Opinion
AC 41606
11-26-2019
David DUBINSKY v. Joyce RICCIO
Kenneth A. Votre, New Haven, for the appellant (plaintiff). Jane S. Bietz, with whom, on the brief, was Carmine Annunziata, Cheshire, for the appellee (defendant).
Kenneth A. Votre, New Haven, for the appellant (plaintiff).
Jane S. Bietz, with whom, on the brief, was Carmine Annunziata, Cheshire, for the appellee (defendant).
Keller, Moll and Eveleigh, Js.
PER CURIAM. In 2016, the plaintiff, David Dubinsky, brought a civil action against the defendant attorney, Joyce Riccio, in which he set forth claims sounding in legal malpractice and breach of contract. The plaintiff appeals from the summary judgment rendered in favor of the defendant with respect to the legal malpractice count of his complaint. We affirm the judgment of the trial court.
The record reflects that, in 2016, the plaintiff commenced the underlying action by way of a two count complaint. In relevant part, the plaintiff alleged that, in 2012, he hired the defendant to represent him during divorce proceedings, which culminated in his entering into a separation agreement with his former wife at the time the judgment of dissolution was rendered on August 9, 2013. On that date, a July 10, 2013 custody and access agreement was incorporated by reference into the separation agreement, and the separation agreement, after being found to be fair and equitable by the court, was incorporated by reference into the judgment of dissolution. In the legal malpractice count of his complaint, the plaintiff alleged that the defendant breached in a variety of ways the professional duty that she owed him as his attorney. In general terms, he alleged that she failed to advise him of the rights he was giving up by entering into the agreement, she was not adequately prepared to proceed to trial, and she failed to protect his interests. The plaintiff alleged that, relying on the defendant's inadequate representation, he entered into the agreement to his detriment, resulting in his sustaining a variety of damages. With respect to the breach of contract count, the plaintiff alleged that he entered into a contract with the defendant, thereby requiring her to represent his interests in the divorce proceeding, but that she breached the contract by failing to do so, resulting in his sustaining a variety of damages. The plaintiff sought monetary and punitive damages, costs, and other relief deemed fair and equitable by the court. In 2017, the court, Krumeich, J. , granted the defendant's motion to strike the breach of contract count of the complaint and, thereafter, granted the defendant's motion for judgment to enter in her favor with respect to this count. The court's judgment with respect to the breach of contract count is not a subject of the present appeal.
With respect to the legal malpractice count of the complaint, the defendant filed an answer in which she denied the allegations of deficient representation and set forth a special defense that the "claimed losses and damages were caused by [the plaintiff's] own conduct." Thereafter, the defendant filed a motion for summary judgment accompanied by a memorandum of law with respect to the legal malpractice count of the complaint. The defendant submitted to the court a voluminous collection of materials related to her representation of the plaintiff during the divorce proceeding, including highly detailed written correspondence between the plaintiff and the defendant concerning the terms of the separation agreement. In response, the plaintiff filed a written objection and a supporting memorandum of law. Attached to the plaintiff's memorandum of law in opposition to the defendant's motion were excerpts of his deposition testimony in the present action.
On March 19, 2018, the court, Truglia, J. , heard arguments related to the motion for summary judgment and the plaintiff's objection. At the conclusion of the hearing, the court stated that it was persuaded by the rationale set forth in the defendant's motion, that an issue of material fact did not exist, and that the defendant was entitled as a matter of law to summary judgment in her favor. Thereafter, the court issued an order that more fully explained the legal basis of its ruling. We consider the order to constitute the court's memorandum of decision. The court subsequently denied the plaintiff's motion seeking reargument or reconsideration of its decision. This appeal followed. We construe the plaintiff's claims on appeal, which are not a model of clarity, as follows: (1) the defendant was unable to demonstrate that she was entitled to judgment in her favor solely because the plaintiff entered into a separation agreement during the dissolution action; (2) the defendant was unable to demonstrate that she was entitled to judgment in her favor on the basis of alleged deficiencies in the manner in which the plaintiff framed the pleadings; and (3) the plaintiff demonstrated that an issue of fact existed with respect to whether the defendant adequately informed him of the terms of the separation agreement and whether the advice she provided to him was reasonable. We observe that, with respect to claims one and two, the plaintiff appears to challenge, as rulings, arguments that were allegedly advanced by the defendant before the trial court, not claimed errors made by the trial court in ruling on the motion for summary judgment that would warrant reversal of the judgment by this court.
We carefully have examined the record of the proceedings before the trial court, in addition to the parties' appellate briefs and oral arguments. Applying the well established principles that govern our review of a court's decision to render summary judgment; see, e.g., Reclaimant Corp. v. Deutsch , 332 Conn. 590, 598–99, 211 A.3d 976 (2019) ; we conclude that the judgment of the trial court should be affirmed. We adopt the court's concise and well reasoned decision as a proper statement of the facts and the applicable law on the issues. See Dubinsky v. Riccio , Superior Court, judicial district of Fairfield, Docket No. CV-16-6059152-S, 2018 WL 10051028 (March 19, 2018) (reprinted at 194 Conn. App. 588, 221 A.3d 906 ). It would serve no useful purpose for us to repeat the discussion contained therein. See, e.g., Tzovolos v. Wiseman , 300 Conn. 247, 253–54, 12 A.3d 563 (2011) ; Freeman v. A Better Way Wholesale Autos, Inc. , 191 Conn. App. 110, 112, 213 A.3d 542 (2019).
The judgment is affirmed. APPENDIX
DAVID DUBINSKY v. JOYCE RICCIO
Affirmed. Dubinsky v. Riccio , 194 Conn. App. 588, 221 A.3d 906 (2019).
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Superior Court, Judicial District of Fairfield
File No. CV-16-6059152-S
Memorandum filed March 19, 2018
Proceedings
Memorandum of decision on defendant's motion for summary judgment. Motion granted.
Kenneth A. Votre , for the plaintiff.
Amber J. Hines , for the defendant.
Opinion
TRUGLIA, J. The court has carefully reviewed the defendant's motion for summary judgment and supporting memorandum of law. The court has carefully reviewed all of the exhibits attached to the defendant's memorandum, including the defendant's affidavit, the record of e-mail correspondence between the plaintiff and the defendant, and the transcript of the plaintiff's own sworn testimony before the Honorable Gerard I. Adelman, dated July 10, 2013, and before the Honorable Howard T. Owens, Jr., dated August 9, 2013.
After reviewing the motion and exhibits, the court finds that there are no genuine issues of material fact as to the defendant's liability in this case. The defendant has demonstrated that there is no evidence upon which the trier of fact could find that the defendant breached her duty of care in her representation of the plaintiff in his dissolution of marriage action. The gravamen of the plaintiff's claim is that he entered into a separation agreement to settle his divorce action unaware of certain rights that he was giving up, including certain custody and visitation rights to his son. The plaintiff also alleges that the defendant was negligent in failing to obtain more favorable terms for him in his divorce action and in failing to be prepared to defend his interests if the matter had proceeded to trial.
Uncontroverted evidence submitted by the defendant in support of her motion shows that the plaintiff was fully aware of all of the terms of his separation agreement before it was approved by the court, including all of the custody and visitation provisions relating to his son. Uncontradicted evidence also shows that the defendant made every effort to communicate with the plaintiff prior to his trial date in order to prepare for trial. The defendant only ceased her efforts to prepare for trial at the plaintiff's repeated, written instructions that he did not wish to go to trial, but instead, wished to settle his case.
The defendant has established that she would be entitled to a directed verdict at trial; SS-II, LLC v. Bridge Street Associates , 293 Conn. 287, 294, 977 A.2d 189 (2009) ; the plaintiff, however, has not demonstrated the existence of a material fact as to the defendant's liability to him for professional negligence. The court agrees with the plaintiff that he is not foreclosed from bringing an action for malpractice against his attorney merely because he settled his divorce case and signed a separation agreement. See Grayson v. Wofsey, Rosen, Kweskin & Kuriansky , 231 Conn. 168, 646 A.2d 195 (1994). In such cases, however, a general allegation of negligence is not sufficient. Rather, a plaintiff must specify what negligent actions or omissions by counsel caused the damages he claims he sustained. Id., at 177, 646 A.2d 195. Here, the plaintiff has not specified what negligent actions or omissions caused the injuries and losses he now claims.
The court also agrees with the defendant that the plaintiff provides no evidence in support of any of his general claims of malpractice other than vague allegations and speculative contentions. In light of the evidence presented by the defendant in support of her motion, the plaintiff's deposition testimony is insufficient to establish the existence of a genuine issue of material fact. See, e.g., CitiMortgage, Inc . v. Coolbeth , 147 Conn. App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014).
As the defendant would be entitled to a directed verdict at trial, the court grants her motion for summary judgment.
Judgment enters in favor of the defendant and against the plaintiff on the first count of the plaintiff's complaint.
Judicial notice (JDNO) was sent regarding this order.