Deroy v. Reck

Full title: Aleta Deroy v. Stephen M. Reck et al

Court: Superior Court of Connecticut

Date published: Dec 6, 2016

KNLCV155014921S (Conn. Super. Ct. Dec. 6, 2016)

Opinion

KNLCV155014921S

12-06-2016

Aleta Deroy v. Stephen M. Reck et al

Robert F. Vacchelli, Judge.

UNPUBLISHED OPINION

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Robert F. Vacchelli, Judge.

This case is an action by the plaintiff, Aleta Deroy, alleging legal malpractice against the defendants who helped her mother, Edith Baron, draft and execute a new will on July 3, 2002, which, in effect, removed Aleta as a divisee of an interest in the family farm. The defendants are Stephen M. Reck, Raymond Trebisacci and Lewis A. Button, III. Pending before the court is a motion for summary judgment by the defendants seeking judgment in their favor because this action, which was commenced on June 17, 2015, was brought too late under the applicable statute of limitations; because they owed no duty to the plaintiff; and because the plaintiff does not have an expert witness who can testify as to the standard of care necessary to prevail in her case. The court finds that the material facts are in dispute as to the issue of whether the defendants owed a duty to the plaintiff. However, they are not in dispute, and the defendants are entitled to a judgment as a matter of law, because the facts show that this action is time barred and because the plaintiff has no expert witness necessary to establish that the defendants breached the applicable standard of care owed to her in this case. Therefore, the motion for summary judgment is granted and judgment shall enter in favor of the defendants on those grounds, accordingly.

I

The law governing summary judgment is well-settled. As our Appellate Court has summarized:

Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings." (Citation omitted; internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).

* * * *

In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

It is frequently stated in Connecticut's case law that, pursuant to Practice Book § § 17-45 and 17-46, a party opposing a summary judgment motion " must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999). As noted by the trial court in this case, typically " [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Moreover, " [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Citations omitted; internal quotation marks omitted.) Id., 244-45.

Rockwell v. Quintner, 96 Conn.App. 221, 227-29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

The Practice Book further mandates that " [a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings." Practice Book § 17-45. " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46.

II

In support of their motion, the defendants filed various wills, copies of probate court decisions, copies of the probate court appeal, excerpts from a transcript from the probate court appeal, a copy of the Superior Court decision resolving the probate court appeal and excerpts from the deposition of Aleta Deroy taken in the above case. In opposition, the plaintiff filed various exhibits¹ including probate court records, court decisions, correspondence, transcript excerpts and discovery responses from the various depositions, hearing and trials involved in this case. The parties filed multiple briefs and reply briefs in support of their respective positions.

1 The defendants moved to strike certain exhibits filed by the plaintiff. See Doc. No. 144.00. To the extent that Exhibit 12 contains hand written notes, the plaintiff does not offer the handwriting as evidence, and the court will not consider the handwriting. As to Exhibit 13, a summary of testimony, the court will accept it as argument, not evidence. As to Exhibit 22, a hand written exhibit list, the authenticity is not established and its relevancy is unexplained. That item is stricken.

Based on the admissible materials supplied, and viewing the evidence in the light most favorable to the opponent as required, the court finds that the following pertinent, material facts are not in dispute: The plaintiff, Aleta Deroy, commenced this one-count action for legal malpractice by service of process on June 17, 2015. The defendants are attorneys Stephen M. Reck, Raymond Trebiascci and Lewis A. Button, III. At the time of the relevant events, the attorneys were all associated with the firm of Trebisacci & Reck in Pawcatuck, Connecticut, The plaintiff is the daughter of the late Edith Baron. The focus of the dispute is on the testamentary disposition of Edith Baron's interest in a 89-acre farm located at 2247 Glasgo Road in Griswold, Connecticut.

At the times relevant to the instant case, Edith Baron was a widow with three children: Aleta Deroy, Jeanne Baron and Glen Baron. On February 12, 2002, Edith Baron executed a last will and testament devising the entirety of her estate, including her interest in the farm, to the plaintiff and Glen Baron in equal shares. Shortly before executing that will, Edith Baron executed quitclaim deeds conveying her interest in the farm to herself and to Jeanne Baron as tenants in common. Subsequently, but unbeknownst to the plaintiff, Jeanne Baron's son (Edith Baron's grandson), Elias Baron, contacted the defendant, Attorney Lewis A. Button, III, indicating that his grandmother desired to make a new will. Attorney Button was a personal friend of Elias Baron and a new lawyer. The proposed new will devised Edith Baron's interest in the farm to Jeanne Baron and provided that the residue and remainder of the estate should be distributed equally to each child.

At the time the new will was being drafted, Edith Barron had symptoms of dementia. Attorney Button was sufficiently concerned about Edith Baron's testamentary capacity that he found it prudent for her to be examined by Christopher Tolsdorf, M.D., a neuropsychologist. On June 10, 2002, Dr. Tolsdorf, after examination, wrote a report finding that Edith Baron was suffering from dementia and he concluded as follows: " Given her cognitive impairments, it is unlikely that she would be able to make fully informed, thoughtful judgments regarding complex financial or legal issues."

Attorney Button conferred with Attorney Trebisacci on the drafting of the will and with regard to Dr. Tolsdorf's report. On July 3, 2002, Edith Baron went to the firm to execute the will. During the execution of the will, however, it appeared to Attorney Button that Edith Baron was so confused that the proceedings had to be halted. Attorney Trebisacci was then not in the office, so, Attoney Button asked another senior partner in the firm, Steven Reck, to come in. Attorney Reck questioned Mrs. Baron about the will and it was decided to proceed. Edith Baron executed the new will on that date.

Edith Baron died on July 26, 2006. At the time of her death, the farm was her principal asset. The plaintiff had expected to inherit her mother's interest in the farm with her brother under the terms of the February 12, 2002 will. She was unaware of the new July 3, 2002 will.

The plaintiff promptly challenged the July 3, 2002 will in 2006 in the Probate Court for the District of New London, alleging undue influence and lack of testamentary capacity. The Probate court hearing ended in January 2008. On November 5, 2008, the Probate Court found no evidence of undue influence, and found that Edith Baron possessed sufficient testamentary capacity to validly execute the will. The will was thus admitted to probate.

Aleta Baron appealed that decision in a case titled Deroy v. Estate of Edith Baron, Superior Court, judicial district of New London, Doc. No CV 08-4009098, . In that case, the court (Hendel, J.T.R.), on November 3, 2010, entered judgment for the plaintiff, finding no evidence of undue influence, but finding that the decedent was incompetent on July 3, 2002, when she executed her will.

Jeanne Baron appealed that decision. On June 5, 2012, the Appellate Court, in a 2-1 opinion, reversed the Superior Court decision, finding that the court used the incorrect standard. Deroy v. Estate of Baron, 136 Conn.App. 123, 129, 43 A.3d 759 (2012). The matter was remanded for further proceedings.

On remand, on June 18, 2013, the Superior Court (Purtill, J.T.R.) found insufficient evidence of undue influence, but concluded that, although Edith Baron knew that she was making a will, she lacked the capacity to understand what that entailed. No further appeals were taken. Thence, the above captioned case was filed. In the instant case, the plaintiff is self-represented. The defendants are represented by counsel.

III

The defendants seek summary judgment arguing that judgment should enter in their favor as a matter of law because the case was brought too late under the applicable statute of limitations; because they owed no duty to the plaintiff; and because the plaintiff does not have an expert witness who can testify as to the standard of care necessary to prevail in such a case. The issues are discussed, seriatim.

A

First, plaintiff argues that it is improper for the defendants to file a motion for summary judgment since the discovery process is not yet complete. She argues that depositions have not been completed or started. The court is not persuaded.

A motion for summary judgment can be denied, or action on it postponed, if the court finds a valid need for additional discovery and a valid excuse for not yet completing that discovery. See, Peerless Insurance Co. v. Gonzalez, 241 Conn. 476, 489, 697 A.2d 680 (1997); Plouffe v. New York, N.H.& H.R. Co., 160 Conn. 482, 491, 280 A.2d 359 (1971). In the instant case, the court set a scheduling order on October 14, 2015, calling for completion of depositions by July 31, 2016 and the filing of any motions for summary judgment by August 31, 2016. The court granted several extensions of time to the plaintiff for a variety of reasons and postponed action on other matters throughout the case. See, e.g., Orders on Doc. Nos. 122.00, 136, 140. The plaintiff has had sufficient time to complete discovery. She never requested extensions of time to complete discovery or to compel discovery responses. She cannot claim lack of completion of discovery at this time in an effort to defeat defendants' motion for summary judgment.

B

With respect to the statute of limitations issue, it is well established that actions for legal malpractice must be brought within the time limitations set forth in General Statutes § 52-577. Weiner v. Clinton, 106 Conn.App. 379, 386, 942 A.2d 469 (2008); Farnsworth v. O'Doherty, 85 Conn.App. 145, 148, 856 A.2d 518 (2004). The statute provides as follows:

No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.

General Statutes § 52-577.

In the instant case, the act or omission complained of was the decision by the attorneys to proceed with the execution of the will on July 3, 2002. Second Amended Complaint, paras. 21 and 22. That occurred on July 3, 2002. This suit was brought on June 17, 2015. Suit was commenced nearly 10 years too late.

Plaintiff argues that the true test for determining when a cause of action occurred and the statute of limitations began to run is the time when the plaintiff could have successfully maintained an action, citing Rosenfield v. I. David Marder & Associates, 110 Conn.App. 679, 686, 956 A.2d 581 (2008). That, she argues occurred on June 18, 2013, when Judge Purtill ruled in her favor and no appeal was taken therefrom. The court is not persuaded. The case cited concerned General Statutes § 52-581, the statute of limitations for breach of executory contract, which begins to run when a cause of action for breach of contract accrues. Id., 686. " Section 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment of the act or omission complained of occurs." (Citations omitted; internal quotation marks omitted.) Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.App. 151, 158, 795 A.2d 572 (2002). " In construing our general tort statute of limitations, General Statutes § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred. (Citation omitted.) Fichera v. Mine Hill Corp., 207 Conn. 204, 212, 541 A.2d 472 (1988). " § 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues." (Internal quotation marks omitted.); Stuart v. Snyder, 125 Conn.App. 506, 510-11, 8 A.3d 1126 (2010); Weiner v. Clinton, supra, 106 Conn.App. 386. Thus, success in the underlying litigation is not a condition precedent to this type of legal malpractice claim. Mayer v. Biafore, Florek and O'Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998); Weiner v. Clinton, 100 Conn.App. 753, 759, 919 A.2d 1038, cert. denied, 282 Conn. 928, 926 A.2d 669 (2007).

Alternatively, the plaintiff argues that the defendants should be equitably estopped from raising the statute of limitations defense. In oral argument, she also mentioned the doctrine of equitable tolling. Neither is available in the instant case.

" Courts, applying equitable principles, have laid down the doctrine of equitable estoppel by which a defendant may be estopped by his conduct from asserting defenses such as the statute of limitations . . . Estoppel rests on the misleading conduct of one party to the prejudice of the other . . . In the absence of prejudice, estoppel does not exist . . . There are two essential elements to an estoppel-the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done . . . An equitable estoppel does not so much shut out the truth as let in the truth, and the whole truth. Its office is not to support some strict rule of law, but to show what equity and good conscience require, under the particular circumstances of the case." (Citations omitted; internal quotation marks omitted.) Morris v. Costa, 174 Conn. 592, 599-600, 392 A.2d 468 (1978).

The elements of estoppel are not present and satisfied in the instant case. There is no evidence that the defendants lulled the plaintiff into sitting on her rights during the running of the statute of limitations, and she does not so claim. Rather, she argues that " [t]he defendants have no consistency in their testimonies. When the story changes are proof positive that the 'official' story is simply a pretext, and the defendant's true motivation must have been some illicit reason. In a 'changed story' situation where the actual reason cannot be isolated for the action the case should undoubtedly go to trial." Plaintiff's Memorandum of September 26, 2016, p. 8. She cites specific examples of allegedly inconsistent testimony of the defendants made during the various trials or in discovery responses after the events. See Plaintiff's Objection of November 14, 2016. Those are not grounds for estoppel as to the statute of limitations.

Equitable tolling is distinct and different from the more familiar doctrine of equitable estoppel. " The doctrine of equitable tolling finds its origins in federal case law. Its well settled purpose is to permit a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim . . . [T]he doctrine has been held to embrace both what is sometimes called the discovery rule, which holds that the statute begins to run only after discovery of the facts constituting the violation; and the related rule that the statute does not begin to run when plaintiff knows that he has been injured but he cannot obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant. (Citations omitted; internal quotation marks omitted.) Connecticut Ins. Guaranty Ass'n v. Yocum, Superior Court, judicial district of Hartford, Doc. No. CV-94-0539691-S (June 6, 1996, Sheldon, J.) [17 Conn.L.Rptr. 343, ].

However, several court decisions addressing the issue of equitable tolling have concluded that the doctrine is inapplicable to statutes of repose, like General Statutes § 52-577, because the very purpose of such statutes is to set an outer limit on the time in which to bring suit unaffected by what the plaintiff knows. See, e.g., Lopez v. Travelers Companies, Superior Court, judicial district of Ansonia-Milford, Doc. No. CV 15-6019474 (April 26, 2016, Stevens, J.) [62 Conn.L.Rptr. 215, ]; Saperstein v. Danbury Hospital, Superior Court, judicial district of Waterbury, Doc. Nos. X06 CV 07-5007185, X06 CV 08-5011032, (January 27, 2010, Stevens, J.); Connecticut Ins. Guaranty Ass'n v. Yocum, supra .

Accordingly the defendants are eligible for summary judgment in their favor on this point.

C

Alternatively, the defendants argue that they cannot be liable in negligence because they owed no duty to the plaintiff. The existence of a duty is an essential element in a negligence action. Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453, 857 A.2d 439 (2004). " If the court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85, 650 A.2d 153 (1994). Defendants contend that they did not have any attorney-client relationship with the plaintiff and owed no duty to her arising from the drafting and execution of the will in 2002. On this point, there is no dispute that the plaintiff was not their client. However there are material facts in dispute as to whether the defendants, nevertheless, owed a duty to the plaintiff.

As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services. See Goodyear v. Discala, 269 Conn. 507, 517, 849 A.2d 791 (2004). Accordingly, " to prove any legal malpractice claim, a plaintiff must establish the four necessary elements: (1) an attorney-client relationship; (2) a wrongful act or omission by the attorney; (3) proximate cause; and (4) legal damages . . . Put another way, a plaintiff must prove that there existed an attorney-client relationship and that the client sustained legal injury or damage that proximately was caused by the attorney's wrongful act or omission." (Citation omitted.) Lee v. Harlow, Adams & Friedman, P.C., 116 Conn.App. 289, 302, 975 A.2d 715 (2009). However, our Supreme Court has recognized an exception to this general rule when the plaintiff can demonstrate that he or she was the intended or foreseeable beneficiary of the attorney's services. Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988). Thus, courts have held that an intended beneficiary has a cause of action against an attorney who failed to draft a will in conformity with a testator's wishes. See, e.g., Stowe v. Smith, 184 Conn. 194, 441 A.2d 81 (1981) (action allowed for failure to draft will as instructed); Licata v. Spector, 26 Conn.Supp. 378, 225 A.2d 28 (1966) (action allowed for failure to have will properly attested); compare Leavenworth v. Mathes, 38 Conn.App. 476, 479, 661 A.2d 632 (1995) (no liability where attorney drafted will in accordance with decedent's wishes).

Nevertheless, Connecticut courts have been extremely cautious in allowing legal malpractice cases to proceed when there is no privity between the parties. As stated by the Supreme Court, " [d]etermining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy . . . In addressing this issue, courts have looked principally to whether the primary or direct purpose of the transaction was to benefit the third party . . . Additional factors considered have included the foreseeability of harm, the proximity of the injury to the conduct complained of, the policy of preventing future harm and the burden on the legal profession that would result from the imposition of liability . . . Courts have refrained from imposing liability when such liability had the potential of interfering with the ethical obligations owed by an attorney to his or her client." (Citations omitted.) Krawczyk v. Stingle, supra, 208 Conn. 245-46.

A central dimension of the attorney-client relationship is the attorney's duty of " [e]ntire devotion to the interest of the client." Id., citing G. Sharswood, An Essay on Professional Ethics (5th Ed. 1896), p. 78; Rules of Professional Conduct 1.7. The Connecticut Supreme Court reasoned that it must take care not to adopt rules which, " interfere with the attorney's duty of robust representation of the interests of his or her client." (Citation omitted; internal quotation marks omitted.) Jackson v. R.G. Whipple, 225 Conn. 705, 728, 627 A.2d 374 (1993).

In Krawczyk, the Supreme Court specifically addressed the question whether an attorney could be liable to intended beneficiaries for failing to rush to get a will signed after the client had a stroke. Citing the paramount duty of devotion to the interests of the client and the potential conflict of interests in the beneficiaries, the court found no liability. Krawczyk v. Stingle, supra, 208 Conn. 246-47. Thus, a key fact is to identify what were the wishes of Edith Baron.

In the instant case, the material facts are in dispute as to the wishes of the testatrix. The defendants argue that it was her wish to exclude the plaintiff from inheriting the farm as evidence by the will that she signed, and they argue that, during the will contest, the plaintiff never alleged that the July 2002 will prepared by the defendants did not accurately reflect Edith Baron's testamentary intentions as expressed to them in June and July 2002. However, the plaintiff has consistently contended that her mother lacked testamentary capacity, that she was a natural object of her mother's estate plan, and that prior to signing the will, her mother was reported to have " acknowledged that all three of her children should share equally in her estate, but she simultaneously indicated that her farm and house should go entirely to one of her children with nothing for the other two. She was unable to reconcile the inconsistency between these two statements." Tolsdorf Report, pp. 3-4.

Resolving that inconsistency is beyond the function of the court on summary judgment. The summary judgment procedure is particularly inappropriate where the inferences which the party seeks to have drawn deal with questions of motive, intent and subjective feelings and reactions. See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). Viewing the evidence in the light most favorable to the opponents, as the court must do in such a motion for summary judgment, Ramirez v. Health Net of Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008), the court cannot find that the defendants are entitled to judgment as requested as a matter of law on these issues. " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but, rather, to determine whether any such issues exist." (Citation omitted.) Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment is to be denied where there exist genuine issues of fact and inferences of mixed law and fact to be drawn from the evidence before the court. Rickel v. Komaromi, 144 Conn.App. 775, 791, 73 A.3d 851 (2013). Such issues exist in this case. Accordingly, the defendants' motion for summary judgment on this ground is denied.

D

Finally, defendants claim that in order to prevail in this case, the plaintiff must have an expert witness who can testify that the defendants deviated from the prevailing professional standard of care. On this point, it is undisputed that the plaintiff has no such expert. The scheduling order in this case required the plaintiff to disclose her experts by January 30, 2016. No experts were disclosed and the plaintiff has told the court that she has been unable to secure one. However, she asserts that one is not necessary in this case, and she has filed a " Motion to Dispense with Expert Witness Testimony" on the point. Doc. No. 134.00. For the following reasons, the court finds that an expert witness is necessary, and plaintiff's failure to proceed with one is another reason for summary judgment to enter in favor of the defendants.

" In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages. As a general rule, for the plaintiff to prevail in a legal malpractice case in Connecticut, he must present expert testimony to establish the standard of proper professional skill or care . . . The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury . . . to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard." (Citations omitted.) Grimm v. Fox, 303 Conn. 322, 329-30, 33 A.3d 205 (2012). Thus, it is well settled that in legal malpractice actions the plaintiff ordinarily must present an expert to establish the standard of proper professional skill or care. See Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990).

" Despite this general requirement, our courts have carved out a limited exception to this general rule in cases in which there is present such an obvious and gross want of care and skill that the neglect [to meet the standard of care] is clear even to a layperson. (Emphasis added; internal quotation marks omitted.) Moore v. Crone, 114 Conn.App. 443, 447, 970 A.2d 757 (2009); Paul v. Gordon, 58 Conn.App. 724, 727, 754 A.2d 851 (2000).

" [T]he exception to the need for expert testimony is limited to situations in which the defendant attorney essentially has done nothing whatsoever to represent his or her client's interests . . ." (Citations omitted; internal quotation marks omitted.) Grimm v. Fox, supra, 303 Conn. 330; Bozelko v. Papastavros, 156 Conn.App. 124, 131, 111 A.3d 966, 970-71 (2015), aff'd, 323 Conn. 275, 147 A.3d 1023 (2016).

Plaintiff argues that no expert is necessary in this case because, " No reasonable person, attorney or lay person, would have allowed this will to be signed. Anyone, having initially requested Dr. Tolsdorf's evaluation and having read it, would not have ignored it . . ." Plaintiff's memorandum of July 11, 2016, p. 4. In the instant case, the record is far from certain that the defendants owed any duty to the plaintiff. See Section III C, supra . And, there is no expert evidence in the record as to what standard of care was owed and whether it was breached. That the plaintiff ultimately prevailed in contesting the will did not prove that legal malpractice was committed against her. None of the court decisions concerning the will speak to that point. And, this is not a case where the defendants took no precautions. They took precautions but chose a strategy that ultimately proved unsuccessful. Therefore, an expert is necessary for the plaintiff to prove her case.

Plaintiff complains that her inability to obtain expert testimony is due to the fact that she " has been told that no one will work for her because she was pro se and they work for attorneys because they are their 'bread and butter'" and " if the [defendants'] insurance carrier is paid premiums by a large number of attorneys in Connecticut, plaintiff's pool of expert witnesses is compromised because there would be a conflict of interest and at the very least an appearance of impropriety." Plaintiff's memorandum of July 11, 2016, p. 5. The court is not persuaded. There is no evidence of such a conspiracy in the record that 'would make it impossible for the plaintiff to comply with the requirement if her case had merit.

Having failed to come forward with necessary expert testimony, the defendants are entitled to summary judgment as a matter of law on the point, and the plaintiff's Motion to Dispense with Expert Witness Testimony must be denied.

IV

For all of the foregoing reasons, the court finds that the material facts are in dispute as to the issue of whether the defendants owed a duty to the plaintiff. However, they are not in dispute, and the defendants are entitled to a judgment as a matter of law, because the action is time barred and because the plaintiff has no expert witness necessary to establish that the defendants breached the applicable standard of care owed to her in this case. Therefore, the motion for summary judgment is granted and judgment shall enter in favor of the defendants on those grounds, accordingly.