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Costello and McCormack, P.C. v. Manero

Court of Appeals of Connecticut

November 19, 2019


          Argued September 10, 2019

         Procedural History

         Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of Fairfield and transferred to the judicial district of Stamford-Norwalk; thereafter, the court, Hon. A. William Mottolese, judge trial referee, granted the defendant's motion to implead Arik B. Fetscher et al. as third-party defendants; subsequently, Arik B. Fetscher filed a cross claim against the plaintiff et al.; thereafter, the court granted the motions to preclude expert testimony filed by plaintiff et al.; subsequently, the court, Genuario, J., granted the motions for summary judgment filed by the plaintiff et al., denied the motion to reargue filed by Arik B. Fetscher and rendered judgment thereon, from which Arik B. Fetscher appealed to this court. Affirmed.

          Arik B. Fetscher, self-represented, the appellant (cross claim plaintiff).

          Robert C. E. Laney, with whom was Karen L. Allison, for the appellee (cross claim defendant Costello and McCormack, P.C.).

          Nadine Pare, for the appellees (cross claim defen- dant William Westcott et al.).

          Lavine, Elgo and Moll, Js.


          ELGO, J.

         The cross claim plaintiff, Arik B. Fetscher, [1]appeals from the summary judgment rendered by the trial court in favor of the cross claim defendants, Costello and McCormack, P.C. (Costello), Attorney William Westcott, and Maya Murphy, P.C. (Maya).[2] On appeal, Fetscher claims that the court improperly (1) construed his cross claim as one sounding in legal malpractice and (2) concluded that no genuine issue of material fact existed with respect to that claim. We disagree and, accordingly, affirm the judgment of the trial court.

         In 2012, Fetscher commenced a civil action against his then stepfather, Nicholas Manero, Jr., and a business known as Nick Manero's II, Inc. In response, Nick Man-ero's II, Inc., brought a countersuit against Fetscher alleging breach of fiduciary duty, unjust enrichment, and conversion.[3] The cases were consolidated and, prior to trial, Fetscher retained the services of the Maya defendants.[4] Following a trial, the court found that Fetscher ‘‘breached his fiduciary obligations to defendant Nick Manero's II, Inc. . . . through a long series of misappropriations of corporate funds, '' that he ‘‘knowingly and wrongfully converted [corporate assets] to his own use, '' and that he ‘‘was unjustly enriched at the corporation's expense . . . .'' Fetscher v. Manero, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6012822-S (May 21, 2014). The court thus rendered judgment in favor of Nick Manero's II, Inc. Id. No appeal was taken from that judgment.

         In January, 2015, Costello commenced an unrelated action sounding in breach of contract and unjust enrichment against Constance Manero[5] to collect unpaid fees for legal services rendered on her behalf in a dissolution of marriage proceeding. Appearing in a self-represented capacity, Manero filed a handwritten response to that complaint and Costello filed a certificate of closed pleadings on March 25, 2015. On April 8, 2016, a hearing was held before an attorney fact finder pursuant to General Statutes § 52-549n.[6]

         On May 16, 2016, Manero filed a motion to implead Fetscher, Westcott, and Maya as third-party defendants. In granting that motion on May 31, 2016, the court noted that Manero had set forth ‘‘assertions of harm caused by specific acts and/or omissions committed by the proposed third parties.'' Manero then filed a ‘‘Third Party Plaintiff/Defendant Complaint'' on June 29, 2016, which named Fetscher, Westcott, and Maya as third-party defendants.[7]

         On August 1, 2016, the attorney fact finder filed a report on Costello's breach of contract action, in which he concluded that Costello had proven its entitlement to $45, 438.05 in unpaid legal fees from Manero. When Manero filed no objection thereto, the court rendered judgment in favor of Costello ‘‘in accordance with the fact finder's report.''

         On August 2, 2016, Fetscher filed what he titled an ‘‘Answer Defenses and Cross Claim'' in response to his mother's third-party complaint. Costello filed an answer and three special defenses to Fetscher's cross claim on November 4, 2016. Those special defenses alleged that (1) Fetscher ‘‘lacks standing to make any claims against [Costello] as [Fetscher] has never been represented by [Costello]''; (2) Fetscher's cross claim ‘‘fails to state a claim for which relief can be granted''; and (3) Costello ‘‘owed no duty'' to Fetscher.[8] On February 7, 2017, the Maya defendants filed an answer and a special defense, in which they alleged that ‘‘it is not possible for Fetscher to prevail on his claims, as he was cocounsel in the [Fetscher v. Manero, supra, Superior Court, Docket No. CV-12-6012822-S] case that he claims was mishandled and as cocounsel Fetscher was jointly and severally responsible for the decisions that were made in his case, which he fully considered and agreed to at the time.''

         On January 25, 2017, the court ordered that the pretrial discovery period on Fetscher's cross claim would conclude on February 7, 2017, at which time all expert witnesses were to be disclosed. A certificate of closed pleadings was filed on February 7, 2017. On that date, Fetscher filed an expert witness disclosure, in which he disclosed four experts: Attorney Daniel F. McGuire, Attorney Daniel M. Young, Attorney Salvatore Meli, and Walter McKeever, a certified public accountant.

         In response, the Maya defendants filed a motion to preclude that expert testimony due to Fetscher's failure to comply with the strictures of Practice Book § 13-4. They further averred that McGuire, Young, and Meli were unaware of Fetscher's disclosure and hadnointen-tion of acting as experts on his behalf. Appended to that pleading were copies of correspondence from McGuire, Young, and Meli, in which all three individuals disclaimed any interest in serving as an expert witness for Fetscher.[9] Costello filed a separate motion to preclude a day later, in which it alleged that Fetscher had failed to comply with the requirements of § 13-4 and had ‘‘knowingly and intentionally made material misrepresentations in his disclosure of expert witnesses, and essentially committed a fraud upon this court.'' By order dated April 3, 2017, the court ruled that Fetscher's February 7, ...

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