Opinion
No. CV06-5002162 S
February 15, 2007
MEMORANDUM OF DECISION RE CROSS MOTION OF DEFENDANT FOR SUMMARY JUDGMENT (#106)
In this action the Plaintiff, Omar J. Miller, has filed a complaint against the Defendant, Elizabeth Sabilia, Esq. The complaint alleges that it is a tort action claiming malpractice against the Defendant. The complaint alleges that Sabilia was a member of a law firm known as Sabilia and DeSantis LLC, which was later changed to Sabilia, DeSantis Waggoner LLC, when Darren Waggoner joined the firm. The complaint alleges that the Plaintiff was a client of Attorney Sebastian DeSantis. The Plaintiff claims that DeSantis did not live up to the responsibility of his duties to him resulting in the Plaintiff filing a grievance against him. The Plaintiff claims that DeSantis blamed Sabilia and Waggoner for his incompetent handling of the Plaintiff's case. The Plaintiff claims that Sabilia failed to live up to her responsibilities as a law firm partner as required by the Rules of Professional Conduct.
The Defendant has moved for summary judgment because the Plaintiff asserts a claim for legal malpractice and the Plaintiff cannot establish that he had an attorney-client relationship with the Defendant and, in fact, the Plaintiff alleges that he was the client of another attorney.
The standards for granting summary judgment are well settled. "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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. The test is whether a party would be entitled to a directed verdict on the same facts." (Internal citation and quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31 (2006). "`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. When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . .' Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005)." Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47 (2005).
In support of her motion for summary judgment, the Defendant has submitted the affidavits of herself and Sebastian O. DeSantis. The Plaintiff has submitted an Objection (#109) and a Memorandum of Law (#110) in opposition to the Defendant's motion and submits that his verified complaint should serve as his affidavit in opposition to the motion.
DeSantis states that he provided services to the Plaintiff pursuant to his contract with the Public Defender Office of New London and that any agreement to provide services to the Plaintiff was solely between the Plaintiff and himself acting as contract lawyer for the Public Defender. The Defendant states that the Plaintiff was never her client nor a client of her law firm. In fact, in his complaint the Plaintiff states that "[a]t all times for the purposes of this complaint, Plaintiff Omar Miller was a client of Attorney Sebastian DeSantis." In his opposition to the Motion for Summary Judgment the Plaintiff claims that his complaint "asserts a claim of legal malpractice against the Law Firm of DeSantis, Sabilia Waggnor (sic), jointly and severely (sic) in their individual capacity."
"In general, 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. 4 R. Mallen J. Smith, Legal Malpractice (4th Ed. 1996) § 32-9, pp. 172-74." Mayer v. Biafore I, Florek O'Neill, 245 Conn. 88, 92 (1998). The undisputed facts here are that the Plaintiff was not a client of the Defendant so he cannot bring a malpractice claim against her. Although the Plaintiff claims that his complaint alleges that the law firm of DeSantis, Sabilia Waggoner represented him, the facts alleged in the complaint do not support this conclusion.
The Plaintiff argues that the Defendant failed to live up to her responsibilities under the Rules of Professional Conduct as a law firm partner. However, "[e]very court that has examined this question has concluded that the Code of Professional Responsibility does not, per se, give rise to a third party cause of action for damages. See, e.g., Bickel v. Mackie, 447 F.Sup. 1376, 1383 (N. D. Iowa), aff'd, 590 F.2d 341 (8th Cir. 1978); Noble v. Sears, Roebuck Co., 33 Cal.App.3d 654, 658-59, 109 Cal. Rptr. 269 (1973); Myers v. Cohen, 687 P.2d 6, 16 (Hawaii App. 1984), rev'd on other grounds, 67 Haw. 389, 688 P.2d 1145 (1984); Brody v. Ruby, supra, 907-08; Young v. Hecht, 3 Kan.App.2d 510, 515, 597 P.2d 682 (1979); Hill v. Willmott, 561 S.W.2d 331, 333-35 (Ky.App. 1978); Spencer v. Burglass, supra, 600-01; Sullivan v. Birmingham, 11 Mass. App. 359, 368-69, 416 N.E.2d 528 (1981); Friedman v. Dozorc, supra, 24; Drago v. Buonagurio, supra, 778-79; Martin v. Trevino, supra, 770; see also R. Mallen V. Levit, supra, 67; contra C. Wolfram, `The Code of Professional Responsibility as a Measure of Attorney Liability in Civil Litigation,' 30 S.C.L.Rev. 281, 310-14 (1979). In arriving at this unanimous conclusion, the courts have noted the absence of any express indication, in the text or history of the code, of an intent to establish rules that would be actionable as malpractice. The courts have declined to infer such an intent because of concern for the chilling effect of third party intrusion into an attorney's primary duty of loyalty to the best interests of his or her client. As did the trial court, we find this reasoning fully persuasive. (Footnotes omitted.) Mozzochi v. Beck, 204 Conn. 490, 500-1 (1987). This rule has been applied even to a lawyer's client. In Noble v. Marshall, 23 Conn.App. 227, 231 (1990), the court held: "While we recognize the narrow structure of the holding in Mozzochi, we conclude that the Rules of Professional Conduct do not of themselves give rise to a cause of action, even to an attorney's client." Thus the Plaintiff's argument in this regard fails. The Plaintiff's reliance on Grievance Committee v. Rottner, 152 Conn. 59 (1964), is misplaced because the court's determination that the Defendants had violated the canons of professional ethics was not based on any obligations which they may have as supervisory attorneys but on the Court's conclusion that their firm had violated the preamble to the canons by accepting an action against a person whom the firm was presently representing.
Lastly, the Plaintiff claims that his complaint is against the law firm. Yet the complaint names only Sabilia as a Defendant and was only served on her individually. It states that it is an action "claiming malpractice against the Respondent Elizabeth Sabilia" and that she is being sued "in her Individual Capacity." A member of an LLC cannot be sued simply by reason of her membership in the LLC. Pursuant to General Statutes § 34-134 "[a] member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company . . ."
For the reasons stated above, the Defendant's motion for summary judgment is granted.