Opinion
FSTCV166028664S
10-09-2019
Kevin F. COLLINS, Esq. dba Law Offices of Kevin F. Collins v. Odetta ROGERS aka Odetta Rogers-Clarke
UNPUBLISHED OPINION
SOMMER, J.
I. INTRODUCTION
The subject action arises out of the claim by Attorney Kevin Collins ("Collins") against the defendant, Odetta Rogers ("Rogers"), a former divorce client, for non-payment of approximately $32, 000.00 in legal fees. The defendant has filed a counterclaim against Attorney Collins in which she seeks damages against him. The court (Genuario, J.) previously struck the second count (breach of contract) and the third count (breach of covenant of good faith) on March 27, 2018 (Entry 126.01), and judgment entered in Collins’ favor on those counts on April 30, 2018 (Entry 132.01). Four counts remain in the case: (1) legal malpractice, (4) intentional misrepresentation, (5) negligent misrepresentation and (6) violation of the Connecticut Unfair Trade Practices Act ("CUTPA"). The plaintiff/counterclaim defendant, Kevin F. Collins, Esq. ("Collins"), has filed a motion for summary on all remaining counts of the July 31, 2017 Revised Counterclaim filed herein by the counterclaim plaintiff, Collins filed the subject motion with a supporting memorandum of April 8, 2019, Rogers filed a reply on June 27, 2019 and Collins filed a reply brief on July 5, 2019. The court heard argument on July 8, 2019.
With respect to the first count, alleging legal malpractice, Collins argues that he is entitled to judgment in his favor because Rogers’ claims are in part demonstrably false and because she cannot establish causation or damages. He further argues that the fourth and fifth counts, intentional and negligent misrepresentation, fail because Rogers cannot establish reliance on any specific alleged misrepresentation, cannot establish causation or damages and has not presented any evidence that Collins’ invoices were either false or inflated. Finally, Collins asserts that he is entitled to judgment in his favor on the sixth count, seeking recovery under CUTPA, also because Rogers cannot establish that Collins’ invoices were either false or inflated and because she lacks expert testimony in support of this claim as required by law.
II. FACTUAL BACKGROUND
Odetta Rogers, acting pro se, filed for divorce from her husband, Kenton Clarke, on March 27, 2014. Two other attorneys represented her before she retained Attorney Collins on December 23, 2014. Although not germane to this motion, at the time that she engaged Attorney Collins, Rogers was in peril of being held in contempt of court for violating the "automatic orders" that enter upon the commencement of a divorce case by willfully selling one house and refinancing another and failing to account for the $1.3 million in proceeds that she allegedly received from those transactions.
Collins represented Rogers from December 23, 2014 until September 8, 2015, a period of a little over eight months. Thereafter, Attorney Sol Mahoney filed an appearance in lieu of Collins. Attorney Mahoney negotiated a Separation Agreement that Clarke and Rogers executed on November 25, 2015 and which became a judgment of the court at the time it entered orders dissolving the marriage on November 25, 2015. Rogers admitted at her deposition that she was canvassed by the court before it accepted the Separation Agreement and that she agreed that it was fair and equitable.
In her Revised Counterclaim, Rogers alleges that Collins failed to obtain complete information regarding her ex-husband’s assets and income to her financial detriment, but despite that, he represented to her that he was ready to try the case. Ignoring the record that Attorney Mahoney represented her when she entered into the Separation Agreement, she repeatedly claims that Collins settled the case "primarily because he was not ready to properly try the matter. "
Notwithstanding the fact that she was represented by separate counsel at the time she entered into the Separation Agreement, Rogers alleges that Collins failed to meet the applicable standard of care in various respects during his eight-month representation of her. Collins has moved for summary judgment in his favor on the remaining counts because Rogers cannot prove causation or damages, cannot show reliance on any alleged misrepresentation nor has she so far pointed to a single specific misrepresentation, has no evidence to support her allegations that Collins’ bills were inflated or false and has no expert testimony to support her CUTPA claim.
III. APPLICABLE LAW AND ANALYSIS
A. Summary Judgment Standard
The purpose of a motion for summary judgment is "to dispose of cases in a matter which is speedier and less expensive for all concerned than a full-dress trial." Orenstein v. Old Buckingham Corp., 205 Conn. 572, 574, 534 A.2d 1172 (1987). Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. "In deciding a motion for summary judgment, the trial. court must view the evidence in the light most favorable to the nonmoving party." Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [ofj material facts which, under applicable principle of substantive law, entitle him to judgment as a matter of law." Appleton, 254 Conn. at 209. "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).
"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing 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. It is not enough ... for the opposing party merely to assert the existence of such a disputed issue." Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998). "[T]he party opposing such a motion must provide evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Appleton, 254 Conn. at 209. A party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002). "Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue." United Oil Co. v. Urban Redevelopment Comm., 158 Conn. 364, 377, 260 A.2d 595 (1969).
"If a defendant’s well supported motion for summary judgment shows that there is no genuine factual dispute as to multiple essential elements of a plaintiff’s cause of action, such that none of them reasonably could be resolved in the plaintiff’s favor at trial, the viability of the plaintiff’s case is not improved if he only responds with sufficient counterevidence to call some of those essential elements back into question." Stuart v. Freiberg, 316 Conn. 809, 823-24, 116 A.3d 1195 (2015). "Put differently, by raising a genuine issue of fact as to only some of the essential elements under attack, the plaintiff has not altered the potential outcome of his case." (Citation omitted.) Id. at 824. Thus, "in evaluating a defendant’s motion for summary judgment, a trial court’s task does not necessarily end upon its finding that a genuine factual dispute exists as to one or some essential elements of a plaintiff’s cause of action." Id. "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. "[A] plaintiff may properly be called upon at the summary judgment stage to demonstrate that he possesses sufficient counterevidence to raise a genuine issue of material fact as to any, or even all, of the essential elements of his cause of action." (Citations omitted.) Id.
B. Absence of Proof of Causation or Damages
"The plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages." (Internal citations omitted.) Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 774, 882 A.2d 653 (2005). "In a legal malpractice action, the plaintiff must produce expert testimony that ... the breach was the proximate cause of the injuries suffered by the plaintiff." Beecher v. Graves, 73 Conn.App. 561, 564, 808 A.2d 1143 (2002); Solomon v. Levett, 30 Conn.App. 125, 618 A.2d 1389 (1993). "Except in obvious situations, expert testimony generally is required to establish the element of causation in a legal malpractice case." (Citation omitted.) Kuehl v. Koskoff, 182 Conn.App. 505, 507, 190 A.3d 82, cert. denied 330 Conn. 919, 914 A.3d 289 (2018). As stated above, Collins has moved for summary judgment on the first count of the Revised Counterclaim because he argues that Rogers cannot prove causation or damages.
"The essential element of causation has two components. The first component, causation in fact, requires us to determine whether the injury would have occurred but for the defendant’s conduct ... The second component, proximate causation, requires us to determine whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries ... That is, there must be an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] ... The causal connection must be based [on] more than conjecture and surmise ... [N]o matter how negligent a party may have been, if his negligent act bears no [demonstrable] relation to the injury, it is not actionable ..." Bozelko v. Papastavros, 323 Conn. 275, 283-84, 147 A.3d 1023 (2016).
Rogers alleges that Collins breached the applicable standard of care in one or more of the following ways (a) He settled the case primarily because he was not ready to properly try the matter; (b) He failed to secure a complete and accurate valuation of the marital estate; (c) He failed to obtain a proper and complete financial analysis of the assets of the Counterclaim Plaintiff’s husband before trial; and (d) He failed to verify the husband’s income and assets before trial even though he was well aware of his lack of information.
Collins has submitted extensive excerpts from the deposition testimony of Rogers and her expert witness, Attorney Mark Swerdloff. It is clear from the court’s review of the transcript that both Rogers and Swerdloff were given ample opportunity to answer the questions posed to them by Collins’ attorney. In her deposition Rogers concedes that the first claim, i.e., that Collins settled the case primarily because he was not prepared, is not true. In order to prevail on the second malpractice claim above, Rogers must establish that Collins’ failure to secure a complete and accurate valuation of the marital estate, failure to secure a proper and complete analysis of Mr. Clarke’s assets, and failure to verify Mr. Clarke’s income and assets caused her damages. The evidence is undisputed that, even if Collins failed to obtain a proper and complete financial analysis, Rogers cannot establish that she suffered financial loss as a result.
Collins ceased representing Rogers on September 8, 2018. At that time Collins was replaced by another attorney, Sol Mahoney. Rogers then entered into a Settlement Agreement which disposed of all marital property issues on November 25, 2015. Rogers entered into that settlement of her divorce claim, which she agreed in court was fair and equitable, while represented by the other attorney. At her deposition, Rogers testified in vague terms about her belief that her former husband Kenton Clarke still had approximately $1.5 million in unidentified, undisclosed assets at the time she entered into the November 25, 2015 Separation Agreement, and that somehow this is the fault of Collins the attorney that she fired almost three months before she agreed to the terms of the Separation Agreement. Despite written discovery request and deposition questioning, Rogers has not identified the documents or court rulings to which she refers, nor has she provided copies of them. Although she was questioned on the basis of this belief at her deposition, Rogers was not able to identify a single account, property, holding or other asset to substantiate this claim. At that time, she ultimately acknowledged that the documents which she needs to substantiate her claims are "impossible to get."
Counsel for Collins also followed up on Rogers’ claims in the deposition of her expert witness, Attorney Mark Swerdloff. Attorney Swerdloff testified that he has "no knowledge one way or the other" regarding whether Mr. Clarke had any undisclosed assets at the time Rogers entered the Separation Agreement. Attorney Swerdloff further conceded that he cannot render any admissible opinions on causation and damages. In response to the question of how can Rogers prove she was harmed, Swerdloff testified, "If you haven’t hired- we’ll call it a business valuator, forensic accountant, whatever it might be, you can’t know the extent of harm." Rogers did not disclose a forensic accountant or business valuation in the divorce action or this case. As a result, Swerdloff conceded that there is no way to know there was any harm. Without an expert assessment of Clarke’s business, Attorney Swerdloff acknowledged that he is unable to know either whether Rogers was harmed, or if so, the actual amount of financial harm to her. Attorney Swerdloff himself characterized his view of Rogers’ financial harm as speculative. In his words," ... without additional data ... it’s speculation." He later characterized the question of whether Rogers was damaged by Collins’s actions as 50/50.
Without proof that she would have received more in the divorce action, Rogers cannot prove that Collins has been negligent. This alone is fatal to her malpractice claim. Kuehl v. Koskoff, supra, 182 Conn.App. at 520-21. Experts "may testify in the form of an opinion" only if "sufficient facts are shown as the foundation for the expert’s opinion." Conn. Code of Evid. § 7-4. As applied to causation, this means opinions "must be based [on] reasonable probabilities rather than mere speculation or conjecture if they are to be admissible[.]" Motzer v. Haberli, 300 Conn. 733, 740, 15 A.3d 1084 (2011) (internal quotation omitted); accord Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023 (1986) (an "expert opinion that seeks to establish the causal connection between the injury and the alleged negligence must rest upon more than surmise or conjecture") (internal quotation omitted). "To be reasonably probable, a conclusion must be more likely than not." Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987). Attorney Swerdloff concedes that his statement regarding whether Rogers signed the Separation Agreement without full knowledge of her ex-husband’s assets is no more certain than a flip of the coin.
Under the well-established legal principles applicable to the claims in this case, Rogers cannot pursue a legal malpractice claim where her expert’s opinions are purely speculative and conjectural nature and she lacks proof of causation or damages. Rogers has no evidence, and no expert testimony, to prove that Mr. Clarke’s business was undervalued or that he had additional, undisclosed assets that were part of the marital estate. Because of this, she cannot prove causation or damages even if legal malpractice is assumed, and Collins is entitled to judgment in his favor on the first count of the Revised Counterclaim as a matter of law.
C. Intentional and Negligent Representation
It is not entirely clear from the Revised Counterclaims precisely what misrepresentations Collins allegedly made during the time he was Rogers’ attorney. She alleges that Collins made "various statements and representations" that were false, without stating with any specificity, what any of them are. Rather, she relies solely on the unsupported conclusory allegations that "the following statements, representations and failures to disclose were untrue and were designed to mislead" her, i.e., that [Collins] was prepared to proceed to trial; that [Collins] had adequate financial information to properly evaluate the case and [that Collins] represented that his billing reflected a true and accurate billing for services actually provided meeting all applicable standards of care which was, in fact, untrue.
Under the law of the state of Connecticut, courts treat intentional misrepresentation is synonymous with fraud. The essential elements of an action for fraud or intentional misrepresentation are that "(1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995). Further, the first three elements must be proven "by a standard higher than the usual fair preponderance of the evidence, which higher standard [the Supreme Court of Connecticut has] described as ‘clear and satisfactory’ or ‘clear, precise and unequivocal.’ "Weisman, Trustee v. Kaspar, supra, 233 Conn. at 540. Harold Cohn & Co. v. Haco, LLC, 72 Conn.App. 43, 51, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). A claim of intentional misrepresentation requires proof by "clear and convincing evidence." (Citation omitted; internal quotation marks omitted.) Saggese v. Beazley Co. Realtors, 155 Conn.App. 734, 753, 109 A.3d 1043 (2015). The "clear and convincing" standard is "a demanding standard that should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory," as in this case. (Citation omitted; internal quotation marks omitted.) Id. at 754.
To prove negligent misrepresentation, a plaintiff must prove (1) that the defendant made a misrepresentation of fact; (2) that the defendant knew or should have known the representation was false; (3) that the plaintiff reasonably relied on the misrepresentation; and (4) that the plaintiff suffered pecuniary harm as a result. Nazami v. Patrons Mutual, 280 Conn. 619, 626, 910 A.2d 209 (2006). A defendant may be liable for negligent misrepresentation "when there has been a failure to disclose known facts and, in addition thereto, a request or an occasion or circumstance when imposes a duty to speak." (Citation omitted; internal quotation marks omitted.) Johnnycake Mtn. Assocs. v. Ochs, 104 Conn.App. 194, 206, 932 A.2d 472 (2007), cert. denied, 286 Conn. 906, 944 A.2d 978 (2008).
A plaintiff asserting a claim for negligent misrepresentation, however, must prove a false statement of fact. Statements of opinion are thus not actionable for purposes of a misrepresentation claim. See Sturm v. Harb. Dev., LLC, 298 Conn. 124, 142-43, 2 A.3d 859 (2010); Crowther v. Guidone, 183 Conn. 464, 467, 441 A.2d 11 (1981). "It is sometimes difficult to determine whether a given statement is one of opinion or one of fact, inasmuch as the subject matter, the form of the statement, the surrounding circumstances, and the respective knowledge of the parties all have a bearing upon the question. Each case must in a large measure be adjudged upon its own facts." Meyers v. Cornwell Quality Tools, Inc., 41 Conn.App. 19, 29, 674 A.2d 444 (1996). Whether a statement is one of fact or opinion involves considerations such as the subject matter, the form of the statement, the surrounding circumstances, and the respective knowledge of the parties. See Anastasia v. Beautiful You Hair Designs, Inc., 61 Conn.App. 471, 478, 767 A.2d 118 (2001).
It is evident from Rogers’ own deposition testimony and that of her expert Attorney Swerdloff that Rogers cannot meet her burden of proving either a negligent or an intentional misrepresentation by Collins. These two counts survived a motion to strike because the court determined that "when broadly read," the allegations that Collins falsely stated that his bills accurately and truthfully reflected services actually provided and Rogers’ claim "that the case was settled because [Collins] was not prepared to go to trial though he had represented that he was so prepared" adequately alleged actionable misrepresentation. However, the subsequent deposition testimony of the parties and the counterclaim plaintiff’s expert have disproved these claims. Based on a thorough review of the transcripts, the court concludes that Rogers has no evidence to contradict Collins’ affidavit that his bills are true and based on his records of work he performed. With respect to the alleged misrepresentation that Collins was prepared to go to trial, the chronology of the case establishes that Collins neither tried the case nor settled it. Rogers received the benefit of the court accepting her allegations as stated in deciding the motion to strike. That benefit no longer applies under the facts of the case.
Moreover, it is also undisputed that Collins filed a motion to continue the trial of the underlying divorce case on August 4, 2015 specifically because he was not ready to try the case and lacked key financial information. Rogers was present in court when Collins argued the motion and had a copy of the motion which stated as a reason for its filing, "[t]here has been insufficient production of information and documentation sufficient to adequately prepare for the trial of this matter." This evidence directly refutes her claim that Collins made false statements of fact to her regarding his readiness for trial or the completeness of the financial data at his disposal.
Rogers’ deposition testimony further establishes that she at all times was aware that Collins was neither ready for trial nor in possession of what she believed he needed to evaluate or try the case. Rogers repeatedly acknowledged at her deposition that she knew that Collins was not ready and that he did not have adequate information about Mr. Clarke’s assets and finances. Thus, her misrepresentation claims fail even if the court concludes that there is a material issue of fact regarding whether a misrepresentation was made because she cannot establish that she relied on any misrepresentations.
Because Collins neither settled nor tried the case, Rogers cannot show any causal connection or damages resulting from Collins’ alleged statements that he was prepared to try the case or that he had enough information to properly evaluate it because she could not possibly have relied on any such statements to her detriment. In fact, the case was never tried. As a result, even if Rogers could somehow prove a misrepresentation by Collins- and she has so far not identified a single one- she cannot prevail on either her intentional or negligent misrepresentation claims. Collins is entitled to entry of judgment in his favor as a matter of law on the fourth and fifth counts of the Revised Counterclaim.
D. Conn. Gen. Stat. 42-110a CUTPA
The sixth count of the Revised Counterclaim alleges that Collins’ conduct constitutes a violation of CUTPA. "CUTPA covers only the entrepreneurial or commercial aspects of the profession of law. The noncommercial aspects of lawyering- that is, the representation of. the client in a legal capacity- should be excluded for public policy reasons." Haynes v. Yale-New Haven Hosp., 243 Conn. 17, 35, 699 A.2d 964 (1997). The court (Genuario, J.) has already ruled that this count must be limited to allegations of excessive billing or inaccurate billing. (Entry 126.01.) Memorandum of Decision on Motion to Strike, p. 7.
Reviews of the Revised Counterclaim demonstrates that Rogers has failed to allege facts to support a finding of deception, unfairness, excessiveness or falsity with respect to Collins’ bills. Rogers responded to interrogatories regarding her CUTPA claim by leaving requests unanswered and admitting that she needed an expert witness. Collins asked two questions regarding the allegation of excessive billing; Rogers did not answer either question, but admitted that this part of her case requires expert testimony. In response to the request for facts supporting her claim of excessive billing as alleged in paragraph 17(a) of the counterclaims, Rogers responded the Third Count has been struck from the Complaint [sic]. She then acknowledged that the response to interrogatory 26, i.e., fair and reasonable fees for professional services requires an expert opinion, which will be provided.
Rogers’ expert witness Attorney Mark Swerdloff declined to state any opinion regarding excessive, inaccurate or false billing by Collins. Likewise, when Rogers was examined about the CUTPA count at her deposition she did not offer any evidence to support the CUTPA claim. Instead, she suggested that a "review" that she did in 2015, for which she has no notes or other proof, caused her to feel or believe that there were undefined issues with Collins’ bills.
Despite being given ample opportunity to identify or provide evidence of specific claims, Rogers never identified a single billing entry that was for a higher hourly rate than she agreed to pay, that represented work that was not done, or that was inflated or inaccurate. Review of Rogers’ own sworn testimony leads the court to conclude that she has no evidence to controvert Collins’ assertion that the billing is accurate in all respects. Rogers’ reliance on her own subjective and vague beliefs and feelings that the bill is somehow inaccurate without any supporting facts defeats her CUTPA claim. See, Buell Industries, Inc. v. Greater New York Mutual Ins. Co., supra, 259 Conn. at 558 (a party cannot "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment"). For this reason, Collins is entitled to judgment in his favor on the sixth count of the Revised Counterclaim as a matter of law.
Conclusion
Based on a careful review of the evidence submitted and application of the law to the facts of this case, the court concludes that the counterclaim defendant, Attorney Kevin Collins, is entitled to judgment in his favor on all remaining counts of the Revised Counterclaim as a matter of law. With respect to the first count, alleging legal malpractice, Collins is entitled to judgment in his favor because Rogers’s claims are in part demonstrably false (which she concedes) and because the plaintiff cannot establish causation or damages. The fourth and fifth counts, for intentional and negligent misrepresentation, fail because Rogers cannot establish any specific alleged misrepresentation, detrimental reliance, causation or damages and has not presented any evidence that Collins’ invoices were either false or inflated. Finally, Collins is entitled to judgment in his favor on the sixth count, seeking recovery under CUTPA, because Rogers cannot establish that Collins’ invoices were either false or inflated and because she lacks expert testimony on this claim.
WHEREFORE, the court grants the motion for summary judgment on the first, fourth, fifth and sixth counts of the Revised Counterclaim.