Opinion
X03HHDCV156066060S
08-29-2018
Robert C. JOHNSON, II et al. v. BANK OF AMERICA, N.A., Trustee et al.
UNPUBLISHED OPINION
OPINION
Carl J. Schuman, Judge, Superior Court
Defendants Kelley Drye & Warren, LLP, James Nealon, James Moriarity, and M. Ridgway Barker (hereinafter Kelley Drye, the Kelley Drye defendants, or the defendants) move for summary judgment on six counts of a nine-count complaint filed by named plaintiff Robert C. Johnson II and nineteen other plaintiffs. The gravamen of the allegations is that the defendants, who consist of a law firm and three lawyers working for that firm, rendered inadequate legal services in obtaining a $9.8 million settlement for the plaintiffs in a stockholder suit against nonparty Gibbs Wire & Steel Company.
I
A
This case has a long and tortuous history. The undisputed facts begin in 1956 with the formation of a Connecticut corporation named Gibbs Wire & Steel Company by R.C. Johnson, grandfather of the named plaintiff, and Charles Gibbs. Johnson provided $40,000 of the company’s starting capital of $50,000 and Gibbs provided the remaining $10,000. The organization of the company provided for both voting common stock and nonvoting stock. Gibbs owned 51% of the voting stock and Johnson owned 44% of the voting stock.
Over the years, the company became successful and profitable. But discord eventually developed between the Johnson and Gibbs families. In 2008, the Gibbs company (Gibbs) sued some of the current Johnson plaintiffs for specific performance of a contract to sell their 35,200 voting shares, then held by a family trust, back to the company (the voting shares action). The Johnsons, represented by Kelley Drye, obtained a settlement in which the Johnson trust sold these shares to Gibbs for $60.91 per share.
After the voting shares action, the Johnsons still sought to liquidate their remaining nonvoting equity interest in Gibbs, which totaled approximately 38%. Gibbs, however, was unwilling to purchase such a large amount of shares or pay the Johnsons the price they demanded. In 2009, the plaintiffs, represented by the Kelley Drye defendants, filed an action against Gibbs, pursuant to General Statutes § 33-896, for dissolution of the corporation on the ground of minority shareholder oppression (the oppression action).
Section 33-896 provides in pertinent part: "(a) The superior court for the judicial district where the corporation’s principal office or, if none in this state, its registered office, is located may dissolve a corporation: (1) In a proceeding by a shareholder if it is established that: ... (B) the directors or those in control of the corporation have acted, are acting or will act in a manner that is illegal, oppressive or fraudulent ..."
The Kelley Drye defendants attempted to negotiate a settlement on behalf of the plaintiffs, but the parties initially could not reach an agreement. In January 2012, the Gibbs defendants filed a motion for summary judgment. After argument of the summary judgment motion before Judge Kevin Dubay in May 2012, but before any decision on the motion, the parties participated in mediation with Judge William Bright. Based on the mediation and the recommendations of the Kelley Drye defendants, the plaintiffs agreed in principle to a settlement of the oppression action in July 2012. All parties signed a written settlement agreement in November 2012. Accordingly, Judge Dubay did not have occasion to decide the summary judgment motion.
The settlement called for Gibbs to buy the plaintiffs’ shares at a price of $40 per share. The total amount paid to the plaintiffs over time would approximate $9.8 million. Based on an engagement letter with the Kelley Drye defendants and subsequent discussions, the plaintiffs paid these defendants approximately $1.1 million in attorneys fees.
At oral argument the defendants claimed that Gibbs paid an additional $700,000 in interest for a total of $10,500,000. The briefs do not specifically identify that amount. In any event, the key figure is $40 per share.
B
In 2015, the plaintiffs brought this suit against the Kelley Drye defendants and Bank of America challenging, principally, the representation of the plaintiffs by the Kelley Drye defendants in the negotiations leading to the $9.8 million settlement in the underlying oppression action. The plaintiffs alleged, among other things, that the Kelley Drye defendants had conflicts of interest, coerced them into a settlement, and overcharged them attorneys fees. The first amended complaint, filed in January 2016, contained nine counts, six of which named the Kelley Drye defendants. These counts alleged breach of fiduciary duty (count two), legal malpractice (count three), breach of contract (count four), breach of the implied covenant of good faith and fair dealing (count five), violations of the Connecticut Unfair Trade Practices Act (CUTPA) (count eight), and violations of the Connecticut Uniform Securities Act (CUSA) (count nine).
The other three counts were directed toward Bank of America, N.A., which was the trustee of a Johnson family trust. In April 2017, the plaintiffs withdrew these counts. Accordingly, all future references to the "defendants" will be to the Kelley Drye defendants.
In December 2016, the court, Sheridan, J., granted the Kelley Drye defendants’ motion to strike counts four, five, and nine and denied their motion to strike counts two, three, and eight. In June 2017, the plaintiffs filed a second amended complaint that, with minor revisions, repleaded all six counts against the Kelley Drye defendants, including the three counts that the court had stricken. (Docket (Dkt.) # 287.00) The Kelley Drye defendants now move for summary judgment on all six counts.
The defendants raise two principal arguments for summary judgment with regard to the allegations in counts two and three (breach of fiduciary duty and legal malpractice) that challenge the quality and loyalty of the defendants’ representation in the settlement negotiations in the underlying oppression action. They argue that the plaintiffs cannot prove that the defendants’ alleged shortcomings caused any damages because, initially, the plaintiffs would not have received more in settlement negotiations than $40 per share and thus 1) the court would have then decided and granted the summary judgment motion against them or, alternatively, 2) they would not have done any better at trial. The defendants also argue with respect to the second count that, as a matter of law, they did not have a conflict of interest and did not breach their fiduciary duties to the plaintiffs. The defendants contend on the CUTPA count that they did not engage in any wrongful conduct in collecting the firm’s fee or in any other entrepreneurial aspect of the practice of law.
In a separate motion, but one addressed here, the defendants move for summary judgment on counts four, five, and nine. They argue that the repleaded counts in the second amended complaint are the same as those in the first complaint and that Judge Sheridan’s decision is the law of the case on those counts.
II
The court applies the accepted standards governing summary judgment motions. "Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case ... The facts at issue are those alleged in the pleadings ...
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ...
"The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue ... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant’s affidavits and documents ... The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ... The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence ..." (Citations omitted; internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 516-18, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 962 (2016).
III
Generally, a plaintiff alleging legal malpractice 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." (Italics omitted; internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 283, 147 A.3d 1023 (2016). The elements of breach of fiduciary duty are similar: "(1) That a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff; (2) [T]hat the defendant [advanced] his own interests to the detriment of the plaintiff; (3) That the plaintiff sustained damages; (4) That the damages were proximately caused by the fiduciary’s breach of his or her fiduciary duty." (Internal quotation marks omitted.) Doe v. Villa Marie Education Center, No. FBTCV 165032101S, 2017 WL 3671352, at *5 (Conn.Super.Ct. July 20, 2017) .
The defendants’ principal argument for summary judgment on the second and third counts is that there is no evidence that the plaintiffs, even with representation free of the conflicts, breaches, and negligence that the plaintiffs allege, could have done any better in settlement negotiations, summary judgment, or at trial and that therefore the plaintiffs cannot prove that any deficient representation by the defendants caused them any harm. This argument obviously focuses on the essential element of causation. "All claims of negligence, breach of fiduciary duty and violations of CUTPA require a causal connection between the alleged conduct of the defendants and the plaintiffs’ injuries." Capasso & Sons, Inc. v. Zullo, Couto & Jacks, LLC, No. CV 030473874S, 2004 WL 1782819, at *4 (Conn.Super.Ct. July 12, 2004) (citing Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986) ). Thus, when clients allege legal malpractice, and presumably breach of fiduciary duty, in connection with a prior representation, they must establish that they "would have been successful in pursuing that claim but for the defendant’s omission." Alexandru v. Strong, 81 Conn.App. 68, 76, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004).
Typically, under the "case-within-a-case method," a plaintiff proves that the defendant attorney’s professional negligence caused injury to the plaintiff by presenting evidence of "what would have happened in the underlying action had the defendant not been negligent." Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 775 n.9, 882 A.2d 653 (2005); Corneroli v. Kutz, 183 Conn.App. 401, 414 (2018). This rule fully applies when the underlying case was settled. Our Supreme Court has held: "when it has been established that an attorney, in advising a client concerning the settlement of an action, has failed 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 [legal] profession ... [and that conduct has] result[ed in] injury, loss, or damage to the [client] ... the client is entitled to a recovery against the attorney. Accordingly, like the majority of courts that have addressed this issue, we decline to adopt a rule that insulates attorneys from exposure to malpractice claims arising from their negligence in settled cases if the attorney’s conduct has damaged the client." (Citations omitted; internal quotation marks omitted.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 175, 646 A.2d 195 (1994).
Indeed, a variety of courts have held that, in cases in which clients fault their attorneys for failing to secure more favorable settlement terms- so-called "settle-and-sue" cases- the clients must show that, if not for the alleged breach of fiduciary duties or malpractice, they would have done better in settlement or at trial. These cases have also shown that this issue is fully capable of resolution on summary judgment. See Blecher & Collins, P.C. v. Northwest Airlines, Inc., 858 F.Supp. 1442, 1459 (C.D.Cal. 1994) ("[n]o reasonable trier of fact could find that [the law firm’s] alleged failure to disclose a conflict caused [its client] to obtain an unfavorable settlement," as "no evidence suggests that [the original defendant] would have offered a more favorable settlement" or that it "would have behaved any differently but for [the firm’s] alleged failure to disclose the alleged conflict"); Orrick Herrington & Sutcliffe LLP v. Superior Court, 107 Cal.App.4th 1052, 1054, 132 Cal.Rptr.2d 658 (2003) (directing summary judgment on malpractice and breach of fiduciary duty claims and stating that, in a case involving settlement of marital litigation, the plaintiff must prove that "his opponent in the underlying litigation would have settled for less, or that following a trial, plaintiff would have obtained a judgment more favorable than the settlement"); Griswold v. Kilpatrick, 107 Wash.App. 757, 761, 27 P.3d 246 (2001) (affirming summary judgment in a settle-and-sue action when amount the defendant in underlying litigation agreed to pay "exhausted the settlement authority of [its] negotiating team at the mediation" and the plaintiff had "no information indicating that the [defendant] was willing to settle the case for a larger amount of money ...").
A
As a preliminary matter, the plaintiffs argue that the defendants must prevail on all elements of malpractice- and not just causation- in order to obtain summary judgment. The court rejects this argument. The case of Stuart v. Freiberg, 316 Conn. 809, 116 A.3d 1195 (2015), relied upon by the plaintiffs, does not advance their cause. Stuart involved the somewhat different situation in which the defendants did challenge all elements of the plaintiff’s case and the plaintiff only generated a factual dispute on some of them. In that situation, the court appropriately stated: "If a defendant has substantively addressed additional essential elements in support of his motion, so too should the trial court in determining whether summary judgment is appropriate." Id., 824. But the Court cited other decisions stating or holding that the defendant’s showing that the plaintiff cannot prove one essential element of its case is sufficient to warrant summary judgment. See id., 824-25 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (" ‘a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial’ for the purpose of summary judgment"); Tyler v. Tyler, 151 Conn.App. 98, 105, 93 A.3d 1179 (2014) ("[s]ummary judgment is appropriate where no genuine issue of material fact exists, and the defendant is entitled to judgment as a matter of law, with respect to any one element that the plaintiff is required to prove in order to prevail at trial") ). This rule makes sense, as the defendant would be entitled to a directed verdict at trial, which is determined by the same standard as summary judgment; Nationstar Mortgage, LLC v. Mollo, 180 Conn.App. 782, 791, 185 A.3d 643 (2018); if the plaintiff cannot prove any one essential element of its case. Therefore, the defendants can obtain summary judgment on both fiduciary breach and malpractice if they can show that they are entitled to judgment on the common element of causation.
Another preliminary question is the factual one of whether the plaintiffs could have done better in settlement. If they could not, then the issue advances to whether they could have done better or worse in the subsequent proceedings, which involved summary judgment and trial. In the present case, Gibbs’s chief executive officer William Torres testified that the assessment of the board of directors was that "the chances of the Johnsons prevailing was extremely remote" and that, over time, "as each spurious claim that they made was dealt with and responded to, we became more and more comfortable that the likelihood of us prevailing was extremely high." (Defendants’ Appendix I, Tab G, 1/25/11 Torres deposition (dep.), page (p). 60; Dkt. # 363.00.) Torres had a "very high expectation that they would actually win the summary judgment motion." (Defendants’ Appendix I, Tab G, 1/25/17 Torres dep., p. 61; Dkt. # 363.00.) Over a year of settlement negotiations, Gibbs had rejected settlement demands from the plaintiffs ranging from $67 to roughly $52 per share. (Moriarty affidavit, paragraphs (paras.) 69-80, Exhibits 24-32; Dkt. # 373.00.) Torres testified that, at $40 per share, Gibbs had reached its limit and would not have agreed to pay the plaintiffs even a penny more than that amount or to make any other material changes to the settlement that the parties actually reached. (Defendants’ Appendix I, Tab G, 1/25/17 Torres dep., pp. 104, 106; 6/19/17 Torres dep., p. 111; Dkt. # 363.00.) Thus, the $40 per share price that formed the basis of the settlement was, as Torres told the defendants, the "best number you’re going to get." (Defendants’ Appendix I, Tab G, 6/19/17 Torres dep, p. 111; Dkt. # 363.00.)
Torres’s testimony is uncontradicted. The plaintiffs have presented no admissible evidence that the plaintiffs could have done any better in settlement negotiations with different counsel. Instead, they argue that, with fully competent, conflict-free counsel, they would not have settled, they would have defeated summary judgment and that, because the shares were worth more than $40 each, they would have done better at trial. The court examines these claims in turn.
B
In a fifty-page memorandum of law supported by over one thousand pages of affidavits, exhibits, and appendices, the defendants, on behalf of their clients (the plaintiffs here), vigorously opposed the Gibbs’s summary judgment motion in the underlying case. Now the defendants argue that the court, after all, should have granted the motion.
The defendants support this change of position in their current brief with only five pages. (Defendants’ Memorandum in Support of Summary Judgment, pp. 26-30; Dkt. # 383.00.) The defendants do summarize the law governing oppression actions and identify the issues and main arguments in the underlying summary judgment motion. Ultimately, however, the defendants simply cite to the entire record compiled by both parties of the summary judgment proceedings in the oppression case, which totals over 1,750 pages. (Dkt. # s 366.00, 367.00, 368.00, 369.00, 370.00, 371.00.)
The court finds this sort of incorporation by reference approach inappropriate. For one thing, it circumvents the court’s page limitation of fifty pages for the defendants’ summary judgment memorandum. (Dkt. # 360.86.) Moreover, the defendants’ current brief does not contain the full argument for granting the underlying summary judgment motion. In that sense, the defendants, by inadequate briefing, have abandoned the argument. See Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 124-25, 956 A.2d 1145 (2008).
This page limitation applies only to the summary judgment motion and principal memorandum on counts two, three, and eight. The court allowed the defendants to file a separate summary judgment motion on counts four, five, and nine. (Dkt. # 396.86.) The defendants also filed a thirty-four-page memorandum and motion to strike portions of the plaintiffs’ expert testimony, which makes arguments regarding the admissibility of that testimony that belong in a substantive summary judgment motion. (Dkt. # 431.00.)
On the merits, the court cannot conclude that the plaintiffs and defendants here would have lost on the underlying summary judgment motion, as the defendants now claim. Even in their current brief, the defendants- although citing Connecticut Superior Court and out-of-state appellate decisions- do not cite any Connecticut appellate authority holding that the issue of oppressive conduct is one of law readily susceptible to summary judgment. The governing standard is thus uncertain. Further, even if the issue of oppressive conduct is ultimately one of law, determining what happened in the case and the nature of the allegedly oppressive conduct at issue is a matter laden with fact issues. The plaintiffs’ brief in the present case contains some seven pages of fact-based arguments why they would have defeated summary judgment. (Plaintiffs’ Objection and Memorandum in Opposition to Defendants’ Motion for Summary Judgment, pp. 32-33 n.58, 37-43; Dkt. # 408.00.) For example, the plaintiffs present expert opinion that the removal of plaintiff Bob Johnson from the Gibbs Board of Directors and Gibbs’s choice to replace him with plaintiff Ann Prum, who was not knowledgeable about the company, was in itself oppressive conduct. (Plaintiffs’ Exhibit 32, p. 250; Dkt. # 414.00.) The expert also noted that Gibbs changed its bylaws in 2005 so that it could repurchase shares at a lower value at about the same time that Gibbs sought to repurchase the plaintiffs’ shares. (Plaintiffs’ Exhibits 32, pp. 241-42; Exhibit 33, pp. 58-59; Dkt. # 414.00.) From the timing of these events, the trier of fact could have drawn an inference of bad motive on Gibbs’s part. See Gallucci v. Save the Children Federation, Inc., No. FSTCV 095009755S, 2010 WL 4351976, at *4 (Conn.Super.Ct. Oct. 4, 2010) (because an inference of causation can be drawn from the timing of an adverse action in employment case, summary judgment is denied). The defendants’ current memorandum now argues that at least three of the six majority actions in question had a business purpose or justification. But business justification is usually a question of fact as well. See, e.g., In re Apple iPod iTunes Anti-Trust Litigation., No. C 05-00037 JW, 2010 WL 2629907, at *7 (N.D.Cal. June 29, 2010); Aldrich v. Greg, 200 F.Supp.2d 784, 789 (N.D. Ohio 2002).
The defendants themselves put it well in their brief in opposition to the underlying summary judgment motion: "The record evidence unquestionably raises issues of material fact concerning whether Plaintiffs are oppressed minority shareholders, including issues of credibility and intent, which can only be resolved by, inter alia, drawing inferences from disputed facts and/or having to decide between reasonable competing inferences with respect to the juxtaposition of both disputed and undisputed facts." (Defendants’ Appendix II, Tab 9 (Johnson Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment), pp. 7-8; Dkt. # 369.00.) They added: "The fact-intensive analysis necessary to determine whether the majority has used its power in such a way as to destroy expectations and breach fiduciary duties is inappropriate on a motion for summary judgment." (Defendants’ Appendix II, Tab 9 (Johnson Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment), pp. 37-38; Dkt. # 369.00.) For all these reasons, the court rejects the defendants’ argument that there were no material factual disputes and that Gibbs necessarily would have prevailed on their summary judgment in the underlying oppression case.
C
The defendants next assert that, even if the "Oppression Plaintiffs managed to survive summary judgment," it amounts to "nothing more than speculation to contend that, following a trial, Gibbs would have been compelled to pay the Johnsons more than $40 per share." The defendants add that there was a "risk of losing at trial or ending up with a decree that did not require the Company to purchase their shares at the desired price," that there were "risks, uncertainty and expense entailed in continued litigation," and, therefore, that "there is no triable issue of fact that the Kelley Drye Defendants’ allegedly faulty settlement advice could have been the cause of any cognizable injury on either Plaintiffs’ fiduciary breach or legal malpractice theories." (Defendants’ Memorandum in Support of Summary Judgment, pp. 44-46; Dkt. # 383.00.) The court now examines this conclusion.
Under the statutory scheme in an oppression case, the plaintiffs, as shareholders, must first prove the element of oppression. See General Statutes § 33-896(a)(1)(B); note 1 supra . The defendants, as discussed above, now present legal and factual arguments why Gibbs rather than the plaintiffs would have prevailed on the issue of oppression. But even assuming that the plaintiffs would have prevailed, the plaintiffs would then have had to confront the fact that the statutes provide a variety of possible remedies. Under § 33-898, the court "may appoint one or more receivers to wind up and liquidate ..." Under § 33-899, the court "may enter a decree dissolving the corporation ..." Finally, under § 33-900(a), the corporation "may elect or, if it fails to elect, one or more shareholders may elect to purchase all shares owned by the petitioning shareholder at the fair value of the shares." Because all of these remedies employ the permissive term "may," each remedy is discretionary with the court or the corporation, as the case may be. See State v. Bletsch, 281 Conn. 5, 17-18, 912 A.2d 992 (2007). See also Morrow v. Prestonwold, Inc., No. CV 000445844S, 2002 WL 652369, at *6 (Conn.Super.Ct. Mar. 22, 2002) ("Although proceeding under the involuntary dissolution statute, it is nevertheless an equitable proceeding ... This court is not unmindful of the equitable principle it should only grant ‘the drastic remedy of dissolution with great caution and not in doubtful cases. It is fundamental that a receiver shall be interposed to conserve and not to destroy.’ ") (Citations omitted.) Based on this array of remedies and permissive language, the defendants point to the speculative nature of the claim that Gibbs would necessarily have elected to buy the plaintiffs’ shares, particularly at a price above $40 per share. Thus, in sum, according to the defendants, the plaintiffs’ case involves a chain of uncertainty in which the plaintiffs would have had to 1) prove oppression, put Gibbs in a position in which it would have had to elect to purchase the plaintiffs’ shares, and establish that Gibbs would have paid more than $40 per share.
Section 33-900(a) provides: "(a) In a proceeding under subdivision (1) of subsection (a) of section 33-896 to dissolve a corporation, the corporation may elect or, if it fails to elect, one or more shareholders may elect to purchase all shares owned by the petitioning shareholder at the fair value of the shares. An election pursuant to this section shall be irrevocable unless the court determines that it is equitable to set aside or modify the election."
The defendants thus appear to have discharged their initial burden on summary judgment of showing that the plaintiffs cannot prove causation. See Morrissey-Manter v. Saint Francis Hospital & Medical Center, supra, 166 Conn.App. 516-18. The plaintiffs nonetheless object on the ground that the defendants did not provide an expert opinion on causation. There is no merit to this objection. The plaintiffs can cite only one out-of-state case to support such a requirement and no Connecticut cases. See Suppiah v. Kalish, 76 A.D.2d 829, 832, 907 N.Y.S.2d 199 (2010), appeal withdrawn, 16 N.Y.3d 796 (2011). In Connecticut, because the defendants in a malpractice action do not have the burden of proving causation at trial, there is no reason for them to have to produce a causation expert on summary judgment. See Sears Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 756, 699 A.2d 81 (1997) (in tax case, because the burden of proving overvaluation rested on plaintiff, town had no obligation to submit expert evidence in support of its valuation). Therefore, the defendants have made a sufficient legal and evidentiary showing that the plaintiffs cannot prove causation.
The plaintiffs have filed a motion to strike portions of the Moriarty affidavit, as well as portions of the defendants’ summary judgment appendix, on the ground that they contain undisclosed expert testimony. (Dkt. # 387.00.) Because the court does not rely on any of the testimony in question, the court denies the motion to strike as moot.
The plaintiffs also cite Free v. Lasseter, 31 So.3d 85, 90 (Ala. 2009), but that case held that the defendants had to provide an expert on breach of the standard of care, not causation.
The burden hence shifts to the plaintiff to "substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue ..." (Citation omitted; internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, supra, 166 Conn.App. 517. The plaintiffs note a statement by plaintiff Bob Johnson during the settlement negotiations of the underlying oppression action that "I remain prepared to take this all the way to trial if necessary." (Plaintiffs’ Objection and Memorandum in Opposition to Defendants’ Motion for Summary Judgment, p. 17; Dkt. # 408.00.) The plaintiffs now present affidavits stating that, if they had known the "true value" of Gibbs’s shares, they "never would have consented to a settlement at $40.00 per share." (Plaintiffs’ Exhibit 51; Dkt. # 417.00.) This evidence creates a factual basis for a threshold finding that the plaintiffs would have been willing to go to trial.
The plaintiffs, however, cite to a 3/31/12 email that does not appear in their table of exhibits.
The present matter is analogous to a habeas corpus case arising from a guilty plea in which the petitioner claims that his lawyer provided ineffective assistance of counsel. In such cases, in order to prove prejudice, the petitioner must at least show that, "but for counsel’s allegedly deficient performance, the petitioner would have insisted on a trial." Carraway v. Commissioner of Correction, 144 Conn.App. 461, 476, 72 A.3d 426 (2013), appeal dismissed, 317 Conn . 594, 119 A.3d 1153 (2015).
The more important question is whether the plaintiffs present sufficient evidence to show at least a genuine dispute that they would have prevailed at trial and received more than $40 per share. In the present case, the plaintiffs cite to excerpts from the deposition testimony of Jeffrey Tinley and Lawrence Rosenthal, two attorneys whom the plaintiffs have retained as experts. Tinley stated in his deposition that "an oppression case ... was likely to be successful," that there was "sufficient evidence to establish oppression" and that "if the matter proceeded to trial ... it’s likely that the oppression case would have succeeded, and then in the normal course, there would be an order of dissolution, although I question whether it would go that far." (Plaintiffs’ Exhibit 34, p. 133; Exhibit 35, pp. 550, 561; Dkt. # s 414.00, 416.00.) Rosenthal stated only that "I think that [the plaintiffs] could have won the case if they had tried it properly." (Plaintiffs’ Exhibit 32, p. 114; Dkt. # 414.00.)
In response, the defendants move to strike these opinions. (Memorandum of Law in Support of Kelley Drye Defendants’ Motion to Strike, p. 9; Dkt. # 431.00.) The defendants’ principal argument is that "an expert’s opinion on how the trier is to decide the case-within-the case improperly invades the function of the trier" and that "the ‘general’ obligation of a legal malpractice plaintiff to present expert testimony on causation does not extend to the preliminary case-within-the case phase, particularly one to be decided as a matter of law by a judge sitting in equity." (Memorandum of Law in Support of Kelley Drye Defendants’ Motion to Strike, p. 11-13, 14-17; Dkt. # 431.00.)
The defendants’ motion and memorandum do not specifically cite the Rosenthal statement quoted above but their arguments apply equally to that statement.
The court does not agree. The leading case, as the defendants recognize, is Bozelko v. Papastavros, supra, 323 Conn. 275. Bozelko arose from the granting of a summary judgment motion in a legal malpractice action in which the underlying case was a criminal trial. The Supreme Court stated: "[w]e conclude that, although there will be exceptions in obvious cases, expert testimony also is a general requirement for establishing the element of causation in legal malpractice cases. Because a determination of what result should have occurred if the attorney had not been negligent usually is beyond the field of ordinary knowledge and experience possessed by a juror, expert testimony generally will be necessary to provide the essential nexus between the attorney’s error and the plaintiff’s damages." Id., 284-85.
The exception for "obvious cases" applies when "from the perspective of a lay juror, the causal link between the plaintiff’s allegations of negligence and the plaintiff’s criminal convictions is ... obvious." Id., 286. There is no claim that this case falls into that category.
Relying on Bozelko, the Appellate Court, in Corneroli v. Kutz, 183 Conn.App. 401 (2018), has recently restated these principles. Corneroli was a legal malpractice case in which the underlying action was a probate appeal. The Corneroli Court phrased the matter as follows: "we have concluded that, to defeat summary judgment, the plaintiff was required to present expert testimony to prove causation ..." id., 416; and that "Connecticut law generally requires the plaintiff in a legal malpractice action arising from prior litigation to prove, through expert testimony, that but for the alleged breach of duty, it was more likely than not that he would have prevailed in the underlying cause of action." Id., 417.
The defendants seize on the word "general" (in "general requirement") or "generally" in these statements and argue that these principles do not apply when the underlying case is triable to the court. They cite to footnote 14 in Bozelko in which the Court stated in part: "we leave for another day the question of whether a different rule should apply in a trial to the court." Bozelko v. Papastavros, supra, 323 Conn. 285 n.14. They argue that presenting an expert on the underlying case usurps the role of the court in deciding how it would have decided the underlying case.
The defendants, however, do not quote the entirety of footnote 14 but instead take it out of context and misconstrue its purpose. The statement in the text of the Bozelko opinion immediately preceding note 14 reads as follows: "Because a determination of what result should have occurred if the attorney had not been negligent usually is beyond the field of ordinary knowledge and experience possessed by a juror, expert testimony generally will be necessary to provide the essential nexus between the attorney’s error and the plaintiff’s damages." Id., 285. The full footnote states: "Because this case was claimed for a jury trial, we leave for another day the question of whether a different rule should apply in a trial to the court." Id., 285 n.14. It is thus apparent that the exception to the "general" requirement in the appellate case law that a plaintiff must have a causation expert arises, if at all, when the malpractice case- not the underlying case- is tried or triable to the court.
This interpretation makes good sense. If the parties try the malpractice suit to the court, a judge trained and experienced in the law may not necessarily need an expert witness to determine what result a nonnegligent lawyer would have obtained in the underlying trial. On the other hand, "[b]ecause a determination of what result should have occurred if the attorney had not been negligent usually is beyond the field of ordinary knowledge and experience possessed by a juror"; id., 285; the plaintiff must have an expert witness on causation in a case claimed for the jury.
Contrary to the defendants’ suggestion, this result does not depend on whether the underlying case is triable to the court or the jury. Connecticut cases illustrate that, even when the underlying case is triable to the court, the plaintiff must have an expert causation witness in the malpractice case. See Corneroli v. Kutz, supra, 183 Conn.App. 408 (probate appeal) ; Dixon v. Bromson & Reiner, 95 Conn.App. 294, 299-300, 898 A.2d 193 (2006) (partition action); Beecher v. Greaves, 73 Conn.App. 561, 564, 808 A.2d 1143 (2002) (foreclosure). See also Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, supra, 231 Conn. 182 (testimony of expert that plaintiff would have done better in matrimonial case with competent counsel was sufficient to prove causation). In this situation, the expert would render an opinion as to what a reasonable judge or court would have done. See Bozelko v. Papastavros, supra, 323 Conn. 289 & n.17.
Some probate appeals are triable to the jury and some are not. See General Statutes § § 45a-186a(c), 52-215. The status of the probate appeal in Corneroli is somewhat unclear because the trial court dismissed the appeal as untimely before a trial on the merits. Corneroli v. Kutz, supra, 183 Conn.App. 407-08.
The defendants oversimplify this issue by citing to Viola v. Dell, 108 Conn.App. 760, 950 A.2d 539 (2008), and seeking to strike some opinions of the plaintiffs’ experts on the underlying summary judgment motions. (Defendants’ Memorandum in Support of Summary Judgment, pp. 8-9; Dkt. # 383.00.) In Viola, the court addressed a claim that the defendant lawyer had committed malpractice by failing to file a timely brief in a zoning appeal to the Superior Court. Because the causation issue raised a pure question of law as to whether the underlying zoning appeal would have been successful, no expert was necessary or even permissible. The same is true of the summary judgment decision in the underlying case here. Whether the summary judgment motion should have been granted raises only a question of law. Golek v. Saint Mary’s Hospital, Inc., 133 Conn.App. 182, 194, 34 A.3d 452 (2012). An expert is not necessary to assist the court in deciding this question of law, particularly at the summary judgment stage in the malpractice case.
In contrast, the ultimate causation issues here- whether the plaintiffs would have prevailed in an oppression trial and, if so, what remedy they would have obtained- are issues that fall within the discretion of the trial court. In that sense, the issues appear to be like those in the probate appeal in Corneroli. Whether the plaintiffs here would have done better in the underlying oppression case is very much a matter of opinion. Particularly because the plaintiffs have claimed the malpractice case to a jury (Dkt. # 251.00), an expert is essential to assist the jurors in determining whether any malpractice or fiduciary breaches by the defendants caused any damage to the plaintiffs. See Bozelko v. Papastavros, supra, 323 Conn. 284-86; Corneroli v. Kutz, supra, 183 Conn.App. 416-17.
Defendants acknowledge as much by stating: "Plaintiffs must establish what the reasonable judge would have found as the amount of [a] hypothetical fair value determination." (Emphasis added.) (Memorandum of Law in Support of Motion of Kelley Drye Defendants’ Motion to Strike, p. 18; Dkt. # 431.00.)
However, at no point in their principal brief, their reply brief, or their motion to strike do the defendants argue that the court should grant summary judgment because the plaintiffs have not produced an expert on causation. As discussed, the defendants make the exact opposite argument that the plaintiffs have no legal authority to call an expert on causation in a legal malpractice case when the underlying case is triable to the court. Ironically, however, the defendants make the alternative argument in their motion to strike that "neither of Plaintiffs’ two attorney experts is able to articulate an opinion ... that ... the Johnsons would not simply have ‘prevailed’ at the trial of the oppression phase of the dissolution action, but would have recovered ‘more than’ the $9.8 million they received in settlement." (Memorandum of Law in Support of Motion of Kelley Drye Defendants’ Motion to Strike, p.17; Dkt. # 431.00.) Although this argument may well have merit, the remedy that the defendants seek is to strike the insufficient opinions from the plaintiffs’ opposition papers. Again, the defendants fail to argue that the insufficiency of the expert opinions in itself is a reason that the court should grant summary judgment on these counts. Because the court cannot grant summary judgment on a ground that the defendants have never raised, the court is compelled to deny summary judgment on the causation issue on counts two and three.
In their reply brief, the defendants fault the plaintiffs for not producing experts on forensic accounting and executive compensation. (Reply of the Kelley Drye Defendants to Plaintiffs’ Objection, pp. 7-8; Dkt. # 433.00.) They do not argue that the plaintiff failed to produce an expert opinion from a lawyer on causation.
The defendants’ approach illustrates the impropriety of substantively attacking the plaintiffs’ expert opinions by way of a separate motion to strike. Doing so unhinges the arguments that the plaintiffs’ expert opinions are insufficient from the actual summary judgment arguments.
IV
Defendants alternatively argue that they are entitled to summary judgment on the second count, alleging breach of fiduciary duty, because the undisputed facts establish that there was no conflict of interest or other fiduciary breach. In deciding this count, the court must bear in mind that "on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986), quoted in Johnson v. Meehan, 225 Conn. 528, 535, 626 A.2d 244 (1993). In Connecticut, "[o]nce a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary ... Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence ..." (Internal quotation marks omitted.) Cadle Co. v. D’Addario, 268 Conn. 441, 455, 844 A.2d 836 (2004). Thus, the defendants face a high burden in obtaining summary judgment on this count.
The defendants make no similar argument for count three, which alleges malpractice.
In deciding the motion to strike, Judge Sheridan ruled that "allegations that Kelley Drye consciously ignored a potential conflict of interest and then ‘coerced’ the plaintiffs to agree to the settlement of the shareholder oppression lawsuit in order to further conceal the conflict or avoid other consequences of the disclosure of the conflict of interest sufficiently allege a claim for breach of fiduciary duty ..." (Memorandum of Decision, p. 10; Dkt. # 233.00.) Hence, in order to obtain summary judgment on this count, the defendants must show that they would meet their burden of proof on both the conflict of interest claim and the coercion of settlement claim. As for the former, the court follows Judge Sheridan’s decision and that of the Connecticut Supreme Court to the effect that a relevant conflict of interest is in itself sufficient to state a claim for breach of fiduciary duty. See Sherwood v. Danbury Hospital, 278 Conn. 163, 196, 896 A.2d 777 (2006) ("[a]lthough we have not expressly limited the application of these traditional principles of fiduciary duty to cases involving only fraud, self-dealing or conflict of interest, the cases in which we have invoked them have involved such deviations" (italics omitted; internal quotation marks omitted) ). The defendants present the Moriarty affidavit, in which Moriarty states that, although Kelley Drye did represent Bank of America, which had sold its shares to Gibbs for $34.52 per share, the firm did not represent Bank of America in any matter "related [to or] adversely to" representation of the plaintiffs. (Moriarty Affidavit, paras. 63-66; Dkt. # 364.00.) In response, the plaintiffs offer expert opinion and statements of the defendant lawyers themselves that suggest that they had a conflict of interest that affected their representation of the plaintiffs. With regard to the coercion claim, the Moriarty affidavit intimates that the plaintiffs freely agreed to the settlement (Moriarty Affidavit, paras. 115-16; Dkt. # 364.00). In contrast, the affidavit of plaintiff Robert C. Johnson II alleges that "[a]s a result of the coercion on the part of one or more of the lawyers who are Defendants in [this case] who pressured me directly and through my family[,] I ultimately acceded to the settlement." (Plaintiffs’ Exhibit 51, para. 13; Dkt. # 417.00.)
The defendants move to strike some, but not all, of these opinions. For example, the defendants do not move to strike the opinion of plaintiffs’ expert Jeffrey Tinley that the Bank of America matter "was a multiple layered conflict that had significant negative impacts on the Johnsons’ suit." (Plaintiffs’ Exhibit 34, p. 182; Dkt. # 414.00.)
Moriarty stated to plaintiff Ann Prum in discussing a possible objection to the bank’s sale of its stock to Gibbs: "I can’t help you because we represent Bank of America ..." (Plaintiffs’ Exhibit 20, p. 253; Dkt. # 412.00.) Defendant M. Ridgway Barker testified: "[W]hile there could be at some point a potential for a future conflict of interest ... there was not one at that point and that, in any event ... it would be best for us to not be involved in that process, you know, more than providing some information to help [the plaintiffs] express their views." (Plaintiffs’ Exhibit 27, p. 202; Dkt. # 414.00.)
These competing statements present classic factual disputes that only the jury can resolve. Given that the defendants bear the ultimate burden of proof on the fiduciary duty count, and that that burden is the elevated one of clear and convincing evidence, the court cannot say that the defendants are entitled to summary judgment on count two.
IV
The defendants additionally seek summary judgment on count eight, which alleges CUTPA violations. CUTPA provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). In order to enforce this prohibition, CUTPA provides a private cause of action to "[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice ..." General Statutes § 42-110g(a).
Our Supreme Court has stated that, in general, "CUTPA applies to attorneys." Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 520, 461 A.2d 938 (1983). However, "although all lawyers are subject to CUTPA, most of the practice of law is not." Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 782, 802 A.2d 44 (2002). "Professional negligence, or malpractice, does not fall under CUTPA." Anderson v. Schoenhorn, 89 Conn.App. 666, 674, 874 A.2d 798 (2005). "CUTPA covers only the entrepreneurial or commercial aspects of the profession of law." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35, 699 A.2d 964 (1997).
Accordingly, "the most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney’s professional representation of a client or is part of the entrepreneurial aspect of practicing law." Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 260 Conn. 781. The "entrepreneurial" exception is just that, "a specific exception from CUTPA immunity for a well-defined set of activities- advertising and bill collection, for example." Id. See also Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 35-36, quoting Ikuno v. Yip, 912 F.2d 306, 312 (9th Cir. 1990) ("solicitation of business and billing" are entrepreneurial, while claims involving "competence and strategy" are part of professional representation.) (Internal quotation marks omitted.)
Many of the plaintiffs’ specifications in count eight explicitly raise claims involving the defendants’ competence or quality of representation: promising to withdraw in the event of a conflict, advising about and negotiating a settlement of the voting shares action, advising about and prosecuting the shareholder oppression action, and failing to inform the plaintiffs that the Bank of America had a conflict of interest. (Second Amended Complaint, count eight, paras. 218(b), (c), (d), and (e); Dkt. # 288.00.) Because these allegations readily fall into the category of claims about "the attorney’s professional representation of a client," they do not give rise to a valid CUTPA claim against the defendants here. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 260 Conn. 781.
The same is ultimately true concerning the plaintiffs’ allegations that the defendants committed CUTPA violations in "procuring fees" and in taking an "unauthorized appropriation of over $1,150,000 from the cash portion of the settlement ..." (Second Amended Complaint, count eight, para. 218 and 218(f); Dkt. # 288.00.) The plaintiffs face the initial hurdle of overcoming the apparently undisputed fact that they expressly agreed to the approximately $1,100,000 fee. (Affidavit of James Nealon in Support of Summary Judgment, paras. 16-30; Dkt. # 365.00.) Further, our Supreme Court has flatly rejected the notion that a lawyer’s obvious economic interest in obtaining a fee for services rendered makes his or her conduct subject to CUTPA. See Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 260 Conn. 783 ("Using an attorney’s financial considerations as a screening mechanism for separating professional actions from entrepreneurial ones would dissolve the distinction between the two, subjecting attorneys to CUTPA claims for any decision in which profit conceivably could have been a factor. Accordingly, we reject such an interpretation"). Although the plaintiff, in referring to "fees" or "appropriation," attempts to employ the terminology of an entrepreneurial claim, these allegations, read in context, are in reality just complaints that the attorney’s or firm’s work was not sufficiently competent or conflict-free to justify the amount charged. The plaintiffs’ brief on this count does not present any evidence of improper collection practices or mishandling of funds.
In a footnote, the plaintiffs mention that Judge Sheridan denied the defendants’ motion to strike this count. Judge Sheridan stated that the "plaintiffs’ allegations of ‘unauthorized appropriation’ of funds in connection with procuring payment of fees- when taken as true and when read ‘broadly and realistically’ as it must in the context of a motion to strike- sufficiently implicates the entrepreneurial exception to the general prohibition against CUTPA claims against attorneys." (Memorandum of Decision, p. 19; Dkt. # 233.00.) However, now that the case is on summary judgment and the plaintiffs have had a chance to present evidence, the case stands in a different posture. As stated above, it is now apparent that the plaintiffs’ claims of "unauthorized appropriation" do not implicate collection practices but rather simply assert that the quality of the work did not justify the size of the fee. Thus, this portion of the CUTPA count is simply another "negligence claim recast as a CUTPA claim." Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 32. As such, these allegations also fall into the proscription against CUTPA claims based on the quality of representation.
The remaining CUTPA allegation refers to the "marketing by KD [Kelley Drye] at the March 2008 KD Meeting and 2008 Florida Meeting." (Second Amended Complaint, count eight, para. 218(a); Dkt. # 288.00.) Although the plaintiffs, in a footnote, cite evidence that early in the case the defendants made assurances of success or good results, the plaintiffs do not present evidence of any "unfair or deceptive practices." Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 39. (Plaintiffs’ Objection and Memorandum in Opposition to Defendants’ Motion for Summary Judgment, p. 56 n.109; Dkt. # 408.00.) Here again, the plaintiff’s allegations and evidence refer more to the legal work than to the financial aspect of the case. Further, although one of the plaintiffs stated that the plaintiffs would not have gone forward with the case without those assurances, the plaintiffs do not show how these alleged marketing practices in 2008- as opposed to the defendants’ subsequent management of the case- resulted in any "ascertainable loss" in 2012 or at any other time. General Statutes § 42-110g(a). On the contrary, the plaintiffs argue that it was "Defendants’ missteps and conflicts [that] began to imperil the case" and that these missteps began "[i]n early 2011 ..." (Plaintiffs’ Objection and Memorandum in Opposition to Defendants’ Motion for Summary Judgment, p. 13; Dkt. # 408.00.) Thus, the plaintiffs have also failed to generate a CUTPA trial issue on the essential element of causation. Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 305-09, 692 A.2d 709 (1997). Accordingly, the court grants the motion for summary judgment on the CUTPA count.
V
The defendants also move for summary judgment on counts four, five, and nine. "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). That is the case here. As mentioned, Judge Sheridan granted the defendants’ motion to strike counts four, five, and nine from the first amended complaint and then the plaintiffs simply repleaded them in the second amended complaint. The plaintiffs at that time had a chance to change or supplement their allegations substantively but failed to do so. The plaintiffs have now submitted a supplemental memorandum in opposition to the motion for summary judgment on counts four, five, nine that essentially reiterates the arguments rejected by Judge Sheridan.
The plaintiffs’ brief on this matter claims that "other allegations significant to the Plaintiffs’ case were revised to more closely conform to the proof." (Objection to Defendants’ Supplemental Motion for Summary Judgment on the Fourth, Fifth and Ninth Counts of the Second Amended Complaint, p. 2; Dkt. # 421.00.) But a review of the new allegations reveals only one substantive change. In paragraph 206(p) of count two, which is incorporated into counts four, five, and nine, the plaintiffs added the phrase "without adequately valuing the Plaintiffs’ shares and at a sale price" to the allegation that, in the oppression suit, the defendants advised the plaintiffs to settle for a price "commensurate with the valuation set by [Gibbs]." (Second Amended Complaint, para. 206(p) (Dkt. # 288.00.) ) This allegation does not add a new specification to the breach of fiduciary duty claim in count two but rather adds minimal detail to the existing specification alleging that the defendants improperly advised the plaintiffs to settle the oppression case at a discount. More importantly, this new allegation does not add anything to counts four and five, alleging breach of contract and breach of the implied covenant of good faith, even though these counts incorporate paragraph 206 by reference, because the allegation does not add any new breach. The plaintiffs understandably do not rely on this new allegation in their brief opposing summary judgment on these counts. The other changes made in the Second Amended Complaint are purely technical, such as changing the identity of certain parties. In short, the Second Amended Complaint is substantively identical to the first complaint.
The court considers Judge Sheridan’s decision to be the law of the case. See Breen v. Phelps, 186 Conn. 86, 99-100, 439 A.2d 1066 (1982). Although the law of the case is not "written in stone"; id., the plaintiffs present no "new or overriding circumstance" that could justify a different ruling. Id., 99. The plaintiffs argue that they have now produced ample evidence to support their allegations. This point does not advance their cause. The issue in a summary judgment motion must be one -which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Internal quotation marks omitted.) Bank of New York Mellon v. Horsey, 182 Conn.App. 417, 436 (2018). If, as here, the allegations do not state a claim upon which relief can be granted, the plaintiffs are not entitled to litigate that claim. The fact that the plaintiffs have evidence that supports the allegations is thus irrelevant.
Upon consideration, the court fully accepts Judge Sheridan’s reasoning in concluding that these counts fail to state a claim upon which relief can be granted. Accordingly, the defendants are now entitled to summary judgment on counts four, five, and nine.
IV
The court grants the defendants’ summary judgment motion on counts four, five, eight and nine, and denies the motion on counts two and three.
It is so ordered.
If the parties are unable to reach an agreement as to the fair value of the shares, as provided in General Statutes 33-900(c), the court shall "determine the fair value of the petitioner’s shares as of the day before the date on which the petition was filed or as of such other date as the court deems appropriate under the circumstances." General Statutes § 33-900(d).