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Imbruce v. Johnson

Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford

May 4, 2017

Gregory Imbruce et al.
Cheryl Johnson et al Opinion No. 136694

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Jacobs, Irene P., J.


          Jacobs, J.

         This legal malpractice action was commenced on December 22, 2014 by the plaintiffs, former clients of the defendants. The plaintiffs allege that the defendants' negligence in failing to advise the plaintiffs of specific securities requirements and failing to draft partnership documents in a specific manner caused the plaintiffs to commit civil theft and sustain damages. In the first count of their Amended Complaint (#103), the plaintiffs allege that the defendants breached the applicable standard of care. In the Third, Fourth, and Fifth Counts [the Second Count was stricken by the court (#118)], the plaintiffs alleged intentional, reckless and negligent misrepresentation.

         The defendants filed the current motion for summary judgment and supporting memorandum of law (#175) on November 1, 2016. The plaintiffs filed a memorandum in opposition (#203) on December 2, 2016, and subsequent filed supporting exhibits and affidavits (#204, #205, #206, #208, #209, #212, #213, #220, and #223). Alternating replies were filed by the defendants (#218 and #221) and the plaintiffs (#219 and #222). The defendants base their motion for summary judgment on the following grounds: (1) the plaintiffs do not have standing; (2) the current action is barred by the finding of fraud in a prior arbitration; (3) the action is time barred; and (4) plaintiffs' own conduct prevents them from establishing " but for" or proximate causation. In addition, the defendants argue that the plaintiffs' untimely disclosure of expert precludes their ability to establish causation. The motion was heard at Short Calendar on January 23, 2017.


         " [S]ummary 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." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). Summary judgment, however, is especially ill-suited for complex cases. Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995). Additionally, summary judgment is disfavored in negligence actions. " Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner. (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

         I. Standing

         " Standing is established by showing that the party claiming it is . . . classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action] . . . Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006). The plaintiffs in this case argue that they claim damages for injuries they sustained in their individual capacities as clients of the defendants due to the alleged negligent conduct of the defendants. Imbruce Aff., p. 9, ¶ ¶ 39-40; September 2015 Arbitration Award (recognizing individual liability). The defendants contend that the damages the plaintiffs seek are owed, if at all, to the various partnerships, which are not parties to this suit, and for which the plaintiffs cannot recover as members of the partnerships. Genuine issues of material fact exist, however, as to whether the plaintiffs' alleged damages were caused by the defendants' negligence. The trier of fact could determine that the plaintiffs incurred personal liability due to the defendants' alleged negligence, and therefore, could recover damages in their individual capacities.[1]

         II. Wrongful Conduct Rule

         " [In] Greenwald [v. Van Handel, 311 Conn. 370, 376, 88 A.3d 467 (2014)] [the] court essentially held that the wrongful conduct rule bars a plaintiff's recovery of damages in a civil case where there is no genuine issue of material fact that: (1) the plaintiff's crimes are serious felonies, (2) that there is a causal connection between these crimes and the alleged injuries, and (3) that the plaintiff had the requisite mental capacity to commit the crimes in question." Tonucci v. Gaylord Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV-13-6021414-S (September 22, 2015, Abrams, J.) (61 Conn.L.Rptr. 142, 145).

         The parties dispute the applicability of the wrongful conduct rule in this action. The defendants argue that the plaintiffs are barred from recovery because of the September 2015 Arbitration Award's finding that the plaintiffs engaged in civil theft. Pl.'s Ex. C. The plaintiffs argue that this finding raises a genuine issue of material fact as to whether their civil theft was caused by the defendants' alleged negligence, as the plaintiffs had no intention in engaging in wrongful conduct. Imbruce Aff., p. 9, ¶ ¶ 41-43. The plaintiffs do not dispute the September 2015 Arbitration Award finding, but argue that if the plaintiffs engaged in civil theft, such action was a direct result of the alleged negligence of the defendants, as the plaintiffs in good faith attempted to comply with securities regulations and relied on the defendants' statements and representations. Imbruce Aff., p. 9, ¶ ¶ 41-43. Furthermore, although the defendants urge this court to consider the plaintiffs' civil theft to be a serious felony for purposes of the wrongful conduct rule, the plaintiffs were not convicted criminally of the felony of larceny. This court finds that genuine issues of material fact exist, and the wrongful conduct rule does not bar the plaintiffs from seeking redress in this case.

         III. Statute of Limitations

         " [A] plaintiff may invoke the doctrine [of continuous representation], and thus toll the statute of limitations, when the plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter, and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period." (Emphasis in original; footnotes omitted.) DeLeo v. Nusbaum,263 Conn. 588, 597, 821 A.2d 744 (2003). The evidence presented by the plaintiffs is sufficient to establish that a genuine issue of material fact exists as to when the defendants' representation of the plaintiffs ended and whether the continued representation was with regard to the same underlying matter. Pl.'s Ex. B, Johnson Deposition, pp. 220, 280-82; Pl.'s Ex. C, Levett Rockwood Billing Records. The defendants contend that the alleged breaches concerning the defendants' failure to advise the plaintiff of the requirement to file a notice of sale of securities occurred no later than November 17, 2010, and the defendants' alleged failure to draft the partnership agreements with a full waiver occurred no later than July 8, 2010. Defs.' Ex. S, Imbruce Dep. Excerpt, p. 34; ASYM Energy Fund III LP Agent., pp. 1, 3. A genuine issue of material fact exists, however, as to the defendants' ability to cure these alleged breaches during the course of ...

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