Opinion
No. CV 09 5022756
May 27, 2011
MEMORANDUM OF DECISION
Preliminary Statement
This legal malpractice action arises out of the plaintiff's purchase of real property in Bridgeport, Connecticut, a transaction for which the defendant was the plaintiff's attorney. The case was tried to the court on December 1, 2010. Both the plaintiff and the defendant testified. Several exhibits were admitted. Post-trial briefs were submitted on March 15, 2011. For the reasons set forth below, judgment will enter in favor of the defendant.
Defendant's brief was filed late. Plaintiff asks that the court not to consider the arguments contained therein. While this court does not condone the filing of a late brief when simultaneous briefing is ordered, the brief was only a day or two late and does not appear to have been written in response to plaintiff's post-trial brief.
Facts
In late 2006 or early 2007, the plaintiff Fidel Gomez learned from an acquaintance, Domingo Dias, that property located at 41 Perth Street, Bridgeport, Connecticut was for sale. Dias told Gomez that the property was being sold for $185,000 and that a deposit of $15,500.00 was required. He further told Gomez that the seller wanted, as part of the sale, $30,000 in cash. This statement was not true. The property was on the market for $155,000. Gomez told Dias he was interested in purchasing the property and provided Dias with a bank check for $15,500.00 payable to the seller's attorney.
Thereafter, Dias used the plaintiff's money to secure a contract but, without the plaintiff's permission, placed the contract for the sale of the property in his own name. Dias told the plaintiff that he would have the contract changed to the plaintiff's name but that the $30,000 payment must be provided to Dias to secure the contract. Still unaware that the purchase price did not include this so-called $30,000 payment, Gomez provided a check in that amount to be held by the defendant, for the benefit of Dias, and turned over at the time of the closing.
Gomez retained the legal services of the defendant Gregory Conte for this transaction and as well to assist in a refinance of other property from which the funds to purchase this property would derive. The defendant had also represented Dias prior to this transaction. There was no discussion regarding a possible conflict of interest between Dias and Gomez. Conte testified that he considered Gomez to be his client in connection with this purchase.
Prior to the closing, Gomez learned of Dias' deception and that the property was listed for and being sold for $155,000. He cancelled the check being held by the defendant.
The defendant told the plaintiff the closing could not go forward until the issue of the $30,000 which Dias claimed was due him was resolved. The defendant testified that he thought the money was consideration for Dias assigning his right to purchase the property to the plaintiff. The defendant further testified that he did not know Dias had lied to Gomez about the purchase price or that Dias had put the contract in his own name without the plaintiff's permission and while using the plaintiff's money for the down payment. With this understanding, the defendant drafted a promissory note in favor of Dias in the amount of $30,000. He then insisted that the plaintiff sign the promissory note which was also secured by a mortgage deed on the property. The defendant told the plaintiff that he could lose his deposit and the property if he did not resolve the issue in this fashion. The plaintiff signed the note, closed on the property and thereafter refused to make any payments on the note.
Dias sought to foreclose on the property. At the trial of that matter, Gomez prevailed on several of his special defenses to the foreclosure action, to include fraud, unconscionability, and a CUTPA violation by Dias. Thereafter, the plaintiff brought this action against the defendant alleging legal malpractice and seeking to recover damages. His damages are claimed in the amount of his legal fees incurred to defend the foreclosure action.
Discussion
The essential elements of a claim for legal malpractice are as follows: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages. Here, there is no dispute that the defendant was engaged as the plaintiff's attorney in connection with the plaintiff's purchase of the Perth Street property.
On the issue of whether there was a wrongful act or omission on the part of the attorney, the plaintiff has not met his burden of proof. A wrongful act or omission is conduct that falls below the applicable standard of care for practicing attorneys. As a result, as a general rule, expert testimony is a prerequisite to the successful prosecution of a claim of legal malpractice. Davis v. Margolis, 215 Conn. 408, 416 (1990). "It is axiomatic in our jurisprudence that [g]enerally, to prevail on a legal malpractice claim . . . a [party] must present expert testimony to establish the standard of proper professional skill or care. Ackerly Brown, LLP v. Smithies, 109 Conn.App. 584, 588 (2008). The rationale underlying that rule is that in most cases, the determination of an attorney's standard of care, which depends on the particular circumstances of the attorney's representation, is beyond the experience of the average lay person, including members of the jury and perhaps even the presiding judge." Anderson v. Schoenhorn, 89 Conn.App. 666, 671 (2005) (emphasis added), quoting, Celentano v. Grudberg, 76 Conn.App. 119 (2003). Expert testimony assists the trier of fact in understanding the applicable standard of care so that the trier may measure the attorney's actions against that standard. Davis v. Margolis, 215 Conn. 408, 416 (1990).
Our courts have carved out a limited exception to this general rule "in cases in which there is present such an obvious and gross want of care and skill that the neglect [to meet the standard of care] is clear, even to a lay person." Moore v. Crone, 114 Conn.App. 443 (2009). See also, Pagan v. Gonzalez, 113 Conn.App. 135, 140-41 (2009). "The exception to the need for expert testimony is limited to situations in which the . . . attorney essentially has done nothing whatsoever to represent his or her client's interests." Byrne v. Grasso, 118 Conn.App. 444, 449 (2009), cert. denied, 294 Conn. 934 (2010). See also, Law offices of Walsh v. Natarajan, 124 Conn.App. 860 (2010).
The plaintiff argues that the defendant's conduct was such an obvious and gross want of care and skill, that no expert testimony is necessary. This court disagrees. This is certainly not a case in which the defendant did nothing or essentially nothing on behalf of his client. Indeed, the defendant represented him throughout the contract process. He appeared with him at the closing. In connection with the closing, he negotiated a resolution of the dispute between Dias and Gomez involving the $30,000. He drafted the promissory note in favor of Dias and had his client, Gomez sign it. He testified that he believed this was the best or only way to ensure that the closing went forward and that Gomez did not lose his deposit or the property.
Whether the defendant, Attorney Conte, acted reasonably and within the applicable standard of care cannot be determined without the assistance of expert testimony. For example, whether his belief that the closing could not occur unless the issue between Dias and Gomez was resolved, was correct in the first instance, or reasonable even if incorrect, requires expert testimony. Similarly, whether his conduct, given his understanding of the situation, in resolving that dispute by drafting a promissory note in favor of Dias, was within the applicable standard of care, requires expert testimony. Indeed, this was a somewhat complicated scenario and simply does not fall within the very limited exception to the rule which requires expert testimony in order to establish a legal malpractice claim.
The court does not attempt to create an exhaustive list of the issues for which expert testimony would be required.
There were allegations and a discussion asserting that Attorney Conte violated the Rules of Professional Conduct applicable to licensed attorneys in the State of Connecticut. While Attorney Conte's conduct may, on its face, appear to implicate ethical standards applicable to attorneys, whether the conduct rises to the level of legal malpractice is a different inquiry. Indeed, violations of the Rules of Professional Conduct are not, standing alone, the basis upon which civil liability is assessed. Gagne v. Vaccaro, 255 Conn. 390, 403 (2001).
Accordingly, judgment will enter in favor of the defendant.