LOUIS D. CORNEROLI
RONALD W. KUTZ ET AL.
January 9, 2018
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.
H. Kennedy III, with whom was R. Bartley Halloran, for the
Cristin E. Sheehan, with whom, on the brief, was Michelle
Napoli-Lipsky, for the appellees (defendants).
DiPentima, C. J., and Alvord and Eveleigh, Js.
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.
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.
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. . . .
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. . . .
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.
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.
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.
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.''
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.
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. 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).
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.''
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
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.
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.
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
‘‘[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 ...