Corneroli v. Kutz

          Argued January 9, 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, Aurigemma, 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).

          DiPentima, C. J., and Alvord and Eveleigh, Js.

          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 defendants 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 chapter in a saga of extensive litigation over the last twenty years. The litigation arises out of the serendipitous purchase 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 undervalued 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. Corneroli contends that he and the decedent had a partnership 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 possession 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. Corneroli'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 prejudice. 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 defendants, 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; footnote omitted.) The estate moved to disallow the plaintiff'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 recovery in this matter against Mr. Adelson, '' and ‘‘the dismissal of the New York action against Mr. Adelson, with prejudice, indicates to the court that Mr. Corneroli's future opportunity to pursue a claim against Mr. Adelson, either individually or as part of a partnership, has been forever precluded.'' The court further determined that the plaintiff or, alternatively, the partnership, ‘‘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 partnership 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 partnership 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 prosecute the appeal from the Probate Court on his behalf. In his fourth amended complaint, the plaintiff alleged that the defendants were negligent in their representation 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 improperly rendered summary judgment in favor of the defendants 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 causation, the following colloquy occurred:

‘‘[The Defendants' Counsel]: Can you state to a reasonable 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 different 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 ...