Summary
granting directed verdict on legal malpractice action in part because the plaintiff failed to produce evidence as to how the attorney's alleged failure to communicate and consult "would have altered the result of [plaintiff's] appeal" in the underlying case.
Summary of this case from McCarter & English, LLP v. Jarrow Formulas, Inc.Opinion
No. 455605
May 20, 2005
MEMORANDUM OF DECISION
The plaintiff, Darius Miller, brings this legal malpractice action against the defendant, his former special public defender, Jerald Barber. Distilled to its essence, the complaint alleges legal malpractice by the defendant for four reasons: (1) the defendant failed to communicate with the plaintiff as to important legal questions; (2) the defendant inadequately briefed legal issues for the plaintiff's criminal appeal; (3) the defendant failed to supply the Appellate Court with an adequate record to review certain legal issues; and (4) the defendant failed to raise the issue of juror misconduct in the plaintiff's appeal. According to the plaintiff, the defendant's conduct was negligent and reckless and violated his constitutional rights to due process and effective assistance of counsel as well as the Rules of Professional Conduct.
On March 25, 2004, during the pendency of these proceedings, the plaintiff obtained a default against the defendant for failure to plead, pursuant to Practice Book § 17-32(a). On April 29, 2004, while the plaintiff's motions for judgment were pending but before they were granted, the defendant filed an answer. This automatically vacated the default pursuant to Practice Book § 17-32(b), which provides in relevant part: "If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default . . ."
Practice Book § 17-32(a) provides: "Where a defendant is in default for failure to plead pursuant to Section 10-8, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar."
On the day of trial, the defendant filed a motion for judgment based on his having received a discharge from the bankruptcy court, a motion in limine to prevent the plaintiff from introducing expert testimony, and a motion for judgment on the basis that, if the motion in limine was granted, the plaintiff could not satisfy his burden of proof.
The court denied the defendant's motion for judgment based on the bankruptcy discharge because the defendant failed to plead the discharge as a defense, as required by Practice Book § 10-50. To take advantage of a discharge in bankruptcy, a defendant must specially plead the discharge as a defense. Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 392, 132 A.2d 573 (1957); see Krondes v. O'Boy, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0135694 (February 3, 2003, Lewis, J.T.R.) ( 33 Conn. L. Rptr. 689); Corriveau v. Glastonbury Land Development Ltd. Partnership, Superior Court, judicial district of Tolland, Docket No. CV 98 65833 (June 21, 1999, Klaczak, J.) ( 24 Conn. L. Rptr. 645).
Practice Book § 10-50 provides: "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own."
The court granted the defendant's motion in limine since the plaintiff did not disclose any expert prior to trial. Practice Book § 13-4(4) provides: "In addition to and notwithstanding the provisions of subdivisions (1), (2) and (3) of this rule, any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial . . . If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subdivision . . . such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party." Therefore, when a plaintiff fails to comply with this rule, the court may grant a motion in limine in appropriate circumstances. Menna v. Jaiman, 80 Conn.App. 131, 134-37, 832 A.2d 1219 (2003). Practice Book § 13-4(4) is clear, it was not complied with, and undue prejudice would have been visited upon the defendant had the plaintiff been permitted to adduce previously undisclosed expert testimony on the day of trial. Id., 136. The court's ruling, however, was academic; it was clear that the plaintiff did not have expert testimony to adduce.
The court, however, denied the defendant's motion for judgment based on the granting of the motion in limine. While "[g]enerally, to prevail in a case alleging legal malpractice, a plaintiff must present expert testimony to establish the standard of proper professional skill or care"; Dubreuil v. Witt, 80 Conn.App. 410, 420, 835 A.2d 477 (2003), aff'd, 271 Conn. 782, 860 A.2d 698 (2004); "[t]here is an exception to this rule . . . where there is such an obvious and gross want of care and skill that the neglect is clear even to a lay person." Id., 420-21. In addition, there are circumstances where a judge, sitting as the trier of fact may find "without the benefit of expert testimony that the defendant had violated the standard of care." Id., 422.
After the court denied the defendant's motions for judgment the plaintiff proceeded with the presentation of his case. After the plaintiff rested, the defendant moved for a judgment of dismissal for failure to make out a prima facie case. See Practice Book § 15-8. "A prima facie case, in the sense in which that term is relevant to this case, is one sufficient to raise an issue to go to the trier of fact . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . In evaluating a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor . . ." (Citations omitted; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535, cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000); see Dubreuil v. Witt, supra, 80 Conn.App. 424. In order to make out a prima facie case of legal malpractice, a plaintiff must adduce sufficient evidence which, if credited, would "prove (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages." (Internal quotation marks omitted.) Dubreuil v. Witt, supra, 80 Conn.App. 420.
Practice Book § 15-8 provides: "If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made."
In some jurisdictions, the plaintiff must go further and prove his own innocence; he cannot sue while his conviction stands. Woidtke v. St. Clair County, 335 F.3d 558, 563-65 (7th Cir. 2003); Levine v. Kling, 123 F.3d 580, 582 (7th Cir. 1997). Connecticut has not adopted this element.
The plaintiff's case consisted of his own testimony, a copy of his complaint which he submitted as an exhibit, a decision of a panel of the statewide grievance committee, which was included with the complaint and a letter to a Mrs. Natacha Miller from the defendant on which the plaintiff was copied, in which the defendant acknowledged that he had received $950. In addition, the court took judicial notice of the opinions of the Appellate Court in State v. Miller, 59 Conn.App. 406, 757 A.2d 69 (2000), cert. denied, 255 Conn. 942, 769 A.2d 60 (2001), and State v. Jones, 60 Conn.App. 866, 761 A.2d 789 (2000), cert. denied, 255 Conn. 942, 769 A.2d 59 (2001).
Accepting this evidence as true and interpreting it in the light most favorable to the plaintiff and drawing every reasonable inference in the plaintiff's favor, a trier could find the following. The plaintiff was tried and convicted together with Charles Jones and Jasper Dudley of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a)(4) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(4). The plaintiff was sentenced to fourteen years imprisonment. The conviction arose out of an armed robbery of an auto parts store in which the plaintiff, Jones, Dudley and Michael Cappozziello participated. Capozziello subsequently confessed to the crime and implicated the plaintiff and the two others.
At trial, the plaintiff was represented by the office of the public defender. After his conviction, the plaintiff retained the defendant to prosecute his appeal to the Appellate Court, and paid him a total of $1,000.
On appeal, the defendant presented three issues to the Appellate Court: (1) that the trial judge improperly restricted his cross-examination of Capozziello, thereby depriving him of his right to confront a witness against him; (2) that the trial judge failed to admit a written receipt into evidence; and (3) that the verdict was not supported by the evidence. The Appellate Court reviewed the last two claims on their merits and held against the plaintiff.
The Appellate Court declined to review the plaintiff's first claim on appeal. Because that claim had not been preserved at trial by the plaintiff's trial counsel; State v. Miller, supra, 59 Conn.App. 409; the plaintiff could only obtain review of the claim "under the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5 . . ." State v. Miller, supra, 59 Conn.App. 409. In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court stated that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.)
Under the plain error doctrine, "[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial . . ." Practice Book § 60-5. "The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice." State v. Alston, 272 Conn. 432, 456, 862 A.2d 817 (2005).
The Appellate Court held that the plaintiff did not satisfy the criteria established under either the Golding or plain error doctrine. First, the defendant did not request the Appellate Court to review the claim of unduly restricted cross-examination under the plain error doctrine. State v. Miller, supra, 59 Conn.App. 410. Second, the defendant failed to present the Appellate Court with the relevant portions of the transcript where cross-examination was improperly restricted; id., 410 n. 8; thereby failing to satisfy the first requirement of Golding, and further failed to adequately brief the issue. Id., 410. Accordingly, the Appellate Court deemed the claim abandoned. Id. The Appellate Court affirmed the trial court's judgment of conviction. The Supreme Court denied the plaintiff's petition for certification. The Supreme Court denied the plaintiff's petition for certification to appeal further. State v. Miller, 255 Conn. 942, 769 A.2d 60 (2001).
The plaintiff claims that the defendant was negligent in filing to properly present to the Appellate Court the claim that the trial court improperly restricted his right to cross-examination, depriving him of his right to confront witnesses against him. The court is aware that this claim was the basis of the statewide grievance committee's determination that the defendant had violated Rules 1.1 and 1.3 of the Rules of Professional Conduct. That however, is not the basis of this court's determination, since the Rules of Professional Conduct "are not designed to be a basis for civil liability." Gagne v. Vaccaro, 255 Conn. 390, 403, 766 A.2d 416 (2001); Mozzochi v. Beck, 204 Conn. 490, 501 n. 8, 529 A.2d 171 (1987); see Dubreuil v. Witt, supra, CT Page 9734 80 Conn.App. 430-31; Dunn v. Leepson, 79 Conn.App. 366, 370, 830 A.2d 325, cert. denied, 266 Conn. 923, 835 A.2d 472 (2003); Ankerman v. Mancuso, 79 Conn.App. 480, 485, 830 A.2d 388, aff'd, 271 Conn. 772, 860 A.2d 244 (2004); Standish v. Sotavento Corp., 58 Conn.App. 789, 796-97, 755 A.2d 910, cert. denied, 254 Conn. 935, 761 A.2d 762 (2000); Noble v. Marshall, 23 Conn.App. 227, 231 n. 3, 579 A.2d 594 (1990). Rather, based on the holding in Dubreuil v. Witt, supra, 432, the court, sitting as the trier of fact, and not unfamiliar with the private practice and standards of appellate litigation in general and criminal appellate litigation in particular, finds that the plaintiff has adduced sufficient evidence which, if accepted as true and interpreted in the light most favorable to the plaintiff, and drawing every reasonable inference in the plaintiff's favor, would establish that the defendant, who had an attorney-client relationship with the plaintiff, violated the standard of care for attorneys handling criminal appellate litigation. Thus, the plaintiff has adduced prima facie evidence of the first two elements of his claim for legal malpractice, i.e., "the existence of an attorney-client relationship" and "the attorney's wrongful act or omission." Id., 420.
The plaintiff was next required to adduce evidence of causation. Beecher v. Greaves, 73 Conn.App. 561, 564, 808 A.2d 1143 (2002). "`[A] plaintiff must establish not only the attorney's negligence but also that there should have been a better result in the underlying lawsuit or matter.' Mallen Smith, Legal Malpractice (5th Ed. 2000), § 33.9, p. 77." Lametta v. Todisco, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 037 92 61 (September 8, 2003, Gormely, J.T.R.). That is, the plaintiff must prove that the defendant's negligence caused his conviction to be affirmed on appeal.
The plaintiff's ordeal is trebly difficult. First, claims that a trial judge unconstitutionally restricted cross-examination in a criminal trial, while easy to make, are usually unsuccessful on appeal.
See e.g., State v. Swinton, 268 Conn. 781, 847 A.2d 921 (2004); State v. Christian, 267 Conn. 710, 841 A.2d 1158 (2004); State v. Francis, 267 Conn. 162, 836 A.2d 1191 (2003); State v. Reynolds, 264 Conn. 1, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2003); State v. Ferguson, 260 Conn. 339, 796 A.2d 1118 (2002); State v. Valentine, 240 Conn. 395, 692 A.2d 727 (1997), appeal after remand, 255 Conn. 61, 762 A.2d 1278 (2000); Montgomery v. Warden, 254 Conn. 694, 759 A.2d 995 (2000); State v. Booth, 250 Conn. 611, 737 A.2d 404 (1999), cert. denied, 529 U.S. 1060, 120 S.Ct. 1568, 146 L.Ed.2d 471 (2000); State v. King, 249 Conn. 645, 735 A.2d 267 (1999); State v. Andrews, 248 Conn. 1, 726 A.2d 104 (1999); State v. Lewis, 245 Conn. 779, 717 A.2d 1140 (1998); State v. Joyce, 243 Conn. 282, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S.Ct. 1523, 140 L.Ed.2d 674 (1998); State v. Gould, 241 Conn. 1, 695 A.2d 1022 (1997); State v. Bova, 240 Conn. 210 690 A.2 1370 (1997); State v. Weaver, 8d Conn.App. 329, 857 A.2d 376, cert. denied, 271 Conn. 342, 861 A.2d 517 (2004); State v. Goodson, 84 Conn.App. 786, 856 A.2d 1012 (2004); State v. Luis F., 85 Conn.App. 264, 856 A.2d 522 (2004); State v. Briscoe, 84 Conn.App. 120, 852 A.2d 746, cert. denied, 271 Conn. 944, 861 A.2d 1178 (2004); State v. Johnson, 82 Conn.App. 777, 848 A.2d 526 (2004); State v. Calderon, 82 Conn.App. 315, 844 A.2d 866, cert. denied, 270 Conn. 905, 853 A.2d 523 (2004), cert. denied, 125 S.Ct. 487, CT Page 9739 160 L.Ed.2d 361 (2004); State v. Shells, 82 Conn.App. 332, 844 A.2d 235, cert. denied 270 Conn. 911, 853 A.2d 529 (2004); State v. Williams, 88 Conn.App. 1, 38 A.2d 214, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004); State v. Gombert, 80 Conn.App. 477, 836 A.2d 437 (2003), cert. denied, 267 Conn. 915, 841 A.2d 220 (2004); State v. Aaron L., 79 Conn.App. 397, 830 A.2d 776 (2003), aff'd, 272 Conn. 78, 865 A.2d 1135 (2005); State v. Pepper, 79 Conn.App. 1, 828 A.2d 1268 (2003), aff'd, 272 Conn. 10, 860 A.2d 1221 (2004); State v. William B., 76 Conn.App. 730, 822 A.2d 265, cert. denied, 264 Conn. 918, 828 A.2d 618 (2003); State v. Gainey, 76 Conn.App. 155, 818 A.2d 859 (2003).
The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness' motivation in testifying . . . In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the . . . In determining whether a defendant's right of cross-examination has been unduly restricted, [appellate courts] consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial . . . [T]he denial of all meaningful cross-examination into a legitimate area of inquiry fails to comport with constitutional standards under the confrontation clause.
(Citations omitted; internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992).
Nevertheless, once those minimum standards "have been met, the trial court has broad discretion in ruling on the admissibility of evidence. The determination of the relevancy and remoteness of evidence is within the sound discretion of the trial court . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion." (Internal quotation marks omitted.) State v. Jones, supra, 60 Conn.App. 870. The clear abuse of discretion standard is one of the most difficult avenues by which to obtain the reversal of a criminal conviction. State v. Greene, 209 Conn. 458, 463, 551 A.2d 1231 (1988); see also Mincey v. Head, 206 F.3d 1106, 1137 n. 69 (11th Cir. 2000), cert. denied, 532 U.S. 926, 121 S.Ct. 1369, 149 L.Ed.2d 297 (2001); United States v. Wiseman, 172 F.3d 1196, 1211 (10th Cir. 1999); United States v. Salemeh, 152 F.3d 88, 115 (2d Cir. 1998), cert. denied, 526 U.S. 1028, 119 S.Ct. 1273, 143 L.Ed.2d 368 (1999). "[A]ppellate decisions emphasize that an abuse of discretion leading to a reversal is rare." Madigan v. Madigan, 224 Conn. 749, 758, 621 A.2d 258 (1993).
Second, the plaintiff was not entitled even to this rarefied review in the first instance. He was entitled at best only to review under Golding or plain error review. "It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Internal quotation marks omitted.) State v. McKiernan, 84 Conn.App. 31, 37, 851 A.2d 1198, cert. denied, 271 Conn. 915, 859 A.2d 573 (2004). With respect to review under Golding, even if the defendant had presented an adequate record for review and adequately briefed the issue, the plaintiff still would have had to persuade the Appellate Court that his claim was of constitutional magnitude; that is, that he was denied the minimum required cross-examination, and not merely that the trial judge otherwise abused his discretion, and that the constitutional violation clearly existed and clearly deprived the defendant of a fair trial. Even then, the state would have had the opportunity to demonstrate the harmlessness of the alleged constitutional violation beyond a reasonable doubt. See State v. Arrington, 81 Conn.App. 518, 520-21, 840 A.2d 1192, cert. granted, 268 Conn. 922, 846 A.2d 881 (2004) ("Although the outright denial of a defendant's opportunity to impeach a witness for motive, bias and interest implicates the constitutional protection of the confrontation clause, such a denial is subject to harmless error analysis . . . A new trial is therefore required only if the exclusion of the proffered evidence is not harmless beyond a reasonable doubt").
Trebling the plaintiff's troubles is that his co-conspirators received plenary review of the claim that the trial judge improperly restricted their cross-examination of Capozziello in violation of article first § 8 of the Connecticut constitution, and the sixth and fourteenth amendments to the United States constitution, and that the court abused its discretion in imposing those restrictions. State v. Jones, supra, 60 Conn.App. 868-71. The Appellate Court held that the trial judge did not abuse his discretion in limiting the scope of cross-examination. Id., 871. The Supreme Court denied certification. State v. Jones, supra. 255 Conn. 942. The plaintiff has not explained why the result would have been different had the defendant properly presented the issue to the Appellate Court, and this court, and the court may not speculate as to the answer to this question. Topping off the obstacles that the plaintiff must overcome to prevail on this claim is one he himself has created. The plaintiff did not introduce the transcript of the trial in his criminal case.
The plaintiff also claims that the defendant committed malpractice by not raising the issue of juror misconduct in his criminal appeal. Here again, the issue was raised by his confederates in their criminal appeal, the Appellate Court afforded the claim plenary review, and found that the trial "court properly conducted an inquiry into whether there was juror misconduct and concluded that there was no such misconduct . . ." State v. Jones, supra, 60 Conn.App. 876. Again, the plaintiff has not explained why the result might have been different had the defendant presented the issue to the Appellate Court on his behalf.
Finally, the plaintiff complains that the defendant failed to adequately communicate and consult with him. The plaintiff has not produced evidence as to how this would have altered the result of his appeal.
In conclusion, the plaintiff has failed to adduce any evidence that negligence of the defendant caused his judgment of conviction to be affirmed on appeal. For this reason, the defendant's motion to dismiss pursuant to Practice Book § 15-8 is granted.
BY THE COURT
Bruce L. Levin Judge of the Superior Court