Corneroli v. Kutz , 183 Conn. App. 401 ( 2018 )

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LOUIS D. CORNEROLI v. RONALD W.
KUTZ ET AL.
(AC 39507)
DiPentima, C. J., and Alvord and Eveleigh, Js.
Syllabus
The plaintiff sought to recover damages from the defendant attorney and
the defendant law firm for their alleged legal malpractice in connection
with their representation of the plaintiff in a probate matter involving
the plaintiff’s claim to the proceeds of a sale of a certain painting. The
painting had been purchased for $3 by the plaintiff’s cousin, D. After D
died, the plaintiff entrusted the painting to B, who, unbeknownst to
the plaintiff, sold the painting to A for approximately $1.2 million. A
subsequently sold the painting to an unknown purchaser for millions
of dollars more than what he paid for it. After the plaintiff learned about
the sales of the painting, he brought an action for, inter alia, fraud and
conversion in New York against B, A, and the unknown purchaser, which
the New York court dismissed as to all parties except B. Subsequently,
after commencing an action against, inter alia, the plaintiff, B, and A,
the estate of D reached a settlement agreement for $2.4 million with A,
and withdrew its claim against the plaintiff. The plaintiff brought a
probate action claiming that he was entitled to 50 percent of the settle-
ment because of an alleged former business partnership with D. The
Probate Court granted the estate’s motion to disallow the plaintiff’s
claim, and, thereafter, the defendants, on behalf of the plaintiff, filed
an appeal of the Probate Court’s decision in the Superior Court. The
estate filed a motion to dismiss the appeal for lack of subject matter
jurisdiction on the ground that the appeal was untimely, which the trial
court granted, and this court affirmed the dismissal. Subsequently, the
plaintiff filed the present legal malpractice action on the basis of the
defendants’ failure to timely prosecute the appeal from the Probate
Court on his behalf. The trial court granted the defendants’ motion for
summary judgment and rendered judgment thereon, from which the
plaintiff appealed to this court. On appeal, he claimed, inter alia, that
it was improper for the trial court to require expert testimony on the
issue of causation and, in the alternative, the testimony of his expert,
M, on the issue of causation was sufficient to defeat summary judg-
ment. Held:
1. The trial court properly rendered summary judgment in favor of the
defendants on the basis of its conclusion that there was insufficient
expert testimony on the issue of causation: Connecticut law generally
requires the plaintiff in a legal malpractice action arising from prior
litigation to prove, through expert testimony, that but for the alleged
breach of duty, it was more likely than not that he would have prevailed
in the underlying cause of action, and, in the present case, the plaintiff
failed to prove that, had the defendants filed a timely appeal from the
decision of the Probate Court, he was more likely than not to prevail
on appeal to the Superior Court, as the opinions of M regarding causation
were based on possibility, not probability, and M’s testimony, thus, failed
to clearly express an opinion that had the defendants timely filed the
appeal to the Superior Court, the plaintiff was more likely than not
to prevail; furthermore, even if M expressed his opinions in terms of
reasonable probabilities rather than possibilities, there was an inade-
quate basis for any opinion by M on the issue of causation, as the Probate
Court’s decision relied on the preclusive effect of the New York action,
and because M was unfamiliar with the substance of that action, he had
no basis on which he could opine, beyond mere speculation, as to what
the result of an appeal to the Superior Court would have been.
2. This court declined to review the plaintiff’s claim that the trial court
improperly considered the defendants’ reply brief in support of the
motion for summary judgment, which, contrary to its certification, was
not received by the plaintiff’s counsel prior to the morning of the hearing
on the defendants’ motion for summary judgment, that claim having
been raised for the first time on appeal to this court and having been
inadequately briefed; moreover, the plaintiff could not prevail on his
claim that the trial court improperly permitted the defendants to file
their surreply, as the record was clear that the defendants sought and
received the court’s permission to file the surreply.
Argued January 9—officially released July 17, 2018
Procedural History
Action to recover damages for legal malpractice, and
for other relief, brought to the Superior Court in the
judicial district of Middlesex, where the court, Auri-
gemma, J., granted the defendants’ motion for summary
judgment and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Daniel H. Kennedy III, with whom was R. Bartley
Halloran, for the appellant (plaintiff).
Cristin E. Sheehan, with whom, on the brief, was
Michelle Napoli-Lipsky, for the appellees (defendants).
Opinion
ALVORD, J. The plaintiff in this legal malpractice
action, Louis D. Corneroli, appeals from the summary
judgment rendered by the trial court in favor of the
defendants, Ronald W. Kutz and Kutz & Prokop, LLP.
On appeal, the plaintiff claims that the court improperly
(1) rendered summary judgment in favor of the defen-
dants on the basis of its conclusion that there was
insufficient expert testimony on the issue of causation,
and (2) considered certain documents filed by the
defendants. We affirm the judgment of the trial court.
The plaintiff’s present appeal marks yet another chap-
ter in a saga of extensive litigation over the last twenty
years. The litigation arises out of the serendipitous pur-
chase of an original John Singer Sargent painting by the
plaintiff’s late cousin, Salvatore D. D’Amico (decedent).
The defendants represented the plaintiff in a probate
matter involving the plaintiff’s claim to the proceeds of
the sale of that painting, and in subsequent appeals to
the Superior and Appellate Courts.
In its memorandum of decision, the trial court set
forth the following findings of the Probate Court. ‘‘The
decedent frequented tag sales in hopes of finding under-
valued assets. At some point in 1978, he acquired for
$3 a painting which turned out to be an original [John
Singer] Sargent painting called ‘Carmencita Dancing’
worth several million dollars. The problem encountered
by the decedent was that he was unable to get the
painting authenticated and thus was unable to realize
the full value of the painting during his lifetime. At some
point, the decedent’s cousin, Louis Corneroli, began
working with the decedent, driving him around and also
becoming involved in his various projects, including the
effort to authenticate the Sargent painting. Mr. Cor-
neroli contends that he and the decedent had a partner-
ship in which they agreed to work on matters together
and equally split the profits realized from their activity.
The estate of Salvatore D. D’Amico strenuously denies
any such partnership. . . .
‘‘After the decedent died, Mr. Corneroli took posses-
sion of the painting and entrusted it to Mark Borghi,
who owned and operated an art gallery in New York
and who was in a better position to have the painting
authenticated than Mr. Corneroli. . . . Unbeknownst
to Mr. Corneroli, Mr. Borghi sold the painting to a Mr.
[Warren] Adelson, another art dealer who specialized
in Sargent paintings, for approximately $1.2 million.
Mr. Adelson turned around and sold the painting for
millions more than what he paid for it, again without
the knowledge of Mr. Corneroli. At some point, Mr.
Corneroli learned of the sale of the painting and filed
the Corneroli Complaint in New York, suing Mr. Borghi,
Mr. Adelson and John Doe, the still unknown purchaser
of the painting, alleging, inter alia, fraud, conversion
and breach of contract claims. Judge Ira Gammerman,
of the Supreme Court of the state of New York, after
hearing testimony from Mr. Corneroli on the Corneroli
complaint, found that Mr. Corneroli testified that he
had an agreement with Mr. Borghi under which the
parties were to divide the sales price of the sale of
the painting with Mr. Borghi receiving half and Mr.
Corneroli receiving half. . . . Mr. Corneroli freely
acknowledged during the trial that both the decedent
while living and his estate had a 50% interest in the
painting. . . . The Corneroli complaint, however,
alleged that Mr. Corneroli was the sole owner of the
painting. . . .
‘‘After hearing the testimony of Mr. Corneroli, the
New York court dismissed the case as to all parties
except Mr. Borghi. It is crystal clear from the transcript
that the claim against Mr. Adelson was dismissed ‘with
prejudice.’ . . . . The New York court further found
the potential recovery from Mr. Borghi in Mr. Cor-
neroli’s favor to be approximately $313,000, which was
roughly one quarter of the sales price of the sale of
the painting from Mr. Borghi to Mr. Adelson. . . . Mr.
Corneroli acknowledged that he received about that
amount in either paintings or cash in July, 2003, and
that the parties thereafter returned to Connecticut to
open an estate for the decedent so that the estate could
pursue its share.
‘‘The administrators of the newly-opened estate of
D’Amico took a vastly different view of the history than
Mr. Corneroli. Based on their belief that Mr. Corneroli
had denied knowledge as to the location of the painting
shortly after the death of the decedent and further had
not disclosed that he had given the painting to the New
York art dealer until shortly before the proceedings in
New York occurred, the estate took the position that
there never was any partnership and that Mr. Corneroli
had absconded with the painting after the decedent
died. The estate filed a lawsuit in federal court in
December, 2003, which suit was dismissed without prej-
udice. A new suit was filed in July, 2005, in which the
estate sued, inter alia, Mr. Corneroli, Mr. Borghi and
Mr. Adelson, alleging that the painting had been stolen
by Mr. Corneroli and that title never passed due to this
fact. The estate sought a declaratory judgment that it
was the owner of the painting, a replevin of the painting
back to the estate and damages from Mr. Corneroli for
his alleged misdeeds. Mr. Corneroli filed an answer with
special defenses to the complaint in which he generally
alleged that his actions were taken as a partner of the
decedent and that he did not steal the painting. Mr.
Corneroli did not, however, file a counterclaim or seek
to join the [estate] in its claims against the other defen-
dants, including Mr. Adelson.
‘‘A two day mediation to resolve the case occurred
on December 11 [and] 12 at New Britain Superior Court.
Counsel for Mr. Corneroli attended on the first day but
did not return for the second day. The remaining parties
reached an agreement on the second day, which
involved Mr. Adelson paying the [estate] the sum of
$2.4 million. In a lengthy agreement put on the record,
the [estate] indicated that the settlement was subject
to the [estate] obtaining a release of Mr. Corneroli and
the Probate Court approving the settlement as well. It
does not appear any formal notice was provided to Mr.
Corneroli of the settlement, however, his attorney was
called in connection with executing a release, which
was refused. The Probate Court hearing occurred and
the settlement was approved by the Probate Court. The
case against Mr. Corneroli was withdrawn. Thereafter,
Mr. Corneroli, in reviewing the probate file, learned
about the settlement amount for the first time. He filed
a claim with the estate dated August 23, 2007, in which
he stated that he was a partner with the decedent in
attempting to get the painting authenticated and that
their agreement was that any funds received as a result
of getting the painting authenticated would be split
equally and thus he was entitled to receive 50 [percent]
of the 2.4 million settlement.’’ (Emphasis omitted; foot-
note omitted.) The estate moved to disallow the plain-
tiff’s claim as untimely.
The Probate Court assumed for purposes of deciding
the motion that the plaintiff’s claim of partnership was
true, but nonetheless granted the estate’s motion to
disallow the plaintiff’s claim. The court concluded that
‘‘if, in fact, a partnership existed, the New York action
represented the one opportunity it had to obtain a recov-
ery in this matter against Mr. Adelson,’’ and ‘‘the dis-
missal of the New York action against Mr. Adelson,
with prejudice, indicates to the court that Mr. Cor-
neroli’s future opportunity to pursue a claim against
Mr. Adelson, either individually or as part of a partner-
ship, has been forever precluded.’’ The court further
determined that the plaintiff or, alternatively, the part-
nership, ‘‘had no claim against Mr. Adelson,’’ and ‘‘upon
the conclusion of the New York litigation, the last
remaining asset of any ‘partnership’ was the $300,000
claim against Mr. Borghi, which Mr. Corneroli testified
to, but which could not be the subject of any award
. . . as the estate was not a party plaintiff in the action.
Mr. Corneroli cannot claim any interest in that claim
as he received his judgment in that amount against Mr.
Borghi already.’’
On the basis of its conclusion that ‘‘the New York
litigation fully and finally resolved any issues of partner-
ship assets and . . . the fruits of the litigation brought
thereafter by the estate in no way can be determined
to be considered a partnership asset as a matter of law,’’
the court characterized the plaintiff’s claim against the
estate as an attempt to claim ‘‘an interest in a partner-
ship asset which, as a matter of law, is not a partnership
asset.’’ The Probate Court granted the estate’s motion
to disallow the plaintiff’s claim and, on March 27, 2008,
sent notice of its decision to the parties and counsel.
On June 4, 2008, the defendants, on behalf of the
plaintiff, filed an appeal of the Probate Court’s decision
in the Superior Court. The estate moved to dismiss the
appeal for lack of subject matter jurisdiction, claiming
that the appeal was untimely. The court granted the
motion and dismissed the appeal as untimely.1 This
court affirmed the dismissal, and our Supreme Court
declined to hear the matter. See Corneroli v. D’Amico,
116 Conn. App. 59, 67, 975 A.2d 107, cert. denied, 293
Conn. 928, 980 A.2d 909 (2009).
In 2012, the plaintiff filed this legal malpractice action
on the basis of the defendants’ failure to timely prose-
cute the appeal from the Probate Court on his behalf.
In his fourth amended complaint, the plaintiff alleged
that the defendants were negligent in their representa-
tion of him in the underlying probate matter, and that
‘‘[h]ad the defendants filed a timely appeal, the plaintiff
would have had a reasonable basis for a successful
outcome of the de novo appeal.’’
On April 28, 2016, the defendants moved for summary
judgment, arguing that no genuine issue of material fact
existed because the plaintiff had ‘‘failed to disclose any
expert who can opine on the issue of proximate cause,
a necessary element in any legal malpractice action.’’
On July 27, the court issued a memorandum of decision,
in which it granted the defendants’ motion. This
appeal followed.
I
The plaintiff first claims that the trial court improp-
erly rendered summary judgment in favor of the defen-
dants on the basis of its conclusion that there was
insufficient expert testimony to create a genuine issue
of material fact as to causation. Specifically, he argues
that it was improper for the court to require expert
testimony on the issue of causation, and that even if it
were proper, his expert’s testimony on the issue of
causation was sufficient to defeat summary judgment.
We disagree.
The following procedural history is relevant to our
resolution of this claim. During discovery, the plaintiff
disclosed two experts: (1) Attorney John A. Berman, a
retired probate judge, and (2) Professor Jeremy
McClane, a professor at the University of Connecticut
School of Law.2
During his deposition, Professor McClane testified
that he is an expert on partnership law. He extensively
opined on the issue of partnership in the underlying
probate matter, testifying as to his belief that there was
‘‘a reasonable basis for a successful outcome of the
appeal’’ because there was ‘‘both a reasonable basis
that Corneroli would have been able to show that there
was a partnership and that the painting was partnership
property and that any disposition or any money coming
out of a disposition of that painting was also partnership
property . . . .’’ When questioned on the issue of cau-
sation, the following colloquy occurred:
‘‘[The Defendants’ Counsel]: Can you state to a rea-
sonable degree of probability that the result of any
appeal—of the outcome of an appeal in the Superior
Court would have been different as opposed to [the
Probate Court’s] decision?
***
‘‘[Professor McClane]: I mean, it’s hard to say what
the outcome of a litigation would be just because there
are so many moving parts, so many things involved, the
skill of the lawyers, you know, what the jury thinks of
the witnesses, but I think that there is certainly a very
good chance that the outcome would have been differ-
ent than what was indicated in [the Probate Court’s]
opinion.
‘‘[The Defendants’ Counsel]: But can you say to a
reasonable degree of probability that it’s more likely
than not the outcome would have been different?
***
‘‘[Professor McClane]: I think there’s a very good
chance the outcome would have been different. I don’t
know that I can say more likely than not. I’m not saying
it is or it isn’t. I just don’t think I can really say simply
because, you know, if you were to believe everything—
if a finder of fact were to believe everything that is in
all of this testimony and all of these document, then I
think, yes, there’s a—it’s likely that the outcome would
be different because I think they would understand that
this is a partnership asset and the claim is really about
liquidating the partnership asset and getting the value
for it. But I can’t opine on whether or not people are
going to believe one set of testimony over another.
‘‘[The Defendants’ Counsel]: Okay. So sitting here
today, you can’t testify—you can only testify you believe
there’s a very good chance the outcome would have
been different, not that it’s more likely than not it would
have been different?
***
‘‘[Professor McClane]: I can say that if at a trial every-
body believed—that all of the testimony of Mr. Cor-
neroli were believed, then I think it’s more likely
than not.
‘‘[The Defendants’ Counsel]: And what are the
chances that all of his testimony would be believed?
***
‘‘[Professor McClane]: I don’t have the crystal ball to
say that, unfortunately.’’
On April 28, 2016, the defendants moved for summary
judgment. In their memorandum in support of the
motion, the defendants argued that no genuine issue
of material fact existed with respect to the issue of
causation because ‘‘neither of the plaintiff’s disclosed
experts have offered testimony that the plaintiff would
have prevailed on legal and/or factual grounds had the
probate appeal been timely commenced and had the
Superior Court conducted a trial de novo on the merits
of [the] plaintiff’s claims.’’ With respect to Professor
McClane’s testimony on the issue of causation, the
defendants argued that he ‘‘could not state to a reason-
able degree of probability that the outcome of a timely
appeal would have differed from [the Probate Court’s]
decision.’’ The defendants highlighted Professor
McClane’s testimony that: (1) it was ‘‘hard to say what
the outcome of a litigation would be just because there
are so many moving parts’’; (2) he did not know if he
could say ‘‘more likely than not’’ that the outcome would
have been different; (3) he was not ‘‘saying it is or it
isn’t’’ more likely than not; (4) he could not opine as
to whether a fact finder would believe ‘‘one set of testi-
mony over another’’; and (5) he did not ‘‘have the crystal
ball’’ to evaluate the chances of the fact finder believing
the plaintiff’s testimony. The defendants noted that the
Probate Court assumed for purposes of its analysis that
a partnership existed between the plaintiff and the dece-
dent with respect to the painting, and that Professor
McClane could not ‘‘articulate any basis on which the
Superior Court would have reached a different result.’’
The defendants further argued that Professor McClane’s
testimony spoke to ‘‘possibilities, not probabilities,
which is legally insufficient to meet the burden of
proof,’’ and accordingly, the plaintiff had failed to estab-
lish a prima facie case of legal malpractice.
The trial court rendered summary judgment in favor
of the defendants on July 27, 2016. In its memorandum
of decision, the court concluded that ‘‘Professor
McClane could not state to a reasonable degree of prob-
ability that the outcome of a timely appeal would have
differed from [the Probate Court’s] decision,’’ and high-
lighted his testimony that he did not know if he could
say ‘‘more likely than not’’ that the outcome would have
been different, and that he was not ‘‘saying it is or it
isn’t’’ more likely than not. The court further concluded
that ‘‘Professor McClane failed to offer any testimony
as to his bases for challenging the decision of [the
Probate Court].’’ Specifically, the court noted that Pro-
fessor McClane’s testimony did not provide a basis for
challenging the Probate Court’s conclusion that the
New York action represented the plaintiff’s only oppor-
tunity to recover against Adelson under any legal the-
ory. The court concluded: ‘‘[N]either [Professor
McClane’s] deposition testimony nor his affidavit pro-
vide any basis to support the opinion that Mr. Corneroli
would probably have prevailed in his de novo probate
appeal. To the contrary, Professor McClane testified
that he was not familiar with the substance of [the
Probate Court’s] opinion or Mr. Corneroli’s litigation
history vis-a`-vis the painting at issue. The opinion of
the Probate Court was rational, logical and based on
Mr. Corneroli’s prior litigation with respect to the paint-
ing. In order to decide contrary to the opinion of [the
Probate Court], a Superior Court Judge would certainly
need a good reason. Professor McClane has completely
failed to articulate such [a] reason. Thus, he provided
no basis for any opinion as to causation. Without such
a basis there is no genuine issue of material fact. Sum-
mary judgment enters in favor of the defendants.’’
We begin with the applicable standard of review and
principles of law that guide our analysis. ‘‘Practice Book
§ 17-49 provides that summary judgment shall be ren-
dered 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. . . . Our
review of the trial court’s decision to grant the defen-
dant’s motion for summary judgment is plenary. . . .
Summary judgment in favor of a defendant is proper
when expert testimony is necessary to prove an essen-
tial element of the plaintiff’s case and the plaintiff is
unable to produce an expert witness to provide such
testimony. . . .
‘‘Malpractice is commonly defined as the failure of
one rendering professional services to exercise that
degree of skill and learning commonly applied under
all the circumstances in the community by the average
prudent reputable member of the profession with the
result of injury, loss, or damage to the recipient of those
services . . . . Generally, a plaintiff alleging legal mal-
practice must prove all of the following elements: (1)
the existence of an attorney-client relationship; (2) the
attorney’s wrongful act or omission; (3) causation; and
(4) damages. . . .
‘‘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. . . . The second com-
ponent, 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].
. . . This 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 . . . .
‘‘The existence of the proximate cause of an injury
is determined by looking from the injury to the negligent
act complained of for the necessary causal connection.
. . . In legal malpractice actions arising from prior liti-
gation, the plaintiff typically proves that the . . . attor-
ney’s professional negligence caused injury to the
plaintiff by presenting evidence of what would have
happened in the underlying action had the [attorney]
not been negligent. This traditional method of pre-
senting the merits of the underlying action is often
called the case-within-a-case. . . . More specifically,
the plaintiff must prove that, in the absence of the
alleged breach of duty by her attorney, the plaintiff
would have prevailed [in] the underlying cause of action
and would have been entitled to judgment. . . . To
meet this burden, the plaintiff must produce evidence
explaining the legal significance of the attorney’s failure
and the impact this had on the underlying action.’’ (Cita-
tions omitted; emphasis omitted; footnote omitted;
internal quotation marks omitted.) Bozelko v. Papas-
tavros, 323 Conn. 275, 282–84, 147 A.3d 1023 (2016).
We first address the plaintiff’s argument that it was
improper to require expert testimony on the issue of
causation because the ‘‘probability of success of the
underlying case is an ultimate issue.’’ According to the
plaintiff, ‘‘[i]t would be inappropriate for Mr. Corneroli
to disclose an expert on the underlying issue, as the
court can directly decide the merits of the underlying
case.’’ This argument is entirely without merit.
Section 7-3 (a) of the Connecticut Code of Evidence
provides in relevant part: ‘‘Testimony in the form of an
opinion is inadmissible if it embraces an ultimate issue
to be decided by the trier of fact, except that . . . an
expert witness may give an opinion that embraces an
ultimate issue where the trier of fact needs expert assis-
tance in deciding the issue.’’ In regard to the issue of
causation in legal malpractice cases, our Supreme Court
recently ruled that ‘‘although there will be exceptions
in obvious cases, expert testimony . . . is a general
requirement for establishing the element of causation
in legal malpractice cases. Because a determination of
what result should have occurred if the attorney had not
been negligent usually is beyond the field of ordinary
knowledge and experience possessed by a juror, expert
testimony generally will be necessary to provide the
essential nexus between the attorney’s error and the
plaintiff’s damages.’’ (Footnotes omitted.) Bozelko v.
Papastavros, supra, 323 Conn. 284–85. In Bozelko, our
Supreme Court recognized the need for expert assis-
tance to decide the issue of whether an attorney’s
alleged malpractice caused the claimed injury. In light
of the holding in Bozelko, we reject the plaintiff’s argu-
ment that it is improper to permit an expert to testify
as to his opinion on causation in a legal malpractice
case.3 See also Dixon v. Bromson & Reiner, 95 Conn.
App. 294, 299–300, 898 A.2d 193 (2006) (‘‘in a legal
malpractice case such as this, an expert witness is nec-
essary to opine whether the defendant’s alleged breach
of care proximately caused the plaintiff’s alleged loss
or damages’’).4
Because we have concluded that, to defeat summary
judgment, the plaintiff was required to present expert
testimony to prove causation, we must now examine
the substance of Professor McClane’s testimony to
determine whether summary judgment was proper.
‘‘Expert opinions must be based upon reasonable proba-
bilities rather than mere speculation or conjecture if
they are to be admissible in establishing causation. . . .
To be reasonably probable, a conclusion must be more
likely than not. . . . Whether an expert’s testimony is
expressed in terms of a reasonable probability that an
event has occurred does not depend upon the semantics
of the expert or his use of any particular term or phrase,
but rather, is determined by looking at the entire sub-
stance of the expert’s testimony.’’ (Internal quotation
marks omitted.) Drew v. William W. Backus Hospital,
77 Conn. App. 645, 662–63, 825 A.2d 810, cert. granted,
265 Conn. 909, 831 A.2d 249 (2003) (appeal withdrawn
December 22, 2003).
As we have noted, Connecticut law generally requires
the plaintiff in a legal malpractice action arising from
prior litigation to prove, through expert testimony, that
but for the alleged breach of duty, it was more likely
than not that he would have prevailed in the underlying
cause of action. In this case, the plaintiff was required
to prove that, had the defendants filed a timely appeal
from the decision of the Probate Court, he was more
likely than not to prevail on appeal to the Superior
Court. On appeal to this court, the plaintiff argues that
‘‘Professor McClane’s deposition testimony and expert
disclosure make it clear that he believes with a reason-
able probability that Mr. Corneroli would have prevailed
in the de novo probate appeal.’’ We disagree.
Reviewing in its entirety Professor McClane’s testi-
mony, and viewing that testimonial evidence in a light
most favorable to the plaintiff, we conclude that the
plaintiff failed to produce the expert testimony neces-
sary to prove the essential element of causation in his
legal malpractice action. The substance of Professor
McClane’s testimony on the issue of causation can be
summarized as follows: (1) he found it ‘‘hard to say
what the outcome of a litigation would be just because
there are so many moving parts’’; (2) there was ‘‘cer-
tainly a very good chance’’ that the plaintiff would have
prevailed on appeal from the Probate Court; (3) even
though he thought that there was a ‘‘very good chance’’
that the plaintiff would have prevailed on appeal, he
did not know that he could ‘‘say more likely than not’’;
(4) he was not saying that ‘‘it is or it isn’t’’ more likely
than not that the plaintiff would prevail on appeal; (5)
he could not ‘‘opine on whether people are going to
believe one set of testimony over another’’; (6) if, at a
trial, ‘‘all of the testimony of Mr. Corneroli were
believed,’’ it was ‘‘more likely than not’’ that he would
prevail; and (7) he did not have a ‘‘crystal ball’’ to opine
on the chances of the fact finder believing all of the
plaintiff’s testimony. It is clear from this testimony that
Professor McClane’s opinions regarding causation were
based on possibility, not probability. Those possibilities
depended on the ‘‘many moving parts’’ that Professor
McClane described, which included: (1) the skill of the
lawyers; (2) the jury’s opinion of the witnesses; (3) the
likelihood of the fact finder believing the testimony
and documents; (4) the jury’s understanding that the
painting was a partnership asset; (5) the jury’s under-
standing that ‘‘the claim is really about liquidating the
partnership asset and getting the value for it’’; and (6)
the likelihood of ‘‘everybody’’ believing the testimony
of the plaintiff. Professor McClane’s testimony fails to
clearly express an opinion that had the defendants
timely filed the appeal to the Superior Court, the plain-
tiff was more likely than not to prevail.5
Furthermore, even if we were to assume that Profes-
sor McClane expressed his opinions in terms of reason-
able probabilities rather than possibilities, we conclude
that there was an inadequate basis for any opinion by
Professor McClane on the issue of causation. The Pro-
bate Court largely based its decision on its observation
that ‘‘if, in fact, a partnership existed, the New York
action represented the one opportunity it had to obtain
a recovery in this matter against Mr. Adelson.’’ As the
trial court noted, Professor McClane failed to review
the New York decision. Professor McClane testified that
he understood the plaintiff’s involvement in the New
York litigation and he understood that the plaintiff’s
claim against Mr. Adelson was dismissed with preju-
dice, but that, in addition to not reading the New York
court’s decision, he also did not: (1) read the transcripts
of that case; (2) review the evidence presented in that
case; or (3) know what the cause of action was in
that case. When questioned about his opinion as to the
Probate Court’s conclusion that the New York action
precluded the probate claim, the following colloquy
occurred:
‘‘[The Defendants’ Counsel]: And in the last paragraph
of page three, exhibit 4, it begins, quote, ‘The plain
conclusion reached by this court, however, is that if,
in fact, a partnership existed, the New York action rep-
resented the one opportunity it had to obtain a recovery
in this matter against Mr. Adelson,’ close quote. Do you
see that?
‘‘[Professor McClane]: Yes, I do.
***
‘‘[The Defendants’ Counsel]: Do you agree as to
that conclusion?
‘‘[Professor McClane]: I don’t actually have any basis
on which to evaluate that conclusion, simply because
I don’t know what the action—what the specific cause
of action was in New York.
‘‘For example, were they suing for a breach of a
contract of sale between the partnership and Mr. Bor-
ghi? In that case, then that claim is obviously foreclosed.
But if there was another sort of duty, some kind of
unlawful conversion or something like that, then that’s
not foreclosed by the New York action.
‘‘But, again, I just don’t know, right. So I don’t want
to speculate.
‘‘[The Defendants’ Counsel]: And you’re not here to
testify about the effect of that decision; correct?
‘‘[Professor McClane]: Yeah.’’ (Emphasis added.)
The question with respect to the issue of causation
is whether, on appeal, the plaintiff was more likely than
not to prevail. The result in the Probate Court was
determined in large part by the preclusive effect of the
New York action. Professor McClane conceded that to
opine on the preclusive effect of the New York action,
he would have to engage in speculation. Since the Pro-
bate Court’s decision relied on the preclusive effect
of the New York action, and Professor McClane was
unfamiliar with the substance of that action, he had no
basis on which he could opine, beyond mere specula-
tion, as to what the result of an appeal to the Superior
Court would have been.6 See, e.g., Weinstein v.
Weinstein, 18 Conn. App. 622, 636–37, 561 A.2d 443(1989) (where expert did not examine books or records
of business, trial court did not abuse discretion by refus-
ing to allow testimony regarding valuation of business
because there was insufficient basis for opinion on
that issue).
We conclude that the defendants established the lack
of a genuine issue of material fact concerning the issue
of causation, such that they were entitled to judgment
as a matter of law. Even viewing the evidence in the
light most favorable to the plaintiff, we conclude that
he failed to present evidence that would raise such an
issue. Accordingly, the court properly rendered sum-
mary judgment in favor of the defendants.7
II
The plaintiff also claims that the trial court improp-
erly: (1) considered the defendants’ reply brief in sup-
port of the motion for summary judgment, and (2)
permitted the defendants to file a surreply brief in fur-
ther support of the motion for summary judgment.
These claims are meritless.
The following procedural history is relevant to our
resolution of these claims. The defendants filed their
motion for summary judgment and supporting memo-
randum on April 28, 2016. On June 6, the plaintiff filed
his memorandum in opposition to the defendants’
motion for summary judgment. On June 14, the defen-
dants filed a reply brief in further support of their
motion for summary judgment. On the last page of the
reply brief, the defendants’ counsel certified that a copy
was ‘‘mailed or electronically delivered on this 14th day
of June, 2016, to all counsel . . . .’’
On June 20, the court heard argument on the defen-
dants’ motion for summary judgment. At that time, the
plaintiff’s counsel represented to the court that
although the defendants’ counsel certified that a copy
of the reply brief ‘‘was e-mailed and sent via mail to
both my office and [co-counsel’s] office,’’ they had not
received a copy. Counsel further represented that she
discovered that the reply brief had been filed that morn-
ing when a paralegal checked the court docket prior
to the hearing. Counsel argued that this was prejudicial,
as she had not yet researched any of the cases cited
in the defendants’ reply brief. Counsel requested the
court’s permission to file a surreply brief within one
week, stating: ‘‘[W]e’re okay moving forward with the
argument today, but we would like a chance to respond
without them then responding again, but I think out of
fairness.’’8 The court granted the request of the plain-
tiff’s counsel to file a surreply brief within a week of
the hearing.
On June 27, as permitted by the court, the plaintiff
filed a surreply brief in opposition to the defendants’
motion for summary judgment. The plaintiff attached
to his surreply, as exhibit B, an affidavit of Professor
McClane, which stated:
‘‘On March 31, 2016, I sat for a deposition by Defen-
dants’ counsel in Hartford, Connecticut. . . .
‘‘I was questioned by the Defendants’ counsel as to
the probability that Mr. Corneroli would have been suc-
cessful on his appeal from Probate Court had the Defen-
dants filed a timely appeal. I testified that there was a
reasonable basis for a successful outcome of that appeal
and that there was a very good chance the outcome
would have been different than it was in the Probate
Court. I believe it was reasonably probable. . . .
‘‘When queried as to whether it was ‘more likely than
not’ I did not understand the terminology in the context
of the pending legal malpractice action. As I now under-
stand the Defendants’ position, I am comfortable that
my reasonable probability standard well exceeds more
likely than not. . . .
‘‘It was my opinion on March 31, 2016, and it is still
my opinion, that it is more likely than not that Mr.
Corneroli would have been successful had the Defen-
dants filed a timely appeal.’’
On June 30, the defendants filed their own surreply
brief in further support of the motion for summary
judgment. The defendants argued that exhibit B to the
plaintiff’s surreply constituted a ‘‘sham affidavit,’’ an
‘‘affidavit in opposition to a motion for summary judg-
ment that contradicts the affiant’s prior deposition testi-
mony,’’ which the court should reject. The defendants
acknowledged that Connecticut courts had not
expressly adopted the sham affidavit rule but cited
cases in which courts had applied the ‘‘underlying ratio-
nale for the rule’’ in deciding motions for summary
judgment. The defendants argued that the affidavit was
an attempt to ‘‘submit contradictory testimony from
[the plaintiff’s] own expert to avoid the entry of sum-
mary judgment,’’ and that the affidavit was improper,
untimely, lacked credibility, and could not ‘‘be
explained as the result of confusion.’’ The defendants
argued that the affidavit was an attempt to materially
alter Professor McClane’s testimony and, alternatively,
violated the court’s scheduling order as the introduction
of additional testimony from an expert after expert
discovery concluded.
On July 1, the plaintiff filed an objection to the defen-
dants’ surreply. The plaintiff cited Practice Book § 11-
10,9 which requires a party seeking to file a surreply
to obtain permission from the court, and argued that
because the defendants had failed to seek permission
to file their surreply, it was not properly before the
court. Also on July 1, the defendants filed a caseflow
request, in which they requested the court’s permission
to file a surreply. The defendants listed as a reason for
the request: ‘‘Plaintiff’s counsel offered an affidavit from
his expert which contradicts prior testimony. Defen-
dants request that the court give due consideration to
a surreply addressed to issues raised by the plaintiff’s
brief including the expert affidavit.’’ On July 18, the
court overruled the plaintiff’s objection.10
The plaintiff argues, for the first time on appeal, that
the court improperly considered the defendants’ reply
brief, which, contrary to its certification, was not
received by the plaintiff’s counsel prior to the morning
of the hearing on the defendants’ motion for summary
judgment. We conclude that the plaintiff has aban-
doned, by failing to adequately brief, this claim. The
plaintiff devotes three sentences of his brief to this
issue, in which he does not cite or analyze any case
law but merely makes bare factual assertions. See foot-
note 7 of this opinion. Furthermore, ‘‘[t]o review claims
articulated for the first time on appeal and not raised
before the trial court would be nothing more than a
trial by ambuscade of the trial judge.’’ (Internal quota-
tion marks omitted.) Bragdon v. Sweet, 102 Conn. App.
600, 607, 925 A.2d 1226 (2007). Accordingly, we decline
to review this claim.
The plaintiff also argues that the court improperly
permitted the defendants to file the June 30 surreply.
Specifically, he argues that, because the defendants
‘‘neither made any oral request nor filed a request for
leave for permission to make such a filing’’ pursuant
to Practice Book § 11-10, the surreply ‘‘was not properly
before the court.’’ We disagree.
Practice Book § 11-10 (c) provides: ‘‘Surreply memo-
randa cannot be filed without the permission of the
judicial authority.’’ The record here is clear that the
defendants sought, and received, the court’s permission
to file the surreply. After it considered the plaintiff’s
objection, the court overruled the objection and granted
the defendants permission to file the surreply.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 45a-186 (a) requires the filing of an appeal in the
Superior Court no later than thirty days after the mailing of the Probate
Court’s decision. See Corneroli v. D’Amico, 116 Conn. App. 59, 67, 975 A.2d
107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009).
2
Although, in his expert disclosure, the plaintiff represented that Attorney
Berman would opine on the issue of causation, at his deposition, Attorney
Berman was unable to do so. When asked if he had an opinion ‘‘as to whether
it is more probable than not that the Superior Court would have decided
in Mr. Corneroli’s favor,’’ Attorney Berman responded: ‘‘I do not have. That
would be—I didn’t prepare for that answer or that question.’’ He further
testified that he could not ‘‘answer whether or not [the plaintiff] would
prevail.’’
In its memorandum of decision, the court concluded that Attorney Ber-
man’s testimony was ‘‘insufficient to establish a prima facie case on the
issue of causation,’’ and noted his concessions ‘‘that he does not know and
cannot predict whether [the Probate Court’s] decision would have been
upheld or reversed on appeal,’’ and that he was ‘‘not prepared to opine as
to whether it was more probable than not that the Superior Court would
have found in Mr. Corneroli’s favor on appeal.’’ On appeal to this court, the
plaintiff does not challenge the court’s conclusions as to Attorney Berman.
Furthermore, the plaintiff’s counsel conceded during oral argument before
this court that Attorney Berman only opined as to the applicable standard
of care. Accordingly, we address the plaintiff’s claim only as it relates to
the opinions of Professor McClane.
3
The plaintiff similarly argues that by rendering summary judgment in
favor of the defendants, the trial court decided an issue of fact as to whether
Professor McClane’s opinion as to causation was sufficient. This argument
also is without merit, because as we have explained, to defeat summary
judgment in his legal malpractice case, the plaintiff was required to present
expert testimony on the essential element of causation. See Bozelko v.
Papastavros, supra, 323 Conn. 284–85.
4
The plaintiff now contends that the trial court’s statement that ‘‘to decide
contrary to the opinion of [the Probate Court], a Superior Court judge would
certainly need a good reason,’’ indicates a misunderstanding of the nature
of a de novo appeal from the Probate Court. Specifically, the plaintiff argues
that since the appeal of a probate decision to the Superior Court ‘‘is not a
challenge to the Probate Court’s decision’’ but, rather, is ‘‘a new action,’’ a
plaintiff in a probate appeal to the Superior Court ‘‘has no duty to demon-
strate any flaws in the Probate Court decision.’’ We do not understand the
court’s statement to indicate a misunderstanding of the nature of a de novo
appeal. The court’s statement merely recognizes that, to create a genuine
issue of material fact to defeat summary judgment, the plaintiff’s expert
must opine that the plaintiff more likely than not would have prevailed on
appeal to the Superior Court, and explain the bases for that opinion. That
necessarily would require Professor McClane to provide a ‘‘good reason’’
as to why the Superior Court would ‘‘decide contrary to the opinion of [the
Probate Court] . . . .’’
Furthermore, the plaintiff did not request an articulation on this point,
and ‘‘[t]o the extent that the [trial] court’s decision is ambiguous . . . it
was [the appellant’s] responsibility to seek to have it clarified.’’ (Internal
quotation marks omitted.) DiRienzo Mechanical Contractors, Inc. v. Salce
Contracting Associates, Inc., 122 Conn. App. 163, 169, 998 A.2d 820, cert.
denied, 298 Conn. 910, 4 A.3d 831 (2010). ‘‘In the absence of a motion for
articulation . . . it would be sheer speculation for this court to assume
that the trial court applied the incorrect legal standard.’’ (Citation omitted;
internal quotation marks omitted.) Daly v. DelPonte, 27 Conn. App. 495,
507, 608 A.2d 93 (1992), rev’d on other grounds, 225 Conn. 499, 624 A.2d
876 (1993).
5
The plaintiff also argues that the trial court improperly found that an
expert must employ the phrase ‘‘more likely than not’’ as to the issue of
causation. The court, however, in its memorandum of decision, cited this
court’s decision in Drew v. William W. Backus Hospital, supra, 77 Conn.
App. 663, acknowledging that the sufficiency of an expert’s testimony does
not depend on his use of any particular term or phrase. We, therefore, reject
the factual premise of the plaintiff’s argument.
6
During his deposition, Professor McClane also opined that there was ‘‘a
reasonable basis for a successful outcome of the appeal,’’ because there
was ‘‘a reasonable basis that Corneroli would have been able to show that
there was a partnership and that the painting was partnership property and
that any disposition or any money coming out of a disposition of that painting
was also partnership property . . . .’’ Professor McClane further testified
that although he was aware that the Probate Court, for purposes of deciding
the motion to disallow the claim against the decedent’s estate, assumed
that a partnership did in fact exist between the plaintiff and the decedent,
in his opinion, this assumption was ‘‘internally inconsistent’’ with some of
the conclusions that the Probate Court reached in that decision. The plaintiff
now argues that this testimony demonstrates Professor McClane’s opinion
that it was reasonably probable that the plaintiff would have prevailed had
the defendants filed a timely appeal. In light of our conclusion that Professor
McClane did not have an adequate basis for his opinions, we need not
address this argument.
7
The plaintiff also argues that the trial court: (1) improperly opined that
the Probate Court’s decision was rational and logical ‘‘without any review
or knowledge of evidence’’ presented during the probate proceedings; (2)
improperly rendered summary judgment in favor of the defendants without
any information regarding the evidence that would be presented at a de
novo trial; and (3) failed to ‘‘contemplate’’ that new evidence, not presented
to the Probate Court, may exist and be presented during a de novo trial to
the Superior Court. We conclude that the plaintiff has abandoned these
claims through inadequate briefing.
‘‘It is well settled that [w]e are not required to review claims that are
inadequately briefed. . . . We consistently have held that [a]nalysis, rather
than mere abstract assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . [F]or this court judiciously
and efficiently to consider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their briefs. We do not
reverse the judgment of a trial court on the basis of challenges to its rulings
that have not been adequately briefed. . . . The parties may not merely
cite a legal principle without analyzing the relationship between the facts
of the case and the law cited. . . . [A]ssignments of error which are merely
mentioned but not briefed beyond a statement of the claim will be deemed
abandoned and will not be reviewed by this court.’’ (Internal quotation
marks omitted.) Benedetto v. Dietze & Associates, LLC, 159 Conn. App. 874,
880–81, 125 A.3d 536, cert. denied, 320 Conn. 901, 127 A.3d 185 (2015). The
plaintiff has devoted just over a page of his brief to these three arguments,
in which he does little more than briefly recite various factual assertions
and one general principle of probate law. Accordingly, these claims are
briefed inadequately, and we decline to review them.
8
The plaintiff’s counsel at no time objected to the court’s consideration
of the defendants’ reply brief, nor moved to strike the reply brief.
9
Practice Book § 11-10 (c) provides: ‘‘Surreply memoranda cannot be filed
without the permission of the judicial authority.’’
10
In its memorandum of decision, the trial court refused to consider the
affidavit. The court cited the decision of the United States Court of Appeals
for the Second Circuit in Perma Research & Development Co. v. Singer Co.,
410 F.2d 572, 578 (2d Cir. 1969), in which that court said: ‘‘If a party who
has been examined at length on deposition could raise an issue of fact
simply by submitting an affidavit contradicting his own prior testimony, this
would greatly diminish the utility of summary judgment as a procedure for
screening out sham issues of fact.’’ The trial court went on to conclude that,
even if it were to ‘‘overlook the improbability of Professor McClane’s claim
that when he was deposed, he did not understand what ‘more likely than
not’ meant, neither his deposition testimony nor his affidavit provide any
basis to support the opinion that Mr. Corneroli would probably have pre-
vailed in his de novo probate appeal,’’ as Professor McClane testified that
he was not familiar with the substance of the Probate Court’s opinion or
the New York litigation vis-a`-vis the painting.
The plaintiff now argues that the court erred by refusing to consider the
affidavit. This claim warrants only a brief analysis. It is within the trial
court’s discretion whether to accept or decline supplemental evidence in
connection with a motion for summary judgment. Nieves v. Cirmo, 67 Conn.
App. 576, 587 n.4, 787 A.2d 650, cert. denied, 259 Conn. 931, 793 A.2d 1085(2002). Although the court permitted the plaintiff to file a surreply for the
purpose of responding to the defendants’ reply brief, the plaintiff went
beyond merely responding to the defendants’ reply brief and attached an
affidavit containing statements by Professor McClane, a witness that the
defendants would not have the opportunity to redepose prior to the court’s
decision on the motion for summary judgment. This court will not, on
appeal, disturb the trial court’s discretion to refuse to consider supplemental
evidence submitted after full briefing and argument on a motion for sum-
mary judgment.