MILLER, J.
This is a legal malpractice action, in which plaintiff claims that the defendant law firm negligently represented her in a lawsuit over the partition of real property in which the defendant owned an interest. The underlying case was tried to the Court (Peck, J.) in 1999. Plaintiff, a defendant in the underlying case opposed partition by sale and sought to have the Court order a partition in kind. In her decision, dated September 17, 1999, Judge Peck found in favor of the plaintiffs and against the defendants, and therefore ordered a partition by sale. Judge Peck specifically noted an absence of expert testimony, which would have helped the Court conclude that a partition in kind would be appropriate. The decision was affirmed per curiam by the Appellate Court. Africano v. Dixon 60 Conn.App. 909 (2000).
Africano v. Dixon. 1999 WL 809689 (Super. CT 1999).
Plaintiff then brought this action against her defense counsel, alleging that it was negligent in six ways, all of which consisted of failure to produce expert testimony that would have brought into the case the evidence, which the trial court found to be missing. Plaintiff has disclosed no expert witnesses whom she plans to call at the trial of this matter, and has in fact stated specifically, through counsel, that she does not intend to do so. Defendant has moved for summary judgment on the ground that plaintiff cannot prevail in this action without expert testimony on the issues of negligence and causation.
In most circumstances, the plaintiff in a legal malpractice case must present expert testimony at trial to establish (1.) that the defendant breached the professional standard of case and (2.) that the breach of care proximately caused the plaintiff's damages. Beecher v. Graves. 73 Conn.App. 561, 564 (2002).
Plaintiff asserts, in her brief, that Judge Peck's decision, CT Page 3129 standing alone, establishes that defendant breached the applicable standard of care. The court enumerated several reasons why it did not find for this plaintiff in the underlying case and these reasons, plaintiff maintains, all amount to a finding of a want of care on the part of her counsel. Plaintiff, therefore, contends that this want of care "is the reason Ms. Dixon lost her case."
This argument fails for two reasons. First, an observation by a trial judge in a memorandum of decision that evidence was not produced to support a contention does not mean that the failure to produce that evidence was the result of professional negligence by trial counsel. There is nothing in Judge Peck's opinion, which suggests, let alone specifically states, that she found any lack of care on the part of defense counsel.
More significantly, plaintiff cannot prevail in the trial of this matter without expert testimony on the issue of causation unless she can establish that the kind or kinds of evidence in question actually existed, but were not put into evidence by the defendant. She would need to introduce expert testimony to the effect that there was expert testimony available to her and her lawyers which would support her position in one or more of the ways specified by the trial judge and that this expert testimony, if presented to the court, would have resulted in a different outcome.
Beecher v. Graves, supra, strongly supports defendant's contentions here. There, the plaintiff in a legal malpractice action was precluded from offering the expert testimony of an appraiser to the effect that, before the trial of the underlying case, his firm had appraised the plaintiff's property at a much higher price than the property was sold for at a foreclosure sale. The plaintiff's sole expert witness, an attorney, offered testimony on the standard of care issue, but "failed to provide any testimony on the issue of causation." Id., at 564. It was therefore appropriate for the trial court to direct a verdict for the defendant.
The court also finds the decision of the Georgia Court of Appeals in Ross v. Edwards 253 Ga.App. 773, 560 S.E.2d 343 (2002), to be persuasive. In that case, the plaintiff lost the underlying case because he had no expert engineering testimony to support his claim. After plaintiff brought this malpractice action against his prior counsel, the trial court granted summary CT Page 3130 judgment for the defendant because plaintiff had no evidence that there was an expert who could have testified in a way which would have led to a different trial result. The Court of Appeals affirmed, observing that
[i]n a case of this type, an attorney could consider expert testimony given by an engineer and give an expert legal opinion that, if this engineering testimony had been presented in the underlying [case], it would have provided the evidence necessary for the jury to render a different verdict. But without expert engineering testimony to place in the context of the [underlying] trial, an attorney's opinion that an engineer's testimony would have produced a different verdict is pure conjecture and establishes nothing.
Id. at 774. In this case, plaintiff plans not to call
any expert witness, so her case on causation cannot achieve even the status of "pure conjecture."
A party is entitled to summary judgment where it would be appropriate, on the same facts, to direct a verdict in its favor. Batick v. Seymour, 186 Conn. 632, 647 (1982). If this matter were to proceed to trial, a directed verdict would be inevitable, given plaintiff's inability to establish causation.
The Motion for Summary Judgment is granted.
Miller, J.