Stuart v. Freiberg ( 2015 )

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WILLIAM A. STUART ET AL. v.
RICHARD M. FREIBERG
(SC 19208)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa, Robinson and
Vertefeuille, Js.
Argued October 22, 2014—officially released May 19, 2015
James A. Fulton, for the appellant (defendant).
Sandra J. Akoury, for the appellees (plaintiffs).
Opinion
ROBINSON, J. This certified appeal is the latest out-
growth of a lengthy and bitter estate dispute between
brothers. The defendant, Richard M. Freiberg, appeals,
upon our grant of his petition for certification,1 from
the judgment of the Appellate Court reversing in part
the summary judgment rendered in his favor by the trial
court, Tobin, J.2 See Stuart v. Freiberg, 142 Conn. App.
684, 686–87, 69 A.3d 320 (2013). On appeal, the defen-
dant claims that the Appellate Court improperly con-
cluded that there existed genuine issues of material fact
as to the counts of fraud, negligent misrepresentation,
and accounting malpractice that were pleaded in the
operative complaint by the plaintiffs, William A. Stuart
and Jonathan Stuart.3 We agree and, accordingly,
reverse the judgment of the Appellate Court in part.
The record reveals the following undisputed facts
and procedural history.4 The plaintiffs and their older
brother, Kenneth J. Stuart, Jr., are the children of Ken-
neth J. Stuart, Sr.5 In 1991, Stuart created a living trust
and a will, with Kenneth named as trustee and executor.
At the time, Stuart owned one half of a home in Wilton,
approximately $2 million in securities and cash, and a
significant art collection that included several famous
paintings by Norman Rockwell. Most of these assets
were transferred into the living trust. Stuart’s will
instructed that, if his wife preceded him in death, upon
his own death, the trust’s principal was to be distributed
equally between his three sons.
In 1992, Stuart lost his wife and he began to show
signs of deteriorating physical and mental health. That
summer, Kenneth contacted the plaintiffs and proposed
moving Stuart’s assets from the living trust into a family
limited partnership, which, Kenneth claimed, would
yield estate tax advantages. The plaintiffs objected to
this proposal because, under the corresponding draft
partnership agreements, Kenneth would have been
granted a broad degree of control over the assets as a
general partner, while the plaintiffs would have lacked
such control as only limited partners.
Without the plaintiffs’ knowledge, on November 4,
1992, Kenneth and Stuart created a limited partnership
in which they were the sole general partners and the
plaintiffs were not partners at all. Through a series of
transactions executed the same day, virtually all of the
living trust’s assets were transferred into the limited
partnership. As a net result, when Stuart died on Febru-
ary 17, 1993, Kenneth assumed exclusive control over
valuable assets that the plaintiffs had expected to
inherit promptly.
A saga of legal disputes began later in 1993, starting
with the plaintiffs’ request in Probate Court to have
Kenneth removed as an estate fiduciary ‘‘immediately’’
because they doubted his ‘‘ability to carry out his . . .
role honestly and fairly.’’ This removal attempt was
unsuccessful.6 ‘‘[A]lmost simultaneously,’’ Kenneth told
the plaintiffs about the limited partnership’s existence.
The plaintiffs’ misgivings deepened as the year
pressed on. Pursuant to their request, the plaintiffs
received a financial summary from Kenneth, dated
November 19, 1993, that documented expenditures
from the living trust during 1992. Upon reviewing the
financial summary, the plaintiffs saw that Kenneth had
misappropriated the trust’s funds. This prompted the
plaintiffs to file a complaint, dated December 17, 1993,
in Superior Court that alleged Kenneth unduly influ-
enced Stuart and also breached numerous fiduciary
duties owed to them as estate beneficiaries. Stuart v.
Stuart, Superior Court, judicial district of Stamford-
Norwalk, Complex Litigation Docket, Docket No. X08-
CV-02-0193031-S (June 28, 2004) (37 Conn. L. Rptr. 367),
aff’d, 112 Conn. App. 160, 962 A.2d 842 (2009), rev’d in
part, 297 Conn. 26, 996 A.2d 259 (2010). Among the
plaintiffs’ more specific allegations in this original com-
plaint were that, during 1992, Kenneth had used the
trust’s funds to: (1) make $607,480 in various disburse-
ments, only $88,500 of which were spent on Stuart; (2)
loan himself $83,267; and (3) purchase real estate for
his personal benefit. The plaintiffs requested as their
relief, inter alia, injunctions that would prohibit Ken-
neth from exercising any control over assets in the trust
or the limited partnership without their consent.
By the middle of 1994, Kenneth engaged the defen-
dant as a certified public accountant for the first time.
The defendant’s work grew over the years to include the
preparation of various financial statements for Stuart’s
estate and its related entities, but he was eventually
replaced in September, 2001. Throughout the defen-
dant’s seven year engagement, the plaintiffs’ civil action
against Kenneth remained unresolved—as did the plain-
tiffs’ accompanying requests for injunctive relief. Only
in 2002, following an attempt to have some of the Nor-
man Rockwell paintings sold,7 did the plaintiffs finally
obtain an injunction that barred Kenneth from exercis-
ing control over the assets related to Stuart’s estate.
In 2004, more than one decade after the plaintiffs
first initiated their civil action against Kenneth, the trial
court, Adams, J., issued its posttrial memorandum of
decision in Stuart v. Stuart, supra, 37 Conn. L. Rptr.
367.8 In that case, Judge Adams found that Kenneth
exercised undue influence over Stuart in creating the
limited partnership and declared it, and any asset trans-
fers thereto, null and void. Id., 376. Further, Judge
Adams found that from at least 1992 through 2001, Ken-
neth had breached his fiduciary duties by utilizing assets
in the trust and the limited partnership for his personal
benefit. Id., 379. In lamenting the difficulty of quantify-
ing Kenneth’s misdeeds, Judge Adams observed that
the plaintiffs’ forensic accounting expert had testified
at trial that the defendant’s work product was ‘‘designed
to hide, rather than disclose the truth.’’ Id., 378.
At another point, however, Judge Adams commented
on the plaintiffs’ ‘‘languorous’’ approach to the misap-
propriations, stating: ‘‘[The plaintiffs] were aware of
[Kenneth’s] spending what they considered to be [Stu-
art’s] money on himself early on. . . . Yet while a suit
was filed in 1993, no further action was taken to stop
the spending until an injunction proceeding in 2002.
Indeed, William asked [Kenneth] why he did not put all
the money in one account and spend it on himself out
of that account . . . . While not amounting to a waiver,
it was some basis for [Kenneth] to believe [that the
plaintiffs] did not object strenuously to his using the
money for basic living expenses.’’ (Citation omitted.)
Id., 389. Ultimately, Judge Adams ruled against Kenneth
and awarded monetary damages to Stuart’s estate in
the amount of $2,375,528.38—inclusive of $180,000 to
cover the forensic accounting expert’s fees.9 Id., 393.
On April 8, 2004, the plaintiffs commenced the pres-
ent action against the defendant. The operative com-
plaint10 contains the following three counts that are
relevant to this appeal: (1) fraud; (2) negligent misrepre-
sentation; and (3) accounting malpractice. See footnote
3 of this opinion. In essence, the plaintiffs alleged that
the defendant prepared inaccurate and misleading
financial statements that facilitated the misappropria-
tion of estate funds by Kenneth. For each count, the
plaintiffs alleged, more specifically, that they suffered
financial harm because they ‘‘relied on [the defendant’s]
misrepresentations . . . in that they . . . [1] delayed
pursuing the removal of [Kenneth] from his [fiduciary]
position . . . because they believed [the defendant’s]
statements to be true, and . . . [2] delayed pursuing
their claims in Superior Court against [Kenneth] . . . .’’
The defendant subsequently moved for summary
judgment, asserting that no genuine issue of material
fact existed as to any count. In particular, the defendant
contended that the plaintiffs had not actually relied on
any of his financial statements. In support of his motion,
the defendant submitted an authenticated copy of the
plaintiffs’ original complaint in Stuart v. Stuart, supra,
37 Conn. L. Rptr. 367, as well as authenticated excerpts
from the depositions of William and Jonathan in the
present case. Jonathan testified at his deposition that,
by the middle of 1993, he had determined that Kenneth
misappropriated hundreds of thousands of dollars from
Stuart’s estate. Jonathan further testified that, between
1994 and 2001, he had periodically received financial
statements that the defendant had prepared. When
asked to identify which of the defendant’s financial
statements he had relied on detrimentally, Jonathan
testified that he ‘‘didn’t rely on any documents,’’ ‘‘didn’t
look at documents,’’ and ‘‘didn’t need documents to tell
[him that he] lost money.’’ For his part, William similarly
testified that, prior to initiating Stuart v. Stuart, supra,
in 1993, he had already believed that Kenneth misappro-
priated hundreds of thousands of dollars from Stuart’s
estate. Moreover, William testified that he was not famil-
iar with any of the defendant’s financial statements, did
not recall receiving them, and ‘‘couldn’t have relied
on’’ them.
In their objection to the defendant’s motion for sum-
mary judgment, the plaintiffs asserted that genuine
issues of material fact existed as to each count. In
particular, they disputed the defendant’s argument that
they did not rely on his statements. In support of that
objection, the plaintiffs submitted an affidavit from Wil-
liam in which he succinctly states that he relied on the
defendant’s inaccurate financial statements, and that
this reliance resulted in a delay of the efforts to remove
Kenneth as a fiduciary. The plaintiffs did not submit
an affidavit by Jonathan in support of the objection.
Although the plaintiffs submitted other affidavits, they
did not speak to the plaintiffs’ manner of reliance.
On July 15, 2011, the trial court granted the defen-
dant’s motion for summary judgment. The trial court
acknowledged that the parties disputed some facts,
such as whether the defendant had prepared false finan-
cial statements, but determined that the plaintiffs’
claims were fatally undermined by their failure to pro-
duce any evidence that could support ‘‘their allegations
of actual reliance upon any materials produced by the
defendant.’’ As to the counts of fraud and negligent
misrepresentation, the trial court reviewed the undis-
puted evidence and concluded that it was ‘‘impossible
to see how the plaintiffs could have relied’’ on the defen-
dant’s allegedly false financial statements in the manner
they described, because ‘‘the plaintiffs had already insti-
tuted an action in the Superior Court to remove Kenneth
. . . as a fiduciary of the estate before the defendant
was hired to do accounting work for the estate.’’ As to
the count of accounting malpractice, the trial court
similarly reasoned that the plaintiffs could not conceiv-
ably ‘‘demonstrate that the defendant’s conduct caused
their supposed injuries.’’ The trial court therefore deter-
mined that the plaintiffs had failed to raise a genuine
issue of material fact with respect to each count and
granted the defendant’s motion for summary judgment.
The trial court subsequently denied the plaintiffs’
motion for reargument.
The plaintiffs appealed from the trial court’s judg-
ment to the Appellate Court, claiming that they had
presented sufficient evidence to raise genuine issues
of material fact with respect to each count. Stuart v.
Freiberg, supra, 142 Conn. App. 706–707. In a divided
decision, the Appellate Court reversed the trial court’s
award of summary judgment on the counts of the com-
plaint that are relevant to this certified appeal. Id.,686–87; see also footnote 3 of this opinion. Following
a review of the record, the Appellate Court first deter-
mined that the plaintiffs did not seek to remove Kenneth
as executor and trustee by commencing Stuart v. Stu-
art, supra, 37 Conn. L. Rptr. 367, in 1993; rather, the
plaintiffs sought different forms of injunctive relief and
yet, ‘‘for whatever reasons,’’ ‘‘appeared to tolerate’’ Ken-
neth continuing in his fiduciary roles ‘‘for some period
of time during the Stuart v. Stuart [supra] litigation
. . . .’’ Stuart v. Freiberg, supra, 701. Moving on to the
issue of reliance, which was integral to the counts of
fraud and negligent misrepresentation, the Appellate
Court held that whether the plaintiffs ‘‘were misled into
believing the financial reports prepared by the defen-
dant and provided during the [Stuart v. Stuart, supra]
litigation . . . [remained] to be determined in a fact-
based hearing.’’ Stuart v. Freiberg, supra, 701. As for the
issue of causation, which was integral to the accounting
malpractice count, the Appellate Court drew a close
comparison to reliance and then concluded that it too
was ‘‘not amenable to summary judgment because it
[was] fact bound’’ and the material facts were in dispute.
Id., 706. Accordingly, the Appellate Court reversed in
part the trial court’s award of summary judgment and
remanded the case for further proceedings.11 Id., 710.
This certified appeal followed. See footnote 1 of this
opinion.
On appeal, the defendant claims that the plaintiffs,
in objecting to summary judgment, did not present suffi-
cient counterevidence of the following: (1) their reli-
ance on his financial statements, as was necessary in
this particular case to demonstrate that a genuine issue
of material fact existed on the counts of fraud and
negligent misrepresentation; and (2) a causal connec-
tion between his financial statements and their alleged
injuries, as was necessary in this particular case to
demonstrate that a genuine issue of material fact
existed on the count of accounting malpractice.12 Thus,
the defendant contends that the Appellate Court
improperly reversed in part the trial court’s grant of his
motion for summary judgment. We agree, and address
each of the defendant’s claims in turn.
We begin by setting forth the appropriate standard of
review. ‘‘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 seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . A material fact . . . [is] a
fact which will make a difference in the result of the
case. . . . Finally, the scope of our review of the trial
court’s decision to grant the plaintiff’s motion for sum-
mary judgment is plenary.’’ (Internal quotation marks
omitted.) DiPietro v. Farmington Sports Arena, LLC,
306 Conn. 107, 116, 49 A.3d 951 (2012).
I
FRAUD AND NEGLIGENT MISREPRESENTATION
Before we examine the dovetailing legal issues for
the plaintiffs’ counts of fraud and negligent misrepre-
sentation, we first observe the essential elements for
each cause of action.
To establish liability for fraud, a plaintiff must be
able to show by clear and convincing evidence that:
‘‘(1) a false representation was made [by the defendant]
as a statement of fact; (2) the statement was untrue
and known to be so by [the defendant]; (3) the statement
was made with the intent of inducing reliance thereon;
and (4) the other party relied on the statement to his
detriment.’’ (Internal quotation marks omitted.)
Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 628,
910 A.2d 209 (2006); see Goldstar Medical Services,
Inc. v. Dept. of Social Services, 288 Conn. 790, 819, 955
A.2d 15 (2008) (standard of proof for claim of common-
law fraud is clear and convincing evidence).
To establish liability for negligent misrepresentation,
a plaintiff must be able to demonstrate by a preponder-
ance of the evidence: ‘‘(1) that the defendant made a
misrepresentation of fact (2) that the defendant knew or
should have known was false, and (3) that the plaintiff
reasonably relied on the misrepresentation, and (4) suf-
fered pecuniary harm as a result.’’ Nazami v. Patrons
Mutual Ins. Co., supra, 280 Conn. 626; see Goldstar
Medical Services, Inc. v. Dept. of Social Services, supra,288 Conn. 819 (ordinary standard of proof for civil
actions is preponderance of evidence); Cohen v. Roll-
A-Cover, LLC, 131 Conn. App. 443, 449 n.8, 27 A.3d 1,
cert. denied, 303 Conn. 95, 33 A.3d 739 (2011) (standard
of proof for claim of negligent misrepresentation is
preponderance of evidence).
A
Summary Judgment, Essential Elements, and
Materiality
The plaintiffs raise a threshold claim that it was
improper for the trial court to address the defendant’s
arguments regarding reliance that are now central to
this appeal. Specifically, the plaintiffs contend that, fol-
lowing a determination that there were genuine dis-
putes over material facts bearing on other essential
elements of the counts of fraud and negligent misrepre-
sentation—for example, whether the defendant’s finan-
cial statements were false—‘‘the trial court should have
simply ceased its analysis and denied summary judg-
ment . . . .’’ Thus, the plaintiffs argue that it was
improper for the trial court to consider, in succession,
whether any genuine issue of material fact existed as
to the essential element of reliance. We disagree.
The fundamental purpose of summary judgment is
preventing unnecessary trials. See Orenstein v. Old
Buckingham Corp., 205 Conn. 572, 574, 534 A.2d 1172(1987) (‘‘[s]ummary judgment procedure, generally
speaking, is an attempt to dispose of cases in a manner
which is speedier and less expensive for all concerned
than a full-dress trial’’). If a plaintiff is unable to present
sufficient evidence in support of an essential element
of his cause of action at trial, he cannot prevail as a
matter of law. See, e.g., Santopietro v. New Haven, 239
Conn. 207, 225, 682 A.2d 106 (1996) (directed verdict
appropriate if evidence is ‘‘ ‘so weak’ ’’ that ‘‘the jury
could not reasonably and legally have found that the
plaintiff had proved each of [the essential] elements’’);
Furstein v. Hill, 218 Conn. 610, 627, 590 A.2d 939 (1991)
(directed verdict appropriate ‘‘when the plaintiff has
failed to produce any evidence of an essential element
of his cause of action’’).
To avert these types of ill-fated cases from advancing
to trial, following adequate time for discovery, a plaintiff
may properly be called upon at the summary judgment
stage to demonstrate that he possesses sufficient coun-
terevidence to raise a genuine issue of material fact as
to any, or even all, of the essential elements of his cause
of action. See, e.g., Robinson v. Cianfarani, 314 Conn.
521, 524–25, 107 A.3d 375 (2014) (‘‘ ‘[a] material fact
. . . [is] a fact which will make a difference in the
result of the case’ ’’); Rusco Industries, Inc. v. Hartford
Housing Authority, 168 Conn. 1, 6, 357 A.2d 484 (1975)
(test for granting summary judgment ‘‘is resolved by
applying to the established facts the same criteria as
used in determining whether a party would be entitled
to a directed verdict on the same facts’’); see also Rom-
prey v. Safeco Ins. Co. of America, 310 Conn. 304, 320,
77 A.3d 726 (2013) (‘‘[w]hen documents submitted in
support of a motion for summary judgment fail to estab-
lish that there is no genuine issue of material fact, the
nonmoving party has no obligation to submit docu-
ments establishing the existence of such an issue’’
[internal quotation marks omitted]).
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
that plaintiff’s case is not improved if he only responds
with sufficient counterevidence to call some of those
essential elements back into question. 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. See Santo-
pietro v. New Haven, supra, 239 Conn. 225. It logically
follows that, in evaluating a defendant’s motion for sum-
mary 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. 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.
These summary judgment principles are perhaps so
readily accepted as a matter of law in Connecticut that
our independent research failed to reveal a prior deci-
sion in which this court had the occasion to discuss
them so extensively. The principles have, however,
been embraced implicitly in decisions of this court; see,
e.g., Marinos v. Poirot, 308 Conn. 706, 710, 715–16, 66
A.3d 860 (2013) (defendants ‘‘advanced a number of
arguments’’ against count alleging unfair trade practice,
and plaintiff’s failure to produce counterevidence of
ascertainable loss alone permitted summary judgment);
DiPietro v. Farmington Sports Arena, LLC, supra, 306
Conn. 124 (plaintiff presented counterevidence that
defect was cause of injury in premises liability action,
but failure also to present counterevidence of defen-
dants’ notice of defect permitted summary judgment);
and have been stated more expressly in decisions of
the Appellate Court. See, e.g., 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’’).
We also note that the logic of this approach has ample
support in federal law, which we find persuasive in
interpreting our summary judgment rules of practice.
See Mac’s Car City, Inc. v. American National Bank,
205 Conn. 255, 260, 532 A.2d 1302 (1987) (‘‘[a]lthough
the federal rules of civil procedure and the federal
court’s interpretations thereon are not binding upon
the state courts, this court has repeatedly noted the
substantial similarity between the federal and Connecti-
cut summary judgment procedures and has often relied
upon federal rules and case law for guidance’’). For
example, in Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), the United
States Supreme Court reasoned that ‘‘a complete failure
of proof concerning an essential element of the non-
moving party’s case necessarily renders all other facts
immaterial’’ for the purpose of summary judgment.
(Emphasis added.)
Thus, returning to the present case, even if some
material facts were genuinely in dispute that would bear
on the preliminary essential elements of the plaintiffs’
fraud and negligent misrepresentation counts, the trial
court was still required to continue its summary judg-
ment analysis by examining the parties’ arguments and
proffered evidence concerning other essential elements
of those counts. Accordingly, with respect to the counts
of fraud and negligent misrepresentation, it was proper
for the trial court to consider whether any genuine issue
of material fact existed as to the plaintiffs’ essential
element of reliance—which is now a focal point on
appeal.
B
Reliance
We turn to the defendant’s claim that the Appellate
Court improperly determined that the plaintiffs’ counts
of fraud and negligent misrepresentation were not suit-
able for summary judgment. The defendant begins with
the observation that the plaintiffs would need to show
actual reliance on a false statement or misrepresenta-
tion of fact to prevail on their counts of fraud and
negligent misrepresentation. He further observes that
the plaintiffs’ operative complaint alleges that they
relied on ‘‘accounting reports containing false informa-
tion’’ by delaying their ‘‘removal claims and Superior
Court claims against [Kenneth].’’ Hence, the defendant
argues that he made a prima facie case for summary
judgment by presenting the trial court with authenti-
cated excerpts from the plaintiffs’ respective deposi-
tions in which they testified to not seeing, reading,
or relying on the defendant’s allegedly false financial
statements. The defendant contends that, in an attempt
to create a genuine issue of material fact that would
preclude summary judgment on the two counts in ques-
tion, the plaintiffs submitted one piece of pertinent
counterevidence—William’s affidavit—that made three
sentences’ worth of false and conclusory averments
about the plaintiffs purported reliance. See footnote
14 of this opinion. Moreover, the defendant accurately
notes that the Appellate Court majority did not discuss
any of this evidence or counterevidence in reaching its
conclusions as to the counts of fraud and negligent
misrepresentation. See Stuart v. Freiberg, supra, 142
Conn. App. 697–703.
In response, the plaintiffs do not dispute that the
defendant accurately depicted their deposition testi-
mony. Rather, they argue, ‘‘the simple fact that [they]
testified that they did not ‘look’ at the reports prepared
by the defendant does not prove that they placed no
reliance on the defendant.’’ The plaintiffs maintain that
there are ‘‘methods of reliance other than a basic review
of documents,’’ and emphasize that William’s affidavit
‘‘clearly speaks to the issue of reliance,’’ ‘‘clearly state[s]
the type of reliance he made,’’ ‘‘is clear on its face,’’
and ‘‘is a clear statement of facts . . . .’’ We disagree,
and conclude that the plaintiffs did not provide an ade-
quate evidentiary foundation to demonstrate the exis-
tence of a genuine issue of material fact with respect
to their claimed reliance.
Our review of the pleadings, affidavits, and other
proof available at the summary judgment stage firmly
convinces us that the plaintiffs’ claim of reliance is
untenable as a matter of law. This determination flows
from the following progression of events: (1) the plain-
tiffs filed an operative complaint that alleged that they
relied on the defendant’s false and misleading financial
statements; (2) the defendant presented deposition tes-
timony in which the plaintiffs admitted that they never
read or reviewed his allegedly false financial state-
ments, thus making out a prima facie case for summary
judgment; (3) the plaintiffs did not attempt to controvert
their deposition testimony; and (4) the plaintiffs did not
present sufficient counterevidence to show how they
were otherwise able to rely on a false statement or
misrepresentation of fact made by the defendant.
Contrary to the plaintiffs’ protestations, William’s
affidavit does not substantively illustrate any alternative
manner in which the plaintiffs relied on a false state-
ment or misrepresentation of fact that the defendant
made. In his affidavit, William first averred that the
defendant ‘‘prepared reports for the [e]state and its
related entities,’’ and that he ‘‘relied on those accounting
reports.’’ William further averred that he ‘‘relied on [the
defendant], as a [c]ertified [p]ublic [a]ccountant, to pro-
vide accurate accounting information for the [e]state
and its related entities.’’ Lastly, William averred that,
‘‘[a]s a result of [his] reliance [on the defendant’s]
reports, [he] suffered pecuniary damages, as [the plain-
tiffs] delayed pursuing removal of [Kenneth] as [e]xecu-
tor of the [e]state.’’13
These averments, which are referenced by the plain-
tiffs in support of their argument that the Appellate
Court properly determined that the fraud and negligent
misrepresentation counts were not suitable for sum-
mary judgment, closely replicate portions of the plead-
ings. See Buell Industries, Inc. v. Greater New York
Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002)
(‘‘[t]he genuine issue aspect of summary judgment
requires the parties to bring forward before trial eviden-
tiary facts, or substantial evidence outside the plead-
ings, from which the material facts alleged in the
pleadings can warrantably be inferred’’ [internal quota-
tion marks omitted]). Moreover, these averments are
conclusory, and therefore inadequate to defeat a sum-
mary judgment motion, because they do not explain
how or why the plaintiffs relied on the allegedly false
contents of the defendant’s financial statements with-
out, by their own admission, having seen them.14 See
Black’s Law Dictionary (8th Ed. 2004) (defining conclu-
sory as ‘‘[e]xpressing a factual inference without stating
the underlying facts on which the inference is based’’);
see also Hoskins v. Titan Value Equities Group, Inc.,
252 Conn. 789, 793–94, 749 A.2d 1144 (2000) (‘‘[a] con-
clusory assertion . . . does not constitute evidence
sufficient to establish the existence of a disputed mate-
rial fact for purposes of a motion for summary
judgment’’).
Without actual reliance, reasonable reliance cannot
possibly exist.15 In this regard, the dissent charitably
attempts to provide illustrative details and gap-fillers
that the plaintiffs did not supply themselves. To begin,
the dissent draws considerable attention to the many
wrongdoings of Kenneth, as well as the allegedly ficti-
tious entries in, and versions of, certain financial state-
ments that the defendant prepared. While this dual
inventory may be emotionally appealing, it first speaks
to the wrong person (i.e., Kenneth), and then to the
wrong legal element (i.e., the presence of false or mis-
leading statements of fact). When the dissent does turn
to the pertinent legal element, reliance, it posits that
‘‘William is entitled to state that he relied on the finan-
cial statements that were sent to him, if for no other
reason than to establish the fact that something was
being done regarding the estate, which lulled the plain-
tiffs to forbear seeking the ouster of the executor.’’ The
dissent does not acknowledge, however, that William
testified at his deposition that he was not familiar with
any of the defendant’s financial statements, did not
recall receiving them, and ‘‘couldn’t have relied on’’
them. These specific admissions must control over the
conclusory averments about reliance in the affidavit.
See Hoskins v. Titan Value Equities Group, Inc., supra,
252 Conn. 793–94.
Aside from William’s affidavit, the plaintiffs do not
direct our attention to any counterevidence outside of
the pleadings that could support their essential element
of reliance.16 We therefore determine that, as a matter
of law, the plaintiffs did not demonstrate that a genuine
issue of material fact existed as to their claimed reliance
on a false statement or misrepresentation of fact made
by the defendant. Nazami v. Patrons Mutual Ins. Co.,
supra, 280 Conn. 628. Accordingly, we conclude that
the Appellate Court improperly reversed the trial court’s
rendering of summary judgment in favor of the defen-
dant on the counts of fraud and negligent misrepresen-
tation.17
II
ACCOUNTING MALPRACTICE
We next turn to the defendant’s claim that the Appel-
late Court improperly determined that the plaintiffs’
count of accounting malpractice was not suitable for
summary judgment. Specifically, the defendant argues,
inter alia, that the plaintiffs’ accounting malpractice
count repeated the same allegation of reliance that
appeared within the preceding fraud and negligent mis-
representation counts. That is, with regard to the
accounting malpractice count, the plaintiffs again
alleged ‘‘that they relied on information provided to
them by [the defendant], and as a result thereof, they
(1) delayed seeking to remove [Kenneth] as a fiduciary
and (2) delayed pursuing claims against him in Superior
Court.’’ Because the plaintiffs chose to present their
accounting malpractice count in this manner, the defen-
dant argues that it too cannot succeed, for ‘‘[w]ithout
such reliance, the plaintiffs cannot demonstrate that the
defendant’s conduct caused their supposed injuries.’’
In response, the plaintiffs do not advance any argu-
ment with regard to causation. Problematically, the
plaintiffs do not seem to recognize that causation, and
not reliance, is an essential element of a professional
malpractice claim. Indeed, the plaintiffs—who are rep-
resented by counsel—have not even attempted to draw
a comparison between these two legal concepts. We
therefore agree with the defendant, and conclude that
the plaintiffs did not present sufficient counterevidence
to demonstrate that there existed a genuine issue of
material fact with respect to their accounting malprac-
tice count.
To establish liability for professional malpractice, a
plaintiff must be able to show the following: (1) a duty
to conform to a professional standard of care for the
plaintiff’s protection; (2) a deviation from that standard
of care; (3) injury; and (4) a causal connection between
the deviation and the claimed injury. See, e.g., Grimm
v. Fox, 303 Conn. 322, 329, 33 A.3d 205 (2012) (legal
malpractice); DiLieto v. County Obstetrics & Gynecol-
ogy Group, P.C., 297 Conn. 105, 125 n.26, 998 A.2d 730(2010) (medical malpractice).
The essential element of causation has two compo-
nents. The first component, causation in fact, requires
us to determine whether the injury would have occurred
but for the defendant’s conduct. Winn v. Posades, 281
Conn. 50, 56, 913 A.2d 407 (2007). The second compo-
nent, proximate causation, requires us to determine
whether the defendant’s conduct is a substantial factor
in bringing about the plaintiff’s injuries. Id. That is, there
must be ‘‘an unbroken sequence of events that tied [the
plaintiff’s] injuries to the [defendant’s conduct]. . . .
This causal connection must be based upon more than
conjecture and surmise.’’ (Internal quotation marks
omitted.) Id., 56–57; see also Gordon v. Glass, 66 Conn.
App. 852, 856, 785 A.2d 1220 (2001) (‘‘[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’’), cert. denied, 259 Conn. 909, 789 A.2d
994 (2002).
A review of the operative complaint confirms that
the plaintiffs tailored their accounting malpractice
pleadings to the concept of reliance, rather than the
applicable concept of causation. Moreover, on appeal,
the plaintiffs continue to focus exclusively on reliance,
and have not made any discernable attempt to compare
the legal concepts of reliance and causation. Contrary
to the dissent’s approach, in our view, if the plaintiffs
are unable or unwilling to muster an argument that
would advance an essential element of their profes-
sional malpractice claim, this court should not indepen-
dently undertake that task on their behalf.
We have already determined, by way of analyzing the
fraud and negligent misrepresentation counts, that the
plaintiffs did not present sufficient counterevidence to
demonstrate that a genuine issue of material fact
existed as to their claimed reliance on the misinforma-
tion that was allegedly contained in the defendant’s
financial statements. See part I B of this opinion. The
same type of claimed reliance formed the basis for
the plaintiffs’ accounting malpractice count, and the
plaintiffs have not presented any arguments that would
allow us to reach a different result here from that
already reached on the fraud and negligent misrepresen-
tation counts. Accordingly, we conclude that the Appel-
late Court improperly reversed the trial court’s
rendering of summary judgment in favor of the defen-
dant on the count of accounting malpractice.
The judgment of the Appellate Court is reversed with
respect to the counts of fraud, negligent misrepresenta-
tion, and accounting malpractice, and the case is
remanded to that court with direction to affirm the
judgment of the trial court on those counts.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA, ESPINOSA and VERTEFEUILLE, Js., concurred.
1
We granted the defendant’s petition for certification to appeal limited
to the following issue: ‘‘Did the Appellate Court properly conclude that the
trial court should not have [rendered] summary judgment on counts one
through three of the plaintiffs’ complaint because there existed genuine
issues of material fact?’’ Stuart v. Freiberg, 310 Conn. 921, 922, 77 A.3d
142 (2013).
2
Hereinafter, all references to the trial court are to Judge Tobin unless
otherwise indicated.
3
The Appellate Court concluded that there were no genuine issues of
material fact with respect to the fourth count of the operative complaint,
which alleged a violation of the Connecticut Unfair Trade Practices Act,
General Statutes § 42-110a et seq. Stuart v. Freiberg, supra, 142 Conn. App.
708–10. Thus, with respect to the fourth count only, the Appellate Court
affirmed the trial court’s award of summary judgment in favor of the defen-
dant. Id., 710. This aspect of the Appellate Court’s judgment is not at issue
in this appeal. See footnote 1 of this opinion.
4
Certain relevant background facts are derived from a memorandum of
decision that was issued by the trial court, Adams, J., in a related proceeding,
of which the Appellate Court took judicial notice in the present case. See
Stuart v. Freiberg, supra, 142 Conn. App. 687 n.3, citing Stuart v. Stuart,
Superior Court, judicial district of Stamford-Norwalk, Complex Litigation
Docket, Docket No. X08-CV-02-0193031-S (June 28, 2004) (37 Conn. L. Rptr.
367), aff’d, 112 Conn. App. 160, 962 A.2d 842 (2009), rev’d in part, 297 Conn.
26, 996 A.2d 259 (2010).
5
In the interest of simplicity, we refer to Kenneth J. Stuart, Sr., by his
surname and to Kenneth J. Stuart, Jr., William A. Stuart, and Jonathan Stuart
individually by their first names. We also refer to William and Jonathan
collectively as the plaintiffs.
6
In the present action, it appears that the plaintiffs were not entirely
forthcoming about the 1993 probate proceeding, either with the trial court
or the Appellate Court. For example, in a motion to reargue filed with the
trial court after the award of summary judgment, the plaintiffs stated that
they ‘‘did not seek [Kenneth’s] removal as fiduciary until February 12, 2002,
which relief was sought in the . . . Probate Court.’’ Likewise, in their brief
to the Appellate Court, the plaintiffs stated ‘‘the first time [they] sought to
remove [Kenneth] as [a] fiduciary . . . was in 2002.’’ Such statements may
have frustrated the courts as they attempted to fully establish the timeline
for the foundational disputes between the plaintiffs and Kenneth. See Stuart
v. Freiberg, supra, 142 Conn. App. 701 (concluding that trial court ‘‘had no
evidence . . . that the plaintiffs had sought to remove [Kenneth] as a fidu-
ciary in 1993’’).
Some frustration persists in the present appeal because the plaintiffs now
only vaguely acknowledge the 1993 probate proceeding—without providing
any express references to specific dates in their brief or any supporting
Probate Court filings in their appendix. The plaintiffs do, however: (1)
provide a supporting citation to Stuart v. Stuart, Superior Court, judicial
district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X08-
CV-02-0193031-S (June 28, 2004) (37 Conn. L. Rptr. 367), aff’d, 112 Conn.
App. 160, 962 A.2d 842 (2009), rev’d in part, 297 Conn. 26, 996 A.2d 259 (2010),
which mentions that Kenneth first told them about the limited partnership in
August, 1993; (2) state that the revelation by Kenneth was almost simultane-
ous to their initial, unsuccessful attempt to remove him as a fiduciary in
Probate Court; and (3) state that, from 1994 through 2001, they had no
removal proceedings pending against Kenneth in any court. The defendant,
for his part, does not dispute any aspect of these belated admissions.
7
This attempt to auction the Norman Rockwell paintings led to a separate
contest in the Federal District Court in the District of Connecticut over their
rightful ownership, as various publishing interests unsuccessfully claimed to
have proper title to them. See Stuart & Sons, L.P. v. Curtis Publishing Co.,
456 F. Supp. 2d 336, 341–42, 349 (D. Conn. 2006).
8
In the present action, the Appellate Court remarked that the record
‘‘provides no explicit reason for the passage of more than a decade between
the filing of the 1993 complaint and the [issuance of Judge Adams’] memoran-
dum of decision [in Stuart v. Stuart, supra, 37 Conn. L. Rptr. 367].’’ Stuart
v. Freiberg, supra, 142 Conn. App. 689 n.4. Citing to a subsequent memoran-
dum of decision on a postjudgment motion; see Stuart v. Stuart, Superior
Court, judicial district of Stamford-Norwalk, Complex Litigation Docket,
Docket No. X08-CV-02-0193031-S (July 6, 2009); the Appellate Court stated
that Kenneth filed a bankruptcy petition ‘‘at some point during the . . .
litigation [in Stuart v. Stuart, supra, 37 Conn. L. Rptr. 367],’’ and hypothesized
that this filing had caused an automatic stay of the proceedings pursuant
to the United States Bankruptcy Code. Stuart v. Freiberg, supra, 689 n.4.
Our independent research has revealed, however, that Kenneth did not
file for bankruptcy until October 6, 2005—more than one year after Judge
Adams rendered the judgment in Stuart v. Stuart, supra, 37 Conn. L. Rptr.
367. It follows that this bankruptcy filing does not explain why Stuart v.
Stuart, supra, lay dormant for such a prolonged period after the plaintiffs
filed their original complaint.
9
The subsequent history of Stuart v. Stuart, supra, 37 Conn. L. Rptr. 367,
does not bear on the present appeal. See, e.g., Stuart v. Stuart, 297 Conn.
26, 28, 996 A.2d 259 (2010) (addressing proper standard of proof for statutory
theft claims).
10
Prior versions of the complaint spawned various claims of defective
pleadings. See Stuart v. Freiberg, 102 Conn. App. 857, 858–59, 927 A.2d 343(2007) (trial court improperly granted motion to strike all counts of com-
plaint and remanding for further proceedings); Stuart v. Freiberg, Superior
Court, judicial district of Stamford-Norwalk, Docket No. CV-04-0200508-S
(July 9, 2008) (granting defendant’s subsequent motion to strike all counts
of complaint again). The parties eventually proceeded with the plaintiffs’
operative complaint dated July 23, 2008.
11
Chief Judge DiPentima dissented in part, concluding that the trial court
properly granted the defendant’s motion for summary judgment because
the uncontroverted evidence sufficiently demonstrated that there were no
genuine issues of material fact concerning reliance or causation. Stuart v.
Freiberg, supra, 142 Conn. App. 718 and n.1. Although she agreed with the
majority’s determination that the plaintiffs did not seek to remove Kenneth
from his fiduciary roles by way of Stuart v. Stuart, supra, 37 Conn. L.
Rptr. 367, Chief Judge DiPentima added that this was merely a ‘‘matter of
semantics’’ and that the plaintiffs were nonetheless already seeking to strip
Kenneth of his estate related powers before the defendant was hired as an
accountant in 1994. Stuart v. Freiberg, supra, 713–15. Pointing specifically
to the defendant’s evidence proffered in support of his motion for summary
judgment, Chief Judge DiPentima reasoned that the plaintiffs’ claims of
detrimental reliance were ‘‘untenable’’ because they were both admittedly
well aware of Kenneth’s fraudulent activities months before the defendant
became involved. Id., 713–717. Chief Judge DiPentima concluded, therefore,
that the defendant made out a prima facie case for summary judgment and
that the plaintiffs thereafter failed to provide any substantive counterevide-
nce regarding their alleged reliance. Id., 715.
12
With respect to the count of accounting malpractice, the defendant also
argues that he did not owe the plaintiffs a professional duty of care because,
inter alia, they were not his clients. Because we conclude that the plaintiffs
did not present sufficient counterevidence regarding the issue of causation
and, therefore, could not prevail on their count of accounting malpractice,
we need not address the defendant’s alternative arguments regarding a lack
of duty.
13
In an apparent effort to identify an oral statement on which he may
have relied, William also averred to having one telephone call with the
defendant, which, as best as he could recall, took place in 1997. In this
conversation, the defendant told William that he was incapable of tracking
the estate funds that Kenneth spent on himself. We are simply unable to
conceive how the plaintiffs’ fraud or negligent misrepresentation counts are
supported by the defendant’s open admission that he was not tracking
personal spending from the estate related funds by Kenneth—either standing
alone, or in conjunction with the alleged misinformation in the financial
statements. See 2 F. Harper et al., Torts (3d Ed. 2006) § 7.13, pp. 548–49
(‘‘where the recipient knows the true facts that are misrepresented or for
any reason does not believe the misrepresentation, he cannot be found to
rely on it’’ [footnotes omitted]). Similarly, the dissent has not proffered an
explanation as to how anything the defendant relayed during this telephone
call could serve as the prerequisite false statement or misrepresentation
of fact.
14
Because we conclude that William’s averments were insubstantial and
conclusory, we need not address the defendant’s argument that they should
be disregarded under the sham affidavit doctrine, which has not been
adopted by this court but is frequently employed in the federal courts. See,
e.g., Moll v. Telesector Resources Group, Inc., 760 F.3d 198, 205 (2d Cir.
2014) (‘‘[t]he sham issue of fact doctrine prohibits a party from defeating
summary judgment simply by submitting an affidavit that contradicts the
party’s previous sworn testimony’’ [emphasis omitted; internal quotation
marks omitted]).
We note that there is Connecticut appellate precedent holding that, if a
witness submits an affidavit that is merely inconsistent with his prior deposi-
tion testimony, ‘‘such an inconsistency is not ordinarily a ground for preclud-
ing the witness’ testimony entirely.’’ DiPietro v. Farmington Sports Arena,
LLC, 123 Conn. App. 583, 617, 2 A.3d 963 (2010), rev’d on other grounds,
306 Conn. 107, 49 A.3d 951 (2012); see also id. (‘‘[w]e see no reason for a
different rule to prevail in a summary judgment proceeding, particularly
given the fact that in such a proceeding the evidence is to be viewed in a
light most favorable to the nonmoving party’’). Such precedent, however,
does not relieve a party who is opposing summary judgment of the duty to
offer nonconclusory evidence that establishes the existence of a genuine
issue of material fact.
15
Having determined that there is no genuine issue of material fact pre-
sented as to the plaintiffs’ claimed reliance, with respect to the count of
negligent misrepresentation only, we need not go on to speculate whether
any manner of actual reliance would have been reasonable under the circum-
stances—which undisputedly show that the plaintiffs believed that Kenneth
had misappropriated hundreds of thousands of dollars from their father’s
estate before he hired the defendant to provide accounting services. See
Nazami v. Patrons Mutual Ins. Co., supra, 280 Conn. 626 (essential element
of negligent misrepresentation is reasonable reliance); Williams Ford, Inc.
v. Hartford Courant Co., 232 Conn. 559, 580, 657 A.2d 212 (1995) (reasonable-
ness is normally question of fact); but see 37 Am. Jur. 2d 283, Fraud and
Deceit § 239 (2013) (‘‘[i]f, on the facts alleged in the complaint, no reasonable
jury could find that the plaintiff’s reliance was reasonable, the defendants
are entitled to judgment as a matter of law’’).
16
The plaintiffs, perhaps in an attempt to develop a new theory of reliance
that would not be thwarted by their deposition testimony or conclusory
averments, have further argued on appeal that their failure to demonstrate
that they ever absorbed the false or misleading contents of the defendant’s
financial statements should not be dispositive of their causes of action.
Specifically, the plaintiffs have adopted the position that they relied on the
defendant as an accountant in a much more general and abstract sense to
protect their assets.
The plaintiffs’ position is not persuasive for three reasons. First, though
we do not hold that a claim of fraud or negligent misrepresentation always
requires reliance on false or misleading documents, a plain reading of the
trial court record shows that, in this case, the plaintiffs were dedicated to
exactly such a theory. Cf. Nazami v. Patrons Mutual Ins. Co., supra, 280
Conn. 629 (‘‘[a]lthough we are mindful that our jurisprudence requires us
to interpret pleadings broadly, we must construe them reasonably to contain
all that they mean but not in such a way so as to ‘strain the bounds of
rational comprehension’ ’’). Second, as we have highlighted, claims of fraud
and negligent misrepresentation must be tethered to a false statement or
misrepresentation of fact. Id., 626–28. The defendant’s mere existence as
an accountant does not, in some metaphysical sense, amount to a false
statement or misrepresentation of fact. Third, even assuming, arguendo,
that the plaintiffs’ substituted theory of reliance could suffice, they did
not present any nonconclusory evidence to substantiate it at the summary
judgment stage. See Hoskins v. Titan Value Equities Group, Inc., supra,
252 Conn. 793–94; see also Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn.
App. 162, 170, 604 A.2d 1339 (‘‘[m]ere statements of legal conclusions . . .
and bald assertions, without more, are insufficient to raise a genuine issue
of material fact capable of defeating summary judgment’’ [citation omitted]),
aff’d, 224 Conn. 240, 618 A.2d 506 (1992).
17
As previously noted, our conclusions ultimately render it unnecessary
for us to address whether the defendant might have owed the plaintiffs a
duty of care under the particular circumstances of this case. See footnote
12 of this opinion. The dissent, however, does reach this question for both
the negligent misrepresentation and accounting malpractice counts.
We pause here to note that, even if our own conclusions did make it
necessary to consider duty, the final outcome would be the same because
the plaintiffs have effectively abandoned their duty related arguments. On
appeal to this court, the plaintiffs argue that the defendant owed them a
duty of care because they were the intended beneficiaries of his accounting
work. This court, however, has not yet extended the intended beneficiaries
doctrine to cases involving accountants—and the plaintiffs did not deem it
worthwhile to offer a legal basis for doing so. After the plaintiffs presumed
that we would implement this doctrine and, thereby, expand the potential
scope of liability for accountants indefinitely, they then explained how the
doctrine should apply to the facts of the present case by providing exactly
one page of briefing and zero case analysis. Given this scant briefing, we
hold that the claim is abandoned. See Jackson v. Water Pollution Control
Authority, 278 Conn. 692, 711, 900 A.2d 498 (2006) (‘‘failure to brief a
crucial underlying premise precludes further review of [a] claim, which we
deem abandoned’’).
The dissent, however, devotes approximately seven pages of its opinion
to explaining why Connecticut should adopt the intended beneficiaries doc-
trine in cases involving accountants and, further, why the doctrine should
be availing in this particular case. See part II of the dissenting opinion.
Under the current circumstances, we are not similarly inclined. See Citibank,
N.A. v. Lindland, 310 Conn. 147, 165, 75 A.3d 651 (2013) (‘‘We repeatedly
have stated that [w]e are not required to review issues that have been
improperly presented to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in order to avoid abandon-
ing an issue by failure to brief the issue properly. . . . [When] a claim is
asserted in the statement of issues but thereafter receives only cursory
attention in the brief without substantive discussion or citation of authorities,
it is deemed to be abandoned.’’ [Internal quotation marks omitted.]).