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2 of 2 DOCUMENTS

Elizabeth Baruno et al. v. John F. Slane, Jr. et al.

FSTCV085008010S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF

STAMFORD-NORWALK AT STAMFORD

2013 Conn. Super. LEXIS 1300

June 6, 2013, Decided

June 6, 2013, Filed

NOTICE: THIS DECISION IS complaint that the defendants John

UNREPORTED AND MAY BE F. Slane (hereinafter "Slane") and
SUBJECT TO FURTHER his law firm, Heagney, Lennon &
APPELLATE REVIEW. Slane, engaged in legal malpractice
COUNSEL IS CAUTIONED TO when Slane represented them in
MAKE AN INDEPENDENT connection with certain activities
DETERMINATION OF THE that occurred on property at 36
STATUS OF THIS CASE. Montgomery Lane, Greenwich
adjacent to their home at 38
Montgomery Lane. Such legal
JUDGES: [*1] A. WILLIAM representation required Slane to
MOTTOLESE, Judge institute legal proceedings
Trial Referee. "concerning the adverse possession
claim which my neighbors have
OPINION BY: A. WILLIAM made against me."1 The retainer
MOTTOLESE agreement memorializing the
engagement was signed by Gerald
OPINION
Baruno on February 1, 2006
although Gerald had conveyed his
MEMORANDUM OF DECISION interest in the property to Elizabeth
in 1997.
The co-plaintiffs (hereinafter
"the plaintiffs" or "Barunos"), 1 Language taken from the
Elizabeth (hereinafter "Elizabeth") retainer agreement between the
and Gerald A. (hereinafter parties.
"Gerald") Baruno allege in their
 Page 2

On February 6, 2006, 36 improvements or plantings shall be

Montgomery Lane was owned and placed upon either Parcel X or
occupied by Jianhua Cai Tsoi and Parcel Y, nor shall either parcel be
Yvonne Chan Tsoi (hereinafter used for driveway or accessway
"Tsois").2 The Tsoi property was purposes, provided, however, [*3]
conveyed to them subject to the that the Grantees may clear dead
following. "Provisions and trees, shrubs and may place natural
conditions set forth in a warranty plantings upon the northerly
deed [*2] from Unique Holdings, portion of Parcel Y (as
Inc., to Carlo J. Scarpelli and distinguished from the southerly
Patricia B. Scarpelli dated July 6, portion of Parcel Y, which is the
1984 and recorded in Book 1407 at 20-foot-wide strip running
Page 223 of the Greenwich Land generally northeast of Montgomery
Records." The "provisions and Lane). The Grantor reserves the
conditions" referred to in this deed right to mow, plant and otherwise
read as follows: maintain the said southerly portion
of parcel Y, but shall have no
2 On May 16, 2006 the obligation to do so, and the Grantor
Tsois transferred ownership of the further reserves the right to mow
property to 36 Montgomery Lane, and maintain such portion, if any,
LLC which transfer has no of Parcel X as lies generally
relevance to the present case. westerly of the dividing line
between Parcel X and Lot No. 1 as
"8. This deed is given and shown on said map, and generally
accepted subject to the following easterly of the brook which runs
provisions and conditions, which generally between Lot No. 1 and
are imposed for the benefit of the the shared driveway located upon
2013 Conn. Super. LEXIS 1300, *2
Grantor and its successors and Lot No. 3 as shown on said map.
assigns as the owners of its retained
premises on Montgomery Lane, The Grantee covenants and
shown as Lot No. 1 on the agrees that Parcel X will henceforth
aforesaid map, and which shall form a part of Lot No. 3 as shown
bind and be enforceable against the on said map, and will not be sold or
Grantees and their heirs, executors, conveyed except as a portion of
administrators, and assigns as the said Lot No. 3, and that Parcel Y
owners of Lot No. 2 and Lot No. 3 will henceforth form a part of Lot
as shown on said map (since Parcel No. 2 as shown on said map, and
Y is being incorporated into said will not be sold or conveyed except
Lot No. 2, and said Parcel X is as a portion of Lot No. 2.
being incorporated into said Lot
These provisions shall run with
No. 3).
the land in perpetuity, and shall be
No dwelling, outbuilding, enforceable by the Grantor, its
pool, court, or other structure or successors and assigns as [*4] the
driveway or other man made owners of Lot No. 1 as shown on
said map, and the Grantor, its
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successors and assigns shall have to serve the Tsoi dwelling house.
the right to maintain an action at The southerly portion of the
law or in equity to enjoin or property consists of parcel Y as
remove any prescribed activity or shown on Map 6068 on file in the
structure within said parcel X Greenwich Land Records
and/or parcel Y, and the legal fees (Exhibit 5). Parcel Y itself consists
and other expenses associated with of 12,622.11 square feet and is
enforcing these restrictions shall be shaped in the form of a scythe with
borne and paid by the Grantees, the blade head comprising 7,222
their heirs, administrators, square feet and the handle
executors and assigns as the owner comprising 4,630 square feet. The
or owners of the restricted Parcels Baruno property is identified as Lot
X and Y, or either of them with No. 1 and the Tsoi property as Lot
respect to which enforcement is No. 2 on that map.
sought.
At or about February 1, 2006
These restrictions as to X and the plaintiffs learned that the Tsois
Y are not to be deemed to create planned to construct a driveway on
any adverse use in Unique parcel Y to serve a new dwelling
Holdings, Inc., its successors and which would be located on the
assigns." blade head portion of Parcel Y and
thereupon observed machinery
The deed into the Barunos beginning to remove trees and
contains the following provision: brush preparatory to excavation for
the construction of a driveway. Up
"Together with the right to
to that point the plaintiffs had for
enforce provisions and conditions
many years utilized the handle
set forth as Item #8 in said deed
portion of parcel Y as a dumping
from Unique Holdings, Inc., to
ground for leaves and grass
Carlo J. Scarpelli and Patricia B.
clippings. Believing that the
Scarpelli dated July 6, 1984 and
plaintiffs may have acquired some
recorded in the Greenwich Land
rights to parcel Y from the Tsois by
Records in Book 1407 at Page 223.
long-term use, Gerald consulted
SUBJECT to Covenants, Slane to ascertain what legal action
Restrictions and Easements of could be taken [*6] to stop these
activities. Not knowing what rights
2013 Conn. Super. LEXIS 1300, *6
Record." the plaintiff had in parcel Y Gerald
suggested to Slane that perhaps the
The Tsoi property consists of a driveway construction could be
1.1560-acre lot improved with a stopped if Slane were able to prove
dwelling and shed outbuilding that that Elizabeth had acquired
as of February 1, 2006 was served "squatters' rights" to the parcel.
by a common [*5] driveway which Gerald did not recall whether he
ran along the westerly side of the actually used the words "adverse
Baruno property and formed a fork, possession" in addition to squatters'
with the easternmost tine going on rights. He also told Slane that "he
 Page 4

was under the impression" that of the relevant deeds but in any
nothing could be built on parcel Y. event believes that it was not
Slane advised him that he thought necessary to do so because he was
that he could prevent such a use on proceeding solely on the basis of an
the basis of an adverse possession adverse possession claim.
claim. Neither Gerald nor Elizabeth
mentioned the restrictive covenant On February 17, 2006, Slane
to him at that time. The next day, commenced an action against the
Gerald delivered to Slane's office, Tsois in Superior Court on behalf
Exhibit H which is a survey map of Elizabeth seeking a temporary
which the plaintiffs had prepared in and permanent injunction against
connection with a swimming pool construction of the driveway and
which they planned to install on related improvements on Parcel Y
their property. That survey and a judgment determining that
contained the following note #2 Elizabeth was sole and exclusive
which reads in pertinent part: owner of the handle portion of
parcel Y. The [*8] sole legal basis
"Reference is made to Deed for the action was a claim of
Book 2990 page 0014 and record adverse possession. No mention
Map number 6068, including any was made in the complaint of the
and all easements, common above restrictive covenant. The
accessways, restrictive covenants, court denied the application for
maintenance agreements or temporary injunction and the case
restrictions on file at the Greenwich proceeded to the discovery phase.
Land Records Office." The At Elizabeth's deposition both she
plaintiffs did not provide Slane [*7] and Slane discovered the existence
with a copy of their deed or title of the restrictive covenant and on
insurance policy. This survey also that basis Slane sought to amend
contained a note referring to the the complaint on May 15, 2007 by
handle portion of parcel Y, as adding a count seeking
"parcel 'A' maintained and claimed enforcement of the restrictive
by Elizabeth Baruno." Shortly covenant. Before that motion could
thereafter Gerald advised Slane to be acted upon, Attorney Fred
contact Patricia Scarpelli who with Rickles of the firm of Gilbride,
her husband Carlo was one of the Tusa, Last & Spellane entered an
developers of the three-lot in-lieu-of appearance for Slane and
subdivision shown on Map 6068 proceeded to file his own amended
and a predecessor in title to both complaint which alleged violation
Baruno and Tsoi. In a conversation of the restrictive covenant,
with Scarpelli, Slane was told that followed by a new application for
"there are permissions in the deed." temporary injunction and other
This prompted Slane to visit the relief including acquisition of title
Greenwich land records in search by adverse possession.
of "some sort of license" to use
parcel Y. He found no such license On May 28, 2008 the Barunos
in the land records. He did not and Tsois entered into a settlement
remember whether he looked at any agreement which ultimately
 Page 5

obligated the Tsois to pay the have obtained injunctive relief

Barunos the sum of $250,000 by against the improvements which
May 30, 2010 and to perform were made in pacel Y, with or
certain corrective and restorative without monetary damages, and the
work on parcel Y. The work plaintiff's property would have
requirements were specified in a avoided the substantial injury
mandatory injunction issued by the which it has suffered as a result.
court on that date which ordered The [*10] defendants deny that
[*9] completion of all work by Slane's conduct was negligent and
August 30, 2008 (Karazin, J.) To assert a special defense of
date, the Tsois have paid only comparative negligence.
$17,000 of that sum and have
performed none of the "'Malpractice is commonly
3 defined as the failure of one
corrective/restorative work. The
rendering professional services to
parties have stipulated that
exercise that degree of skill and
thereafter the Tsois petitioned for
learning commonly applied under
bankruptcy and thereafter no
all the circumstances in the
further effort was made to enforce
community by the average prudent,
the contempt order. Eventually the
reputable member of the profession
2013 Conn. Super. LEXIS 1300, *10
bankruptcy petition was dismissed. with the result of injury, loss, or
damage to the recipient of those
3 On November 28, 2008 services . . .' (Internal quotation
the Tsois were found in marks omitted.) Dixon v. Bromson
contempt of court (Karazin, & Reiner, 95 Conn.App. 294, 297,
J.) for willful violation of 898 A.2d 193 (2006); see also
that order. The court Davis v. Margolis, 215 Conn. 408,
directed that all previously 415, 576 A.2d 489 (1990) (alternate
ordered work be completed citations omitted). The elements of
by December 31, 2008 a legal malpractice action are (1)
under penalty of $500 per the existence of an attorney-client
day. relationship, (2) the attorney's
wrongful act or omission; (3)
Liability
causation; and (4) damages. Vona
v. Lerner, 72 Conn.App. 179, 187-
The plaintiff complains that
88, 804 A.2d 1018 (2002), cert.
Slane was negligent when he failed
denied, 262 Conn. 938, 815 A.2d
to ascertain the existence of the
138(2003)." Ackerly and Brown,
restrictive covenant by examining
LLP v. Smithies, 109 Conn.App.
the interrelated deeds in the
584, 586 n.2, 952 A.2d 110 (2008)
Greenwich Land Records and as a
Only elements 2, 3 and 4 are
result, failed to predicate his
involved in the present case.
application for injunctive relief
thereon. The plaintiff further "It is axiomatic in our
alleges that had Slane taken such jurisprudence that
action in a timely fashion he would
 Page 6

"[g]enerally, to prevail on a legal client must establish that the

malpractice claim . . . a [party] underlying claim was recoverable
must present expert testimony to and collectible." Hartford
establish the standard of [*11] Casualties Ins. v. Farrish-LeDuc,
proper professional skill or care . . . 627 Conn. 748, 759 (2005).
Not only must the [party] establish
the standard of care, but [she] must Both parties offered expert
also establish that the [attorney's] testimony. The plaintiff's chief
conduct legally caused the injury of expert was attorney Jeffrey Hecht
which [she] complain[s]." (Internal who has been in general practice in
quotation marks omitted.) Connecticut for forty-two years
DiStefano v. Milardo, 82 which includes both transactional
Conn.App. 838, 842, 847 A.2d and litigation matters in the field of
1034 (2004), aff'd 276 Conn. 416, real estate law. Mr. Hecht opined
886 A.2d 415 (2005); see also that the applicable standard of care
Davis v. Margolis, 215 Conn. 408, did not require Slane to perform a
416, 576 A.2d 489 (1990); Glaser full title search but it did require
v. Pullman & Comley, LLC, 88 Slane to examine the deeds into
Conn.App. 615, 619, 871 A.2d 392 both the Barunos and the Tsois and
(2005) ("[p]roving allegations of any related maps on file in the
legal malpractice usually requires Greenwich Land Records before he
expert testimony"); Dunn v. Peter started the lawsuit against the Tsois.
L. Leepson, P.C., 79 Conn.App. He noted in particular that had he
366, 369, 830 A.2d 325 cert. done so he would have discovered
denied, 266 Conn. 923, 835 A.2d that the restrictive covenant
472 (2003) (alternate citations included the following provision.
omitted); Ackerly and Brown, LLP "These restrictions as to X and Y
v. Smithies, 109 Conn.App. at 588, are not to be deemed to create any
supra. adverse use in Unique Holdings,
Inc. (the grantor who retained
"Malpractice cases and ownership of what is now the
collection cases raise important Baruno property) its successors and
overlapping issues. In both assigns." Hecht further opined that
situations, the fact finder must had Slane read this provision he
assess legal strategy and outcomes would not have predicated the
in order to evaluate the choices lawsuit on a theory of adverse
made by the attorney whose possession [*13] but rather on
performance of professional enforcement of the restrictive
services is at issue." St. Onge, covenant. Finally, Hecht concluded
Stewart, Johnson and Reens, LLC. that it was "more likely than not"
v. Media Group, Inc., 84 Conn.App. that the court would have enforced
88, 96, 851 A.2d 1242 (2004). the restrictive covenant by
When "the underlying action was injunctive relief, would have
never tried, the client essentially ordered cessation of construction
has a double burden of proof. First, on parcel Y, removal of the
the client must show that the [*12] improvements made to date and
attorney was negligent. Second, the would have awarded damages for
 Page 7

loss of use of parcel Y and of time in view of the need for

diminution of value of the Baruno prompt action, and second, the fact
property. Thus, in his view Slane that the Barunos asked him to bring
departed from the standard of care an action based on adverse
in his preparation and handling of possession obviated the need to
the lawsuit for the Barunos. The consider alternative theories. In the
plaintiff's other disclosed expert final analysis, it was his belief that
was Attorney Fred Rickles who because Slane could amend his
expressed the same opinion. The complaint after commencement of
court has taken into consideration the suit to assert violation of the
the fact that Attorney Rickles has restrictive covenant he did not
an interest as well as an investment commit malpractice. The court
in the outcome of this action and notes here that Slane sought to
therefore accepts his opinion only amend the complaint on May 15,
as corroborative of Attorney 2008, which, when acted upon by
Hecht's opinion. the court, would have been almost
four months after construction
Slane's expert was Attorney began. Finally, Hawkins [*15]
Barry Hawkins who has impressive opined that he believed it unlikely
credentials after many years of that the court would have granted
practice in the field of real estate injunctive relief on the basis of the
law, including acting as an expert restrictive covenant because the
in several legal malpractice cases,
"Tsois owned the property."4
two of which involved restrictive
covenants. Mr. Hawkins rendered 4 The court is at a loss to
an opinion that the applicable understand this reasoning
standard of care requires an and is left to infer that what
attorney who has been engaged was meant was that because
[*14] to commence a lawsuit to the Tsois owned the
have a "good faith belief that the property they could do
client has a viable cause of action" whatever they wanted with
and that Slane did not deviate from it. This conclusion ignores
the standard of care by not bringing the highly restrictive terms
a cause of action against the Tsois of the covenant.
on the basis of the restrictive
covenant. It is notable that the "The sifting and weighing of
expert did not state a standard of evidence is peculiarly the function
care which delineates a practice or of the trier. '[N]othing in our law is
procedure which Slane should have more elementary than that the trier
2013 Conn. Super. LEXIS 1300, *14
followed in preparing the lawsuit. is the final judge of the credibility
Nevertheless, Hawkins opined that of witnesses and of the weight to be
Slane did not violate the applicable accorded their testimony.' Steinman
standard of care by not examining v. Maier, 179 Conn. 574, 576, 427
the interrelated deeds and map at A.2d 828 (1980), quoting Toffolon
the Greenwich Land Records, first v. Avon, 173 Conn. 525, 530, 378
because he did not have the luxury A.2d 580 (1977); Morgan v. Hill,
 Page 8

139 Conn. 159, 161, 90 A.2d 641 the existence of the facts essential
(1952). The trier has the witnesses under the law for the action and
before it and is in the position to such as would warrant a man of
analyze all the evidence. The trier ordinary caution, prudence and
is free to accept or reject, in whole judgment, under the circumstances
or in part, the testimony offered by in entertaining [*17] it.' Wall v.
either party." Smith v. Smith, 183 Toomey, 52 Conn. 35, 36 (1884);
Conn. 121, 123, 438 A.2d 842 accord Ledgebrook Condominium
(1981). "As to the conflicting Assn., Inc. v. Lusk Corporation,
expert testimony, the jury (the trier) 172 Conn. 577, 584, 376 A.2d 60
is free to reject each expert's (1977). 'Probable cause is the
opinion in whole or in part." knowledge of facts, actual or
Shelnitz v. Greenberg, 200 Conn. apparent, strong enough to justify a
58, 68, 509 A.2d 1023 (1986). reasonable man in the belief that he
has lawful grounds for prosecuting
As [*16] an initial matter the the defendant in the manner
court is puzzled by Attorney complained of.' (Emphasis added.)
Hawkins' opinion on the standard Shea v. Berry, 93 Conn. 475, 477,
of care which applies here. He 106 A. 761 (1919). Thus, in the
stated that all that was necessary to context of a vexatious suit action,
satisfy the standard was for Slane the defendant lacks probable cause
to have had a "good faith belief that if he lacks a reasonable, good faith
Baruno had a viable cause of belief in the facts alleged and the
action." The concept of "good faith validity of the claim asserted. See
belief" has been given statutory Albertson v. Raboff, 46 Cal.2d 375,
recognition in medical malpractice 382, 295 P.2d 405 (1956); 3
cases where G.S. §52-190a requires Restatement (Second), Torts §662
that the attorney filing the action comment (c), §675, comment (d);
must have determined that there is cf. Franks v. Delaware, 438 U.S.
"good faith belief" that there has 154, 98 S. Ct. 2674, 57 L. Ed. 2d
been negligence by a health care 667 (1978) (proof that an affiant
provider after the attorney has included a false or reckless
made "reasonable inquiry." It is statement on a warrant affidavit
noted that the statute imposes a may void the warrant); compare
duty on the attorney to make a State v. Hamilton, 214 Conn. 692,
"reasonable inquiry as permitted by 707 n.6, 573 A.2d 1197, vacated on
the circumstances." Since this other grounds, U.S. (sic), 111 S. Ct.
statute does not apply to legal 334, 112 L. Ed. 2d 299 (the test for
malpractice claims it is appropriate probable cause is objective; an
to assign to the concept of "good arresting or investigating officer's
faith belief" the meaning given it in good faith is insufficient.)"
the context of a suit for vexatious (Alternate citations omitted.)
litigation. (Emphasis added.) Delaurentis v.
New Haven, 220 Conn.
"For purposes of a vexatious
225, 256, 257, 597 A.2d 807
suit action, '[t]he legal idea of
(1991). As applied to an [*18]
probable cause is bona fide belief in
attorney, our Supreme Court has
 Page 9

approved of the substitution of legal malpractice case alleging

"reasonable attorney familiar with attorney negligence in a prior
Connecticut law" for the reasonable dissolution action our Supreme
man standard. Falls Church Group, Court stated:
Ltd., v. Tyler, Cooper & Alcorn,
281 Conn. 84, 104-05, 912 A.2d "[T]he court's inquiry does not
1019 (2007). serve as a substitute for the diligent
investigation and preparation for
The court notes that the "bona which counsel is responsible. See
fide belief" component is also an Monroe v. Monroe, 177 Conn. 173,
essential part of the meaning of 183, 413 A.2d 819; appeal
probable cause in the context of a dismissed, 444 U.S. 801, 100 S. Ct.
prejudgment remedy. Solomon v. 20, 62 L. Ed. 2d 14 (1979)
Aberman, 196 Conn. 359, 363, 493 ('lawyers who represent clients in
A.2d 193 (1985). This court does matrimonial dissolutions have a
not believe that such a standard of special responsibility for full and
conduct, whether derived from fair disclosure, for a searching
vexatious litigation or prejudgment dialogue, about all the facts that
remedy jurisprudence, can be materially affect the client's rights
equated with an attorney's standard and interests'). Indeed, the
2013 Conn. Super. LEXIS 1300, *18
of care in malpractice cases dissolution court may be unable to
because the latter refers to attorney elicit the information necessary to
practices and mode of proceeding make a fully informed evaluation
which should be performed before of the settlement agreement if
the attorney reaches the threshold counsel for either of the parties has
level of a "bona fide belief." In failed properly to discover and
other words, an attorney does not analyze the facts that are relevant to
gain a "bona fide belief" unless and a fair and equitable settlement."
until he has acted in accordance (Alternate citations omitted.)
with the standard of care. Grayson v. Wofsey, Rosen Kweskin
& Kuriansky, 231 Conn. 168, 176,
Moreover, the Hawkins 646 A.2d 195 (1994). This court
standard of care eliminates the sees no reason why an attorney's
need for reasonable inquiry by the [*20] duty to engage in "searching
attorney prior to commencement of dialogue" about all the facts in a
the action which even §52-190a matrimonial case should be less
requires in medical malpractice applicable in a property rights case.
setting. Our courts have spoken
forcefully concerning the duty of "To be sure, an attorney has the
an [*19] attorney engaged for the obligation to act with reasonable
purpose of initiating a lawsuit to diligence; Rules of Professional
make reasonable inquiry before Conduct 1.3; to communicate with
commencing the suit. Practice the client to the extent reasonably
Book §4-2 requires that an attorney necessary to allow the client to
who signs a pleading must have make informed decisions; Rules of
"good ground to support it." In a Professional Conduct, 1.4; and to
 Page 10

provide advice on such legal and tactics. Counsel must make his
nonlegal matters that are relevant to decisions on an informed basis.
the client's situation. Rules of That was not done." Siemon v.
Professional Conduct 2.1." Wooten Stoughton, 184 Conn. 547, 557,
v. Heisler, 82 Conn.App. 815, 822, 440 A.2d 210 (1981). This court
847 A.2d 1040 (2004). agrees with New York case law
which holds that a party in
Claims of malpractice are possession of certain information
analogous to claims of ineffective will be charged with a knowledge
assistance of counsel in our of all the facts which an inquiry
criminal law. See Evans v. Warden, suggested by such information,
29 Conn.App. 274, 613 A.2d 327 prosecuted with due diligence,
(1992). In Summerville v. Warden, would have divulged to him.
29 Conn.App. 162, 171, 614 A.2d Cassia Corp. v. North Hills
842 (1992), where the claim was Holding Corp., 278 AD 960, 105
based on failure to investigate facts N.Y.S.2d 631 (1951).
adequately in order to prepare a
proper defense the court stated: Slane's reliance on Lee v.
"Our cases recognize that the Duncan, 88 Conn.App. 319, 326,
effective assistance of counsel 870 A.2d 1 (2005), is unjustified
includes counsel's obligation to for three reasons. First, the
investigate the circumstances of the principle which binds an owner of
case and to explore all avenues real property to knowledge of the
leading to facts relevant to the "facts which are apparent upon the
merits of the case." On the other land records concerning [*22] the
hand "counsel need not track down chain of title of the property
each and every lead or [*21] described in the conveyance"
personally investigate every applies only to bona fide
evidentiary possibility before purchasers and third parties who
choosing a defense and developing may seek to assert rights to the
it." Walton v. Commissioner of property. Second, the principle has
Correction, 57 Conn.App. 511, 522, never been applied so as to impose
749 A.2d 666 (2000). a duty on a property owner to
disclose those facts to his attorney
And finally, in finding when engaging that attorney for
ineffective assistance of counsel representation in a matter in which
our Supreme Court observed: one or more of those facts may be
2013 Conn. Super. LEXIS 1300, *22
involved. Finally, such presumed
"An adequate factual knowledge does not excuse the
investigation may well have attorney from performing an
enabled counsel to cast reasonable adequate investigation of these
doubt on the state's evidence. We facts himself in the course of his
do not purport to second guess trial representation. To elevate the
counsel on a matter of trial tactics; client's duty to disclose such facts
failure to conduct an adequate over the attorney's obligation to
investigation is not a matter of trial conduct a reasonable inquiry into
 Page 11

the client's deed or adequate was an adequate remedy at law in

investigation of the land records the form of damages. In attempting
would place too great a burden on to prognosticate a judicial result the
the lay client to make certain that expert has entered an area where
he gains a conversant familiarity his knowledge and experience is at
with the legal ramifications of an least coequal with that of an
unconventional and somewhat experienced trial judge. "There may
complex restrictive covenant so be no expert who knows more
that he can communicate that about the practice of law before the
information to the attorney. Superior Court than [*24] a judge
Moreover, such a requirement of that court. Judges routinely rule
would unfairly relieve the attorney on motions, preside at pretrial
of his correlative duty to make due settlement conferences, conduct
inquiry of all of the facts essential jury trials and sit as the trier of fact,
to a full understanding of the among other things . . . negligence
client's rights. FDIC v. Clark, 978 and breach of contract actions
F.2d 1541 (10th Cir. 1992) [*23] routinely come before the Superior
(attorney not justified in assuming Court. A judge, therefore, is aware
that the facts presented by the of the standard of care that applies
client were true since the attorney to attorneys practicing in the
had a duty independently to verify Superior Court." Dubreuil v. Witt,
facts on which an opinion is 80 Conn. App. 410, 421, 835 A.2d
based). 477 (2003). This court concludes
that although the Dubreuil court
The court does not accept the limited its holding to the
clear implication of Hawkins' circumstances of the case, see
testimony that Slane did not have Dixon v. Bromson and Reiner, 95
"the luxury of time" to make due Conn.App. 294, 299, 898 A.2d 193
inquiry into the relevant deeds. If (2006), such awareness includes
Slane had time to seek an the likelihood or not that the
amendment to his complaint after Superior Court would grant
commencing the action, he injunctive relief or specific
certainly had time to spend a few performance upon a given set of
moments examining these deeds
facts.5
while he was at the land records
searching for some sort of "license" 5 It is unrealistic to require
which he interpreted might exist as that a trial judge be limited
a result of his conversation with in his/her consideration of
Patricia Scarpelli. the standard of care in a
legal malpractice case to the
As a second component to his
testimony of an expert
opinion, Hawkins opined that it
when that testimony covers
was "more likely than not" that the
a field that the judge
court would not have issued an
himself has dealt with on
injunction halting construction on
numerous occasions. See
parcel Y because (i) the Tsois
Standard of Care in Legal
owned the property, and (ii) there
Malpractice, 43 Indiana
 Page 12

Law Journal, Issue 3, Art. The court evaluates the

12 at 776-78 (1968). Indeed opinions of [*26] the experts within
every pretrial settlement the framework of our well
conference requires the established Connecticut case law.
presiding judge to suggest "There is a long line of authority
to the [*25] participants a supporting the proposition that, as a
likely range of outcomes. general rule, irreparable and
substantial injury must threaten
The plaintiff's expert witness, before an injunction is warranted. A
Attorney Hecht who is not quite as few of the many cases so holding
highly credentialed as attorney are: Jones v. Foote, 165 Conn. 516,
Hawkins, testified that Slane 338 A.2d 467; Crouchley v.
violated the standard of care by not Pambianchi, 152 Conn. 224, 205
examining the related deeds and A.2d 492; Point O'Woods Assn.,
map before commencing the Inc. v. Busher, 117 Conn. 247, 167
lawsuit. He opined that had he done A. 546; Bigelow v. Hartford Bridge
so he would have clearly seen the Co., 14 Conn. 565. These and many
caveat contained in the Tsoi deed other similar cases have been
which explicitly precludes the examined, and in none of them was
acquisition of any rights to an injunction which was sought to
"adverse use in the owner of the enforce a restrictive covenant
Baruno property." He further refused for the lack of a threat of
opined that had Slane done so he substantial irreparable injury. Cases
would have based the Barunos' involving enforcement of
cause of action not on a theory of restrictive covenants show that in
adverse possession but on violation those actions a different standard is
of the restrictive covenant which applied to the request for an
expressly prohibited placement of a injunction.

2013 Conn. Super. LEXIS 1300, *26

"structure or driveway or other
manmade improvement on parcel "In Armstrong v. Leverone,
'Y.'" Finally, Attorney Hecht supra, this court found no error in
concluded that it was more likely the granting of an injunction
than not that the court would have against violation of a restrictive
enforced the restrictive covenant by covenant against business use of
granting equitable relief, including certain property. It stated (p. 472)
removal of the driveway that [p]roof of special damage is
improvements. Contrary to not necessary, and if the act of the
Attorney Hawkins' opinion was this defendant transgresses the
expert's belief that the plaintiff's restriction it is a violation of the
failure to inform Slane of the rights of the plaintiffs which is not
restrictive covenant did not excuse dependent upon [*27] the existence
Slane from examining the relevant or amount of damage. Berry on
deeds and map. Restrictions on Use of Real
Property, §413; Morrow v.
Hasselman, 69 N.J.Eq. 612, 61 A.
 Page 13

369; Peck v. Conway, 119 Mass. in good faith, although in violation

546. The court also held that the of a restrictive covenant. The court
defendant's substantial held that under those circumstances
expenditures did not make money damages would be
injunctive relief inequitable, adequate. It stated (pp. 115-16):
because they were made with Whether such an injunction should
knowledge that he was violating issue depends upon all the equities
the restrictions. between the parties. 32 Corpus
Juris, 147. When one has gone on
"In Hooker v. Alexander, 129 wrongfully in a wilful invasion of
Conn. 433, 29 A.2d 308, an another's rights in real property, the
injunction was granted restraining latter is entitled to have his
the defendant from violating a property restored to its original
covenant against rooming houses. condition even though the
The opinion stated that the rooming wrongdoer would thereby suffer
house reduced neighborhood great loss. It has been said that the
property values, but in answer to result of denying a mandatory
the defendant's claim that his injunction in such a case would be
operation of the rooming house did to 'allow the wrongdoer to compel
not damage his neighbors, the court innocent persons to sell their rights
stated (p. 437): 'The question of at a valuation.' Tucker v. Howard,
damage is immaterial as far as the 128 Mass. 361, 363. Where,
right of the plaintiffs to enforce the however, there has been an
restrictions is concerned. innocent mistake or a bona fide
Armstrong v. Leverone, 105 Conn. claim of right on the part of the
464, 472, 136 A. 71. It is sufficient defendant or laches on the part of
for the plaintiff to have a legal or the plaintiff, or where the conduct
equitable right which he is entitled of the defendant [*29] was not
to enforce. New England R. Co. wilful and inexcusable, and where
v. Central Ry. & Electric Co., 69 the granting of the injunction
Conn. 47, 56, 36 A. 1061.' Accord, would cause damage to the
Lampson Lumber Co. v. Caporale, defendant greatly disproportionate
supra, 685; Bickell v. Moraio, 117 to the injury of which plaintiff
Conn. 176, 167 A. 722. complains and it appears that
damages will adequately
"These holdings do not require
compensate the latter, in such cases
issuing an injunction whenever
it has been held that it would be
enforcement of a restrictive [*28]
inequitable to grant a mandatory
covenant is sought. An injunction is
injunction and the plaintiff has been
an equitable remedy, and may be
remitted to his remedy by way of
denied if the balance of the equities
damages [citations omitted].
favors the defendant. Thus in
Although this distinction is not
Bauby v. Krasow, 107 Conn. 109,
explicit in Moore v. Serafin, 163
139 A. 508, this court ruled that an
Conn. 1, 301 A.2d 238; that case
injunction should not be issued to
stands for the same proposition. It
require taking down a house when
held that it was proper to refuse an
construction had been commenced
injunction requiring the owner of a
 Page 14

mausoleum, built on a burial plot in The likelihood of obtaining

violation of a restriction against injunctive relief from a violation or
aboveground structures, to remove specific performance of the
the mausoleum, but error to deny restrictive covenant depended upon
an injunction restraining the whether, in the words of the Levitz
cemetery from granting permission court, the activity in which the

2013 Conn. Super. LEXIS 1300, *30

for future aboveground structures. Tsois engaged was "wrongful and a
wilful invasion of rights" conferred
"The case law thus shows that upon the plaintiff by the restrictive
the general rule requiring that covenant. To establish that Tsois'
substantial irreparable injury must activity within parcel Y was wilful
threaten before an injunction will and wrongful only requires
issue is subject to an exception. A reference to the judgment of [*31]
restrictive covenant may be mandatory injunction issued by this
enforced by injunction without a court (Karazin, J.) on May 28,
showing that violation of the 2008 enforcing the restrictive
covenant will cause harm to the covenant and the judgment of
plaintiff, so long as such relief is contempt of November 28, 2008
not inequitable. [*30] According to (Karazin, J.) for wilful failure to
this rule, the injunction in this case comply with the terms of the
was properly granted." (Alternate injunction.
citations omitted.) (Internal
quotations marks omitted.) The court concludes that the
Hartford Electric Light Co. v. defendant Slane departed from the
Levitz, 173 Conn. 15, 19-22, 376 applicable standard of care when
A.2d 381 (1977); Accord, City of he failed to examine the relevant
Waterbury v. Phoenix Soil, LLC, deeds and map and base the
128 Conn.App. 619, 628-29, 20 plaintiff's cause of action on the
A.3d 1 (2011). violation of the restrictive covenant
rather than on a theory of adverse
While in the final analysis, possession. The court further
such injunctive relief in the present concludes that had he done so, it is
case could have been denied on more likely than not that the court
equitable grounds, as compared to would have granted equitable relief
establishing ownership by adverse requiring that parcel Y, in so far as
possession (clear and convincing possible, be restored to its former
proof required) Clark v. Drska, 1 condition and would have awarded
Conn.App. 481, 484, 473 A.2d 325 compensatory damages to reflect
(1984), the course of action which the injury to the plaintiff's property
was more likely to have obtained rights arising from his failure to do
relief for the Barunos was to have so. Hart, Nininger & Campbell
sought enforcement of the Assoc., Inc. v. Rogers, 16
restrictive covenant which requires Conn.App. 619, 634, 548 A.2d 758
proof by a preponderance of the (1988).
evidence, a lesser standard.
 Page 15

Slane's reliance on Schlichting [l]egal cause is a hybrid construct,

v. Cotter, 109 Conn. App. 361, 952 the result of balancing philosophic,
A.2d 73 (2008), is misplaced pragmatic and moral approaches to
simply because the case did not causation. The first component of
involve enforcement of a restrictive legal cause is causation in fact.
covenant which, as stated above, Causation in fact is the purest legal
requires application of a different application of . . . legal cause. The
rule. Thus, Hawkins' opinion test for cause in fact is, simply
simply fails to [*32] recognize this would the injury have occurred
rule which makes it unnecessary to were it not for the actor's conduct . .
prove irreparable harm and .
therefore, lack of an adequate
remedy at law. Slane emphasizes "'The second component of
the fact that in several of the legal cause is proximate cause,
pleadings which Attorney Fred which [our Supreme Court has]
Rickles filed on behalf of the defined as [a]n actual cause that is
plaintiffs, Elizabeth continued to a substantial factor in the resulting
assert title by adverse possession. harm . . . The proximate cause
He further points to Rickles' requirement tempers the expansive
testimony that he would not have view of causation [in fact] . . . by
included such a cause of action if the pragmatic . . . shaping [of] rules
he did not believe that it was based which are feasible to administer,
on allegations that were true. The and yield a workable degree of
obvious inference which the certainty.' (Internal quotation marks
defendants seek to have the court omitted.) Vona v. Lerner, supra, 72
draw is that Rickles' adoption of the Conn.App. 189." Dubreuil v. Witt,
same legal theory that Slane used 80 Conn.App. at 427, supra.
somehow legitimized Slane's sole
Proof of causation must be
reliance on that theory. Such an
established through expert
inference is unwarranted because it
testimony. DiStefano v. Milardo, 82
misses the point and begs the
Conn. App. 838, 842, 847 A.2d
question. The fact is that the cause
1034 (2004). While Attorney
of action based on the restrictive
Hawkins opined that because
covenant was Rickles' primary
Slane's conduct did not violate the
theory and adverse possession was
applicable standard of care and
pled alternatively. P.B. §10-25. No
therefore could not have been the
amount of claims of title by adverse
cause of the plaintiff's injury,
possession can excuse Slane's
Attorney Hecht concluded that
failure to apprehend the existence
Slane's [*34] negligence was the
and importance of the restrictive
"producing cause" of the injury
covenant.
which plaintiff suffered and
"To prevail on a negligence quantified that injury as the loss in
claim, a plaintiff must establish that value to the plaintiff's property. The
the defendant's conduct legally court is amply persuaded by
caused the injuries . . . As [our Hecht's testimony that had Slane
Supreme Court] [*33] observed . . . brought the action based upon the
 Page 16

restrictive covenant and not solely The defendants contend further

based on a claim of adverse that plaintiffs have offered no
possession the plaintiff would not evidence that had they obtained
have suffered the injury that the judgment against the Tsois they
evidence revealed. The existence of would have been able to collect
proximate cause of an injury is anything from them. In Alexandru
determined by looking from the v. Strong, 81 Conn. App. 68, 76,
injury to the negligent act 837 A.2d 875 (2004), the Appellate
complained of for the necessary Court offered some insight into the
causal connection. DiStefano v. meaning of "collectible." The court
Milardo, 82 Conn.App. at 843, stated: "In other words, to succeed
supra. The court accepts the Hecht on her claim of malpractice for the
opinion as stating a logical, defendant's alleged failure to assert
foreseeable, consequence of Slane's her . . . claim . . . in a timely
omission. manner, the plaintiff must establish
that she would have been
Slane argues further that successful in pursuing that claim
causation depends upon the but for the defendant's omission."
timeliness of the efforts exerted to
obtain injunctive relief. He refers to The requirement in a legal
the fact that at the time the court malpractice case that had the
issued the injunction on May 28, offending attorney obtained a
2008 the Tsois had already judgment for the plaintiff in the
removed trees and laid a roadbed underlying case it would have been
for the driveway and therefore collectible appears to be unique in
2013 Conn. Super. LEXIS 1300, *35
Slane's claimed negligence could the law of negligent torts.
not have been the proximate cause Nevertheless, it seems [*36] to be a
of the plaintiffs' damages. This universal requirement. Where
position totally ignores the fact that jurisdictions differ is on where the
the injunction when issued was burden of proof lies.
predominantly mandatory in [*35]
nature, designed to achieve "The majority of jurisdictions
restoration of the property to its require the plaintiff to prove
former condition. Again, Slane collectibility. See McKenna v.
misses the point. Timing is not the Forsyth & Forsyth, 280 A.D.2d 79,
issue here. Failure to discover the 720 N.Y.S.2d 654, 657-58 (2001)
express prohibition contained in the (citing cases). The policy basis for
plaintiffs' deed against acquisition this approach is to avoid awarding
of the parcel by adverse possession the aggrieved more than he or she
is the issue along with the other would have recovered had the
prohibitory aspects of the attorney not been negligent. Id. at
restrictive covenant. 657. As one of these courts
reasoned, 'In a malpractice action, a
Collectibility plaintiff's 'actual injury' is measured
by the amount of money she would
have actually collected had her
 Page 17

attorney not been negligent.' Klump Kituskie, 714 A.2d at 1032."

v. Duffus, 71 F.3d 1368, 1374 (7th (Alternate citations omitted.)
Cir. 1995) (emphasis in original). Lavigne v. Chase, Haskel, Hayes
Hypothetical damages beyond what and Kilman, P.C., 112 Wn. App.
the plaintiff would have genuinely 677, 50 P.3d 306, 310 (Wash.
collected from the judgment 2002).
creditor 'are not a legitimate portion
of her 'actual injury;' awarding her Connecticut courts have not
those damages would result in a yet announced their position on this
windfall.' Klump, 71 F.3d at 1374. disputed issue. Consequently, this
Stated another way, these court is writing on a clean slate. In
jurisdictions tend to view undertaking this task the court finds
collectibility as a component of the instructive the opinion of the court
plaintiff's prima facie case. See, in Klump v. Duffus, 71 Fed.3d at
e.g., Klump, 71 F.3d at 1374 1374, supra.
(reasoning majority position on
"While we are mindful that a
collectibility is consistent with
[*38] minority of courts have
burden of proof in negligence
placed the burden on the defendant
actions generally).
to prove the uncollectibility of the
"However, [*37] a growing underlying judgment, we conclude
minority of jurisdictions holds that the burden is more properly
uncollectibility to be an affirmative placed on the plaintiff to prove the
defense that must be pleaded and amount she would have actually
collected from the original
proved by the negligent attorney.
tortfeasor as an element of her
See, e.g., Power Constructors, Inc.
malpractice claim. This is the
v. Taylor & Hintze, 960 P.2d 20,
position taken by the majority of
31-32 (Alaska 1998); Jourdain v.
courts and is more consistent with a
Dineen, 527 A.2d 1304, 1306 (Me. plaintiff's burden of proof in
1987); Jernigan v. Giard, 398 negligence actions generally."
Mass. 721, 500 N.E.2d 806, 807
(Mass. 1986); Hoppe v. The court believes that because
Ranzini, 158 N.J. Super. 158, 385 Connecticut places the burden of
A.2d 913, 920 (N.J. 1978); proof on a plaintiff to prove the
Ridenour v. Lewis, 121 Ore. App. necessary elements of a tort, see,
416, 854 P.2d 1005, 1006 (Or. e.g. Palombizio v. Murphy, 146
1993); Smith v. Haden, 868 F.Sup. Conn. 352, 358, 150 A.2d 825
1, 2 (D.D.C. 1994). These minority (1959), our appellate courts would
jurisdictions reason generally that adopt the majority rule. Thus, in the
collectibility is a problem precisely present case, the plaintiff bore the
because of the attorney's burden of establishing collectibility
malpractice, therefore, the attorney of the underlying judgment by a
should bear the burden and risk of preponderance of the evidence. See
proving uncollectibility. See Power Viola v. O'Dell, 108 Conn.App.
Constructors, 960 P.2d at 31-32; 760, 950 A.2d 539 (2008).
Jernigan, 500 N.E.2d at 807;
 Page 18

This court must now determine "The burden of persuasion can

whether the plaintiff has met that be satisfied by circumstantial
burden. evidence if the trier finds that the
facts from which the trier is asked
"A party satisfies his or her to draw the inference are proved
burden of persuasion if the and that the inference is not only
2013 Conn. Super. LEXIS 1300, *38
evidence, considered fairly and logical and reasonable but also
impartially, induces in the mind of strong enough so that it can be
the trier a reasonable belief that it found to be more probable than
is more probable than otherwise [*40] not. Terminal Taxi Co. v.
that the fact or issue is true. Busker Flynn, 156 Conn. at 316."
v. United Illuminating Co.., 156 (Alternate citations omitted.) Tait's
Conn. 456, 458, 242 A.2d 708 Handbook of Connecticut
(1968). [*39] It is not necessary Evidence, 3rd Ed. at 3.5.1, p. 140.
that the proof negate all other
possibilities or that it reach the It is not one fact but the
degree of certainty that excludes cumulative impact of a multitude of
every other reasonable conclusion. facts which establishes liability in a
Terminal Taxi Co. v. Flynn, 156 case involving substantial
Conn. 313, 318, 240 A.2d 881 circumstantial evidence. State v.
(1968). But such preponderance Rodgers, 198 Conn. 53, 58, 502
does not refer to the number of A.2d 360 (1985). The trier of fact is
witnesses but rather the evidence not permitted to resort to
that is superior and more likely to speculation or conjecture. State v.
be in accord with facts, Verdi v. Stankowski, 184 Conn. 121, 136,
Donahue, 91 Conn. 448, 450, 99 A. 439 A.2d 918 (1981). "There is no
1041 (1917). The quality of the legal distinction between direct and
evidence controls, not the quantity. circumstantial evidence as far as
State v. Williams, 195 Conn. 1, 13, probative force is concerned." State
485 A.2d 570 (1985). When the v. Haddad, 189 Conn. 383, 390,
evidence is equally balanced or in 456 A.2d 316 (1983).
equipoise, then the proponent has
The term "collectibility"
not met his or her burden of
normally is applied to a money
persuasion. Brodie v. Connecticut
judgment. In the present case, the
Co., 87 Conn. 363, 364, 87 A. 798
relief sought in the underlying case
(1913). A party has not met the
was injunctive, both prohibitory
burden of persuasion merely
and mandatory in nature. Although
because the evidence is
Slane requested a judgment of
uncontested or uncontroverted
adverse possession at the outset, the
because the trier, as the judge of
relief that was needed and to which
credibility may disbelieve such
the plaintiff was entitled was a
evidence. Mercer v. Mercer, 131
cessation of further violation of the
Conn. 352, 353, 39 A.2d 879
restrictive covenant and restoration
(1944).
of Tsois' property to the condition
which existed before the violation.
 Page 19

Such a judgment is not enforced by (1871); see Board of Education v.

levying execution on Tsois' assets Shelton Education Ass'n, supra."
but by use of the sanction [*41] of Papa v. New Haven Federation of
contempt. The court does not Teachers, 186 Conn. 725, 738-39,
believe that the mandatory 444 A.2d 196 (1982).
components of Judge Karazin's
contempt order converts the To the extent that a money
essentially equitable remedy of judgment may have been
injunction into a monetary remedy. recoverable in the underlying
The essential nature of collectibility action as partial or even full relief
cannot be equated with for the plaintiff the court finds
enforceability because an informative the Supreme Court's
injunction can be enforced without decision in Margolin v. Kleban &
the need for the plaintiff to collect Samor, P.C., 275 Conn. 765, 775,
any money. "Money judgment" 882 A.2d 653 (2005). In Margolin,
means "a judgment, order or decree the plaintiff proved the existence of
calling in whole or in part for the an investment account which
payment of a sum of money." G.S. contained sufficient assets to fund a
§52-350a. The fact that the court's prejudgment remedy which the
contempt judgment of November plaintiff alleged that the defendant
28, 2008 contained monetary attorney negligently failed to
awards does not transform the identify.
original cause of action which
The court found that evidence
should have sought an equitable
of the existence of the value of the
decree to one seeking a monetary
account was sufficient to prove that
judgment.
the defendant in the underlying

2013 Conn. Super. LEXIS 1300, *42

action had sufficient attachable
"The court's authority to assets at the time of the
impose civil contempt penalties prejudgment remedy that could
arises not from statutory provisions have satisfied any judgment. This
but from the common law. Potter v. was so even though the defendant
Board of Selectmen, supra, 197; became insolvent three years latter.
Welch v. Barber, 52 Conn. 147, 156 The defendant argued that the
(1884); Huntington v. McMahon, financial statement which listed the
48 Conn. 174, 196 (1880). The investment account spoke as of
penalties which may be imposed, June 1992 and did not prove that it
therefore, arise from the inherent was available for attachment when
power of the court to coerce the underlying [*43] action was
compliance with its orders. In brought in July 1993.
Connecticut, the court has the
authority in civil contempt to In affirming the judgment
impose on the contemnor either below the court held that proof of
incarceration or [*42] a fine or the existence of an account
both. Rogers Manufacturing Co. v. containing sufficient funds to
Rogers, 38 Conn. 121, 123-24 satisfy the attachment in 1992
 Page 20

constituted sufficient evidence of Dingletown Road, Greenwich,

collectibility of any judgment Connecticut. While there was no
obtained pursuant to that testimony describing these
attachment even though there was properties, the court having lived
evidence that the debtor became nearby for many years, is familiar
impoverished four to five years with the neighborhoods and would
later. In rejecting the defendant's describe the houses as substantial
argument that proof of the in size and value. 4.) There was no
existence of sufficient assets in evidence that the Tsois lacked
1992 was not proof of the existence equity in these properties or that
of the asset four years later, the they were in a state of disrepair. 5.)
court stated: "We will not find The Tsois invested substantial sums
evidence insufficient merely during the period in question to
because other evidence, not construct the driveway, stonewall
introduced might have proved the and new home on parcel Y. 6.) The
fact in question with greater remaining amount due under the
specificity." Id. at 775. settlement agreement was secured
by a promissory note and mortgage
With this guidance, the court on Tsois' Boulder Brook Road
will now examine and vet the property. As stated above, there was
evidence of collectibility in the no evidence of any prior
present case. The following encumbrances on this property.
evidence supports this court's Moreover, it can reasonably be
finding that had the plaintiff [*45] inferred that the plaintiffs
recovered a monetary judgment as would not have accepted the
either partial or full relief in the mortgage on 39 Boulder Brook
underlying action, it is more Road if they did not believe that the
probable than not that the judgment Tsois had sufficient equity in the
would have been collectible. The property. (Requirement of
court identifies the following pieces collectibility satisfied by evidence
of evidence to support this of acceptance of beneficial
conclusion. 1.) The Tsois were settlement.) Mallen & Smith, Legal
willing to enter into a settlement Malpractice §33:8, at 201 (2013
[*44] agreement which obligated Ed.) Comparative Negligence
them to pay $250,000. Although
the Tsois ultimately defaulted on For a special defense, Slane
this obligation there was no has alleged that if he was negligent,
evidence that they did so because the plaintiffs were negligent in their
of insolvency. 2.) The Tsois own right and that this was a
actually paid $17,000 on account of substantial factor in causing
this settlement agreement. 3.) At plaintiffs' injuries and damages.
the commencement of the action, These allegations read as follows:
the Tsois owned three houses: (a)
"(a) they failed to act
lot number 2 as shown on exhibit 5
reasonably and failed to follow the
and known as 36 Montgomery
advice of the professionals they
Lane; (b) 39 Boulder Brook Road,
retained to represent them in
Greenwich, Connecticut; (c) 101
 Page 21

connection with their dispute with impression" that nothing could be

the Tsois; built on parcel Y. However, he did
deliver the survey (Ex. H) which
(b) they knew or should have contained the notation recited in
known about any rightsconferred
2013 Conn. Super. LEXIS 1300, *46
upon them by the deed restrictions full at page 4, supra.
and covenants, but they failed to
provide this information to Slane The assertion that the Barunos
and the Slane Law Firm prior to or had or should have had knowledge
during the course of the litigation of the restrictive covenant and
between Elizabeth Baruno and the therefore were duty bound to have
Tsois; and disclosed that knowledge to Slane
is irrelevant to the transcendent
(c) they failed to provide responsibility which Slane [*47]
copies of the deeds to Slaneand the had from the facts before him to
Slane Law Firm prior to or during conduct due inquiry and make an
the course of the litigation between adequate investigation of the
Elizabeth Baruno and the Tsois." existence of all of the property
rights held by the opposing party.
Initially, [*46] the court The court finds that the plaintiff
observes that only (b) and (c) have supplied Slane enough information
been briefed and therefore (a) is to induce him to conduct a simple
deemed to have been abandoned investigation of the relevant deeds
for failure to offer any analysis. and map. Therefore, the plaintiffs
Connecticut Light and Power Co. committed no negligence on their
v. Dept. of Public Utility Control, part.
266 Conn. 108, 120, 830 A.2d 1121
(2003). Damages

Connecticut recognizes the "'In legal malpractice actions,

defense of comparative negligence the plaintiff typically proves that
in legal malpractice cases. Somma the defendant attorney's
v. Gracey, 15 Conn.App. 371, 377- professional negligence caused
78, 544 A.2d 668 (1988). The injury to the plaintiff by presenting
defendants have offered no evidence of what would have
affirmative evidence in support of happened in the underlying action
their claim. On the other hand, the had the defendant not been
evidence is uncontroverted that the negligent. This traditional method
Barunos failed to provide Slane of presenting the merits of the
with a copy of the deed or title underlying action is often called the
policy because they were lost or 'case-within-a-case' 5 R. Mallen &
misplaced and that they failed to J. Smith, Legal Malpractice (5th
inform Slane that they had learned Ed. 2000) §33.8, pp. 69-70.'
from a surveyor that "no one could Margolin v. Kleban & Samor, P.C.,
do anything on the strip" (handle of 275 Conn. 765, 775 n.9, 882 A.2d
parcel Y) although Gerald did tell 653 (2005)"; Lee v. Harlow, Adams
him that he "was under the & Friedman, 116 Conn.App. 289,
 Page 22

297, 975 A.2d 715 (2009) (alternate omitted.) Willow Springs

citation omitted). Condominium Assn., Inc.
v. Seventh BRT Development
In order to recover damages Corp., 245 Conn. 1, 58-59, 717
the Barunos must establish that A.2d 77 (1998). [*49] 'Proof of
they would have been successful in damages should be established with
pursuing their "case" but for Slane's reasonable certainty and not
negligence, Alexandru v. Strong, 81 speculatively and
Conn.App. 68, 76, 837 A.2d 875 problematically . . . Damages may
(2004). In this significant [*48] not be calculated based on a
respect a legal malpractice case contingency or conjecture.'
differs from other professional (Citations omitted; internal
malpractice cases in particular, and quotation marks omitted.) Leisure
personal injury cases in general. Resort Technology, Inc. v. Trading
Cove Associates, 277 Conn. 21, 35,
"When damages are claimed
889 A.2d 785 (2006)." (Alternative
they are an essential element of the
citations omitted.) Carrano v. Yale
plaintiff's proof and must be proved
New Haven Hospital, 279 Conn.
with reasonable certainty. Simone
622, 650, 904 A.2d 149
Corporation v. Connecticut Light
(2006).
& Power Co., 187 Conn. 487, 495,
446 A.2d 1071 (1982); Bianco v. The general rule is that the
Floatex, Inc., 145 Conn. 523, 525, damages recoverable in a legal
144 A.2d 310 (1958). Damages are malpractice case are what would
recoverable only to the extent that have been recovered had the
the evidence affords a sufficient defendant properly pursued the
basis for estimating their amount in plaintiff's claim. In this case the
money with reasonable certainty." recovery is complicated somewhat
(alternate citations omitted.) by the fact that the underlying
Gaudio v. Griffin Health Services, claim was primarily one for
249 Conn. 523, 554, 733 A.2d 197 injunctive relief and not for
(1999). damages. However, the fact that the
plaintiffs may have been entitled to
"'To authorize a recovery . . .
injunctive relief did not preclude
facts must exist and be shown by
them from recovering monetary
the evidence which affords a
damages. Hart, Nininger &
reasonable basis for measuring the
Campbell Associates, Inc. v.
[plaintiff's] loss. The [plaintiff has]
Rogers, 16 Conn. App. 619, 633,
the burden of proving the nature
548 A.2d 758 (1988).
and extent of the loss . . .
Mathematical exactitude in the The plaintiff seeks damages for
proof of damages is often the following: (1) diminution of
impossible, but the plaintiff must property value; (2) cost of
nevertheless provide sufficient remediation and repair of the
evidence for the trier to make a fair physical injury to the property
and reasonable estimate.' (Citation resulting from activities on the
omitted; internal quotation marks Tsois' property; (3) "hedonic"
 Page 23

damages resulting from [*50] the discretion in reaching such

plaintiff's inability to benefit from conclusion, and [its] determination
and enjoy the use of her property; is reviewable only if [it] misapplies
(4) the cost to restore the Tsois' or gives an improper effect to any
property to its former condition; (5) test or consideration which it was
the legal fees incurred for the [its] duty to regard." Franc v.
services rendered by the law firms, Bethel Holding Co., 73 Conn.App.
of Gilbride, Tusa, Last & Spellane 114, 120, 807 A.2d 519 (2000).
and Greenspan and Greenspan; (7)
legal fees paid to the defendants; In the present case there is
(8) contempt fees levied against the evidence of both loss of value to
Tsois; (9) prejudgment interest; the plaintiff's property and the cost
(10) costs and expenses. These will of repairs necessitated by the Tsois'
be considered in order. construction activities. Ordinarily,
however, a plaintiff who has
Diminution of Property Value suffered injury to his property may
be compensated only for the
In an action for damages to diminution in its value or the cost
real property, "[t]he basic measure of repair or restoration to its former
of damages . . . is the resultant condition but not both. Argentinis
2013 Conn. Super. LEXIS 1300, *50
diminution in value . . . in order to v. Fortuna, 134 Conn.App. 538,
assess the diminution in value, 554, 39 A.3d 1207 (2012).
however, the trial court must first
determine the value of the property, The plaintiffs presented an
both before and after the injury has expert witness, Charles Magyar
occurred . . . In actions requiring who testified concerning loss of
such a valuation of property, the value in accordance with his
trial court is charged with the duty written appraisal report which was
of making an independent placed in evidence. The defendant
valuation of the property involved . offered no countervailing
. . [N]o one method of valuation is testimony. "The credibility of
controlling and . . . the [court] may expert witnesses and the [*52]
select the one most appropriate in weight to be accorded their
the case before [it] . . . Moreover, a testimony are within the province
variety of factors may be of the trier of facts who is
considered by the trial court in privileged to adopt whatever
assessing the value of such testimony he reasonably believes is
property. [T]he trier arrives at his credible." Transportation Plaza
own [*51] conclusions by weighing Associates v. Powers, 203 Conn.
the opinions of the appraisers, the 364, 378, 525 A.2d 68 (1987). Mr.
claims of the parties, and his own Magyar performed a before and
general knowledge of the elements after analysis and concluded that
going to establish value, and then the property had a value of
employs the most appropriate $1,350,000 before any activity took
method of determining valuation . . place on the Tsois' property and
. The trial court has broad $1,100,000 after the construction
 Page 24

activities were completed or Second, drawing upon the court's

ceased. Thus, he opined that the "own knowledge of the elements
property value suffered to the which go to establish value"
extent of $250,000. (Franc v. Bethel Holding Co.,
supra), real estate values in
The defendants point out Greenwich have generally
however, that Magyar's opinion decreased between 2006 and 2011,
related to a period of six to twelve but Magyar did not attribute any of
months from the date of his the loss in value to this
testimony, July 25, 2012 thus phenomenon. Next, Magyar refers
placing the period covered by his to the loss of value as an "external
opinion at July 25, 2011 to July 25, appeal adjustment." Thus, if the
2012. The defendants argue on the construction activities had a
basis of this timeline that Magyar's negative effect on the "external
testimony must be disregarded appeal" of the plaintiff's property,
because it does not speak as of the that condition existed to the same
time that the plaintiff's property extent in 2006 as it did in 2011
suffered injury, namely, February- because physical [*54] conditions
May 2006. The court rejects that on the Tsois property remained the
argument and notes that Magyar's same. Finally, whereas here there
appraisal report explicitly states was a court order extant which
that it: "deals with an estimate of mandated remediation and
value for the subject property prior restoration of the Tsoi property
to the construction activities." So it which remained in noncompliance,
is clear that [*53] the assigned it is proper to fix the "after" value
value of $1,350,000 relates to the at a date later than the cessation of
time prior to the activities Tsois' construction activities.
complained of in early 2006.
Cost of Remediation and Repair of
Moreover, Magyar's appraisal Plaintiffs' Property
report states on its face page that
the appraisal is "As of April 28, It was clear from Charles
2011." Both a reading of the report Magyar's testimony and appraisal
and consideration of Magyar's report that his estimate of
testimony on the whole leads this diminution of value was based
court to the conclusion that entirely on the "negative impact"
notwithstanding that later date, which Tsois' construction activities
Magyar's point was that the had on the market value of the
property loss $250,000 in value plaintiff's property without taking
2013 Conn. Super. LEXIS 1300, *54
regardless of whether the loss into consideration the estimated
occurred in 2006 or 2011. This is a costs of repairing the physical
fair inference for at least three damage which was inflicted on the
reasons. First, the physical property. He stated the following in
characteristics of the offending his report. "It's your appraiser's
property remained basically opinion that the construction
unchanged from 2006 to 2011. performed by the developer of 35
 Page 25

(sic) Montgomery Lane has created and remediation would be left

a negative impact on the subject uncompensated if not included as
property by clear cutting existing an element of the plaintiff's
bushes and trees and the damages. It must [*56] therefore be
construction of multiple retaining compensated.
walls, new driveway and stone
walls running along the The plaintiff produced a "civil
southeastern property line of the engineer and surveyor," John
subject and within the deed Giancola to describe the damage
restricted land parcel Y (See Photo which Tsois' activities produced on
2) entitled "Retaining walls along the plaintiffs' property. This
[*55] the 60 foot long line denoted consisted mainly of surface water
as 'S 55 degrees 13' 30" E on runoff from Tsois' property to the
Survey of Property for Jianhua Cia plaintiffs which caused "ponding,
Tsoi (shown as Exhibit B within sink holes, cracking and breaking
the body of this report) (Photo 2) of their driveway surface" as well
depicting the retaining wall clearly as "damage to their basketball
within the deed restricted area and court."
(Photo 3) showing the south side of
This element of damages was
driveway within Parcel Y and
created not so much by the
(Photo 4) showing the north side of
activities which took place in
driveway Therefore the 20%
parcel Y (although Giancola
external appeal adjustment was
describes similar drainage
warranted to support the market
problems along parcel Y) but rather
value as of April 28, 2011."
the construction of a new house on
(Emphasis added.)
the Tsois' property served by a new
Thus Magyar's entire appraisal driveway located on parcel Y.
report was based not on the cost of These "improvements" changed the
repairing the physical damage done grade of the Tsois' property and
to the plaintiff's property but rather produced the harmful runoff. (See
on the damage caused the Exhibit 54.) Mr. Giancola testified
property's "external appeal." further that it would cost $120,000
Because of this intentional to repair this damage. The
omission, limiting damages to defendants offered no testimony to
diminution of the value of the challenge this figure. Defendants
property would preclude argue that by Gerald's own
compensation to the owner for all admission the ponding condition
of the damages that are a was corrected for $10,000 and the
foreseeable consequence of the resurfacing of the driveway is
harmful acts. Mindful of the estimated to cost $17,250. It is
principle that a plaintiff may be apparent from the testimony that
compensated only once for his just these repairs did not resolve the
damages for the same injury, drainage problem.
Argentinis v. Fortuna, 144
Restoration of Tsois' [*57] Property
Conn.App. at 554, supra, the court
concludes that the cost of repair
 Page 26

The plaintiffs also seeks in which the court recognized the

recovery of the cost to restore the principle of hedonic damages, the
Tsoi property to its condition prior Tennessee case of Spencer v. A-1
to construction of the new house in Crane Services, 880 S.W.2d 938
violation of the restrictive (1994), interprets the Connecticut
covenant. At trial the plaintiffs case of Katsetos v. Nolan, 170
attempted to offer testimony of the Conn. 637, 657, 368 A.2d 172
cost of such restoration through (1976), as permitting the inclusion
John Giancola but in response to of such damages in a wrongful
the defendants' objection the court death damages award. Such a
ruled that the disclosure of this reading undoubtedly was inspired
expert was not broad enough to by the Connecticut court's approval
permit Giancola's opinion of an award for loss of the
concerning the cost of moving the plaintiff's "capacity to carry on and
new Tsoi dwelling back on the lot enjoy life's activities in a way she
sufficiently to avoid having any would have done had she lived."
part of it located on parcel Y and This court is aware that damages
the costs associated with that. The for "loss of the ability to perform
court did however allow testimony life's activities" has historically and
concerning remedial measures regularly been included in personal
needed "on the ground" and injury damages awards. See
nothing more. While Giancola Johnson v. Pike, 136 Conn.App.
ultimately testified that it would 224, 232, 46 A.3d 191 (2012). No
cost $100,000 to restore parcel Y to decision reported or unreported,
its former condition, these damages supports the award of such
are already accounted for in damages in a legal malpractice case
Charles Magyar's analysis of the where the gravamen of the action is
loss in value to the plaintiffs' injury to real property. Plaintiff's
property as impacting "external reliance on Johnson v. Flammia,
appeal." Such an award would 169 Conn. 491, 363 A.2d 1048
constitute dual compensation for (1975), [*59] is misplaced. In that
the same injury. case the court stated the rule of
damages which applies to negligent
Hedonic Damages installation of a swimming pool, to
wit, the value of the loss of the use
During the trial and now in
of the pool. In different words, this
their brief, the plaintiffs claim so
is essentially the same rule of
called "hedonic damages." While
damages which applies to injury to
the element of hedonic damages
real property, namely, its loss of
normally refers to [*58] loss of
value. World Springs
enjoyment or value of life, it seeks
Condominium Association, Inc. v.
to recover for the intangible value
Seventh BRT
of life as distinct from the human
Development, Corp., 245 Conn. 1,
capital value or lost earnings value.
59, 717 A.2d 77 (1998). In
Sherrod v. Berry, 827 F.2d 195 (7th
Connecticut therefore, hedonic
Cir. 1987). While no Connecticut
damages do not constitute a
appellate decision could be found
separate element of damages to real

2013 Conn. Super. LEXIS 1300, *58

 Page 27

property but are subsumed within negligent attorney is precluded

the loss of value caused the from collecting any fee at all,
property by the injury. Legal Fees Campagnola v. Mulholland, 76
Paid N.Y.2d 38, 42, 555 N.E.2d 611, 556
N.Y.S.2d 239 (1990), and that the
To the Defendants litigation costs in the malpractice
action "cancel out" any attorneys
The plaintiffs have paid the
fees that might have been owed had
defendants $10,386 in attorneys
the negligent attorney successfully
fees for the services the defendants
prosecuted the underlying case.
performed in the failed attempt to
Winter v. Brown, 365 A.2d 381, 386
obtain relief for them. The plaintiffs
(1976, D.C.).
seek to have them disgorge these
fees. The defendants first contend To Gilbride, Tusa
that the plaintiff has not pled
recovery of these fees. The court The claim for recovery of the
disagrees. Paragraph 84D alleges attorneys fees paid or incurred to
that the plaintiffs were paid for the the law firm that took over the case
services in full but negligently from the [*61] defendants stands
performed these services (Par. 86) on unusual footing. In Connecticut,
and in their prayer for relief they the general rule is well settled that
request compensatory damages. ordinarily parties are responsible
Compensatory damages include the for their own attorneys fees.
plaintiff's actual losses. [*60] Hi- Mangiante v. Niemiec, 98 Conn.
Ho Tower, Inc. v. Com-Tronics, App. 567, 570, 910 A.2d 235
Inc., 255 Conn. 20, 34, 761 A.2d (2006). A well recognized
1268 (2000). It has been said that exception to this rule is where a
"recovery for compensatory contractual provision obligates an
damages is commensurate with the offending party to pay attorneys
harm incurred." Gionfriddo v. fees to the offended party. Storm
Gartenhaus Cafe, 15 Conn. App. Associates, Inc. v. Baumgold, 186
392, 399, 546 A.2d 284 (1988). Conn. 237, 245-46, 440 A.2d 306
Ballentine's Law Dictionary defines (1982). Here, the plaintiff argues
compensatory damages as "the that the express terms of the
damages recoverable in satisfaction restrictive covenant entitle them to
of or in recompense for loss or recover such fees. The plaintiff
injury sustained including all relies on the following language of
damages except nominal damages, the covenant.
punitive damages or exemplary
damages." Ballentine's Law "The Grantor, its successors
Dictionary 3rd. Ed. at 233. Clearly and assigns shall have the right to
the fees paid the defendant were maintain an action at law or in
part of the losses which the plaintiff equity to enjoin or remove any
suffered as a result of Slane's prescribed (sic) activity or structure
negligence which they are now within said parcel X and/or parcel
entitled to regain. Indeed, in some Y, and the legal fees and other
jurisdictions it has been held that a expenses associated with enforcing
these restrictions shall be borne and
 Page 28

paid by the Grantees, their heirs, $475 for attorneys. The defendant
administrators, executors and objects to these fees, because there
assigns as the owner or owners of was no proof offered of any effort
the restricted Parcels X and Y, or [*63] to collect these fees and
either of them with respect to expenses from the Tsois. While
which enforcement is sought." failure to pursue the Tsois may be
(Emphasis added.) viewed by the defendants as an
intervening act of negligence by
Plaintiff contends that this omission on the part of Gilbride,
language creates a contractual Tusa if such were the case, such an
obligation which is binding [*62] intervening act does not excuse the
on the defendants by virtue of their negligence of the defendants. In
negligence. In addressing this issue fact, the doctrine of superseding
the court must first determine if this cause in our tort jurisprudence has
component of the covenant creates been abrogated by our case law.
a contractual right in the plaintiff to Barry v. Quality, Inc., 263 Conn.
recover, and if so, whether such 424, 436, 820 A.2d 258
sums can be recovered in this (2003).
malpractice action.
As discussed above in the
A covenant is defined as "an analysis of the rule of proximate
agreement in writing and duly cause, the defendants are
executed whereby one or more of responsible for all damages which
the parties named therein engages are a reasonably foreseeable as
that a named act is to be consequence of their acts.
performed." Ballantine's Law
Dictionary, 3rd Ed. at 385. The "We have consistently adhered
deed in which a covenant is to the standard of 2 Restatement
contained has been considered a (Second), Torts §442B (1965) that a
contract by our courts. Cohen v. negligent defendant, whose conduct
Holloways', Inc.., 158 Conn. 395, creates or increases the risk of a
410, 260 A.2d 573 (1969). Thus, particular harm and is a substantial
the covenant created a contractual factor in causing that harm, is not
obligation on the part of the owners relieved from liability by the
of parcels X and Y to pay legal fees intervention of another person,
and other expenses in any action except where the harm is
brought to enforce its terms. intentionally caused by the third
Gilbride, Tusa presented billings person and is not, within the scope
which totaled $226,059.50 which of the risk created by the
represented attorneys fees and defendant's conduct. Kiniry v.
2013 Conn. Super. LEXIS 1300, *62
$13,437.85 which represented Danbury Hospital, 183 Conn. 448,
expenses for a total of $239,497.35. 455, 439
Attorney Rickles testified that the A.2d 408 (1981); Merhi v. Becker,
hourly rates upon which the time [supra, 522]; Miranti v. Brookside
charges are based range from $100 Shopping Center, Inc., 159 Conn.
to $125 for paralegals and $250 to
 Page 29

24, 28, 266 A.2d 370 (1969); [*64] Having held that the duty to pay
(alternate citations omitted) attorneys fees and expenses arises
Doe v. Manheimer, 212 Conn. 748, by virtue of the contractual nature
759, 563 A.2d 699 (1989). The of the covenant, the claim is not an
commentators agree. "The client's element of negligence damages.
injury may be the expense of The court believes that this issue is
retaining another attorney. Such controlled by Storm Associates,
damages can result from an attempt Inc. v. Baumgold, supra.
to avoid or minimize the
consequences of the former "It is to be noted that the
attorney's negligence." Mallen & plaintiff derives its right to recover
Smith, Legal Malpractice §21:6 at an attorneys fee in this case from
24 (2013 its contract and not from a claim
Ed.). for damages. See Litton Industries
Credit Corporation v. Catanuto,
Whether the omission of 175 Conn. 69, 76, 394 A.2d 191
Gilbride, Tusa to pursue the Tsois (1978). The defendant's reliance on
for the fees was negligent or cases assigning to a plaintiff the
intentional, it clearly was within the burden of proof with respect to
scope of the risk created by the damages; Slattery v. Maykut, 176
defendants' conduct. "The Conn. 147, 151, 405 A.2d 76
substantial factor test, in truth, (1978); Bertozzi v. McCarthy, 164
reflects the inquiry fundamental to Conn. 463, 468, 323 A.2d 553
all proximate cause questions: that (1973); is therefore inapposite.
is, 'whether the harm which Under the terms of this contract,
occurred was of the same general the plaintiff was entitled to an
nature as the foreseeable risk attorneys fee which it had 'incurred'
created by the defendants' without express regard to its
negligence.'" Dow v. Manheimer, reasonableness. Cases interpreting
212 Conn. at 758. In the present contract clauses which require the
case the court finds that payment of 'reasonable attorneys
Gilbride Tusa's failure to pursue the fees,' where we have required an
Tsois was within the scope of the evidentiary showing of
risk as reasonably foreseeable and reasonableness, are therefore
was of the same general nature as equally inapposite. Stelco
the foreseeable risk created by the Industries, v. Cohen, 182 Conn.
defendants' malpractice. 561, 567-68, 438 A.2d 759 (1980);
Lebowitz v. McPike, 151 Conn.
The defendants further object 566, 568, 201 A.2d 469 (1964). We
to these fees and expenses because are persuaded [*66] that a contract
there was no proof of clause calling for the

2013 Conn. Super. LEXIS 1300, *66

reasonableness. St. Onge, Stewart, reimbursement of fees 'incurred' by
Johnson, Reens, LLC v. Media the plaintiff permits the recovery of
Group, Inc., 84 Conn.App. 88, 97, such fees upon the presentation of
851 A.2d 1242 (2004). [*65] an appropriate bill, whether such
 Page 30

fees are payable to an attorney or to fees but the court's familiarity with
a physician. In the latter case, we going rates at the time as well as its
have long held that 'proof of the general knowledge of the level of
expenses paid or incurred affords competence of Gilbride Tusa lead
some evidence of the value of the to the conclusion that the fees are
services, and if unreasonableness in not unreasonable. Bizzoco v.
amount does not appear from other Chinitz, 193 Conn. 304, 310, 476
evidence or through application of A.2d 572 (1984). The general rule
the trier's general knowledge of the is that "a client may incur attorneys
subject-matter, its reasonableness fees and litigation expenses in
will be presumed.' Carangelo v. attempting to avoid, minimize or
Nutmeg Farm, Inc., 115 Conn. 457, reduce the damage caused by the
462, 162 A. 4 (1932); Flynn v. First attorney's wrongful conduct."
National Bank & Trust Co., 131 Mallen & Smith, Legal
Conn. 430, 40 A.2d 770 (1944). Malpractice, §21:10 at 35 (2013
Similarly, a contract clause Ed.); Sorenson v. Fiorito, 90 Ill.
providing for reimbursement of App. 3d 368, 413 N.E.2d 47, 45 Ill.
'incurred' fees permits recovery Dec. 714 (1980, Ill.).
upon the presentation of an
attorney's bill, so long as that bill is To Greenspan and Greenspan
not unreasonable upon its face and
As the court stated at the
has not been shown to be
conclusion of the trial, the issue of
unreasonable by countervailing
whether the plaintiffs are entitled to
evidence or by the exercise of the
attorneys fees in the prosecution of
trier's own expert judgment."
this action should await the court's
Storm Associates, Inc. v.
decision on liability-related issues
Baumgold, 186 Conn. 237, 246,
in the case. The parties are [*68]
440 A.2d 306 (1982).
directed to file supplemental briefs
within two weeks limited to the
The specific contractual
issue of whether such attorneys
language which was involved in
fees recoverable in this action.
Storm Associates was as follows:
"[t]he undersigned owner(s) Contempt Fines Levied Against
covenant(s) and agree(s) [*67] to Tsois
pay and be responsible for all costs,
disbursements and attorneys fees In the court's decision of
incurred in any action to collect any November 28, 2008 on the
commission earned pursuant to the plaintiff's motion for contempt, the
above." Id. at 245. court distinguished between
coercive and remedial fines. As the
The language of the covenant court pointed out, a coercive fine is
in this case is substantially similar. imposed to coerce compliance with
This court perceives no functional a court order, is conditional and
difference in meaning between continues until the disobedient
"incurred" and "associated with." party complies with the mandate of
Not only was no evidence offered the court. Board of Education v.
of the unreasonableness of these Shelton Education Association, 173
 Page 31

Conn. 81, 376 A.2d 1080 (1977). A violation of the injunction."

remedial fine on the other hand is DeMartino v. Monroe Little
intended to compensate the League, Inc., supra at 279. Because
complainant for losses sustained. If the $500 per day fine will
a fine is imposed it is payable to the necessarily exceed the amount of
plaintiff. DeMartino v. Monroe the actual losses incurred by the
Little League, Inc., 192 Conn. 271, plaintiff and already awarded by
278-79, 471 this court they are not a proper
element of damages which the
A.2d 638 (1984). In its order, the plaintiffs may recover.
court awarded the plaintiff
attorneys fees and costs in the Prejudgment Interest
amount of $7,916.50. Since
Gilbride Tusa was awarded this Plaintiff seeks to recover
sum it is presumed that this amount prejudgment interest pursuant G.S.
is included in its billing which is in §37-3a arguing that [*70] the losses
evidence (Ex. 45) although it does which the plaintiff suffered
not appear as a separate entry, and constitute monies of which the
none of the entries are dated. plaintiff was deprived. While a
Because the court has already plausible argument can be made
awarded damages in the full that a $250,000 reduction in the
amount of the billing, a separate value of the plaintiffs' property
[*69] award for this portion of the after the Tsois completed their
contempt judgment would construction activities is
constitute an impermissable double tantamount to a wrongful detention
compensation. If the fee is not so of money, similar to a diminution in
included but remains unpaid property value which occurs after a
separately, then it is recoverable. partial taking by eminent domain
The second part of the judgment is (see G.S. §37-3c), recovery of
for engineering costs of $2,392 interest in this case is governed by
which unlike the attorneys fees are G.S. §37-3b. The statute provides
not accounted for elsewhere and in pertinent part as follows:
which are clearly remedial in
Sec. 37-3b. Rate of interest
nature. The last component part of
recoverable in negligence actions.
the judgment was a fine of $500
(a) For a cause of action arising on
per day for every day that the work
or after May 27, 1997, interest at
is not completed commencing on
2013 Conn. Super. LEXIS 1300, *70
December 31, 2008. The court the rate of ten per cent a year, and
made this payable to the plaintiff. It no more, shall be recovered and
would appear therefore that the allowed in any action to recover
court intended to make this clearly damages for injury to the person, or
coercive fine both remedial and to real or personal property, caused
punitive. On the other hand, "such a by negligence, computed from the
compensatory fine must be limited date that is twenty days after the
to the actual damages suffered by date of judgment or the date that is
the injured party as a result of the ninety days after the date of
 Page 32

verdict, whichever is earlier, upon should be [*72] permitted

the amount of the judgment. reciprocally to recover prejudgment
interest from the defendant. The
As stated earlier, a legal plaintiffs characterize the situation
malpractice case is a negligence as a lack of mutuality of remedies
case and the present case is an rather than a lack mutuality of
action to recover injury to real obligation but offer no discussion
property based on the negligence of why the retainer agreement
[*71] of an attorney. As the court presents one but not the other. Our
reads the statute, by enacting a Supreme Court has applied the
special statute to govern interest in doctrine of mutuality of obligation
negligence cases and by limiting in evaluating remedies accorded
interest to the postjudgment period each party to a contract.
the legislature has precluded the
award of prejudgment interest in all 6 We repeatedly have stated
negligence cases, irrespective of that "[w]e are not required
the particular type. Misiurka v. to review issues that have
Maple Hill Farms, Inc., 15 been improperly presented
Conn.App. 381, 386-87, 544 A.2d to this court through an
673 (1988). inadequate brief . . .
Analysis, rather than mere
The plaintiff's theory that the abstract assertion, is
retainer agreement between Bruno required in order to avoid
and Slane is a consumer contract abandoning an issue by
under G.S. §42-150bb is without failure to brief the issue
merit. Even if the retainer properly . . . Where a claim
agreement were a consumer is asserted in the statement
contract within the meaning of that of issues but thereafter
statute, the statute deals only with receives only cursory
attorneys fees and not prejudgment attention in the brief
interest. It is difficult to imagine without substantive
any circumstances under which one discussion or citation of
may be equated with the other. authorities, it is deemed to
be abandoned." (Citations
The plaintiffs also contend that
omitted; internal quotation
they are entitled to prejudgment
marks omitted.) Merchant
interest under a theory of mutuality
v. State Ethics Commission,
of remedy. Without offering any
53 Conn.App. 808, 818,
authority for or analysis of the
733 A.2d 287 (1999). These
claim,6 the plaintiffs argue that same principles apply to
because the retainer agreement claims raised in the trial
between the parties provides that court. (Emphasis added.)
Slane may collect interest from the (Alternate citation omitted.)
plaintiff at the rate of 12% per Connecticut Light & Power
annum on "any amounts unpaid," Co. v. Department Utility
that the doctrine of mutuality of Control, 266 Conn. at 120,
remedy dictates that the plaintiff [*73] supra.
 Page 33

". . . the alleged inadequacy of have similar remedies in case of

one untested remedy neither breach, and the fact that specific
deprives a contract of mutuality of performance or any injunction is
obligation nor establishes not available to one party is not a
inadequacy of consideration. The sufficient reason for refusing it to
doctrine of consideration does not the other party. The rationale of the
require or imply an equal exchange supposed requirements of
between the contracting parties. 'mutuality of remedy' is to make
That which is bargained-for by the sure that the party in breach will
promisor and given in exchange for not be compelled to perform
the promise by the promisee is not without being assured that he will
made insufficient as a consideration receive any remaining part of the
by the fact that its value in the agreed exchange from the injured
market is not equal to that which is party." Restatement of the Law of
promised. Consideration in fact Contracts, 2d Ed., §363, comment
bargained for is not required to be c. Thus, the existence of an
adequate in the sense of equality in obligation imposed on Baruno to
value . . . The general rule is that, in pay interest to Slane on any unpaid
the absence of fraud or other fees does not mandate that a

2013 Conn. Super. LEXIS 1300, *74

unconscionable circumstances, a reciprocal obligation be imposed on
contract will not be rendered Slane to pay a similar sum.
unenforceable at the behest of one
of the contracting parties merely Costs and Expenses
because of an inadequacy on
The plaintiff argues that by the
consideration. (Citations omitted;
terms of the restrictive covenant
internal quotation marks omitted.)
she is entitled to recover all
Osborne v. Locke Steel Chain Co.,
"expenses associated with
153 Conn. 527, 532-33, 218 A.2d
enforcing these restrictions" and
526 (1966); see 1 Restatement
therefore she is not limited to those
(Second), Contracts §79, p. 200
fees and costs which are allowed
(1981) ("[i]f the requirement of
under G.S. §§52-257 and [*75] 52-
consideration is met, there is no
260. Plaintiff makes this point with
additional requirement of . . .
particular reference to the fees
'mutuality of obligation'"; see also 1
charged by the expert, Attorney
A. Corbin, Contracts (1963) §127;
Hecht. The difficulty with this
3 S. Williston, Contracts (4th [*74]
argument is that it ignores the
Ed. 1992) §7:21, p. 383."
difference in the nature of the two
(Alternate citation omitted.) State v.
proceedings. In other words,
Lex Associates, 248 Conn. 612,
Attorney Hecht's expert witness fee
619, 730 A.2d 38 (1999).
for which recovery is sought was
"It has sometimes been said not incurred in the process of
that there is a requirement of seeking enforcement of the
'mutuality of remedy.' However, the restrictive covenant, it rather was
law does not require that the parties incurred in an effort to seek
 Page 34

compensatory damages resulting 10,386--legal fees to the

from an attorney's negligence. As defendants
such, recoverability is controlled by
G.S. §§52-257, 52-260(f) and 2,397--engineering costs as per
ultimately by P.B. 18-5. Clearly, contempt order of
Attorney Hecht's testimony was 11/28/2008
directed to events which occurred $620,817--Total damages
subsequent to the need for $7,916.50--contingent legal
enforcement action. fees/costs to Gilbride Tusa

As for expert Giancola, it is BY THE COURT

noted in Judge Karazin's order of
A. WILLIAM MOTTOLESE,
November 28, 2008, $2,392 was
J.T.R.
awarded for engineering fees. The
court notes further that by the terms
of the covenant recoverable fees
and expenses are limited to those
which are incurred to secure an
injunction to prevent or remove the
prohibited "activities" but do not
include such charges when they are
incurred to further a claim for
monetary damages in a later legal
malpractice suit. All of Mr.
Giancola's testimony in the present
[*76] case is tailored to support the
plaintiff's claim for monetary
damages. To put it another way, Mr.
Giancola's testimony in the present
case was given not in an effort to
obtain a restoration of the property
to its former condition but rather to
support the plaintiff's cause of
action for malpractice.

The court awards the

following damages:

$250,000--diminution of
property value

120,000--remediation costs to
plaintiff's property

238,034--legal fees to Gilbride

Tusa