard for
testamentary capacity; moreover, the fact that the plaintiff ultimately
prevailed in her previous action to contest the validity of the will did
not obviate the need for expert testimony, and her reliance on the
defendants’ observations and interactions with the decedent prior to
and during the execution of the will only highlighted the need for expert
testimony, as the standard of care owed may have been different for
each defendant in light of each defendant’s particular circumstances,
relationship to the decedent and knowledge of her mental state.
Argued December 12, 2018—officially released March 12, 2019
Procedural History
Action to recover damages for legal malpractice, and
for other relief, brought to the Superior Court in the
judicial district of New London, where the court, Vac-
chelli, J., granted the defendants’ motion for summary
judgment and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Aleta Deroy, self-represented, the appellant
(plaintiff).
Cristin E. Sheehan, with whom, on the brief, was
Patrick J. Day, for the appellees (defendants).
Opinion
BRIGHT, J. In this legal malpractice action, the self-
represented plaintiff, Aleta Deroy, appeals from the
summary judgment rendered by the trial court in favor
of the defendant attorneys, Stephen M. Reck, Raymond
Trebisacci, and Lewis A. Button III. On appeal, the plain-
tiff claims, inter alia,1 that the court improperly con-
cluded that expert testimony was necessary to establish
the standard of proper professional skill or care, and
that the failure of the plaintiff to disclose such an expert
required the court to render summary judgment in favor
of the defendants. We affirm the judgment of the
trial court.
Viewed in the light most favorable to the plaintiff as
the nonmoving party, the record reveals the following
facts and procedural history. In February, 2002, the
decedent, Edith Baron, was a widow with three chil-
dren: the plaintiff, Jeanne Baron, and Glen Baron. On
February 3 and 12, 2002, the decedent executed quit-
claim deeds conveying her interest in an eighty-nine
acre farm to herself and to Jeanne Baron as tenants in
common. On February 12, 2002, the decedent executed
a will (February will) devising the entirety of her estate,
including her interest in the farm, to the plaintiff and
Glen Baron in equal shares.
In May, 2002, Jeanne Baron’s son, Elias Baron, con-
tacted Attorney Button, with whom he was friends, and
told him that the decedent desired to make a new will.
At that time, Attorney Button was a new lawyer working
for Attorney Trebisacci and Attorney Reck in their law
firm, Trebisacci & Reck. The proposed new will, which
was drafted by Attorney Trebisacci, devised the dece-
dent’s interest in the farm to Jeanne Baron and provided
that the residue and remainder of the estate would be
distributed in equal shares to her three children.
While the new will was being drafted, the decedent
was exhibiting symptoms of dementia. Attorney Button,
who had not completed many will executions, was con-
cerned about the decedent’s testamentary capacity and,
as a result, he referred her to be examined by Christo-
pher Tolsdorf, a neuropsychologist. On June 12, 2002,
after evaluating the decedent, Dr. Tolsdorf authored a
report in which he concluded that she was suffering
from dementia. In his report, Dr. Tolsdorf specifically
concluded that ‘‘[g]iven her cognitive impairments it is
unlikely that she would be able to make fully informed,
thoughtful judgments regarding complex financial or
legal issues.’’ After reviewing and discussing Dr. Tols-
dorf’s report, Attorney Button and Attorney Trebisacci
decided to proceed with the execution of the decedent’s
new will.2
On July 3, 2002, the decedent went to the office of
Trebisacci & Reck to execute her new will. Attorney
Trebisacci was supposed to preside over the will execu-
tion, but he had to leave the office. He told Attorney
Button that if the decedent arrived at the office before
he returned, Attorney Button should proceed with the
will execution in his absence. When the decedent
arrived at the defendants’ office, Attorney Trebisacci
had not yet returned. Following Attorney Trebisacci’s
instructions, Attorney Button proceeded with the will
execution. During the execution of the new will, Attor-
ney Button observed that the decedent was ‘‘so con-
fused that the proceedings had to be halted.’’ In light
of the fact that Attorney Trebisacci was not in the office,
Attorney Button sought the assistance of the other part-
ner in the firm, Attorney Reck. Attorney Reck ques-
tioned the decedent about the newly drafted will, and
it was decided that she was to proceed and execute
the will. The decedent executed the new will (July will)
on the same date.
On July 26, 2006, the decedent died. The plaintiff
previously had not been aware of the July will and,
thus, she had expected her inheritance of the farm to
be in accordance with the terms of the February will.
The plaintiff subsequently challenged the July will in
the Probate Court on the grounds of undue influence
and lack of testamentary capacity. On November 5,
2008, after a hearing, the Probate Court rejected the
plaintiff’s challenge to the July will.
On December 4, 2008, the plaintiff filed an appeal
from the decision of the Probate Court to the Superior
Court. On November 3, 2010, after an evidentiary pro-
ceeding, the Superior Court issued an oral decision
declaring the July will ‘‘null and void’’ on the basis that
the decedent was ‘‘incompetent’’ when she executed
the July will. Jeanne Baron filed an appeal from the
decision of the Superior Court to this court.
On June 5, 2012, this court held that the Superior
Court had ‘‘applied an incorrect standard to the question
of testamentary capacity,’’ and, thus, reversed the judg-
ment of the Superior Court and remanded the matter
for further proceedings. Deroy v. Estate of Baron, 136
Conn. App. 123, 129–30, 43 A.3d 759 (2012). In particu-
lar, this court held that the Superior Court incorrectly
based its determination that the decedent was not com-
petent on Dr. Tolsdorf’s conclusion that the decedent
lacked the capacity to make judgments about ‘‘complex
financial issues.’’ (Internal quotation marks omitted.)
Id., 129. Instead, the Superior Court was required to
determine whether the decedent ‘‘had mind and mem-
ory sound enough to know and understand the business
upon which she was engaged, that of the execution
of a will, at the very time she executed it.’’ (Internal
quotation marks omitted.) Id., 128. This court further
noted that ‘‘[i]t is equally clear that an individual may
possess the mental capacity necessary to make a will
although incapable of transacting business generally.’’
Id.
On June 18, 2013, after a trial on remand, the Superior
Court issued a memorandum of decision in which it
found that the decedent lacked the testamentary capac-
ity to execute the July will, and, thus, it declared the
July will void. No appeal was taken from the June 18,
2013 judgment.
On June 23, 2015, the plaintiff filed the present legal
malpractice action against the defendants. In the opera-
tive one count, second amended complaint, the plaintiff
alleged that the defendants ‘‘were [the decedent’s] attor-
neys in the interviewing, drafting, and execution of her’’
July will. The plaintiff alleged that, in light of Dr. Tols-
dorf’s report, the defendants knew or should have
known that the decedent lacked the testamentary
capacity to execute the July will and, thus, ‘‘departed
from the standard of professional care owed to protect
[the decedent’s] legal interest in this matter,’’ and ‘‘had
committed legal malpractice,’’ by permitting the dece-
dent to execute the July will.
On August 5, 2016, the defendants filed a motion
for summary judgment and a memorandum of law in
support thereof. The defendants contended, in relevant
part, that they were entitled to judgment as a matter
of law because the plaintiff had failed to obtain or
disclose an expert who could testify regarding the appli-
cable standard of care. In support of their motion, the
defendants attached a number of exhibits principally
evincing the prior proceedings before the Probate Court
and the Superior Court.
On September 26, 2016, the plaintiff filed an objection
to the defendants’ motion for summary judgment and
a memorandum of law in support thereof. The plaintiff
argued, among other things, that expert testimony was
not required because the defendants’ conduct fell within
the exception to the expert testimony requirement for
obvious and gross want of care and skill. On October
3, 2016, the plaintiff filed several attachments in support
of her objection that related to the prior proceedings
contesting the July will.3 The defendants and the plain-
tiff subsequently filed supplemental memoranda in sup-
port of their respective positions.
On December 6, 2016, after a hearing, the court issued
a memorandum of decision granting the defendants’
motion for summary judgment. The court concluded,
in relevant part,4 that the defendants were entitled to
judgment as a matter of law because expert testimony
was required to establish whether ‘‘the defendants devi-
ated from the prevailing professional standard of care,’’
and the plaintiff had not disclosed such an expert.5 This
appeal followed.
We begin by setting forth the standard of review
and legal principles that govern our resolution of this
appeal. ‘‘It is well established that 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. In deciding a motion for
summary judgment, the trial court must view the evi-
dence in the light most favorable to the nonmoving
party. . . . The party moving for summary judgment
has the burden of showing 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 cor-
rect and whether they find support in the facts set
out in the memorandum of decision of the trial court.’’
(Internal quotation marks omitted.) Graham v. Com-
missioner of Transportation, 330 Conn. 400, 414–15,
195 A.3d 664 (2018). ‘‘The determination of whether
expert testimony is needed to support a claim of legal
malpractice presents a question of law. . . . Accord-
ingly, our review is plenary.’’ (Internal quotation marks
omitted.) Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d
205 (2012).
‘‘Summary judgment in favor of a defendant is proper
when expert testimony is necessary to prove an essen-
tial element of the plaintiff’s case and the plaintiff is
unable to produce an expert witness to provide such
testimony. . . . 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 profes-
sion with the result of injury, loss, or damage to the
recipient of those services . . . . Generally, a plaintiff
alleging legal malpractice must prove all of the follow-
ing elements: (1) the existence of an attorney-client
relationship; (2) the attorney’s wrongful act or omis-
sion; (3) causation; and (4) damages.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks
omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282–
83, 147 A.3d 1023 (2016).
‘‘As a general rule, for the plaintiff to prevail in a
legal malpractice case in Connecticut, he 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, supra, 303
Conn. 329–30. ‘‘There is an exception to this rule, how-
ever, [when] there is such an obvious and gross want
of care and skill that neglect is clear even to a lay
person.’’ (Internal quotation marks omitted.) Id., 330.
This exception ‘‘is limited to situations in which the
. . . attorney essentially has done nothing whatsoever
to represent his or her client’s interests . . . .’’ (Inter-
nal quotation marks omitted.) Id., 335. Nevertheless,
‘‘[t]here very well may be instances in which an attor-
ney, after a period of competent representation,
engages in conduct that clearly falls below the requisite
standard of care, and in such a circumstance the jury
may not require the aid of expert testimony to under-
stand the applicable standard.’’ Id., 336 n.14; see Cam-
marota v. Guerrera, 148 Conn. App. 743, 751–52, 87 A.3d
1134 (concluding that attorney’s act of giving check
payable to client to another individual constituted negli-
gence within common experience of lay jurors not
requiring expert testimony), cert. denied, 311 Conn. 944,
90 A.3d 975 (2014).
Here, it is undisputed that the plaintiff did not retain
or disclose an expert witness to testify concerning the
standard of care to which the defendants’ legal repre-
sentation should be held. See footnote 5 of this opinion.
Instead, the plaintiff contends that the requirement of
expert testimony was obviated because the defendants’
conduct demonstrated such an obvious and gross want
of care and skill that neglect is clear even to a layperson.
The gravamen of the plaintiff’s claim is that the defen-
dants breached the applicable standard of care by col-
lectively permitting the decedent to execute the July
will notwithstanding her apparent mental state, as
evinced by Dr. Tolsdorf’s report and their observations
of the decedent prior to and during the July will execu-
tion. We are not persuaded.
In support of her position, the plaintiff primarily relies
on Paul v. Gordon, 58 Conn. App. 724, 754 A.2d 851(2000). In Paul, the defendant attorney agreed to ‘‘han-
dle’’ a summary process action filed against the plain-
tiffs, his clients. (Internal quotation marks omitted.)
Id., 725–26. The defendant, however, took no action
in connection with the summary process action and,
consequently, judgment by default was rendered
against the plaintiffs and they were evicted from the
premises. Id., 726. On appeal, this court reversed the
judgment of the trial court granting the defendant’s
motion for summary judgment and held that ‘‘no expert
testimony is required to establish legal malpractice in
a situation where an action has been brought against
a party and judgment by default is rendered against
that party in the case because his attorney has allegedly
done absolutely nothing to protect him. The defendant’s
alleged failure to take any action whatsoever to protect
the interests of the plaintiffs is conduct that involves
such an obvious and gross want of care and skill that
the neglect would be clear even to a layperson.’’ Id., 728.
In contrast to Paul, there is no allegation in the pre-
sent case that the defendants did ‘‘absolutely nothing’’;
id.; to defend the plaintiff. In the present case, unlike
Paul, the plaintiff challenges the propriety of the actions
taken by the defendants in connection with their repre-
sentation of the decedent and the execution of the July
will. Indeed, there is no genuine issue of material fact
that the defendants took certain precautions in connec-
tion with the execution of the July will, including refer-
ring the decedent to Dr. Tolsdorf for an evaluation and
assessing the decedent at the time the July will was
executed. Thus, this court’s decision in Paul simply
does not apply to the facts of this case.
Furthermore, the plaintiff’s reliance on Dr. Tolsdorf’s
report as the basis for a fact finder to conclude, without
expert opinion, that the defendants violated the stan-
dard of care, is misplaced. This court, in Deroy, explic-
itly held that Dr. Tolsdorf’s conclusion that the decedent
was unable ‘‘to make fully informed, thoughtful judg-
ments regarding complex financial issues’’ was not
determinative of whether the decedent was competent
to execute the July will. (Internal quotation marks omit-
ted.) Deroy v. Estate of Baron, supra, 136 Conn. App.
129. Consequently, contrary to the plaintiff’s argument,
the defendants’ knowledge of Dr. Tolsdorf’s report does
not mean that they obviously and grossly violated the
standard of care by concluding that the decedent was
competent to execute the will. To the contrary, expert
testimony was required to show what actions the defen-
dants, as attorneys, should have taken considering not
just Dr. Tolsdorf’s report, but also the correct standard
for testamentary capacity as set forth by this court in
Deroy. See id., 128–29.
Likewise, the fact that the plaintiff ultimately pre-
vailed in the Superior Court in her contest to the validity
of the July will does not obviate the need for expert
testimony. Neither the Superior Court’s decision on
remand, nor any of the other decisions regarding the
plaintiff’s contest of the July will, outlined the standard
of care that is required of attorneys in similar situations
or addressed the reasonableness of the defendants’
actions. See Grimm v. Fox, supra, 303 Conn. 324, 331–32
(rejecting plaintiff’s reliance on ‘‘critical statements’’
made by our Supreme Court in prior decision regarding
materials submitted by defendant attorney in connec-
tion with prior case).
Finally, the plaintiff’s reliance on the defendants’
observations and interactions with the decedent prior
to and during the July will execution only highlights
the need for expert testimony. In particular, expert testi-
mony was required because the standard of care owed
may have been different for each defendant. Each
defendant had a different level of involvement with the
decedent and the execution of the July will. Attorney
Button was a new lawyer who had not conducted many
will executions. He twice brought his concerns regard-
ing the decedent’s testamentary capacity to the partners
to whom he reported. He also arranged for the decedent
to see Dr. Tolsdorf and discussed Dr. Tolsdorf’s report
with his superior, Attorney Trebisacci. He went forward
with the will execution only after raising his concerns
about the decedent’s testamentary capacity with the
firm’s other partner, Attorney Reck, and after Attorney
Reck told him, after interviewing the decedent, to pro-
ceed with the execution of the will. Attorney Trebisacci
knew of Dr. Tolsdorf’s concerns but was not present
to witness the decedent when she executed the will;
instead, Attorney Trebisacci instructed Attorney Button
to proceed in his absence. Attorney Reck questioned
and observed the decedent at the execution to deter-
mine her capacity at that time. Expert testimony was
required to explain the standard of care each defendant
owed to the decedent in light of each defendants’ partic-
ular circumstances, relationship to the decedent, and
knowledge of her mental state.
We conclude that the alleged malpractice of each
defendant in the present case was not so gross and
obvious that their failure to comply with the standard
of care was clear, even to a layperson. The present
case is not one in which the defendants did ‘‘nothing
whatsoever’’; (internal quotation marks omitted) id.,
335; in connection with the execution of the July will;
but rather, is one in which the plaintiff contests whether
the propriety of the defendants’ decision to proceed
with the execution of the July will satisfied the requisite
professional standard of care. Expert testimony as to
the applicable standard of proper professional skill or
care applicable under the circumstances, and whether
any of the defendants breached the standard applicable
to them, is necessary for the resolution of the plaintiff’s
claim. Accordingly, in the absence of such testimony,
the court properly concluded that the defendants were
entitled to judgment as a matter of law.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also claims on appeal that the court improperly concluded
that the three year statute of limitations contained in General Statutes § 52-
577 barred the plaintiff’s action as a matter of law. We need not decide that
claim because we conclude that the court properly determined that the
plaintiff’s failure to disclose an expert witness was fatal to her action. See
James v. Valley-Shore Y.M.C.A., Inc., 125 Conn. App. 174, 176 n.1, 6 A.3d
1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011).
2
At some point, Dr. Tolsdorf also issued an undated opinion letter that
references his June 12, 2002 report. In the opinion letter, Dr. Tolsdorf averred
that ‘‘[b]ased on her clinical presentation and her test results it is my profes-
sional opinion that [the decedent] was not competent in June, 2002, due to
dementia.’’ Although the record is unclear as to when the opinion letter was
issued, the use of past tense and the reference to the previously completed
report suggests that the opinion letter was issued sometime after June, 2002.
This conclusion is buttressed by the fact that the plaintiff has relied only
on Dr. Tolsdorf’s June 12, 2002 report, and not the undated opinion letter,
as a basis for her claims against the defendants. In fact, the plaintiff has
never claimed before this court or the trial court that the undated opinion
letter was available to the defendants at the time the decedent executed
the new will in July, 2002. Consequently, the opinion letter is immaterial to
our resolution of this appeal.
3
The defendants moved to strike certain exhibits submitted by the plain-
tiff. In a December 6, 2016 memorandum of decision, the court granted the
motion to strike in part. Neither party contests this ruling on appeal.
4
The court also concluded that a genuine issue of material fact existed
as to whether the defendants owed a duty to the plaintiff. However, the
court determined that the defendants were entitled to judgment as a matter
of law because there was no genuine issue of material fact that the plaintiff’s
action was barred by the three year statute of limitations contained in § 52-
577. The court’s conclusion as to the duty owed by the defendants to the
plaintiff is not at issue in this appeal and, as outlined previously in footnote
1 of this opinion, we need not consider the court’s conclusion regarding
§ 52-577.
5
The plaintiff does not dispute that she failed to obtain or disclose an
expert regarding the standard of care owed by the defendants. In fact, she
attempted to retain such an expert but was unable to find someone willing
to take on the matter. In an attempt to rectify this deficiency, the plaintiff,
on July 12, 2016, filed a ‘‘motion to dispense with expert witness testimony’’
in which she argued that exceptions to the requirement of expert testimony
in a legal malpractice action applied to the present case. The court ordered
that argument be scheduled on the motion, however, in light of the court’s
memorandum of decision granting the motion for summary judgment, no
further action was taken on the motion.