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Deroy v. Reck

Court of Appeals of Connecticut

March 12, 2019


          Argued December 12, 2018

         Procedural History

         Action to recover damages for legal malpractice, and for other relief, brought to the Superior Court in the judicial district of New London, where the court, Vacchelli, J., granted the defendants' motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court.

          Aleta Deroy, self-represented, the appellant (plaintiff).

          Cristin E. Sheehan, with whom, on the brief, was Patrick J. Day, for the appellees (defendants).

          Keller, Elgo and Bright, Js.


          BRIGHT, J.

         In this legal malpractice action, the self-represented plaintiff, Aleta Deroy, appeals from the summary judgment rendered by the trial court in favor of the defendant attorneys, Stephen M. Reck, Raymond Trebisacci, and Lewis A. Button III. On appeal, the plaintiff claims, inter alia, [1] that the court improperly concluded that expert testimony was necessary to establish the standard of proper professional skill or care, and that the failure of the plaintiff to disclose such an expert required the court to render summary judgment in favor of the defendants. We affirm the judgment of the trial court.

         Viewed in the light most favorable to the plaintiff as the nonmoving party, the record reveals the following facts and procedural history. In February, 2002, the decedent, Edith Baron, was a widow with three children: the plaintiff, Jeanne Baron, and Glen Baron. On February 3 and 12, 2002, the decedent executed quitclaim deeds conveying her interest in an eightynine acre farm to herself and to Jeanne Baron as tenants in common. On February 12, 2002, the decedent executed a will (February will) devising the entirety of her estate, including her interest in the farm, to the plaintiff and Glen Baron in equal shares.

         In May, 2002, Jeanne Baron's son, Elias Baron, contacted Attorney Button, with whom he was friends, and told him that the decedent desired to make a new will. At that time, Attorney Button was a new lawyer working for Attorney Trebisacci and Attorney Reck in their law firm, Trebisacci & Reck. The proposed new will, which was drafted by Attorney Trebisacci, devised the decedent's interest in the farm to Jeanne Baron and provided that the residue and remainder of the estate would be distributed in equal shares to her three children.

         While the new will was being drafted, the decedent was exhibiting symptoms of dementia. Attorney Button, who had not completed many will executions, was concerned about the decedent's testamentary capacity and, as a result, he referred her to be examined by Christopher Tolsdorf, a neuropsychologist. On June 12, 2002, after evaluating the decedent, Dr. Tolsdorf authored a report in which he concluded that she was suffering from dementia. In his report, Dr. Tolsdorf specifically concluded that ‘‘[g]iven her cognitive impairments it is unlikely that she would be able to make fully informed, thoughtful judgments regarding complex financial or legal issues.'' After reviewing and discussing Dr. Tolsdorf's report, Attorney Button and Attorney Trebisacci decided to proceed with the execution of the decedent's new will.[2]

         On July 3, 2002, the decedent went to the office of Trebisacci & Reck to execute her new will. Attorney Trebisacci was supposed to preside over the will execution, but he had to leave the office. He told Attorney Button that if the decedent arrived at the office before he returned, Attorney Button should proceed with the will execution in his absence. When the decedent arrived at the defendants' office, Attorney Trebisacci had not yet returned. Following Attorney Trebisacci's instructions, Attorney Button proceeded with the will execution. During the execution of the new will, Attorney Button observed that the decedent was ‘‘so confused that the proceedings had to be halted.'' In light of the fact that Attorney Trebisacci was not in the office, Attorney Button sought the assistance of the other partner in the firm, Attorney Reck. Attorney Reck questioned the decedent about the newly drafted will, and it was decided that she was to proceed and execute the will. The decedent executed the new will (July will) on the same date.

         On July 26, 2006, the decedent died. The plaintiff previously had not been aware of the July will and, thus, she had expected her inheritance of the farm to be in accordance with the terms of the February will. The plaintiff subsequently challenged the July will in the Probate Court on the grounds of undue influence and lack of testamentary capacity. On November 5, 2008, after a hearing, the Probate Court rejected the plaintiff's challenge to the July will.

         On December 4, 2008, the plaintiff filed an appeal from the decision of the Probate Court to the Superior Court. On November 3, 2010, after an evidentiary proceeding, the Superior Court issued an oral decision declaring the July will ‘‘null and void'' on the basis that the decedent was ‘‘incompetent'' when she ...

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