MARGOLIN v. KLEBAN SAMOR, No. CV98 35 12 16 S (Dec. 8, 2003)

THIM, JUDGE.

The court gives herein its reasons for denying three motions filed by defendant Kleban Samor, P.C. and defendant Jonathan Elliott after the jury rendered a general verdict against them and in favor of plaintiff Robert Margolin. The court will first describe the general nature of these proceedings and thereafter discuss the three motions, which are captioned Motion for Judgment Notwithstanding the Verdict, Motion to Set Aside the Verdict, and Motion for Remittitur.

Plaintiff Robert Margolin brought this suit against Kleban Samor, P.C., and attorneys Jonathan Elliott and Thomas Minogue alleging, among other things, that the defendants negligently represented Margolin in his bringing a lawsuit in 1993 against Specialty Publishers, Inc.; Career Information Services, Inc.; Peter Jaquith; Sports Media, Inc.; and Venture Partners Ltd. Margolin's allegations against Kleban Samor, P.C., and attorneys Elliott and Minogue included claims that they failed to obtain prejudgment remedies, failed to make a proper choice of forum with respect to Sports Media, Inc., and failed to prosecute the 1993 lawsuit in a timely manner. Margolin claimed that as a consequence of the defendants' legal malpractice he could not collect on valid claims since one or more of the defendants in the 1993 lawsuit became insolvent or disposed of property before judgment was obtained against them.

Margolin presented sufficient evidence to show that the Kleban Samor, P.C. and Attorney Elliott violated the applicable standard of care. As a practicable matter, there was no credible dispute on this particular issue. The defendants drafted the complaint for the 1993 case and initiated suit. Their conduct was discussed by Attorney William Gallagher, who testified as an expert on behalf of plaintiff Margolin. Gallagher related that, while the defendants "did a pretty good job" in CT Page 13757 identifying claims against Jaquith and the other defendants in the 1993 lawsuit, they "failed miserably" in identifying and securing assets against which a judgment could be collected. The evidence demonstrated that the defendants did nothing with respect to identifying and securing assets.

Gallagher explained that Kleban Samor and Attorney Elliot should have filed and pursued an application for a prejudgment remedy and, thereafter, should have filed a motion for disclosure of assets. He explained prejudgment remedy procedures and discussed the standard of proof that is applicable to such proceedings. He testified that the defendants should have pursued Sports Media, Inc. in the federal district court in New York where a prejudgment remedy could have been obtained. Gallagher testified that, had the defendants been unsuccessful in seeking a prejudgment remedy, they in all likelihood would have discovered assets belonging to Peter Jaquith by taking a deposition in connection with a motion to dismiss, which Jaquith had filed in an effort to attack the court's personal jurisdiction. The defendants took two years to address the motion to dismiss, which had been filed by Jaquith after the thirty-day period for filing such motions had expired. See Practice Book § 10-30. Gallagher testified that the defendants failed to pursue discovery and to prosecute the case in a timely manner. Gallagher opined that the defendants' conduct did not "measure up" with respect to responding to a motion to dismiss, handling discovery, closing the pleadings, and claiming the case for the trial list in a timely manner. Gallagher further opined that the conduct of the defendants "was not in accordance with the ordinary standard of care expected or required of civil trial counsel in Connecticut . . ."

With respect to causation, Gallagher testified that the failure to obtain a prejudgment remedy had an effect because there came a time when assets that could have been attached were "no longer practically available." This time came when Sharon Lesk, who was the wife of Peter Jaquith, obtained a divorce decree in California on June 6, 1995, and was awarded the bulk of Mr. and Mrs. Jaquith's community assets.

Margolin presented evidence that he was harmed by the defendants' failure to comply with the requisite standard of care. Through the testimony of Sharon Lesk, Margolin demonstrated that Jaquith had sufficient assets in Connecticut that could have been attached. Margolin also demonstrated that the stock of Sports Media, Inc., which was a publicly-traded company, had substantial value and that the company would have been subject to a prejudgment remedy in New York.

As of June 1992, Jaquith and his wife, Sharon Lesk, had accumulated CT Page 13758 assets worth $21,616,000.00 and had a net worth of $18,456,000.00. Some of the assets were located in Connecticut. They had an account with a money manager in Greenwich, Connecticut, that was valued at two and a half million dollars. They owned a condominium in New Canaan, Connecticut, which they sold in July of 1993. In 1993 and 1994, Jaquith became frantic, irrational, and showed signs of alcoholism and drug abuse. On June 6, 1995, when Ms. Lesk obtained a divorce in California, the court found that Jaquith had wasted 10 million dollars of his and his wife's community assets and awarded Ms. Lesk the bulk of their community assets.

Margolin testified about the incidents that were the subject of the 1993 lawsuit. He related that he had worked as a lawyer, had experience in entertainment and sports law, and had been an owner of a sports team. In 1991, he met Peter Jaquith. This meeting led to Margolin's entering into an employment agreement with Specialty Publishers, Inc., Professional Team Publications, Inc., and Career Information Services, Inc. The latter two companies were wholly owned subsidiaries of Specialty Publishers, Inc. Jaquith was a primary investor in these business enterprises. Under the terms of this agreement, Margolin became the chief executive officer of Specialty Publishers, Inc. and Professional Team Publications, Inc. for a term of five years. Jaquith improperly asserted control of Specialty Publishers, Inc., and sold the assets of Professional Team Publications, Inc. to Sports Media, Inc.

Margolin testified extensively and thoroughly about the facts underlying his claims against the defendants in the 1993 lawsuit. These claims included allegations that (1) Sports Media, Inc. fraudulently represented to Margolin that it would employ him for one year at $12,000 a month and that the misrepresentations were done to induce Margolin to cooperate in Sports Media, Inc.'s acquisition of Professional Team Publications, Inc. and to induce Margolin to enter into a covenant not to compete with Sports Media, Inc.; (2) Jaquith tortiously interfered with Margolin's contractual or beneficial relationship with Professional Team Publications, Inc.; (3) Jaquith made false and defamatory statements about Margolin's ability and integrity in his profession; and (4) Jaquith induced Margolin to lend money to Professional Team Publications, Inc. by falsely representing to him that the money would be repaid within two weeks.

At the end of the plaintiff's case-in-chief, the defendants orally moved for a directed verdict contending that there was no evidence that defendant Thomas Minogue committed legal malpractice; that there was no evidence to support the count of the complaint wherein the plaintiff alleged a violation of the Connecticut Unfair Practices Act, Gen. Stat. CT Page 13759 § 42-110a et seq. (CUTPA); there was no evidence that the plaintiff suffered harm as a consequence of defendants' failing to comply with the legal standard of care; that a statute of limitation barred the plaintiff's malpractice claim; and that an assessment of damages would be purely speculative. The court ruled that there was sufficient evidence on all the claims except those against Attorney Minogue. After the conclusion of all of the evidence, the defendants renewed the motion for a directed verdict. The court granted the defendants' motion as to the CUTPA issues.

The case was submitted to the jury on Margolin's claims of legal malpractice. The jury was instructed, among other points, that they had to determine the validity and value of four of the claims that were brought in 1993 against Jaquith and Sports Media, Inc. The jury returned a verdict against Kleban Samor, P.C. and Jonathan Elliott in the amount of $1,040,183.00.

In the defendants' Motion for Judgment Notwithstanding the Verdict, they assert "the court should have directed a verdict in favor of the defendants as argued in the motions for a directed verdict." When this court denied the motion for a directed verdict, it decided three issues adversely to the defendants: (1) whether there was evidence that the plaintiff suffered harm as a consequence of defendants' failing to comply with the legal standard of care; (2) whether the plaintiff's claims were barred by a statute of limitation; and (3) whether an assessment of damages would be purely speculative. The first and third issues are a claim that the evidence was insufficient to support the verdict.

The standards governing a motion for judgment notwithstanding the verdict are the same as those governing a motion for a directed verdict, because a motion for judgment notwithstanding the verdict is not a new motion but the renewal of a motion for a directed verdict. Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001). In considering a motion for judgment notwithstanding the verdict, the court must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial . . . Judgment notwithstanding the verdict should be granted only if [the court finds] that the jurors could not reasonably and legally have reached the conclusion that they did reach . . . If the jury, however, without conjecture could not have found established an element of the claim, the verdict on the claim cannot withstand a motion for judgment CT Page 13760 notwithstanding the verdict . . . Consequently, the plaintiff must produce sufficient evidence to remove the jury's function from the realm of speculation." Craine v. Trinity College, 259 Conn. 625, 635-36, 791 A.2d 518 (2002).

After carefully reviewing the evidence, the court found that the jurors could reasonably and legally have reached the conclusion that they did. The court notes that the above summary of the evidence is not an all encompassing recitation of the relevant evidence. Extensive testimony and numerous documents were presented to the jury over the course of nine days. With respect to the statute of limitations issue, the defendants argued that the pertinent statute, Gen. Stat. § 52-577, is an "accrual" statute and that Margolin should have brought his malpractice claim within three years from the time of the defendants' misconduct. The court charged, as requested by the plaintiff, that the limitation period could be stopped by the "continuing course of conduct doctrine." In light of the opinion of the Supreme Court of Connecticut in the case of DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744 (2003), this charge appears to have been correct. The foregoing explains the court's denial of the Motion for Judgment Notwithstanding the Verdict.

In their motion to set aside the verdict, the defendants assert as grounds therefore the following:

1. The verdict is excessive and contrary to the evidence and law.

2. The court erred in allowing the introduction of evidence, which was irrelevant and immaterial inadmissible and highly prejudicial.

3. The court erred in its charge to the jury.

Upon oral argument of this motion, defense counsel took exception to the court's alleged failure to charge on various issues and to the court's rulings on objections to the admission of evidence. No articulation is needed on these issues.

In this motion, the defendants assert "the verdict . . . is excessive CT Page 13761 and contrary to the evidence as a matter of law." Upon oral argument of this motion, the defendants argued the evidence was insufficient to assess damages on the 1993 fraud claim against Sports Media, Inc., the tortuous interference claim against Jaquith, and the fraudulent inducement claim against Jaquith. With respect to the 1993 defamation claim against Jaquith, the defendant argued that the damages were excessive. As noted above, the court determined that the jurors could reasonably and legally have reached the conclusion that they did.

The foregoing constitutes this court's articulation of the three post-verdict motions.

THIM, JUDGE. CT Page 13762