Opinion
No. HHB CV 02-0515919 S
December 19, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The court heard argument at short calendar on November 21, 2005 concerning the plaintiff/counterclaim defendant, Rachstein, Norman Buchman, LLP's (Rachstein, LLP) motion for summary judgment as to the defendant/counterclaim plaintiff, John Sakon's (Sakon) revised counterclaim (#159) (motion). After considering the parties' arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I Background
Rachstein, LLP's complaint in this action, dated July 2, 2002, seeks to enforce a Massachusetts judgment entered against Sakon. Rachstein, LLP is seeking to recover unpaid legal fees for services rendered by Rachstein, LLP in the course of its representation of Sakon in connection with negotiations with Shaw's Supermarkets, Inc. (Shaw's), concerning a proposed supermarket lease on property owned by Sakon, located in Glastonbury, Connecticut. By revised counterclaim, dated July 12, 2004 (# 119.50), Sakon alleges fraud, legal malpractice, practice of law without a license, and violation of the Connecticut Unfair Trade Practices Act, General Statute § 42-110a. et seq. (CUTPA) by Rachstein, LLP. Jury selection in this matter is scheduled to commence on February 15, 2006.
II Standard of Review
Summary 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." Practice Book § 17-49. "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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45] . . ." Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005). "The test for granting summary judgment is whether the moving party would be entitled to a directed verdict on the same facts." Wilson v. New Haven, 213 Conn. 277, 279-80, 567 A.2d 829 (1989).
"[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted and citations omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560, 783 A.2d 993 (2001). "[T]he court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
III Discussion A Fraud
In his first counterclaim, Sakon claims that Rachstein, LLP is liable to him based on fraud. "Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment." (Internal quotation marks omitted.) Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005).
The title of this counterclaim is "First Counterclaim — Legal Malpractice — Fraud." See revised counterclaim, p. 1. In his memorandum of law in support of his objection to the motion ("Sakon's memorandum"), pp. 4, 5, Sakon refers to this count as a claim for fraud.
While the first three elements must be proved by "clear and satisfactory" evidence, a plaintiff may satisfy his burden as to the fourth by a preponderance of the evidence. (Footnote omitted.) Kilduff v. Adams, 219 Conn. 314, 330, 593 A.2d 478 (1991). "The plaintiff in an action for fraud must prove that he has been injured in order to recover." Id., 329. "[P]roof of damages is an essential element of a fraud action." Id., 330. In an action to recover damages for fraud, our Supreme Court stated, "[i]n the absence of any evidence as to the damages, if any, sustained by the plaintiff as a consequence of his transactions with the defendant, the trial court properly directed that judgment be entered for the defendant." Beik v. Thorsen, 169 Conn. 593, 595, 363 A.2d 1030 (1975).
Rachstein, LLP argues that Sakon cannot establish any of the elements of his fraud claim. As discussed below, the court concludes that Sakon has not presented evidence to prove that any of his claimed damages resulted from any alleged misrepresentation which Sakon asserts was made by Rachstein, LLP. See Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995) (listing the fourth essential element of fraud as "the other party did so act upon that false representation to his injury."). "In Connecticut, [t]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant's conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the . . . act complained of for the necessary causal connection . . . This causal connection must be CT Page 16473 based upon more than conjecture and surmise." (Emphasis in original; internal quotation marks omitted.) Cote v. Colonial Penn Franklin Ins. Co., 88 Conn.App. 262, 266-67, 869 A.2d 266, cert. denied, 275 Conn. 917, 883 A.2d 1242 (2005).
In his first counterclaim, Sakon alleges that Rachstein, LLP made representations and deliberately deceived him. He claims that Geoffrey E. Norman, Esq., a Rachstein, LLP partner, and Rachstein, LLP represented themselves to be licensed to practice law in Connecticut (¶ 5), but that this was not true (¶ 6).
Sakon also alleges that, prior to and on August 7, 2000, he informed Rachstein, LLP that the Shaw's lease had to be completed within 60 days and that Rachstein, LLP agreed to represent him "with the understanding that time was of the essence." See first counterclaim, ¶ 7.
In addition, Sakon alleges that, during August, September, and October 2000, he contacted Rachstein, LLP concerning the status of the work and that Rachstein, LLP "deliberately withheld the fact that Norman was incapacitated, that no other lawyer in the firm was working on the file and deliberately deceived [Sakon] as to the progress of the work." See first counterclaim, ¶ 8. He also claims that Rachstein, LLP failed to review the lease before an on-site meeting and failed to commence work on the file until October 13, 2000. See first counterclaim, ¶ 9.
Sakon alleges that, as a result of Rachstein, LLP's claimed deceptions, critical time was lost, market conditions changed, and he was unable to consummate his dealings with Shaw's. See first counterclaim, ¶ 10. He asserts that, as a result of Rachstein, LLP's alleged deceptions, he has suffered monetary damages, all of which relate to the alleged loss of the deal with Shaw's. See first counterclaim, ¶ 11.
The parties submitted affidavits and exhibits which the court has considered. In support of its contention that no fraud occurred, Rachstein, LLP submits Norman's affidavit (Exhibit A), his supplemental affidavit, and its billing statements (Exhibit C).
In considering the parties' submissions, the court notes that they have presented uncertified documents. See Practice Book § 17-45; New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005) ("[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment"; preliminary showing of genuineness required, citing Conn. Code of Evidence § 9-1). Sakon provided uncertified excerpts from Norman's deposition; Rachstein, LLP provided an uncertified copy of Norman's deposition with its reply.
However, our Supreme Court has stated that parties may "knowingly waive . . . compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, our Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, where no objection was raised on that basis to its consideration, the court, in the exercise of its discretion, has reviewed the deposition testimony.
Norman's affidavit discusses his work on Sakon's behalf between August 2000 and January 2001. In particular, he refers to meetings with Sakon and with Shaw's representatives which occurred during this period, in October 2000 (meetings at Rachstein, LLP's office), and December 2000, and January 2001 (meetings at Shaw's offices). See Norman affidavit, ¶¶ 13, 14; Rachstein, LLP billing statement, dated March 21, 2001 (part of Exhibit C). The billing statement also describes other work on the proposed lease with Shaw's which Norman performed from October 2000 to February 2001, including drafting, reviewing and revising lease language; marking up documents; and telephone conversations with Shaw's attorney, Michael Hawkey, and with Sakon. See Exhibit C to motion. Norman states that, in or around February 2001, Shaw's decided not to pursue the lease negotiations with Sakon. See Norman affidavit, ¶ 17.
Sakon filed his own affidavits in opposition to the motion. His affidavit, dated November 16, 2005 ("Sakon affidavit"), Sakon's Exhibit I, responds to some of the statements made in Norman's affidavit. Sakon's other affidavit, dated November 18, 2005, concerns his contacts with another law firm, which is not a party to this action.
Instead of providing evidence to support his contention that a claimed representation made by Rachstein, LLP was causally linked to the failure of the lease negotiations to lead to a consummated transaction with Shaw's, Sakon's November 16, 2005 affidavit asserts that Rachstein, LLP initially failed to promptly attend to the matter in August, September, and October 2000. See Sakon affidavit, ¶¶ 8, 10-12. For example, he asserts that Rachstein, LLP's personnel deceived him, in August and September 2000, by stating that Norman was working on the file, and that the work was progressing. See Sakon affidavit, ¶ 8.
The only paragraphs of Sakon's affidavit which allude to the alleged effects of Rachstein, LLP's legal representation of Sakon on the lease negotiations with Shaw's are paragraphs 12, 15 and 16. In paragraph 12, Sakon refers to his anger about Rachstein, LLP's allegedly having put his "`deal of a lifetime' at such serious risk for lack of progress." He asserts that in September and on October 13, 2000, he asked Norman why Sakon should not discharge him for cause and that Norman "advised that changing counsel at this time could only do further harm to my deal" and that Norman was willing to take the balance of his fees on a contingent basis, in contrast to the monthly payments at Rachstein, LLP's hourly rate which Sakon had agreed to pay Rachstein in their retainer agreement. See Sakon affidavit, ¶ 12; retainer agreement, dated August 7, 2000 (Exhibit B to Rachstein, LLP's motion). Sakon claims that Rachstein, LLP's March 21, 2001 bill "was in violation of our understanding." See Sakon affidavit, ¶ 112; Rachstein's billing statement of March 21, 2001 (part of Exhibit C to Rachstein, LLP's motion). Clearly, Rachstein, LLP continued to represent Sakon in dealing with Shaw's on the proposed lease, through the time that Shaw's ended the lease negotiations in February 2001. Sakon's statements in paragraph 12 of his affidavit provide no evidence that any damages he claims as a result of Shaw's termination of the negotiations were causally linked to reliance on a misrepresentation by Rachstein, LLP.
In paragraph 7 of his affidavit, Sakon avers that the fact that Mr. Rachstein had recently left the firm to become Stop Shop, Inc.'s general counsel created a conflict of interest, of which he had not been aware, and which would have caused him, had he known of it, not to hire the Rachstein, LLP firm. This fact was not alleged in Sakon's counterclaim. No evidence has been presented to link this fact to Sakon's alleged loss of the deal with Shaw's.
In paragraph 15, Sakon states that he contests Norman's statement that no one at Shaw's raised concern regarding Norman's absence in August and September, since Norman's office had not contacted Shaw's by then. See Norman affidavit, ¶ 9. Sakon's statement in this paragraph also provides no evidence that any damages he claims as a result of the loss of the Shaw's transaction were causally linked to reliance on a misrepresentation by Rachstein, LLP.
For ease of reference, paragraph 16 of Sakon's affidavit is set forth in its entirety:
I contest the assertion by Mr. Norman that his "brief absence" did not cause harm to the lease negotiations. After the delay of August, September and October, Shaw's lost interest in the negotiations and eventually leased a competitor's shopping center located across the street at Putnam Bridge Plaza where they operate a Supermarket this day. This despite the fact that I (Sakon) was still willing to lease a store to Shaw's consistent with the terms of our Letter of Intent. Therefore, Mr. Norman's "brief absence" (sic), failure to attend to the negotiations diligently in August and failure to represent his client in a timely fashion was the primary cause for losing the $70 million transaction.
Conspicuously, Sakon does not describe the work which was done by Rachstein, LLP and the substance of the lease negotiations which occurred from October 2000 to February 2001. For example, he does not dispute the portions of Norman's affidavit (and of the billing statement of March 21, 2001, part of Exhibit C to the motion) which assert that negotiations with Shaw's continued into late 2000 and early 2001, including meetings at Shaw's offices on December 21, 2000 and January 31, 2001, with Sakon in attendance.
Under these circumstances, Sakon's statement that Shaw's lost interest after the alleged initial delay in August, September, and October 2000 is an unsupported conclusion that the loss of interest was caused by the alleged initial delay. No direct or circumstantial evidence to support it has been presented. See Service Road Corp. v. Quinn, 241 Conn. 630, 641, 698 A.2d 258 (1997). "[A]n allegation setting forth no evidentiary facts avails nothing." (Internal quotation marks omitted.) Scinto v. Stamm, 224 Conn. 524, 533, 620 A.2d 99 (1993).
Similarly, Sakon has provided no evidence to show that any delay in Rachstein, LLP's work for Sakon was causally related to the fact that Shaw's eventually entered into a lease for another location nearby. While Sakon's counterclaim alleges a change of market conditions as having had an effect on his reaching a lease agreement with Shaw's, he has provided no evidence of it. Likewise, no evidence has been presented to show that the fact that Sakon claims that he was "led to believe" that Rachstein, LLP was admitted to practice law in Connecticut, see Sakon affidavit, ¶¶ 5, 13, was a cause of any claimed damages.
Thus, Sakon has presented no evidence to satisfy the fourth necessary element of a fraud claim, detrimental reliance. He has not met his burden to present evidence to establish the existence of a material fact as to that essential element of a claim for fraud. See Boone v. William. W. Backus Hospital, supra, 272 Conn. 558-59. Accordingly, Rachstein, LLP's motion is granted as to the first counterclaim.
In view of this determination the court need not decide whether there are genuine factual disputes concerning other aspects of Sakon's fraud claim.
B Negligence
In his second counterclaim, Sakon alleges that, on various dates in August, September, and October 2000, Rachstein, LLP "negligently withheld the fact that Norman was incapacitated, that no other lawyer in the firm was working on the file and negligently deceived [Sakon] as to the progress of the work." See second counterclaim, ¶ 8. Sakon claims that, as a result of Rachstein, LLP's negligence, critical time was lost and he was unable to consummate his deal with Shaw's. See second counterclaim, ¶ 9. He claims to have suffered damages as a result of Rachstein, LLP's negligence. See second counterclaim, ¶ 10. In his memorandum of law in support of his objection to the motion ("Sakon's memorandum"), p. 7, Sakon characterizes this claim as one for "malpractice/negligence." In support of the motion, Rachstein, LLP argues that it is entitled to judgment as to this claim since Sakon has not supported it with expert testimony to establish (1) a breach of the standard of care, and (2) that Rachstein's conduct caused Sakon's alleged injuries.
"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." Mayer v. Biafore, Florek O'Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998).
In the context of legal malpractice, our Supreme Court has stated that "[m]alpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . ." (Internal quotation marks omitted.) Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990).
"The general rule is that where [an attorney's] exercise of proper professional skill and care is in issue, expert testimony tending to establish the want of such skill and care is essential to recovery . . . The rationale underlying that rule is that in most cases, the determination of an attorney's standard of care, which depends on the particular circumstances of the attorney's representation, is beyond the experience of the average layperson, including members of the jury and perhaps even the presiding judge . . . The only exception to this rule is where 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." (Citations omitted and internal quotation marks omitted.) Celentano v. Grudberg, 76 Conn.App. 119, 126, 818 A.2d 841, cert. denied, 264 Conn. 904, 823 A.2d 1220 (2003).
Here, Sakon does not contend that Rachstein, LLP's conduct amounted to "an obvious and gross want of care and skill." See Paul v. Gordon, 58 Conn.App. 724, 728, 754 A.2d 851 (2000) (no expert testimony required where action brought against a party and judgment by default is rendered against that party in the case because his attorney allegedly did nothing to protect him).
Rather, Sakon purportedly disclosed an expert, Marc Branse, Esq., on the subject of the standard of care. See Sakon's disclosures of expert witness, concerning Branse, dated November 16 and 21, 2005. In a November 16, 2005 disclosure, Sakon also stated that he planned to call Norman as an expert witness. This disclosure does not mention the standard of care. The court addresses Norman's proposed testimony below.
As to the standard of care, the November 21, 2005 disclosure concerning Branse states only, "Mr. Branse may also offer testimony as to whether the legal preparation of a lease for Victoria Square on behalf of John Sakon constitutes the practice of law in Connecticut and what constitutes an attorney's standard of care in regard to his clients." The November 16, 2005 disclosure concerning Branse does not even mention the subject of the standard of care.
In a previous answer to an interrogatory, dated August 16, 2005, Sakon listed Branse as an expert on "zoning issues," not the standard of care, but did not describe his proposed testimony or the bases therefor. See Exhibit I to Rachstein, LLP's motion, p. 12, and Exhibit C to Rachstein, LLP's objection to Sakon's expert disclosure/motion to preclude (#153). On October 31, 2005, the court (Robinson, J.) ordered Sakon to immediately comply with the provisions of § 13-4 of the Practice Book. See #153. The court further discusses Sakon's disclosures of experts below.
In opposition to the motion, Sakon has not provided an affidavit from Branse, the purported expert, detailing what his testimony would consist of concerning the standard of care. Thus, Sakon's presentation does not even rise to the level of presenting a conclusory affidavit from Branse, which, in itself, would be insufficient. "Although an affidavit by an expert may be considered in opposition to a motion for summary judgment, conclusory affidavits, even from expert witnesses, do not provide a basis on which to deny such motions." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Insurance Co., 259 Conn. 527, 557, 791 A.2d 489 (2002). Presenting only a purported disclosure which states that Branse "may also offer testimony" about what "constitutes an attorney's standard of care" hardly meets Sakon's burden of providing evidence though expert testimony as to the applicable standard of care concerning Rachstein, LLP's conduct. "A party may not . . . rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Id., 558.
Further, Sakon has presented no evidence to show that Branse would even be qualified to offer expert testimony. No information about his qualifications to offer such testimony was submitted to the court. The two disclosures cited above merely state, in conclusory fashion, that he will base his opinions on his legal education and his experience practicing law in Connecticut. The fact that a person is an attorney does not, by itself, make him qualified to be an expert witness. "To be qualified as an expert witness in a legal malpractice matter, an attorney `must be found to possess special knowledge beyond that exhibited by every attorney simply as a result of membership in the legal profession.' Davis v. Margolis, 215 Conn. 408, 417, 576 A.2d 489 (1990). The test is whether the proposed expert knows what the applicable standard of care is and can evaluate the defendant's conduct against that standard. Fitzmaurice v. Flynn, 167 Conn. 609, 617-18, 356 A.2d 887 (1975). Our Supreme Court has held that `an expert must show more than a casual familiarity with the standards of the specialty in question.' Davis v. Margolis, supra, 416. It is the knowledge that the witness possesses, not the source of that knowledge, that determines eligibility to provide expert testimony. Id., 417 . . . In order to render an expert opinion, the witness must be qualified to do so, and there must be a factual basis for the opinion." (Citation omitted and internal quotation marks omitted.) Glaser v. Pullman Comley, LLC, 88 Conn.App. 615, 623-24, 871 A.2d 392 (2005). Thus, Sakon has not shown that Branse is qualified to offer expert testimony in this matter.
In addition, Sakon has not presented any expert testimony to prove that Rachstein, LLP's alleged negligence was the proximate cause of Sakon's claimed damages. See Vona v. Lerner, 72 Conn.App. 179, 191-92, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003) (affirming trial court's granting of directed verdict in the absence of such testimony). See also DiStefano v. Milardo, 82 Conn.App. 838, 841-43, 847 A.2d 1034 (2004) (same), affirmed on other grounds, 276 Conn. 416 (2005). The purported disclosures of Branse's expert testimony do not address causation.
Sakon also argues, in his memorandum, p. 8, that Norman "failed to perform the customary task of contacting Shaw's counsel immediately after being retained . . . let alone waiting over a month to do so . . ." He asserts that this "aspect of negligence" will be established by expert testimony, see Sakon's memorandum, p. 8, but Sakon has provided none. He also argues that it will be established by "Norman's admission that lapses in negotiation for 30-45 days can be fatal to a deal," citing a portion of Norman's deposition testimony, pp. 36-39, a copy of which is annexed to Sakon's memorandum. See Sakon's memorandum, p. 8.
Our Supreme Court has stated, in the medical malpractice context, that "a plaintiff may prove the standard of care through the testimony of a defendant . . . [A]s an expert witness, the defendant is not required specifically to have expressed an opinion that [he] breached the standard of care in order for the [plaintiff] to prevail . . . Rather, the [plaintiff] need only have produced sufficient expert testimony to permit the jury reasonably to infer, on the basis of its findings of fact, that [the defendant] breached the standard of care." (Citations omitted and internal quotation marks omitted.) LePage v. Horne, 262 Conn. 116, 132, 809 A.2d 505 (2002).
In a recent decision, our Appellate Court did not decide whether the holding in LePage v. Horne, supra, applies to a legal malpractice claim. See Anderson v. Schoenhorn, 89 Conn.App. 666, 671, 874 A.2d 798 (2005). Assuming, arguendo, LePage's applicability, Norman's cited deposition testimony is insufficient to provide the necessary expert testimony as to the standard of care and as to causation. Rather, his responses "were based on his personal belief, as opposed to the standard of care, and were conditional or speculative." (Footnote omitted.) Vona v. Lerner, supra, 72 Conn.App. 190.
The questions posed to Norman in the portions of his deposition transcript cited by Sakon were not framed in terms of or as involving the standard of care, but rather involved inquiry concerning his experience in lease negotiations. He was asked about his experience in doing other leases with Shaw's and whether there was an average time frame it took to complete the lease. See Norman deposition, p. 36. Then, when asked whether time frame is "an important factor in these types of deals," Norman responded that the deal cannot "get stuck in a situation where it is not going forward. So in that sense timing is important." See Norman deposition, p. 37. He agreed that it is important to make "sure that the momentum toward the final event keeps moving." See Norman deposition, pp. 37-38.
He was then asked: "Is it your experience that when the momentum dies down the chances of the deal coming to a favorable conclusion start to decrease?" See Norman deposition, p. 38. Even as to this question about his personal experience, as opposed to the standard of care, his response was a conditional one: "I mean, the answer to that is sort of a qualified yes." See Norman deposition, p. 38. He added, "I mean that is not always the case, but then that is where you start to run the risk if there is a lack of momentum, you start to run the risk that other deals are going to arise as in the Shaw's situation, other people are going to appear on the scene, and circumstances change." See Norman deposition, p. 38. In addition, he stated that "long pauses" make real estate developers, and people who are making deals with them, "nervous." See Norman deposition, p. 39. He added he was "talking about a pause where nothing happens for a month or two," and that "you have to be mindful of the fact that you can't let things sit for an indefinite period of time." See Norman deposition, p. 39.
Review of this deposition testimony shows that it does not provide evidence of whether Norman knows "what the applicable standard of care is." Glaser v. Pullman Comley, LLC, supra, 88 Conn.App. 623. Also, it provides no evidence as to causation.
Clearly, Sakon has failed to support his attorney malpractice claim with necessary expert testimony. Accordingly, the motion is granted as to the second counterclaim.
C Practicing Law Without A License
Sakon's third counterclaim seeks repayment of the sum of $5,364.93, which he allegedly paid to Rachstein, LLP for legal services performed concerning the Glastonbury property. He alleges that Rachstein, LLP represented that it was licensed to practice law in Connecticut, but that it is not so licensed. He claims that Rachstein, LLP is not entitled to payment for legal services as they are not licensed to practice here.
Sakon relies on General Statute § 51-88, which "prohibits the practice of law in or outside a Connecticut courtroom by a person not admitted as an attorney under the provisions of General Statutes 51-80." (Footnote omitted.) Perlah v. S.E.I. Corp., 29 Conn.App. 43, 46, 612 A.2d 806 (1992). "Generally, even though duly admitted in another state, an attorney may not recover compensation for legal services unless he has been admitted to practice in the jurisdiction where the services were rendered." (Internal quotation marks omitted.) Id., 47.
Section 51-88(a) provides, "[a] person who has not been admitted as an attorney under the provisions of section 51-80 shall not: (1) Practice law or appear as an attorney-at-law for another, in any court of record in this state, (2) make it a business to practice law, or appear as an attorney-at-law for another in any such court, (3) make it a business to solicit employment for an attorney-at-law, (4) hold himself out to the public as being entitled to practice law, (5) assume to be an attorney-at-law, (6) assume, use or advertise the title of lawyer, attorney and counselor-at-law, attorney-at-law, counselor-at-law, attorney, counselor, attorney and counselor, or an equivalent term, in such manner as to convey the impression that he is a legal practitioner of law, or (7) advertise that he, either alone or with others, owns, conducts or maintains a law office, or office or place of business of any kind for the practice of law."
Neither party has addressed whether § 51-88, which prescribes a criminal penalty for its violation, see subsection (b) (providing for a fine or imprisonment for not more than two months or both), gives rise to an implied private cause of action. See Napoletano v. Cigna Healthcare of Connecticut, Inc., 238 Conn. 216, 249-50, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997). The court notes that in Perlah v. S.E.I. Corp., supra, and in Taft v. Amsel, 23 Conn.Sup. 225, 180 A.2d 756 (1962), the courts considered the statute in the context of defenses raised by clients to claims brought by attorneys to recover fees claimed to be due. Since, as discussed below, the court finds that Sakon has not met his burden to show that there is a material fact in dispute as to whether Rachstein engaged in the practice of law in Connecticut in violation of § 51-88, the court need not consider that issue.
In Perlah v. S.E.I. Corp., supra, 29 Conn.App. 47-48, our Appellate Court adopted the reasoning set forth in Taft v. Amsel, supra, 23 Conn.Sup. 227-28, where the plaintiff/New York attorney performed services for Connecticut residents involving the creation of an interstate transportation business. "The legal services were primarily rendered in Connecticut . . ." Perlah v. S.E.I. Corp., supra, 29 Conn.App. 47. In sustaining the defendants' special defense, which questioned the attorney's "right to recover for legal services rendered in a state in which he has no right to practice," Taft v. Amsel, supra, 23 Conn.Sup. 226, "[t]he Taft court concluded that no one is entitled to recover compensation for services as an attorney at law unless he has been duly admitted to practice before the court, or within the jurisdiction in which the services were rendered, and is an attorney in good standing at the time . . . And the same rule applies to a claim based on quantum meruit." (Emphasis added; internal quotation marks omitted.) Perlah v. S.E.I. Corp., supra, 29 Conn.App. 47.
Thus, under § 51-88, whether an out of state attorney is barred from recovering fees for services rendered depends on whether the services were rendered in Connecticut. Just as it was found in Taft v. Amsel, supra, that the legal services there were "primarily rendered in Connecticut," there is no material dispute at issue here concerning the fact that Rachstein, LLP's legal services were primarily rendered in Massachusetts.
According to Sakon's affidavit (Sakon's Exhibit I), he met with Norman in Connecticut on only one occasion, on August 29, 2000. He states that their meeting lasted less than sixty minutes. See Sakon affidavit, ¶ 9. According to Sakon, Norman joined Sakon in Sakon's car and they drove the Glastonbury property. See Sakon affidavit, ¶ 9. He avers that no review occurred of a comment letter concerning the proposed lease and that Norman said that Norman "had pressing matters and wished to immediately return to Massachusetts." See Sakon affidavit, ¶ 9. According to Sakon, negotiations with respect to the proposed lease occurred in Nevada, New York, Rhode Island, Massachusetts, and Connecticut. See Sakon affidavit, ¶ 14. He does not state that any negotiations which occurred in Connecticut involved anyone from Rachstein, LLP.
Norman's affidavit describes the same single meeting with Sakon in Connecticut on August 29, 2000. See Norman affidavit (Exhibit A to the motion), ¶ 8. Athough they differ about the amount of time they spent together on that day and what was discussed (see Exhibit C to motion, Rachstein, LLP's billing statement, dated October 12, 2000), there is no dispute about the fact that that was the only time when Norman or anyone from Rachstein, LLP came to Connecticut to work on the matter.
Sakon does not dispute Norman's contentions that all other work which Norman did on the proposed lease with Shaw's occurred in Massachusetts. See Norman affidavit, ¶¶ 8, 13 (Sakon was present at Rachstein, LLP's Newton Centre, Massachusetts office on three occasions for meetings concerning the proposed lease), 14 (Sakon and Norman attended two meetings at Shaw's offices in Massachusetts concerning the proposed lease), and 16 (all meetings which Norman attended regarding lease negotiations took place in Massachusetts). Rachstein, LLP's billing statements, Exhibit C to the motion, reflect other work performed at Rachstein's Massachusetts office.
The Rachstein, LLP billing statements reflect that Norman was the only attorney from the firm who did work on the matter. See Exhibit C to the motion.
The fact that Sakon engaged in negotiating the proposed lease with Shaw's in other states does not refute Norman's averment that Norman did no work on the matter in Connecticut other than attending the August 29, 2000 meeting in Glastonbury. Sakon's affidavit does not dispute that Rachstein, LLP's office was located in Massachusetts; nor does he contend that Rachstein, LLP or Norman had an office in Connecticut or performed work at someone else's office in this state.
Thus, the facts in the record before the court clearly show that Norman's attendance at the one meeting in Glastonbury was the only work he did on the matter in this state. That single meeting represents only a small fraction of the work done by Rachstein, LLP concerning the proposed lease with Shaw's.
In the context of long-arm jurisdiction, our Supreme Court has stated, based on a review of the facts and circumstances there, including the "chronology and geography of the relevant factors," (internal quotation marks omitted) Rosenblit v. Danaher, 206 Conn. 125, 140, 537 A.2d 145 (1988), that attendance at a single meeting in Connecticut by an out of state attorney did not amount to "`transacting any business' under the broad standard of 52-59b(a)(1), which embraces `a single purposeful business transaction . . .'" Id., 138, 140-41. Here, likewise, Norman's attendance at a single Connecticut meeting does not mean that Rachstein, LLP's services for Sakon in connection with the Shaw's lease were rendered here and that a violation of § 51-88 occurred.
Similarly, in view of our Appellate Court's focus on whether the legal services were performed in Connecticut, see Perlah v. S.E.I. Corp., supra, 29 Conn.App. 47, the court is unpersuaded by Sakon's argument that the fact that the proposed lease with Shaw's was "to be constructed under the laws of the State of Connecticut," see Sakon's memorandum, p. 9, and Sakon's affidavit, ¶ 14, proves that a violation of § 51-88 occurred. Sakon has cited no authority for the proposition that legal services rendered in another state concerning a proposed lease of property located in Connecticut, where the parties were planning to agree that their lease would be construed under the laws of Connecticut, violates § 51-88.
Since Sakon has not presented evidence to show that there is a material factual dispute as to whether Rachstein, LLP engaged in the practice of law in this state without being licensed to do so, Rachstein, LLP's motion is granted as to this claim. Accordingly, the court need not address whether there is a genuine issue of material fact as to whether Rachstein, LLP represented that it was licensed to practice law in Connecticut.
D CUTPA
In his fourth counterclaim, Sakon alleges that Rachstein, LLP violated CUTPA, General Statutes §§ 42-110a et seq. Sakon incorporates by reference the allegations of the first three claims. He alleges that Rachstein, LLP's actions were deceptive and oppressive, in violation of CUTPA. See fourth counterclaim, ¶ 14.
General Statute § 42-110b(a) provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Section 42-110g(a) states that "[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages."
"[T]he ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief." (Emphasis deleted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 344, 880 A.2d 106 (2005). "[T]he plaintiff . . . must show that it is more likely than not that [he] suffered such a loss as a result of the challenged practice." Id. "The plaintiff . . . had the burden to prove, by a preponderance of the evidence, that [he] suffered an ascertainable loss of money or property as the result of the defendant['s] actions." Service Road Corp. v. Quinn, supra, 241 Conn. 639.
As part of its argument as to this count, Rachstein, LLP contends that Sakon's CUTPA claim fails for the reasons previously set forth as to the first and second counterclaims. See Rachstein, LLP's memorandum, p. 20, n. 2. As discussed above, as to each of those claims, Rachstein argued that Sakon could not causally connect his claim with his alleged damages.
Here, as stated above in connection with Sakon's fraud claim, he has not presented evidence to prove a causal connection between Rachstein, LLP's alleged actions and the fact that Shaw's terminated its dealings with Sakon. All of Sakon's claimed losses stem from the fact that his proposed deal with Shaw's did not come to fruition. Sakon has not presented evidence to prove that he suffered loss as a result of Rachstein, LLP's actions. In the absence of such evidence as to an essential element of a CUTPA claim, Rachstein, LLP's motion is granted as to the fourth counterclaim.
Under these circumstances, the court need not decide whether Sakon's CUTPA allegations against Rachstein implicate the "entrepreneurial aspects of the practice of law" and, therefore, are covered by CUTPA. Suffield Development Associates Limited Partnership v. National Loan Investors, L.P., 260 Conn. 766, 781, 802 A.2d 44 (2002). Likewise, the court need not consider whether these allegations, if they are legally insufficient on that ground, could be amended to come under CUTPA's rubric. See Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005).
CONCLUSION
For the foregoing reasons, Rachstein, LLP has shown that it is entitled to judgment as a matter of law as to each of Sakon's four counterclaims. Accordingly, its motion for summary judgment is granted. It is so ordered.