Opinion
FSTCV176033162S
02-11-2019
Rosalie CALVE et al. v. Mark SANTAGATA et al.
UNPUBLISHED OPINION
Alex V. Hernandez, J.
BACKGROUND
The above-captioned, August 30, 2017 case is, substantially, a claim for attorney malpractice brought under the theory that defendant counsel employed a date of death valuation in connection with the July 30, 2008 filing of a federal estate tax return in connection with various parcels of real property. The complaint alleges that the defendants failed to advise the beneficiaries of— and actively concealed from them— an alternative property valuation formula permitted by federal tax rules which, they claim, would have resulted in a reduced estate valuation and lower estate tax exposure (Count One). The plaintiffs also bring claims under theories of respondeat superior as to the defendant law firm (Count Two), breach of contract (Count Three), fraudulent concealment (Count Four), and intentional and negligent misrepresentation (Counts Five & Six).
Counsel for the defendants filed his appearance on September 7, 2017.
The claimed attorney malpractice allegedly occurred on July 30, 2008 when defendants filed a federal estate tax return which employed the date of death valuation for the various parcels of realty. The complaint was filed on August 3, 2017, well beyond the three-year statute of limitations for claims of attorney malpractice. Plaintiffs’ counsel was clearly aware of the importance of the claimed date of attorney malpractice because the complaint pleads facts and theories giving rise to claims that the statute was tolled by continuous representation, and/or the act of active concealment. The complaint, for example, reads as follows.
37. The Plaintiffs did not learn of the Defendants’ failures until well after the deadline for making the election had passed. Accordingly, the harm sustained by the Estate could not be remedied.
38. The defendants continued to represent the Plaintiffs and never revealed their error despite a legal and ethical duty to do so in valuation in preparing the Estate’s Federal tax return to permit the Plaintiff (sic) to take any remedial actions.(Dkt. # 1.)
Given that the alleged malpractice occurred nine years before the complaint was filed, the date on which the plaintiffs first learned of the claimed malpractice is crucial to the defendants’ ability to defend this matter on the grounds that the claims are time-barred. To the extent that any mention is made of the date on which the plaintiffs became aware of their potential claim, the original complaint states simply as follows.
56. The Plaintiffs brought this action timely once they knew of the Plaintiffs’ (sic) negligence and fraudulent concealment.
Dkt. # 1.
PROCEDURAL HISTORY AND SERIAL NON-COMPLIANCE
The following chronology detailing counsel for the plaintiffs’ serial non-compliance with each and every order of the court is drawn from a review of contemporaneous entries on the docket and a review of the pleadings and court orders. A copy of the docket sheet is appended hereto as Exhibit A.[*] Relevant court orders are also attached as exhibits.
On January 29, 2018, counsel for the defendants filed its proposed scheduling order (Dkt. # 105.00) which was adopted as an order of the court on February 1, 2018 (Dkt. # 105.01). The order notifies counsel as follows.
By order of the Presiding Judge, the following discovery order is entered. A party who does not follow this order may be sanctioned by having to pay a fine; having proposed evidence excluded at trial; having the case dismissed; being defaulted or non-suited; or other sanctions.
Pursuant to this order of the court, discovery requests were ordered by April 1 and compliance was ordered to be completed by August 1, 2018. Plaintiffs’ expert witness disclosure was ordered by December 1, 2018. A copy of the scheduling order is appended hereto as Exhibit B.[**]
On December 4, 2017, the defendant filed a request to revise. The fourth requested revision refers to paragraph 37 of the complaint and reads, in pertinent part, as follows.
The defendants request that the plaintiffs revise their complaint to identify the date(s) on which they first became aware of the defendants’ alleged failure to employ an alternative valuation date.
* * *
In light of the above allegations, this action turns, in large part, on when the plaintiffs first learned that they could use an alternative date to value the properties at issue. Accordingly, the date should be identified in the complaint.
Further, the defendants have a viable statute of limitations defense. The merits of that defense may hinge on the date or dates when the plaintiffs first became aware of the defendants’ alleged failure to employ an alternative valuation date.
Finally, this is information that is readily available to the plaintiffs and will therefore not require any substantial investigation to discover. Indeed, it seems likely that the plaintiffs are aware of the statute of limitations issue and therefore know when they first discovered the defendants’ alleged failure to use an alternative valuation date. Accordingly, the complaint should be revised to identify when the plaintiffs first became aware of the defendants’ alleged failure to employ an alternative valuation date.(Dkt. # 103.00, p. 7.)
Plaintiff’s counsel timely filed his objections on January 4, 2018 (Dkt. # 104.00). By way of Order dated June 19, 2018, the court (Jacobs, J.) overruled the plaintiffs’ objections to a number of the requests to revise, including request number four, and sustained others (Dkt. # 104.01, Ex. C). Thus, pursuant to Practice Book § 10-37(b), the plaintiffs had until July 5, 2018, to file a revised complaint consistent with the court’s ruling.
The defendant’s first motion for an order of compliance and non-suit was filed on June 19, 2018, in which counsel averred that plaintiffs’ counsel had failed to timely answer interrogatories and requests for production dated February 16, 2018 (Dkt. # 108.00). On July 23, 2018, the court denied the motion but directed compliance by August 20, 2018, warning that, "[i]f the defendant does not receive compliance by that date, the defendant may file a Motion for Judgment of Non-suit referring to this order. Absent proof of compliance on file before the motion appears on this short calendar, the motion will be granted by the court and judgment will enter" (Dkt. # 108.01, Ex. D).
On July 23, 2018— the same day that the court denied the motion for order of compliance and non-suit referenced in the foregoing paragraph— defendant’s counsel filed a motion for non-suit for failure to plead on the grounds that the plaintiffs had failed to file a new complaint complying with the defendant’s request to revise (Dkt. # 109.00). It does not appear that counsel for the plaintiffs ever objected. Neither was this motion claimed, argued or ruled upon by the court. In light of the court’s ruling on the prior motion for non-suit, however, it appears that counsel considered it pointless to pursue what amounted to the same relief on a different basis. In any event, the motion served to remind plaintiffs’ counsel that he had failed to comply with the court’s ruling and order directing him to file a revised complaint.
On August 21, 2018, counsel for the defendant filed another motion for non-suit on the grounds that the plaintiffs had failed to comply with the court’s July 23, 2018 order (Ex. D), which directed compliance with discovery by August 20. Consistent with the court’s ruling, that motion (Dkt. # 110.00), referenced the court’s July 23 order. Plaintiffs’ counsel did not timely comply. On August 23, 2018, however, counsel filed a pleading styled as an "Objection to Motion for Non-suit" (Dkt. # 111.00). In fact, however, the claimed "Objection" was an untimely motion for a 15-day extension of time within which to comply with the court’s July 23, 2018 order. The "Objection" did not explain why the plaintiff had not complied with the scheduling order which mandated discovery by August 1, 2018 (Ex. B)**. Neither did it explain why plaintiffs’ counsel had failed to comply with the court’s order of July 23 which mandated discovery compliance by August 20 (Ex. D). Rather, counsel represented that he could comply by not later than September 7, 2018. A copy of the referenced "Objection" is appended hereto as Exhibit E.
The parties appeared before the court, Hernandez, J., on September 24, 2018, to argue the defendants’ August 21 motion for non-suit. During that court appearance, the court ordered the plaintiffs to comply with the court’s July 23, 2018 order and file an amended complaint addressing the defendants’ various requests to revise by not later than September 28, 2018.
During that colloquy, it was disclosed that the plaintiffs had learned of their potential claim against the defendants during a consultation with an unidentified Baltimore attorney. Thus— because the date on which the plaintiffs had become aware of and learned of their potential claim against the defendants was so important to the statute of limitations defense— plaintiffs’ counsel was clearly and unambiguously directed to investigate and establish that date by contacting the Baltimore attorney who allegedly had alerted the plaintiffs of the alleged malpractice. In particular, counsel was ordered to conduct a thoroughgoing investigation of when the plaintiffs had consulted with that attorney by searching for and examining any contemporaneous records such as memoranda, notes, correspondence, phone records or any other contemporaneous records to identify or narrow the date. Plaintiffs’ counsel represented that such an investigation could be undertaken and completed by the end of the week, September 28. Based upon plaintiffs’ counsel’s representation, the court also ordered counsel to comply with their discovery obligations by September 28, 2018.
On September 24, 2018, the plaintiffs filed their revised complaint (Dkt. # 115.00). The revised complaint, however, failed to address the fourth request to revise as first ordered by Judge Jacobs on July 23 and reordered two months later by Judge Hernandez. To the extent that the revised complaint identifies the date on which the plaintiffs learned of the claimed malpractice, it merely alleges in various paragraphs as follows.
32. Plaintiffs Rosalie and Catherine did not learn of the Defendants’ failures until shortly before initiating a lawsuit which was well after the deadline for making the election had passed. Accordingly, the harm sustained by the Estate could not be remedied.
* * *
51. The Plaintiffs Rosalie and Catherine brought this action timely once they knew of the Defendants’ negligence and fraudulent concealment.(Dkt. # 105.00, passim, emphasis added.) Accordingly, on October 1, 2018, the defendants again moved for Non-suit for Failure to Plead (Dkt. # 117.00).
The plaintiffs also failed to comply with the court’s September 24 order that they comply with their discovery obligations by September 28. Accordingly, on October 1, 2018, the defendants also moved for a judgment of dismissal or non-suit (Dkt. # 116.00) based upon the plaintiffs’ failure to respond to the defendants’ February 16, 2018 interrogatories and requests for production and for failure to comply with the court’s order.
As a result of the defendants’ October 1 motion, the court entered an order on October 5, 2018, directing the plaintiffs to respond to the defendant’s motions (Dkt. Nos. 116 & 117) by not later than October 12, 2018, and directing the parties to appear for oral argument on October 15, 2018. A copy of the court’s order (Dkt. # 118.00) is appended hereto as Exhibit F. Not only did plaintiffs’ counsel fail to respond as directed by the court, counsel also failed to appear for oral argument on October 15.
On November 8, 2018, plaintiffs’ counsel filed a Notice of Compliance (Dkt. # 119.00) representing that it had complied with his discovery obligations. On November 21, 2018, plaintiffs’ counsel belatedly filed an objection to the defendants’ October 1 motion regarding failure to comply with discovery (Dkt. # 122.00). To date, plaintiffs’ counsel has failed to object to the defendants’ motion for non-suit for failure to plead (Dkt. # 117.00), in clear disregard of the court’s October 5, 2018 order (Dkt. # 118.00, Ex. F).
On November 8, 2018, plaintiffs’ counsel filed its Notice of Compliance, Dkt. # 119.00, representing that he had "responded to and fully complied with the Set of Interrogatories and Requests for Production, which were propounded by the Defendants, dated February 16, 2018 ..."
Plaintiffs’ counsel were afforded an opportunity to redeem themselves and cure any defects in the pleadings when, on November 26, 2018, the court ordered oral argument on the pending motions.
Oral argument was held on December 17, 2018. A transcript of those proceedings is appended hereto as Exhibit G.
FINDINGS OF FACT
The court adopts the facts and procedural history set forth above as its findings of fact and makes the following additional findings of fact.
Each of the orders of the court identified above— whether entered by Judge Jacobs or Judge Hernandez— was clear, precise and unambiguous. Indeed, the same orders were entered and re-entered on various occasions. A number of the referenced court orders were violated on more than one occasion after counsel was afforded various opportunities to comply. Plaintiffs’ counsel never complained that any of the orders were vague or ambiguous in any way. Neither did counsel request clarification of any of the referenced orders.
Oral argument was held on December 17, 2018. Plaintiffs’ counsel conceded that, other than placing a call to the Baltimore attorney, his firm had failed to undertake the thorough investigation ordered by Judge Hernandez in September to more clearly establish the date on which the plaintiffs had learned that they may have had a viable claim.
Indeed, counsel’s concession that he failed to investigate explains why the revised complaint— which was filed on the same day that the court ordered counsel to investigate more thoroughly— fails to add any more clarity than the first complaint.
Defendants’ counsel also alerted the court that he had not received any expert disclosures from plaintiffs’ counsel. Pursuant to Judge Jacobs’ order, however, the plaintiffs’ expert disclosures had been due on December 1, 2018 (Ex. B)**.
Due to the complex valuation issues related to the sale of the various parcels of realty, expert witness testimony is crucial to the plaintiffs’ claim for damages, an essential element of each of the claims. Timely expert witness disclosures, therefore, are also crucial to defense counsel’s ability to evaluate the plaintiffs’ claims, consult with his clients, investigate and fashion a defense, and to consult with and retain defense experts. Plaintiffs’ counsel’s failure to investigate the date on which his clients allegedly became aware of the claimed malpractice and counsel’s failure to identify experts on the question of valuation and damages substantially impairs the ability of defendants’ counsel to defend this action.
Because the plaintiffs are claiming that the defendants engaged in legal malpractice, timely expert witness disclosures by the plaintiffs regarding the standard of care are also indispensable to the plaintiffs’ burden of proof. Timely legal expert witness disclosures, therefore, are also crucial to defense counsel’s ability to evaluate the plaintiffs’ malpractice claim, consult with his clients, investigate and fashion a defense and to consult with and retain legal defense experts. In short, plaintiff’s counsel’s failure to comply with reasonably clear orders of the court has substantially, unreasonably and without any good cause, impaired the rights of the defendants to defend this action.
Counsel for the plaintiffs was on notice during oral argument that he had failed to comply with his expert witness disclosures. Nevertheless, since the December 17, 2018 oral argument, plaintiffs’ counsel has failed to move the court for any extension of time for expert witness disclosures. In short, as of the date of this decision and order, plaintiffs’ counsel continues to be in violation of his expert witness disclosure obligations to the clear detriment of defendants’ counsel to defend this case.
LEGAL STANDARD
In Millbrook Owners Ass’n, Inc. v. Hamilton Standard, 257 Conn. 1, 776 A.2d 1115 (2001), the court set out a standard for imposing sanctions, including non-suit. "In order for a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear ... Second, the record must establish that the order was in fact violated ... Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court." Millbrook Owners Ass’n, supra, 257 Conn. 17-18.
The court in Millbrook further provided that "although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court’s authority ... the court should be reluctant to employ the sanction of dismissal except as a last resort ... [T]he sanction of dismissal should be imposed ... where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court." (Citations omitted; internal quotation marks omitted.) Id., 16-17. "The reasoning of Millbrook ... applies equally to non-suits and dismissals." Blinkoff v. O&G Industries, Inc., 89 Conn.App. 251, 258, 873 A.2d 1009 (2005).
Our Supreme Court has established factors that are relevant to the consideration of proportionality that include "the nature and frequency of the misconduct, notice of the possibility of a non-suit, lesser available sanctions, and the plaintiff’s participation in or knowledge of the misconduct." Ridgaway v. Mount Vernon Fire Insurance Co., 328 Conn. 60, 73, 176 A.3d 1167 (2018). Additionally, our "appellate courts have upheld the imposition of a sanction of non-suit when there is evidence of repeated refusals to comply with a court order." Id. In Ridgaway, our Supreme Court also stated "that courts in other jurisdictions have concluded that a single act could warrant non-suit or dismissal if the act is sufficiently egregious, particularly when the improper conduct involves the perpetration of a deception on the court." Id., 74. Furthermore, our Supreme Court "has refused to uphold a sanction of non-suit when there were available alternatives to dismissal that would have allowed a case to be heard on the merits while ensuring future compliance with court orders." Id., 75.
CONCLUSIONS
The court finds that each of the various orders of the court were more than "reasonably clear." Indeed, they were unambiguous. Counsel never requested clarification of any of the subject court orders, nor has counsel ever argued that he did not understand any of the various court orders.
As set forth above, the various orders directed to the complaint and revised complaint and discovery obligations were, in fact, violated. Plaintiffs’ counsel did not claim that he had complied with any of the subject orders. Rather, counsel offered only that he had made good faith efforts to comply (Ex. G, p. 47).
It is, moreover, readily apparent that counsel wholly failed to undertake any investigation of the facts surrounding the statute of limitations question as ordered by the court (Ex. G, passim). The facts surrounding the statute of limitations question were crucial to counsel’s ability to respond intelligently to discovery and cure the revision to the complaint ordered by both Judge Jacobs and Judge Hernandez. Where, as here— counsel was on notice that these were issues which needed to be addressed, the court entered orders specifically designed to address counsel’s noncompliance, and counsel wholly disregarded the orders— the court has no basis to find that further orders, of any kind, will ensure compliance.
The sole issue remaining is whether non-suit would be proportional to the violations of the court’s orders. The court finds that counsel’s serial failures to comply constitute deliberate, contumacious and unwarranted disregard for the court’s authority. In light of deliberate and serial disregard for the orders of the court which substantially and unreasonably impair the defendants’ ability to defend this action, the court finds that non-suit is the only reasonable remedy available to vindicate the legitimate interests of the court and the defendants.
In finding that non-suit is proportional, this court has carefully considered the nature and frequency of the misconduct. Further, counsel was plainly on notice of the possibility of a non-suit inasmuch as opposing counsel has repeatedly moved for this sanction on two separate grounds, that is, for discovery violations and failure to revise the complaint. The court finds that counsel has still not complied with his discovery obligations and did, in fact, disregard a court order— conduct a thoroughgoing investigation— designed to cure the violations. Likewise, counsel has failed to comply with its expert witness discovery obligations. In short, counsel has failed to comply even after serial motions for non-suit have been filed, and, to date, has failed to object to Dkt. # 117.00 which moves for non-suit for failure to revise the complaint.
Our Supreme Court "has refused to uphold a sanction of non-suit when there were available alternatives to dismissal that would have allowed a case to be heard on the merits while ensuring future compliance with court orders." Id., 75.
In Null v. Jacobs, 165 Conn.App. 339, the court discussed Blinkoff and concluded that non-suit was proper. "In contrast to Blinkoff, the plaintiff in [Null ] has not complied with the court’s order ... Indeed, there is no evidence in the record, and no claim on the part of the plaintiff in this appeal, that compliance has since occurred. Further, unlike in Blinkoff, the defendant here claimed, and the trial court found, that the plaintiff’s conduct prejudiced her ability to prepare for trial." Id., 350-51. As set forth above, counsel for the plaintiffs’ conduct has substantially prejudiced the defendants’ ability to defend the action and prepare for trial.
WHEREFORE, for the reasons set forth above, the court directs that non-suit enter.
SO ORDERED, this 11th day of February 2019, at Stamford, Connecticut.
ATTACHMENT
EXHIBIT C
6/19/2018
ORDER
ORDER REGARDING:
01/04/2018 104.00 OBJECTION TO REQUEST TO REVISE
The foregoing, having been considered by the Court, is hereby:
ORDER:
The plaintiffs’ objection to the defendants’ first requested revision is overruled.
The plaintiffs’ objection to the defendants’ second requested revision is overruled.
The plaintiffs’ objection to the defendants’ third requested revision is sustained.
The plaintiffs’ objection to the defendants’ fourth requested revision is overruled.
The plaintiffs’ objection to the defendants’ fifth requested revision is sustained.
Judicial Notice (JDNO) was sent regarding this order.
EXHIBIT D
7/23/2018
ORDER
ORDER REGARDING:
06/19/2018 108.00 MOTION FOR ORDER OF COMPLIANCE— PB SEC 13-14 (INTERR/PROD— 13-6/13-9)
The foregoing, having been considered by the Court, is hereby:
ORDER: DENIED
Compliance ordered on or before 8/20/2018. If the defendants do not receive compliance by that date, the defendants may file a Motion for Judgment of Non-suit referring to this order. Absent proof of compliance on file before the motion appears on this short calendar, the motion will be granted by the court and judgment will enter.
Judicial Notice (JDNO) was sent regarding this order.
EXHIBIT E
AUGUST 23, 2018
OBJECTION TO MOTION FOR JUDGMENT OF NON-SUIT
The Plaintiffs, Rosalie Calve, Catherine C. Calve, and Diane Calve, pursuant to Practice Book Section 13-7, hereby respectfully request a fifteen (15) day extension of time, through and including September 7, 2018, to respond to the Interrogatories and Requests for Production propounded on them by the Defendants. The requested additional time is required to gather the requested information and to formulate a proper response. Accordingly, Plaintiffs respectfully pray that this court deny Defendants’ August 21, 2018 Motion for Judgment of Non-suit.
THE PLAINTIFFS
EXHIBIT F
10/5/2018
ORDER
The following order is entered in the above matter:
ORDER:
Counsel for the plaintiff is directed to file its responses to defendant’s motions, Dkt. Nos. 116 & 117, by not later than 5:00 p.m. on October 12, 2018. Oral argument is scheduled for October 15, 2018.
Judicial Notice (JDNO) was sent regarding this order.
EXHIBIT G
DECEMBER 17, 2018
THE COURT: Calve versus Santagata.
ATTY. LANEY: It’s ready for the defendant, Your Honor and for the plaintiff.
THE COURT: And how long will that take?
ATTY. LANEY: More than 10, less than 20.
THE COURT: So larger than a breadbox, smaller than an elephant. All right. We’ll call it 15.
(THE MATTER WAS RECALLED)
THE COURT: All right. Calve versus Santagata. Appearances please.
ATTY. VOTRE: On behalf of the plaintiff’s I’m Kenneth A. Votre. V, as in Victor, O - T - R - E.
THE COURT: All right.
ATTY. LANEY: Good Morning, Your Honor, Rob Laney. Ryan, Ryan and Deluca, for the defendants
THE COURT: Yes. Good morning.
ATTY. LANEY: — Mark Santagata and Cacace, Tusch and Santagata.
THE COURT: Good morning, Attorney Laney.
ATTY. LANEY: Good morning.
THE COURT: All right. The— I think, Attorney Votre, you’re the third attorney to appear in front of me on this particular file. Am I correct, Attorney Laney?
ATTY. LANEY: I was not here the first time. I believe there was an Attorney Hume here from Attorney Votre’s office, with my associate Attorney West.
THE COURT: Oh.
ATTY. VOTRE: I believe that’s correct, Your Honor.
ATTY. LANEY: The second hearing I’m aware of was, I believe, on October 15th
THE COURT: You sent in an— a newly admitted associated, or something like that, is my recollection.
ATTY. VOTRE: Correct.
ATTY. LANEY: And then on October 15th there was a hearing about one of the motions that’s related to what’s on today’s calendar that no one showed up at.
THE COURT: Right.
ATTY. LANEY: And then that brings us to the fact.
THE COURT: Right. There was a non-appearance by Attorney Votre’s firm as well. I’d forgotten about that. But thank you, Attorney Laney.
All right. Attorney Votre, I’ll hear you.
ATTY. VOTRE: It’s his motion I believe, at this point, Your Honor.
THE COURT: Attorney Laney.
ATTY. LANEY: Sure, Your Honor. The three matters that the Court scheduled for hearing today are matters 120, 121 and 122.
120 is Attorney Votre’s objection and motion for dismissal of non-suit for failure to respond to interrogatories.
So 120, although that’s the one on the calendar, implicates 116. 116 was a motion for dismissal for non-suit for failure to respond to written discovery requests. That motion was filed on October 1st of this year.
The discovery requests at issue were served on February 16th of this year. And on July 23rd of this year, Judge Jacobs entered an order, and that’s 108.01, requiring compliance by August 20th, 2018, or else non-suit would enter.
That didn’t occur, so on August 21st, 2018 we filed a second motion for non-suit, and that’s what led to the first hearing Your Honor recalled on September 24th, 2018.
And at that hearing you advised Attorney Hume
THE COURT: I gave him two weeks, I think, or 10 days, or something like that.
ATTY. LANEY: You gave him until the end of that week actually
THE COURT: End of that week, to that Friday, right?
ATTY. LANEY: He— he said he could make a Friday deadline.
THE COURT: Close of business Friday. That’s right.
ATTY. LANEY: And so he was supposed to file a revised complaint by Friday and serve discovery by Friday. Neither of those occurred. And so that led to the Court’s order that— and we filed our motion on October 1st, which is 116.
The Court ordered a response to that motion by October 12th, which is a Friday, and set the matter for the hearing on Monday, the 15th.
There was no response by October 12th and no appearance at the hearing on October 15th.
So what happens then on the motion for non-suit is on November the 9th, I believe it is, Attorney Votre’s office objected to the motion for non-suit and filed a notice of compliance with discovery.
We took issue with the sufficiency of that compliance for a number of reasons. Some more significant than others.
And so we filed a supplemental motion for judgment of dismissal of non-suit on November 14th. And that’s matter 121, which is on the calendar today. And Attorney Votre’s objection to that is matter 122, which is on the calendar today.
With all due respect to Attorney Votre, in his opposition papers, he simply says, after multiple extensions of time we complied with discovery. What’s left out is after multiple violations of Court orders we complied with discovery, although not completely.
Among the key items still missing is any information, other than make believe numbers, with respect to an itemization of damages.
This case involves a claim that my clients valued an estate as of date of death and they should have used the alternative date six months later. And the claim is there’s a great diminution in value of the estate between those two dates.
It’s a six-month period. It’s— we’re not talking about trying to look at a lot of data. It’s six months.
They’ve never given us any data to support that contention. And yet, in the discovery responses that we received, delayedadly (sic) in November, they just assigned a value of one million dollars in loss of value of the real estate and an IRS penalty, I assume it’s a penalty, it just says IRS, 1.3 million dollars. I don’t know what that means.
I think these are place holder numbers. I don’t think there’s a good faith basis for any of these numbers.
And so we still have discovery compliance, which is frankly meaningless. It doesn’t help us evaluate this case. It doesn’t help us defend this case. On top of that, one of the key issues in this case is we’re talking about an estate that was— that arises out of a death in 2007.
I have significant concerns regarding the timeliness of this lawsuit. It’s a malpractice lawsuit.
THE COURT: There was a statute of limitations issue. And as
ATTY. LANEY: Correct.
THE COURT:— I recall, Attorney Hume was going to consult with his clients, and a law firm that his clients had conferred with, about when they consulted with that law firm.
ATTY. LANEY: Right.
THE COURT: Because that was essential to you to determine whether the statute of limitations had run or not.
ATTY. LANEY: That is correct.
THE COURT: And Attorney Hume represented that by that Friday, was it the 15th of
ATTY. LANEY: 28th.
THE COURT: The 28th of October, that he
ATTY. LANEY: September.
THE COURT:— that he— of September. That he would have been able to determine when that meeting took place, and thus when the statute of limitations would have begun to run.
ATTY. LANEY: You’re
THE COURT: And as I recall, when he filed his amended complaint it still said on or about— no, shortly after a
ATTY. LANEY: Shortly
THE COURT:— meeting.
ATTY. LANEY: Right.
THE COURT: Shortly after a meeting with his predecessor attorney. And he had not cured the issue which you had identified and I had ordered him to make clear in the complaint so that you could determine whether the statute of limitations had run or not.
ATTY. LANEY: Correct. And— and it was— it was— it was a dual track thing. The information was required in another revised complaint that he was supposed to file by September 28th; as well as an interrogatory response that was due September 28th.
So we’re here today, on December 17th, and we have what purports to be discovery responses, that don’t have that information and that were provided six weeks after the Court’s order. And the complaint has never been revised to include that information.
So I’m still guessing about this mystical date that I think is going to time bar this claim.
That’s the biggest thing missing, outside of any information about damages. And the response I’ve received on damages and what they say in discovery is, well, we’re consulting with experts. I get that. I would point out the expert discovery deadline was December 1st and they don’t have any experts in the case yet.
More importantly, absent some information, some viable information that there was in fact a diminution in value— forgot whether they’re right about whether my client should use date A or date B, if you don’t have any viable information about a loss to the estate based upon those two dates, you’ve got no business filing this lawsuit.
And so that’s what we’re here for today are matters 120, 121 and 122. 120 relates to 116, which is a motion to dismiss.
121, which is my motion, is a supplemental motion to dismiss because nothing got cured, essentially.
And so that’s what brings us here today, Your Honor.
THE COURT: Thank you, counsel. All right. Attorney Votre.
ATTY. VOTRE: Sure. To focus first on the statute of limitations issue, after Mr. Hume was here we made a diligent effort to talk with our clients and contact the firm that she had talked to in Baltimore in order to try to locate this time period.
We— we’d gotten the best information we have. We’re trying to— to actually pinpoint it. We just haven’t been able to get that information from the firm in Baltimore, which I believe it’s Baltimore. I have it in my head as Baltimore.
THE COURT: Doesn’t— doesn’t— if your clients consulted with a firm in Baltimore, doesn’t the— the firm in Maryland have an obligation to provide that information to your clients?
ATTY. VOTRE: I would— I would think so. And I don’t know that there was— they did institute an action at that point. They didn’t retain them at that point. So
THE COURT: Are we talking about a phone call or— or a consultation?
ATTY. VOTRE: My understanding is is it was a phone call and it was all done by telephone. So I’m trying to locate that information.
THE COURT: So they have to have a phone bill. That’s a long distance phone call. Was— did it go by cellphone or a copper wire, like AT & T? Either way there would be a phone bill.
ATTY. VOTRE: We have
THE COURT: What do your phone bills say about when that call was made to Maryland?
ATTY. VOTRE: About the client’s phone call to the
THE COURT: Yeah.
ATTY. VOTRE: I don’t have their phone records, Your Honor.
THE COURT: Why don’t you have the phone records?
ATTY. VOTRE: Your Honor, I didn’t think of getting them actually. I didn’t know that under a cellphone you even get a statement that shows the calls anymore. I know I don’t.
So I could try that, Your Honor. I have no problem trying to do that. I’ve asked my client to get me whatever information they have.
THE COURT: Well, counsel, who— whose lawsuit is this? I mean, I— I you know, I— I— I was a little bit embarrassed by the amount of heat I was putting on Attorney Hume when he was in front of me. Apparently that— the embarrassment didn’t make all— it’s way all the way to the top.
ATTY. VOTRE: That’s why I’m here, to try to straighten this out, Your Honor.
THE COURT: It— it’s— you’re not— you’re not helping. He represented that by the end of the week, the last time he was in court, that he would be able to figure out when that meeting took place.
And during that exchange with Attorney Hume I made a number of suggestions. Calling the law firm, sitting down with his clients, asking for calendars, what have you.
And you’re telling me now that nobody at your firm thought to check a phone bill
ATTY. VOTRE: I did that. I asked my clients to
THE COURT:— to figure out when this conversation took place?
ATTY. VOTRE: I’ve had the— do we know when the conversation took place? We know it was shortly before we brought the lawsuit because they came to us almost immediately after that.
Because the firm that they went to doesn’t do legal malpractice stuff— work. And that’s why they came to our firm.
And I’m trying to pin them down as to that number. But again, I’m asking the plaintiffs to provide me the information that they have. And not every plaintiff is on
THE COURT: But apparently— apparently you didn’t
ATTY. VOTRE:— on top of their game.
THE COURT: Apparently you didn’t ask them for— for phone records.
ATTY. VOTRE: I did not ask for the phone records to try to chase down the phone— whether or not we can connect a phone call to the conversation with the firm.
And, I mean, I could ask the firm for that. I don’t know whether the firm would voluntarily give that to me.
THE COURT: Well, did you ask the firm for that?
ATTY. VOTRE: No, I did not.
THE COURT: Why not?
ATTY. VOTRE: I
THE COURT: Attorney— Attorney
ATTY. VOTRE: I have never asked a law firm
THE COURT: Don’t— don’t interrupt me. I— I directed Attorney Hume to answer that question by close of business the Friday that week. And he promised me that he was going to take all steps to— including contacting the consulting law firm, for any records or reports.
What— what steps were taken to consult with that firm in Maryland to determine whether they had any information that would pin down the date on which this— this conversation took place?
ATTY. VOTRE: Telephone call to the firm, telephone call to our clients. And a telephone call to Catherine Calve, who is the primary client who understands and has had all the contacts with everybody.
THE COURT: And what was discussed over the phone with the firm in Maryland
ATTY. VOTRE: Whether or not there is a record
THE COURT:— without disclosing
ATTY. VOTRE: Sure. Whether
THE COURT:— attorney client
ATTY. VOTRE:— there is a recollection— without— I’m not disclosing attorney client privilege
THE COURT: Yup.
ATTY. VOTRE:— but in terms of disclosing what was indicated that I could not get a confirmation from either one asking for when this conversation took place.
And in terms of— you know, my clients, they did not keep notes about the conversation. I wish they had been better prepared plaintiffs, but they— they weren’t at that time. They were sort of trying to figure out what happened.
And in answering interrogatories, I’m sort of— in answering the interrogatories I’m limited to the information that’s available to me.
And I can continue to continue to try to get it but there is not a record of the phone call, that I’m aware of, based on my conversations with my client.
I did not ask for them to go through all their cell messages for a
THE COURT: Who— who at your firm spoke with the firm in Maryland?
ATTY. VOTRE: I did, Your Honor.
THE COURT: You did.
ATTY. VOTRE: I did. Because
THE COURT: All right. And I imagine that you— you— that you prepared a letter confirming the substance of that conversation with that law firm.
ATTY. VOTRE: No, I did not.
THE COURT: Why not?
ATTY. VOTRE: That’s not my normal practice. I spoke
THE COURT: That’s not your normal practice.
ATTY. VOTRE: Not at all.
THE COURT: Don’t you think it would have been helpful to the Court if you had produced a letter saying, look, here’s my letter with partner X at Maryland law firm summarizing my conversation with that partner. The date, time and place. I spoke and I asked these questions and he was unable to— to say whatever.
ATTY. VOTRE: I— I wasn’t— I didn’t
THE COURT: You don’t think that would have been helpful?
ATTY. VOTRE: It might be helpful
THE COURT: When Attorney Hume was under order to find all this information out wasn’t he, and therefore your firm, under an obligation to diligently investigate the information that the Court was demanding of Attorney Hume?
ATTY. VOTRE: And I believe we did, Your Honor. I know you disagree with us, but I made an effort to contact everybody that would know about the phone conversation.
THE COURT: Who?
ATTY. VOTRE: Well— Catherine Calve, who is the client that— that understood that this— this error had happened. She’s the one that spoke with the Baltimore law firm. She’s the one that then undertook to retain counsel. And I also
THE COURT: All right. So you spoke to— you spoke to Ms. Calve. Who else did you talk to?
ATTY. VOTRE: Sure. And I also spoke with her Stamford counsel who had been helping with the estate matters after this other firm had left. Mr. Rubino in Stamford— Rubino, in Stamford, who is the tax lawyer that actually has been working with me on this and has had direct contact with the client.
I then also reviewed the entire file that was produced to me, by the estate attorney, who actually had been involved in— in these conversations also.
And I’m trying to get a commitment from someone as to the date of the conversation. They— the attorney here in Stamford did not keep a memorandum of it.
And at some point, Your Honor, they basically had them call me because I’m an attorney that will handle legal malpractice cases.
And so that’s what I was able to determine. I’m just not getting straight answers from people and I’m trying to get them, Your Honor.
I make my best efforts to get the information I can get. But at times I— I don’t want to say I’m deflected, but it’s that people did not keep records of this. And nobody was thinking about statute of limitations at the time.
And that’s why I’m doing my best to develop that information, Your Honor. And Mr. Hume asked me to make these phone calls and I— I’m in the circle of people that have been involved in this.
THE COURT: Well, here’s— here’s
ATTY. VOTRE: And I understand his importance of the issue
THE COURT: Don’t interrupt me, counsel. Here’s a little bit more fundamental question. When this was put down for argument, why did your firm fail— fail to appear?
ATTY. VOTRE: That was
THE COURT: Why didn’t your firm send somebody?
ATTY. VOTRE: Your Honor, it wasn’t put down for argument. We requested oral argument. It was our belief it had not been assigned for oral argument. That’s my recollection of what happened.
And I was surprised that nobody showed up for that hearing. And
THE COURT: Attorney Laney was here. He knew it was on.
ATTY. VOTRE: Well
THE COURT: He knew to come.
ATTY. VOTRE: Your Honor, if an error got made in my office, and I have an associate handling the case. If they come to me with an understanding issue, I will help them. Unfortunately, I wasn’t aware of the hearing
THE COURT: But it was— it was— it was Attorney Hume
ATTY. VOTRE: Hume.
THE COURT:— who was in the hot seat.
ATTY. VOTRE: Yes, Your Honor.
THE COURT: He— he was the one who was in the hot seat
ATTY. VOTRE: Yes.
THE COURT:— and then I ordered somebody from your firm to be here to discuss why they— why your firm had failed to comply with the order that I had entered, on the record, with Attorney Hume. And I— I would have thought that— is Attorney Hume a partner or an associate at your
ATTY. VOTRE: He’s an associate, Your Honor.
THE COURT: He— he’s an associate. Why— well, you know, he’s— he’s working for you.
ATTY. VOTRE: Yeah, absolutely.
THE COURT: So your— so your firm, for whatever reason, failed to report, hey, Judge Hernandez in 7B is pissed off because discovery is not being complied with. And, oh, look at that, here on the docket sheet it says it’s on for argument.
ATTY. VOTRE: Yes, Your Honor.
THE COURT: I suppose Judge Hernandez is going to have a few questions about what’s going on.
ATTY. VOTRE: Okay. That issue will be dealt with in my office. I am responsible for the— the associates in my
THE COURT: Well, my— my
ATTY. VOTRE:— office.
THE COURT: No. Well, my concern is about what I’m going to do with this— this mess of motions and objections. I— I— you know, how
ATTY. VOTRE: Well, in terms of the two issues, Your Honor, what I can suggest— and I’m here now so it doesn’t have to relay through anybody else in my office.
I will— I can do multiple things. One is, is the— you know, my client will certainly submit to a deposition. But I can also attempt, if I have to, notice the deposition of the Baltimore firm and get their records to show when there was
THE COURT: Well, let’s— let’s try— let’s try and backfill
ATTY. VOTRE: Because, I mean, they’re not me. I don’t have access.
THE COURT: Let’s try and backfill this.
ATTY. VOTRE: Sure.
THE COURT: You say that Ms. Calve came to you shortly after speaking with the firm in Maryland.
ATTY. VOTRE: That’s correct.
THE COURT: When did Ms. Calven— Calve first come and speak with your firm?
ATTY. VOTRE: That, Your Honor, if you give me a moment I may have that information with me.
THE COURT: That’s probably an important piece of information that you should have known before you came into court today, counsel. That’s what this hearing— this hearing is all about.
ATTY. VOTRE: I know. And I don’t want to give you an inaccurate— inaccurate (indiscernible), Your Honor. So I just was looking to see if I have the retainer agreement with me, which I may not. The action was filed in— in July of
THE COURT: When did she come see your firm?
ATTY. VOTRE: If you— if you let me, Your Honor, I— I mean, I will answer your question, but if you can let me answer it my way I’ll get to the answer.
If the action was filed on July 7th of 2017, this action was filed relatively quickly after they came in. It was some time by May of 2017, to the best of my recollection.
But if I get the retainer letter I will know for sure when she came
THE COURT: Call your firm.
ATTY. VOTRE: If you will
THE COURT: Call your firm.
ATTY. VOTRE: You want me
THE COURT: Right now.
ATTY. VOTRE: Right now? Okay.
THE COURT: You can step out in the hallway.
ATTY VOTRE: Oh, I didn’t know if you wanted me to do it here on— thank you.
THE COURT: I’ll wait.
ATTY. VOTRE: Okay. Thank you.
(PAUSE)
ATTY. VOTRE: Yes, Your Honor. She retained our firm on April 5th of 2017.
THE COURT: Attorney Laney, when would the statute have run in this matter?
ATTY. LANEY: The malpractice, if it occurred, would have occurred as of the date that the form 7506 was filed.
The— my— my notes indicate that the estate tax closing documents were filed in April of 2009.
THE COURT: April of 2009?
ATTY. LANEY: April 8th, 2009.
THE COURT: And what’s the statute on this?
ATTY. LANEY: Three years, Your Honor. 52-577.
THE COURT: Three years. So
ATTY. LANEY: Right. It’s an occurrence statute.
THE COURT: An occurrence statute. So as of the filing. April 8th, 2009 is the filing and
ATTY. LANEY: The malpractice
THE COURT:— that’s the occurrence date?
ATTY. LANEY: Correct. I believe that’s the date. I have a note here of July 30th, 2008, but I don’t think that’s correct.
But in any event, no later than mid-’09, I think the estate tax was— the estate tax return was filed.
It is a three-year statute under 52-577. The Court’s well aware
THE COURT: So the statute would have run April 8th, 2012.
ATTY. LANEY: Yes, Your Honor. And the Court is well aware the case law says, under 577, sometimes causes of actions are barred before they accrue. That’s how rigid 577 is.
THE COURT: All right. Counsel, do you agree that April 5th, 2017 occurred after April 8th, 2012? Attorney Votre?
ATTY. VOTRE: Yes, Your Honor.
THE COURT: So has the statute run on this?
ATTY. VOTRE: No, Your Honor.
THE COURT: Why not?
ATTY. VOTRE: For two reasons. One is, in Connecticut we have— it is— in terms of the date of the occurrence of the negligence we have two doctrines. One is the continuous representation rule.
And in this case we’ve claimed fraudulent concealment of the cause of action in that the client— that the defendants knew, or should have known, they did not recommend use of the alternative— of the alternative— I’m sorry, alternate valuation date under the tax code.
And so the issue that counsel’s looking for is the date on which they knew, they became aware, that this had not been told to them.
We still have to prove the fraud and the concealment, but the basis of the statute of limitations here is fraudulent concealment.
And so if we have a time period in— if we assume they retained me in April of 2017, even if there was a period of time within the year prior to that date, they would have— the statute of limitations would be tolled until the date that they discovered the— the malpractice, provided we can establish that the— there was a duty on the part of the defendants to reveal that information to them.
And in this case that— our allegations are, which I think the testimony will bear out, is that they were never notified that there was an alternate valuation date. They didn’t understand there was an alternate valuation date. And these attorneys would have had a duty to tell her about that.
And so we’re claiming fraudulent concealment. And that— that’s the trigger date. I think he’s looking for— he’s going to make the argument, I’m assuming that the statute is the statute is the statute.
But when I looked at this case and said we could all be looking at a summary judgment motion. The issue is going to be is there evidence to support fraudulent concealment. If there is, when would the— the statute begin to run based on fraudulent concealment?
And in terms of the straight statute, that I can’t disagree that this happened in 2009 and then that 2012, on a straight statute of limitations, which would not be accurate entirely in itself, Your Honor. Under the continuous representation rule it would run three years from the date that the representation on the estate concluded.
THE COURT: What— when— when did the representation on the estate conclude?
ATTY. VOTRE: The estate— if I can— I don’t have— the closing date on the estate probably was 2010 at some point, Your Honor.
So continuous representation is probably not going to toll the statute enough in this case, because it ended at some point. The estate was closed.
Just so we understand, the estate and gift tax return is due nine months from the date of death. It’s usually part of the estate administration. The estate gets closed after the tax returns are filed and the final accounting were done.
This estate, to the best of my knowledge, did not go on for many multiple years, but in fact I would have to look and see when it concluded. But
ATTY. LANEY: Your Honor, if I may? I want to correct a date that I gave you because it turned out I was correct what I said initially.
The estate tax return, signed by Rosalie and Catherine Calve, was submitted to the IRS on July 30th, 2008. The IRS confirmed the tax amount for the estate and a tax based upon a value of two million, ninety-one thousand and change, in April of 2009.
So that’s when the IRS issued its— its decision. That— that’s going to be the basis of the tax for the estate, was April of 2009. But the 7506 was actually filed
THE COURT: In ‘08.
ATTY. LANEY:— July of ‘08.
THE COURT: July of ‘08.
ATTY. LANEY: Correct.
ATTY. VOTRE: And that’s the approximate time it takes for them to process the estate if there’s not going to be any action on the part of the taxing authorities, in terms of valuation.
THE COURT: So, Attorney Votre, we’ve established that you were retained— or that you consulted with your client in or about April 5th, 2017. Is that correct?
ATTY. VOTRE: That was the date I was retained, Your Honor.
THE COURT: That was the date you were retained. And is that the first time that Ms. Calve met with you and your firm?
ATTY. VOTRE: It was done telephonically, Your Honor.
THE COURT: All right. So you signed them up— well, that wasn’t my question. Did you consult with them via telephone on the same day that you signed them up as clients?
ATTY. VOTRE: To the best of my recollection it was within a few weeks of that day. I received
THE COURT: With
ATTY. VOTRE:— an initial phone call, I then spoke with them and spoke with the tax lawyer that was helping them, in Stamford, and then they decided to retain me.
So I would have had a few days to prepare the retainer, get it to them, and be retained. So
THE COURT: So a couple of weeks puts us into the end of March of 2017
ATTY. VOTRE: Possibly. Yeah, that’d be about right.
THE COURT:— when you first consulted with them.
ATTY. VOTRE: That’d be about right.
THE COURT: And it’s your representation that your client had spoken with the firm in Maryland shortly before their initial consultation with you in March of 2017?
ATTY. VOTRE: That would be correct, Your Honor. And— and— and in fact, I— if I recall correctly, they had indicated that they had talked to the Baltimore lawyer and had, you know, communicated to me he had, apparently, talked to the lawyer in Stamford who then— one or the other came up with my firm as being a firm that they could consult with.
THE COURT: Counsel, this took me about five minutes of questioning to establish. Why couldn’t you and your firm have figured this out back in September when I wanted answers?
ATTY. VOTRE: Well, Your Honor, I mean, I understand we— we— we think we’ve figured out, in terms of this is my best calculation of what happened. It wasn’t my client’s recollection, it was my— this is my recollection as to when different things happened.
So I didn’t necessarily think that was the
THE COURT: Well, we backfilled.
ATYT. VOTRE:— way to answer the question.
THE COURT: We— we— we backfilled.
ATTY. VOTRE: Yeah.
THE COURT: I mean, you made a representation
ATTY. VOTRE: Sure.
THE COURT:— in your filings
ATTY. VOTRE: Yeah.
THE COURT:— that your— that your client became aware of this issue shortly before coming to see you. And we just— we were just able, just now, through very gentle, I’d like to say gentle, it’s probably not too comfortable for you, questioning to figure out that Ms. Calve came to see you in late March of 2017.
Why— why couldn’t— why couldn’t this have been figured out sooner?
ATYT. VOTRE: I guess the questions— I— I’m basing it on the information I’m getting from my client. This is— you’ve asked me questions to come up with an answer based on what I know and not what they know.
I mean, I understand and I think it’s— we’re— it’s roughly accurate, I believe. I mean, but it’s not from my client and it’s not from the person swearing to this. It’s from me. I didn’t decide to tell them when things had happened with them.
So I— I understand what you’re saying. I mean, I can— I can figure out in— in the world of time when this probably happened. But I’m asking them to swear to the answer. I didn’t provide them that. That— so I’m— I’m kind of going at it, Your Honor.
And— and frankly, the answer is accurate. It was shortly before they came to me. The only distinction is is it took us from April to July to get the writ out, I guess. And that was— that was it.
I mean, frankly what happened is I got a phone call from them. They had talked to other lawyers. They got my name. I spoke to them. I— I happen to understand the tax issues. That’s one of the reasons, I’m assuming, they came to me. Because I’m the only litigator I know with a tax (indiscernible), so I guess that makes me a usual for this. And then they came to me.
That’s— that’s what their recollection is when they found out and understood it.
The other thing is, in terms of understanding what the malpractice was, what the issue of the alternate valuation date, it’s a difficult concept. It sounds simple but for some reason I— the clients don’t necessarily understand it.
Not that I do estate tax returns anymore. I’ve given up that part of my life. They’re too slow
THE COURT: So— so how did Ms. Calve become aware of the alternative valuation issue? How— how did she become educated on that?
ATTY. VOTRE: It was in consultation with the Baltimore lawyer. It was in consultation. The issue came up then. Probably when she came to me I explained the entire aspect of it. And— and I know she had the help of a lawyer in Stamford on estate issues and that issue was raised with him. Again, all of this about the same time when the issue came up.
THE COURT: If— have you exchanged any correspondence with this Baltimore firm?
ATTY. VOTRE: No I haven’t, Your Honor. They really haven’t been involved, Your Honor. I
THE COURT: No, but— but— but
ATTY. VOTRE:— think she was just sent
THE COURT:— but they’re— but they’re
ATTY. VOTRE:— to me, I believe.
THE COURT:— but they’re critical to the question of when the statute begins running. And just— I— how— how many lawyers are we talking about at this firm? How— how big is this firm?
ATTY. VOTRE: It was a medium size firm. I don’t know
THE COURT: Medium size firm.
ATTY. VOTRE: Yeah, I don’t have any reason to
THE COURT: So I would image that like most firm, the first thing that they would do is do a conflicts check. Wouldn’t there be a date of when that conflicts check occurred?
ATTY. VOTRE: I’m not even sure that— I— I don’t know that
THE COURT: Did you ask? Did you ask them for any paperwork concerning a conflicts check that was undertaken by the— by the firm, which would narrow the date down?
ATTY. VOTRE: I can only tell Your Honor I’ve had no correspondence with them other than that she was
THE COURT: And whose fault is that, counsel? That there’s been no
ATTY. VOTRE: I don’t know who’s
THE COURT:— correspondence?
ATTY. VOTRE: I haven’t had a reason to correspond with them, Your Honor. They just simply sent this client on with an issue and I
THE COURT: Well, you— you’ve— you had— you had reason to want to know since September, when Attorney Hume, therefore your firm, was put on notice that the statute of limitations issue, which is critical to Attorney Laney’s defense of this case, became an issue.
ATTY. VOTRE: But, Your Honor
THE COURT: It sounds like— it sounds like there wasn’t much of an investigation into— into when your clients spoke to the— the firm in Maryland.
ATTY. VOTRE: Your Honor
THE COURT: A conflicts check would have— when did you run the conflicts check?
ATTY. VOTRE: I’ve asked my
THE COURT: When did— when did you send the letter saying I don’t represent you?
ATTY. VOTRE: Well, Your Honor, I— the issue is when my client knew. And when I’ve asked them, on several times, I’ve gotten answers like, well, we knew about that time. I spoke to him. I spoke to the tax lawyer. I don’t have any firmer date after all those conversations as to
THE COURT: But you— but— but
ATTY. VOTRE:— when the lightbulb went off.
THE COURT:— you could have gotten a firmer date by— by— by contacting the firm in Maryland.
ATTY. VOTRE: I
THE COURT: That was— that was the whole point of my exchange with Attorney Hume. He said he was going to do this. He was going to— that— that your firm was going to do this. That you would undertake a vigorous consultation with predecessor counsel. I can’t call him predecessor counsel. Consult
ATTY. VOLTRE: He (indiscernible) handle this matter.
THE COURT:— consulting counsel, to— to nail down the date. It sounds like you’ve done nothing.
ATTY. VOTRE: I have done the best I can when getting
THE COURT: You haven’t done the best you can.
ATTY. VOTRE: Well, Your Honor, I disagree
THE COURT: You haven’t done the best that you can because
ATTY. VOTRE: Your Honor, it’s my job to get the infor
THE COURT: Don’t interrupt me, counsel. Because a letter, as counsel for Ms. Calve, to law firm X, I don’t even know the name of the law firm, saying please check your records relevant to when you first— when you consulted with Ms. Calve to include conflicts check, memoranda, calendar, whatever.
I— I’m stunned that none of that was undertaken after the exchange that I had with Attorney Hume. He promised he was going to do this. That your firm was going to look into this.
ATTY. VOTRE: I think the information you’re looking for cannot fully be developed that way. The issue is when my client understood it.
And in consultation with my client, without revealing attorney client privileged material, the time at which that issue became clear in her mind, Catherine Calve being the one that’s the— the member of the sisters that have been pressing this, is not temporally related to just meeting with that lawyer.
It is not an issue I have been able to get a firm answer as to when, in her mind, she understood that information.
And that’s why I’ve had problems developing it. There isn’t an alternative source that tells me when she understood that evidence.
THE COURT: You could narrow it
ATTY. VOLTRE: And it’s frustrating to me. I’d like to have that information. Your Honor, I’m here today— my life would be a whole lot easier if my client simply said to me it was on April 1st that I knew it. I don’t have that.
THE COURT: Well, you have represented in filings that it was shortly after consulting with the firm in Maryland and shortly before they came to see you.
ATTY. VOTRE: Yes. But on April
THE COURT: So do you agree that knowing when your client consulted with the firm in Maryland would significantly narrow the time period within which your client became aware of this? It would be helpful, wouldn’t it?
ATTY. VOTRE: It might be helpful, but when that was discussed with— without— and not intending to breach client attorney privilege, when discussing it and developing those facts with her, it was not— the deciding factors when she understood. And it’s something that they are somewhat confused about themselves. And I’m trying to work from that, Your Honor.
It’s just— and, you know, the answer we gave— and on— on top of the answer, the answer we gave is the best answer that we have at this point. And it’s our obligation to answer the questions to the best of our ability. But as one Judge once said, I don’t know is an answer to a question also.
I’m not trying to lead my client to an answer. Which I don’t want to manipulate them or give them an answer or say this is what it ought to be.
And so that’s why I’m working with what I have. I think the answer is the best answer we have at the moment.
And I’m willing to go take the deposition of that lawyer, but then I would need to understand whether or not with the— the questions would be, in that conversation did you make clear that this was the issue that would be the basis for a potential malpractice claim.
And I— I’ve worked with that— him, and I’ve also worked with the tax counsel. Obviously tax counsel here in Connecticut, his job is not to figure out when they learned anything. He’s to deal with the reality of the estate.
THE COURT: Attorney Laney.
ATTY. LANEY: Yes, Your Honor. Thank you. Listening to the explanations makes things even more confusing to me, quite frankly.
What I’m hearing is the declaration that, yes, this case would be time art, except for the operation of the fraudulent concealment doctrine. That’s the representation I’m hearing, at least in large part.
The problem we have is to have a cause of action in the first place, you have to show not only what the standard of care is, but a deviation from it and damages.
It’s not a deviation from the standard of care to use the date of death to evaluate the estate. In fact, that’s what you do.
There is an alternative date that you can use. And without getting too far afield, I’ll tell you that that was discussed with Mr. Votre’s clients by my clients, way back in the day. But we aren’t going to get there.
Even if you want to say the malpractice is not using the second date in April of ‘08, you use the first date, that’s meaningless unless you can show that there’s been a change in the value of the estate and its’ caused damages. We don’t have that even today.
So their argument is that my clients fraudulently concealed this cause of action that reportedly existed and that now 14 or 15 months after filing this lawsuit the plaintiff’s current counsel doesn’t know those answers.
Is there a change in value? What’s the tax impact? What are the damages to the estate? It’s nonsensical to suggest that my clients are liable for fraudulent concealment of a cause of action and we’re standing here, years later, and there’s no evidence that there is a cause of action because there’s no evidence that there’s damage. There’s no evidence of a change in value.
And it’s even more outrageous when you consider that the deadline, the Court ordered deadline to disclose experts in this case, was 16 days ago.
If I had expert disclosures I would at least understand, in October, ‘07, the estate was worth 2.1 million dollars. In April of ‘08 it was worth 1.6 million dollars. That’s a five hundred thousand vig. The damages are the tax from that five hundred thousand dollar vig.
I would at least understand that. I don’t have that. I don’t have an expert to— to talk about standard of care. I don’t have an expert to talk about deviation from standard of care. I don’t have an expert to say we’ve looked at the files of Cacace, Tusch and Santagata and they failed to appropriate advise, etcetera, etcetera.
I don’t have an appraiser who is going to say the value changed. There’s a (indiscernible) here of whatever. I don’t have any of that.
And yet the representation is that my clients fraudulently concealed this cause of action from these people. It’s— it’s ludicrous. This action’s always going to be time barred. And I get it that that’s not specifically before the Court today, but it’s— it’s all intertwined. We’ve been trying, since this lawsuit started in July of last year, to understand the claim. And the plaintiffs don’t understand that claim.
They don’t know that they’ve been harmed. These numbers in the discovery responses, real estate one million dollars. I don’t know what that means. I assume that means the value changed by a million dollars, but I don’t know. It just says, real estate one million dollars.
DRS, which I assume is Department of Revenue Services for the state, $ 626, 436.74. I don’t know where that comes from. And IRS, 1.3 million dollars.
Again, these numbers, I submit, are simply put down so they could put something down and they could file a notice of compliance and say we’ve answered discovery.
So the claimed damages are 1.996 million on a two million dollar estate. That’s lunacy. That doesn’t make any sense.
I’m just trying to make sense of this case. I’m just trying to defend my clients. And I can’t get the information and I can’t get the discovery done.
And I just don’t know what else to do other than repeated motions to dismiss because there’s never been any forthcoming information to substantiate these things.
And even now, I’m more than two weeks beyond the expert deadline, and I don’t have an expert to tell me this is where your clients dropped the ball.
THE COURT: All right. Attorney Votre.
ATTY. VOTRE: I
THE COURT: Why— why— why shouldn’t I enter a non-suit?
ATTY. VOTRE: Because the issue is simply the sufficiency of the answers to the— the interrogatories. In terms of the information concerning damages
THE COURT: Well, but there’s— there’s more to non-suit than just the answers to the interrogatories. We’ve had a number of express, unambiguous orders by the Court, including by myself, which have gone unanswered.
ATTY. VOTRE: Your Honor
THE COURT: Why shouldn’t— why shouldn’t non-suit enter?
ATTY. VOTRE: We have provided every document we have, every bit of information we have in our possession. We have provided all of that. There is nothing that has been withheld from them and we’ve answered the questions to the best of our ability.
Your Honor, I know you’re questioning that, Your Honor, but our job is to answer the questions.
What he is arguing is the sufficiency of the evidence and he wants to argue a summary judgment motion for Your Honor on the basis of the interrogatories.
THE COURT: No, I— I— I
ATTY. VOTRE: That’s inappropriate.
THE COURT:— I hear— I hear him— I hear him saying that to the extent that you’ve answered interrogatories, like putting down these numbers, doesn’t really convey any information, any information of use or value to him in— in— in defending his client. That’s what I’m hearing him say.
ATTY. VOTRE: But we
THE COURT: You’ve answered
ATTY. VOTRE:— but we’ve provided
THE COURT:— you’ve answered. But the— but the question is, have you answered, to the extent that you’re obligated to, under the rules? And did you do so in compliance with Court orders, or did you violate Court orders?
ATTY. VOTRE: I— I
THE COURT: Why don’t we address that first.
ATTY. VOTRE: Sure. I don’t believe we did, Your Honor. We— we’ve given them what our claim of damages are, based on the information as we have it. Yes, we are conducting appraisals to compare the other value— the six-month values. It’s difficult working our way backwards and we’re dealing with that.
And I am prepared to disclose— and I’m— consulted an expert and the files being reviewed and I don’t anticipate a problem with it. But we are prepared to disclose an expert.
We provided the information
THE COURT: Did you file a motion to extend the date for
ATTY. VOTRE: No. We’re going to
THE COURT:— experts?
ATTY. VOTRE:— have to, Your Honor.
THE COURT: Why not?
ATTY. VOTRE: Why not. Are we— we just didn’t get it in in the last two weeks, Your Honor. I’ll get it in.
THE COURT: Like the other stuff you haven’t gotten in.
ATTY. VOTRE: Yes, Your Honor.
THE COURT: Go on.
ATTY. VOTRE: Sometimes yes, Your Honor. I
THE COURT: Go on.
ATTY. VOTRE:— we have a busy practice and
THE COURT: Go on.
ATTY. VOTRE: we had some difficulty keeping up with things in the last few months. I— I admit that. Although, I will tell you, Your Honor, I walked into my office at 6:00 a.m. and I walk out at 8:00 p.m. every night. So I’m certainly not the one that’s not trying to work, Your Honor.
So we will file that and will have experts disclosed, Your Honor. This is— but the appraisal situation is going to be somewhat complicated because we’re appraising backwards by almost eight years, nine years. Nine years. And that we’re trying to cope with.
THE COURT: When
ATTY. VOTRE: We have
THE COURT:— when did you start that process?
ATTY. VOTRE: We started that process about three weeks ago, talking with people that can the appraisal for us.
I have the appraisals of the— of the date of death value. I don’t have the appraisals, which we disclosed, they were done at the time of the estate, which we are trying to get those folks to give us the secondary appraisal.
We’re trying to work the case up, Your Honor, with the— the state of the case is not a simple case.
ATTY. LANEY: If I may, Your Honor?
THE COURT: Yes, please.
ATTY. LANEY: It’s— that’s the really the whole point of the exercise today. We asked— one of our interrogatories that we sent out in February was, please identify the value of each of the properties referenced in paragraphs 13 and 14 of count one in your August 3, 2017 complaint as of the date six months after the decedent’s death. That’s the question in this case.
What’s the value, six months after death, of the properties you list in your complaint when we compare it to what we know the value is at the date of death? Because that’s what it was submitted on to the IRS. Answer. To be determined.
Please set forth with specificity all facts supporting the values. Expert’s appraiser to be disclosed. It’s still not disclosed. And yet somehow, despite not having an appraiser, despite not being able to answer that question about what the values are, they throw numbers in here of one million six hundred twenty-six thousand and change and 1.3 million. They’re make believe.
So I’ve got make believe discovery responses that simply allow the plaintiffs to say we answered. And it allowed them to avoid a non-suit in October. And it allowed them to avoid a non-suit in September. And it allowed them to avoid a non-suit in July, when Judge Jacobs said you have until August 20.
I am no closer to the truth than I was when I got the complaint the first day my client’s insurance company sent it to me.
THE COURT: Attorney Votre, would you like to respond?
ATTY. VOTRE: Yes, Your Honor. Your Honor, we have answered with the information that we have. We are attempting to get the— the specific information from appraisers and we will have an expert witness. If Your Honor would like, I can have my experts disclosed in a couple of weeks.
And in terms of the valuation issue, it’s going to be an expert opinion. That’s going to be the one that determines what the actual losses are. That’s the only way to get there.
In terms of the liability case, I don’t anticipate a problem disclosing an expert witness very quickly on that. In terms of the liability issue.
So, Your Honor, we— and in terms of— in terms of the issue of the statute of limitations, if— if it becomes necessary I’ll depose the lawyer down in Baltimore and get all the records from their office about whenever there was a phone conversation.
And my clients are always available for a deposition. I do not believe, however, that the answer is going to be a black line answer from what I’ve been able to develop so far.
And I’m willing to do that, Your Honor, as best— as fast as I can.
THE COURT: Attorney Laney, could you address the question of whether granting non-suit would be proportional to the— the violations to date?
ATTY. LANEY: Yes, Your Honor, I’d be happy to. We addressed this question and frankly I was asking for a dismissal back in October when we were here.
And the Court may remember the colloquy that we had regarding the Millbrook Owner’s Association case. And there’s really three simple questions.
Number one is, was there a clear court order? A reasonably clear court order. And the answer to that is obviously yes. I think Your Honor might remember
THE COURT: More than one. You can move to point two.
ATTY. LANEY: That was the point I made in October. Every— every single order in this case has been violated. Not one has been met.
Point two is, was the order violated? That’s— that’s (indiscernible), at the risk of sounding too cavalier about it.
And number three is whether the sanction is proportional to the violation. I argued then and I’ll argue today, the dismissal is proportional. There are multiple orders that have been violated. Indeed every single order in this case has been violated.
There has been, up until November 9th, no effort to comply with any Court order. And I would submit that that compliance was somewhat in the half-hearted at best neighborhood.
There’s never been any explanation to the Court or counsel as to why we are here a year later without answers to discovery, other than what we heard today, which is busyness.
It’s severely prejudice to the defendant in this case. Severely. My clients have been defendants in this case for 15 or 16 months and I can’t even tell them whether I think there’s a viable claim, if we assume it survives the statute of limitations analysis.
It has involved very costly motion practice. I lost track of the number of discovery motions that we had filed and appeared in court for.
And then the last thing, and I brought it up last time and the Court didn’t want to get into it, but there’s a pattern here that I have with this particular firm and discovery issues.
THE COURT: I— I— I think the— the pattern within the case is sufficient. I don’t think there’s any need to pile on. Anything else?
ATTY. LANEY: No, sir, Your Honor.
THE COURT: Attorney Votre?
ATTY. VOTRE: Your Honor, I don’t think non-suit is appropriate in this case. I think in this case it’s a complex case and I think good faith answers to interrogatories were provided. It— he is asking to have the Court determine the sufficiency of two or three responses. I think a non-suit would be utterly inappropriate.
If Your Honor wants to order us a specific date to provide expert disclosures and appraisal information, then we’ll comply with that.
But, Your Honor, I don’t think a non-suit is appropriate in this case.
THE COURT: Well, I— I suppose that my— my position, or my view of it, is unique in as much as I— I directed Attorney Hume to answer some very specific questions and take very specific actions and he— it didn’t happen. And then when it was set down for argument, your firm didn’t show up. Your firm wasn’t here.
And to the extent that it’s a complex case, I think your firm bears a certain amount of responsibility for why it has become as complex as it is.
And what I’m hearing you say today is you’re— you just started working on the expert witness a few weeks ago. This has been an issue from day one and now the case is more than a year old. And you’re only now getting to the question of valuation, which is crucial to the question of damages.
How do you bring a lawsuit without knowing what the damages are? Or. having an idea of of— of what the damages purport to be. It’s an essential element of— of your claim.
All right. Do either counsel have anything else to add?
ATTY. LANEY: No, sir, Your Honor.
ATTY. VOTRE: No, Your Honor.
THE COURT: All right. I’ll take it under advisement. Thank you.
ATTY. VOTRE: Thank you.
ATTY. LANEY: Thank you, Your Honor.
* * *
CERTIFICATION
I hereby certify the foregoing pages are a true and correct transcription of the audio recording of the above-referenced case, heard in Superior Court, Judicial District of Stamford/Norwalk, at Stamford, Connecticut, before the Honorable Alex Hernandez, Judge, on the 17th day of December 2018.
Dated this 7th of January 2019 in Norwalk, Connecticut.
[*] Editor’s Note: The mentioned Exhibit A, pg. 3, par. 2 has not been reproduced.
[**] Editor’s Note: the mentioned Exhibit B, pg. 4, par. 1 has not been reproduced.