Alphonse T. Dubreuil, et al. v. Otto P. Witt, et al.

In this legal malpractice action, we
must determine whether following a trial to the court
in which the plaintiffs failed to introduce expert testimony
as to the standard of care applicable to attorneys
who practice before the Superior Court, the trial court
properly concluded that the defendant, an attorney
licensed to practice in this state, breached the applicable
standard of care. We conclude that in this trial to
the court, the judge did not need the benefit of expert
testimony to determine the standard of care applicable
to an attorney engaged in litigation practice and
whether the standard had been breached. We affirm
the judgment of the trial court.

In his second appeal to this court,1 the defendant
Otto P. Witt, an attorney,2 claims that it was improper
for the court to (1) conclude that he had breached the
standard of care applicable to attorneys who practice
before the Superior Court, (2) allegedly deny him due
process of law by failing to inform him that the court
intended to take judicial notice of the applicable standard
of care, (3) award damages outside the scope of
the allegations of the complaint, (4) conclude that his
negligence was the proximate cause of the plaintiffs'
injury and (5) conclude that he was in breach of contract.
We affirm the judgment of the trial court.
In their two count amended complaint filed April
24, 1997, the plaintiffs3 alleged, in part, that they had
retained the defendant to represent them in a collection
action commenced by Deedy Construction Company
(Deedy). The plaintiffs further alleged that the defendant
had represented them in a negligent manner, violated
the Rules of Professional Conduct and breached
their contract by failing to attend a pretrial conference,
a rescheduled pretrial conference and the short calendar
argument on a motion to set aside a judgment of
nonsuit that had been entered against them. As a result
of the defendant's alleged negligence and breach of
contract, Deedy obtained a judgment of foreclosure
against the plaintiffs' real property. In addition, as a
result of the defendant's negligence and his breach of
contract, the plaintiffs suffered harm.

Following the retrial; see footnote 1; held in November,
2002, at which only Alphonse T. Dubreuil and the
defendant testified, the court found the following facts,
many of which are historical in nature.4 In March, 1992,
Alphonse Dubreuil was the president of A. Dubreuil
and Sons, Inc. (corporation), which was a commercial
construction business. The corporation used the services
of Louis Levine Agency, Inc. (insurance agency),
for insurance and bonding purposes. On March 10, 1992,
an agent of the insurance agency asked Alphonse
Dubreuil to come to the scene of a building fire in
New London. A representative of the Aetna Casualty
Insurance Company (Aetna) was also present. Due to
the damage to the building, the corporation, through
Alphonse Dubreuil, was asked to demolish the structure.
Alphonse Dubreuil responded that the corporation
did not perform demolition work, but that Deedy did.
A representative of Deedy was called, and it was agreed
that Deedy would perform the demolition and that
Alphonse Dubreuil would serve as clerk of the works.
The agreement was oral. Although its representative
had agreed to pay for the demolition, shortly thereafter,
Aetna denied liability on the ground of arson and
refused to pay Deedy.

Because Aetna did not pay, Deedy commenced an
action against the corporation seeking payment of
$67,277.88 for services rendered. Theodore A. Harris,
an attorney, represented the corporation in the early
stages of the litigation, but he withdrew his appearance
in March, 1993. Prior to withdrawing from the case,
it appears that Harris had some correspondence with
Deedy's attorney about the plaintiffs personally signing
a guarantee regarding the debts of the corporation.
There is, however, no evidence that the plaintiffs signed
the guarantee. At the trial, Alphonse Dubreuil denied
that Harris was his attorney5 and denied that he had
agreed to indemnify the corporation. Alphonse Dubreuil
also filed an affidavit to that effect, after Deedy had
secured a judgment against the plaintiffs.
About the time Deedy commenced its collection
action, Alphonse Dubreuil was in failing health, and the
corporation was in failing financial condition. Alphonse
Dubreuil retained the defendant to represent the corporation
in bankruptcy. Alphonse Dubreuil later informed
the defendant of the Deedy action and asked him to
represent the plaintiffs therein. The defendant filed an
appearance in the Deedy action on May 7, 1993. During
the summer of 1993, the defendant filed a cross complaint
against the insurance agency and impleaded
Aetna as a third party defendant. The pleadings in the
action were closed, and the matter was scheduled for
a pretrial conference in June, 1994. The defendant did
not attend the pretrial. On the date of the pretrial, Alphonse
Dubreuil was hospitalized in intensive care.

On June 22, 1994, the court, Hendel, J., entered the
following order: ‘‘The defendants Alphonse Dubreuil
and Marilyn Dubreuil are hereby defaulted on plaintiff's
complaint and a non-suit shall enter on their crosscomplaint
and counterclaim for failure to attend a pretrial.''
On August 1, 1994, Deedy moved that judgment
be rendered against the plaintiffs by reason of the
default. On August 23, 1994, Judge Hendel rendered
judgment of $67,277.88 against the plaintiffs. The defendant
failed to attend the hearing on the motion for
judgment.

On September 16, 1994, the defendant filed a motion
to set aside the judgment against the plaintiffs, stating
that he had informed the court that he would be slightly
late for the pretrial on June 22, 1994, but that the default
had been entered prior to his arrival at court.6 The
defendant claimed that his late arrival was due to traffic,
was neither intentional nor negligent and that the plaintiffs
were not liable personally. The motion to set aside
the judgment was scheduled for a short calendar hearing
on February 6, 1995. The defendant failed to appear
and to argue the motion to set aside, which was denied.
According to the defendant, he failed to attend short
calendar due to injuries he had sustained in a motor
vehicle accident. Although he claimed that he had asked
the court to decide the motion to set aside on the papers,
counsel for Deedy was present for short calendar argument.
The defendant made no further efforts to have
the judgment set aside. The defendant testified that
after the judgment was rendered against the plaintiffs,
he attempted to compromise the litigation in the Bankruptcy
Court.

The Deedy judgment was not satisfied. Deedy therefore
instituted a foreclosure action against the plaintiffs'
property in April, 1995. Alphonse Dubreuil discharged
the defendant and retained the services of Robert G.
Skelton, an attorney. A judgment of strict foreclosure
was rendered against the plaintiffs on July 24, 1996,
with a finding of debt in the amount of $80,818.20 plus
fees. The property could be redeemed for $75,000 before
September 24, 1996. The Bankruptcy Court approved
a compromise of Deedy's claim against the corporation.
The corporation, the insurance agency and Aetna paid
Deedy $42,500. The plaintiffs paid Deedy $32,500 as
their portion of the settlement and obtained a satisfaction
of judgment in the foreclosure action.

The plaintiffs commenced this malpractice action
against the defendant in August, 1996. The matter was
tried to Judge Hurley; see footnote 1; who rendered
judgment for the plaintiffs in May, 1998. The defendant
appealed to this court, which reversed the judgment
and remanded the case for a new trial. Dubreuil v. Witt,
65 Conn. App. 35, 781 A.2d 503 (2001) (Dubreuil I). The
case was tried again to the court, Hon. Joseph J. Purtill,
judge trial referee, in November, 2002. Judge Purtill
also concluded that the defendant's representation of
the plaintiffs as alleged in the complaint constituted
legal malpractice. The defendant again appealed to this
court. We agree that the defendant's conduct violated
the standard of care applicable to attorneys who practice
before the Superior Court, but for reasons somewhat
different from those articulated by the trial court.
Before we address the defendant's claims, we set
forth the proper standard of review. ‘‘The scope of our
appellate review depends upon the proper characterization
of the rulings made by the trial court. To the extent
that the trial court has made findings of fact, our review
is limited to deciding whether such findings were clearly
erroneous. When, however, the trial court draws conclusions
of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.'' (Internal quotation marks omitted.) Hart v.
Carruthers, 77 Conn. App. 610, 612–13, 823 A.2d 1284
(2003).

We also remember that the trier of fact determines
the credibility of the witnesses. ‘‘It is well established
that [i]n a case tried before a court, the trial judge is
the sole arbiter of the credibility of the witnesses and
the weight to be given specific testimony . . . is judged
by the same standard, and the trial court is privileged
to adopt whatever testimony [it] reasonably believes to
be credible. . . . On appeal, we do not retry the facts or
pass on the credibility of witnesses.'' (Internal quotation
marks omitted.) United Technologies Corp. v. East
Windsor, 262 Conn. 11, 26, 807 A.2d 955 (2002).

I

The defendant first claims that the court improperly
concluded that his conduct constituted legal malpractice
because the plaintiffs had failed to present expert
testimony as to the applicable standard of care. We
disagree.

The following additional facts provide a context for
our review of that claim. Skelton, the attorney the plaintiffs
retained to prosecute the malpractice action
against the defendant, had retained an attorney to serve
as an expert witness and disclosed that individual to
the defendant. Unfortunately, Skelton died shortly
before the second trial was to begin. The trial was
continued so that the plaintiffs could retain substitute
counsel. Substitute counsel also retained an expert witness,
but disclosed the identity of the second expert
on the eve of trial. The defendant filed a motion to
preclude the plaintiffs from presenting the testimony of
the second, recently disclosed expert. The court granted
the motion to preclude. Due to illness, the expert disclosed
by Skelton was not available to testify, and the
court refused to grant the plaintiffs a continuance. During
the trial, none of the parties presented any expert
testimony.

In its January 22, 2003 memorandum of decision,
the court cited the principles of legal malpractice, and
stated when there is a need for expert testimony and the
circumstances under which a plaintiff need not present
expert testimony. The court concluded that the exception
to the need to present expert testimony applied in
this case because the defendant's conduct was such an
obvious and gross want of care and skill that the neglect
would be clear even to a layperson. Specifically, the
court found that by failing to appear at the June 22,
1994 Deedy pretrial, the defendant permitted a default
and a nonsuit to be entered against the plaintiffs. The
defendant took no action to set aside the nonsuit and
default until after judgment against the plaintiffs had
been rendered and that he failed to appear at the short
calendar hearing to argue the motion to set aside. The
court found that the defendant's conduct was particularly
egregious given that the plaintiffs had a good
defense to the allegations of personal liability and could
have prevailed because Deedy's complaint did not state
a cause of action against them. The court concluded
that the plaintiffs' allegations of negligence and breach
of contract against the defendant had been proven, that
the defendant's negligence was the proximate cause of
the plaintiffs' damages and awarded the plaintiffs
$32,500.

In concluding that the plaintiffs did not need to present
expert testimony to prevail in this action, the trial
court relied on this court's holding in Paul v. Gordon,
58 Conn. App. 724, 754 A.2d 851 (2000). In that case,
there was such an obvious and gross want of care on
the part of the defendant that a layperson would know
that the defendant's conduct violated the standard of
care. Id., 728. The facts here, however, are distinguishable
from Paul, in which the plaintiffs had retained an
attorney to represent them in a summary process
action. Id. The Paul attorney did nothing, even though
he assured the plaintiffs that he would handle the matter.
Id. As a result, the plaintiffs were evicted from their
home and lost a substantial sum of money. Id.
Here, the defendant did more than nothing in the
Deedy action. He asserted claims against the insurance
agency and Aetna on the plaintiffs' behalf. By his admission,
the defendant acknowledged that the plaintiffs
had a good defense to Deedy's claim. A layperson may
be expected to understand that an attorney's failure to
attend court proceedings as directed is obvious and
gross neglect. Although we recognize that the court
may sanction parties whose counsel do not appear for
scheduled proceedings; Mamudovski v. BIC Corp., 78
Conn. App. 715, 722, 829 A.2d 47, cert. granted on other
grounds, 266 Conn. 915, A.2d (2003); we do not
hold that an attorney's failure to attend a court-ordered
pretrial without more constitutes legal malpractice.

The defendant's alleged malpractice consists of his
failure to file a motion to set aside the default and to
open the judgment of nonsuit before judgment was
rendered, his failure to attend the hearing on the motion
for judgment and his failure to attend the hearing on
his motion to set aside. Our rules of practice set forth
the rules governing those motions. On the one hand,
we do not expect a layperson to be familiar with the
rules of practice and the importance of setting aside a
default before a judgment is rendered or that the standard
for setting aside a default is abuse of discretion.
See Richards v. Trudeau, 54 Conn. App. 859, 738 A.2d
215 (1999). On the other hand, we expect that a judge
of the Superior Court is well aware of the rules of
practice and the consequences that may flow from an
attorney's failure to abide by them. A judge also knows
the dire consequences that may befall clients whose
attorney does not protect their interests properly.
The appellate courts of this state have set forth the
law that applies in an action alleging legal malpractice.
‘‘Malpractice is commonly defined as the failure of one
rendering professional services to exercise that degree
of skill and learning commonly applied under all the
circumstances in the community by the average prudent
reputable member of the profession with the result of
injury, loss, or damage to the recipient of those services.
. . .'' (Internal quotation marks omitted.) Davis v. Margolis,
215 Conn. 408, 415, 576 A.2d 489 (1990). Generally,
to prevail in a case alleging legal malpractice, a plaintiff
must present expert testimony to establish the standard
of proper professional skill or care. Dunham v. Dunham,
204 Conn. 303, 317, 528 A.2d 1123 (1987), overruled
in part on other grounds, Santopietro v. New
Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996).
Furthermore, the plaintiff must prove ‘‘(1) the existence
of an attorney-client relationship; (2) the attorney's
wrongful act or omission; (3) causation; and (4) damages.''
(Internal quotation marks omitted.) Vona v. Lerner,
72 Conn. App. 179, 187–88, 804 A.2d 1018 (2002),
cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).
‘‘The requirement of expert testimony in malpractice
cases serves to assist lay people, such as members of
the jury and the presiding judge, to understand the
applicable standard of care and to evaluate the defendant's
actions in light of that standard. Davis v. Margolis,
[supra, 215 Conn. 416]. There is an exception to
this rule, however, where there is such an obvious and
gross want of care and skill that the neglect is clear
even to a lay person. Id., 416 n.6. This exception has
been applied in the context of a medical malpractice
case. Shegog v. Zabrecky, 36 Conn. App. 737, 750–51,
654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670
(1995).'' (Internal quotation marks omitted.) Paul v.
Gordon, supra, 58 Conn. App. 727–28. Paul held that
the exception applies in cases in which the violation
of the standard of care is an obvious and gross want
of care. Id., 728.

Before an expert may testify, the court must find that
the expert has knowledge beyond that exhibited by
every attorney simply as a result of membership in
the legal profession. The expert must possess special
knowledge that would help the trier of fact determine
whether the defendant's conduct was in accordance
with the standard of care applicable to attorneys under
comparable circumstances. Such knowledge may emanate
from a myriad of sources, such as teaching, scholarly
writings, study or practical experience. See Davis
v. Margolis, supra, 215 Conn. 417.

‘‘In malpractice cases, the expert's testimony must
be evaluated in terms of its helpfulness to the trier of
fact on the specific issues of the standard of care and the
alleged breach of that standard.'' Id., 416. The practice of
law before the Superior Court is governed, in part, by
our rules of practice, which include ‘‘the admission,
qualifications, practice and removal of attorneys.'' Practice
Book § 1-1 (a). Every day, judges of the Superior
Court apply those rules to conduct the business of the
court. Judges of the Superior Court have authority to
implement the rules of practice to facilitate the expeditious
and judicious administration of justice in this
state. See Mamudovski v. BIC Corp., supra, 78 Conn.
App. 722. In fact, there may be no expert who knows
more about the practice of law before the Superior
Court than a judge of that court. Judges routinely rule
on motions, preside at pretrial settlement conferences,
conduct jury trials or sit as the trier of fact, among other
things. With respect to the specific issues presented in
this case, a judge of the Superior Court has the authority
to default a defendant or to render a judgment of nonsuit
against a plaintiff who fails to comply with the court's
orders, including notice to attend a pretrial. See id. A
judge of the Superior Court is vested with authority to
render judgment pursuant to a default; Practice Book
§ 17-19; and to exercise discretion to set aside a default
or judgment; see Practice Book § 17-43. Negligence and
breach of contract actions routinely come before the
Superior Court. A judge, therefore, is aware of the standard
of care that applies to attorneys practicing in the
Superior Court.

There is precedent that a judge of the Superior Court
does not need expert testimony to be knowledgeable
of practice before the court.7 Our Supreme Court has
held that ‘‘courts may rely on their general knowledge
of what has occurred at the proceedings before them
to supply evidence in support of an award of attorney's
fees.'' Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d
572 (1984). Although the issue here did not concern the
reasonableness of attorney's fees, the court was ‘‘in a
position to evaluate the complexity of the issues presented
and the skill with which counsel had dealt with
these issues.'' Id., 311.

For the foregoing reasons, we conclude that it was
not improper for the court to conclude without the
benefit of expert testimony that the defendant had violated
the standard of care.

II

The defendant's second claim is that the court denied
him due process of law by failing to inform him that the
court intended to take judicial notice of the applicable
standard of care. The defendant has stated that because
the court did not tell him that it intended to rely on its
own expertise, he was denied due process, namely, the
right to cross-examine. He acknowledges that a litigant
may not cross-examine the court. He, however, argues
that if the court had told him that it intended to rely
on its own expertise, he would have presented expert
testimony of his own. We review that constitutional
claim de novo. We do not agree that the court violated
the defendant's right to due process.

‘‘In the context of a civil case, our Supreme Court,
in accepting a common law right to cross-examination,
stated [t]he right of cross-examination is not a privilege
but [is] an absolute right . . . . It is only after the right
of cross-examination has been substantially and fairly
exercised that the allowance of cross-examination
becomes discretionary with the trial court.'' (Citations
omitted; internal quotation marks omitted.) Dubreuil
I, supra, 65 Conn. App. 40–41.

Having reviewed the transcript of the trial, we conclude
that the problem with which the defendant was
confronted at trial was not one of due process concerning
cross-examination or the court's not telling him
that it intended to take judicial notice of the applicable
standard of care, as he has argued on appeal. The defendant
failed to recognize that the court was relying on
its own expertise when it told him that the plaintiffs
had established a prima facie case.

The following facts inform our resolution of the
defendant's claim. After the plaintiffs rested their case
without having presented expert testimony regarding
the applicable standard of care, the defendant orally
moved that the action be dismissed for failure to make
out a prima facie case. In support of his motion to
dismiss, the defendant cited three cases concerning the
need for expert testimony in a case involving allegations
of legal malpractice. He also articulated the exception
to the rule; citing Paul v. Gordon, supra, 58 Conn. App.
728; and distinguished the facts of Paul. In opposing
the motion to dismiss, counsel for the plaintiffs encouraged
the court to take judicial notice of the defendant's
malpractice, as Judge Hurley had done at the first trial.
The court declined to do that, noting that in Dubreuil
I, this court had not reached the issue concerning the
need for expert testimony in this case. The trial court,
however, denied the defendant's motion to dismiss the
case for failure to make a prima facie case.

In denying the motion to dismiss, the court articulated
the four elements that the plaintiffs needed to
prove to prevail. See Vona v. Lerner, supra, 72 Conn.
App. 187–88. It also stated that the standard applicable
to a motion to dismiss is whether the case would go to
the jury. The court concluded that there was sufficient
evidence to overcome the motion. The court also
explained that a judgment could not be rendered at that
time, but that the plaintiffs had presented sufficient
evidence for the case to go forward. It was time for the
defendant to present his case.

We agree with the court that the standard for
determining whether the plaintiff has made out a prima
facie case is whether there are sufficient facts to submit
the case to the trier of fact. Practice Book § 15-8; Cadle
Co. v. Errato, 71 Conn. App. 447, 455, 802 A.2d 887, cert.
denied, 262 Conn. 918, 812 A.2d 861 (2002). Although the
court told the defendant that the plaintiffs had made
out a prima facie case as to the four elements necessary
to prove a case of legal malpractice, when he presented
his case, the defendant did not introduce any expert
testimony of his own to overcome the evidence presented
by the plaintiffs. In fact, the defendant never
disclosed an expert he intended to call at trial, even after
Judge Hurley took judicial notice of his malpractice in
the prior trial that was overturned in Dubreuil I. The
defendant simply failed to rebut the plaintiffs' evidence
with expert testimony to the contrary. The court's
actions did not deny the defendant due process.

III

The defendant's next claim is that the court awarded
the plaintiffs damages outside the scope of the allegations
of the complaint. We are not persuaded.8
The essence of the defendant's claim is his contention
that the complaint alleges merely that a judgment was
rendered against the plaintiffs and that a lien was placed
on their real property in Watertown. Those allegations,
the defendant claims, were not enough to put him on
notice that the plaintiffs had paid any money to Deedy.
In support of that claim in his brief, the defendant has
included a citation to Wright v. Hutt, 50 Conn. App.
439, 449, 718 A.2d 969, cert. denied, 247 Conn. 939, 723
A.2d 320 (1998). ‘‘The principle that a plaintiff may
rely only upon what he has alleged is basic. . . . It is
fundamental in our law that the right of a plaintiff to
recover is limited to the allegations of his complaint.
. . . What is in issue is determined by the pleadings
and these must be in writing. . . . Once the pleadings
have been filed, the evidence proffered must be relevant
to the issues raised therein. . . . A judgment upon an
issue not pleaded would not merely be erroneous, but
it would be void.'' (Citations omitted; internal quotation
marks omitted.) Id., 449–50.

The defendant's claim appears to be an evidentiary
one in that the court allowed the plaintiffs to present
evidence of their damages. ‘‘It is a well established
principle of law that the trial court may exercise its
discretion with regard to evidentiary rulings, and the
trial court's rulings will not be disturbed on appellate
review absent abuse of that discretion. . . . Sound discretion,
by definition, means a discretion that is not
exercised arbitrarily or wilfully, but with regard to what
is right and equitable under the circumstances and the
law . . . . And [it] requires a knowledge and understanding
of the material circumstances surrounding the
matter . . . . In our review of these discretionary
determinations, we make every reasonable presumption
in favor of upholding the trial court's ruling.'' (Internal
quotation marks omitted.) Id., 445.

Wright was a medical malpractice action in which
the plaintiffs based their claim on a breach of the duty
to inform the plaintiff wife of the risk associated with
a particular surgical procedure and not on a breach of
the duty to inform the plaintiff wife of medical alternatives.
The court denied the plaintiffs' request to revise
their complaint and precluded them from presenting
expert testimony as to the medical alternatives to the
surgical procedure. Id., 448–49. The issue in Wright was
the manner in which the defendant had been negligent,
if at all, a fact that had to be pleaded for evidence to
be relevant to the case.

What the defendant overlooks in his argument is that
in addition to the allegations he cites in his brief, i.e.,
that the plaintiffs alleged that Deedy had secured a
judgment against them in the amount of $67,277.85 and
placed a lien on their real property, the plaintiffs also
alleged that they had suffered harm as a result of the
defendant's negligence and prayed for damages. Their
summons and complaint contain a statement of the
amount in demand in excess of $15,000.

‘‘[T]he interpretation of pleadings is always a question
of law for the court . . . . The modern trend, which
is followed in Connecticut, is to construe pleadings
broadly and realistically, rather than narrowly and technically.
. . . Although essential allegations may not be
supplied by conjecture or remote implication . . . the
complaint must be read in its entirety in such a way as
to give effect to the pleading with reference to the
general theory upon which it proceeded, and do substantial
justice between the parties.'' (Internal quotation
marks omitted.) Benedetto v. Wanat, 79 Conn. App.
139, 148, 829 A.2d 901 (2003). Although the plaintiffs'
allegations were not pleaded as artfully as they might
have been, they were not so vague as to conceal the
theory under which the plaintiffs were proceeding, and
the plaintiffs should not have been precluded from presenting
evidence as to the manner in which they were
harmed. The court, therefore, did not abuse its discretion
in admitting Alphonse Dubreuil's testimony that
the plaintiffs had paid Deedy $32,500 in satisfaction of
the judgment lien.

The defendant also has argued that there was no
documentary evidence to substantiate Alphonse
Dubreuil's testimony that the plaintiffs, not the corporation,
paid $32,500. The short answer to that argument
is that documentary evidence was not required. The
court was permitted to accept Alphonse Dubreuil's testimony
as credible.

IV

The defendant's fourth claim is that the court improperly
concluded that his negligence was the proximate
cause of the plaintiffs' injuries. We do not agree.
‘‘To prevail on a negligence claim, a plaintiff must
establish that the defendant's conduct legally caused
the injuries. . . . As [our Supreme Court] observed
. . . [l]egal cause is a hybrid construct, the result of
balancing philosophic, pragmatic and moral
approaches to causation. The first component of legal
cause is causation in fact. Causation in fact is the purest
legal application of . . . legal cause. The test for cause
in fact is, simply, would the injury have occurred were
it not for the actor's conduct. . . .

‘‘The second component of legal cause is proximate
cause, which [our Supreme Court has] defined as [a]n
actual cause that is a substantial factor in the resulting
harm . . . . The proximate cause requirement tempers
the expansive view of causation [in fact] . . . by the
pragmatic . . . shaping [of] rules which are feasible to
administer, and yield a workable degree of certainty.''
(Internal quotation marks omitted.) Vona v. Lerner,
supra, 72 Conn. App. 189.

‘‘[P]rofessional negligence or malpractice . . . [is]
defined as the failure of one rendering professional
services to exercise that degree of skill and learning
commonly applied under all the circumstances in the
community by the average prudent reputable member
of the profession with the result of injury, loss, or damage
to the recipient of those services. . . . Trimel v.
Lawrence & Memorial Hospital Rehabilitation Center,
61 Conn. App. 353, 357–58, 764 A.2d 203, appeal dismissed,
258 Conn. 711, 784 A.2d 889 (2001).'' (Emphasis
in original; internal quotation marks omitted.) Vona v.
Lerner, supra, 72 Conn. App. 187.

Here, the court found that the defendant's wrongful
acts and omissions in representing the plaintiffs were
the proximate causes of the judgment being rendered
against them in the Deedy action. The judgment resulted
in a lien being placed on their residential property,
which was foreclosed. To save their property, the plaintiffs
were forced to pay $32,500 to Deedy. Our review
of the transcript and the exhibits at trial support the
court's conclusion.

‘‘An issue of proximate cause is ordinarily a question
of fact for the trier. . . . It becomes a conclusion of
law only when the mind of a fair and reasonable [person]
could reach only one conclusion . . . .'' (Citation
omitted; internal quotation marks omitted.) B&D Associates,
Inc. v. Russell, 73 Conn. App. 66, 77, 807 A.2d
1001 (2002). The audacity of the defendant's claim
stretches the limits of making fair and accurate representations
to this court, particularly in view of his own
words that are in evidence, as we will discuss.
The court found that the defendant had filed an
appearance in the foreclosure action and a disclosure
of defense that the judgment forming the basis of the
foreclosure was void or voidable, and that the action
against the plaintiffs violated the Connecticut Unfair
Trade Practices Act, General Statutes § 42-110a et seq.
The defendant also filed an answer and a counterclaim
against Deedy's attorney, alleging that the attorney
knew the judgment was invalid and that the plaintiffs
never personally had guaranteed the contract between
Deedy and the corporation.

Furthermore, in his September 9, 1994 affidavit submitted
as an attachment to the motion to open the
judgment against the plaintiffs in the Deedy action, the
defendant attested that ‘‘[a] good defense to the [Deedy]
action existed at the time of default and judgment, in
that Alphonse T. Dubreuil and Marilyn Dubreuil are not
personally liable for the corporate debt at issue in this
action. . . . The basis for individual liability alleged
by plaintiff consists solely of an unsigned mortgage
agreement, the attachment of which to plaintiff's complaint
appears intended to mislead the Court into a
belief that the document was in fact executed.'' Obviously,
the defendant believed himself that the plaintiffs
were not liable to Deedy.

Finally, when Skelton took over the legal matters the
defendant was handling for the plaintiffs, the defendant
sent him a memorandum informing him of the status
of the cases. The defendant placed that memorandum
in evidence. In the memorandum, the defendant stated
in part that ‘‘[t]he case was scheduled for a pretrial in
June. My partner was supposed to cover the pretrial
but forgot and showed up at the office. I then called
the court and left for the pretrial. The judge was
informed that I would be about fifteen minutes late. I
arrived at court twenty minutes late and [Judge] Hendel
informed me that he had already entered a default and
would not reopen it and my clients better settle.'' On
the basis of the defendant's representations alone, his
failure to appear at the pretrial caused the plaintiffs
harm.

The court, therefore, properly concluded that the
defendant's negligence was the proximate cause of the
plaintiffs' harm.

V

The defendant's last claim is that it was improper for
the court to find that he had breached the contract with
the plaintiffs. We disagree.

In the second count of their complaint, the plaintiffs
alleged that as a result of the defendant's negligent
failure to represent them in the Deedy action, he violated
several of the Rules of Professional Conduct. They
further alleged that as a result of his negligence and
violations of the Rules of Professional Conduct, the
defendant breached his contract with them. On appeal,
the defendant argues correctly that violations of the
Rules of Professional Conduct are not designed to form
the basis of an independent cause of action for civil
liability. Gagne v. Vaccaro, 255 Conn. 390, 403, 766 A.2d
416 (2001).

The defendant's argument, however, fails because
the court made no finding that he violated the Rules of
Professional Conduct, and a violation of the rules was
not the basis of its conclusion that he was liable to
the plaintiffs. The court concluded that the defendant's
representation of the plaintiffs demonstrated an obvious
and gross want of care and skill in that he allowed
a default and nonsuit to enter against them by failing
to attend the Deedy pretrial, took no action to set aside
the nonsuit and default until after judgment had been
rendered against them, and failed to attend the short
calendar to argue the motion to open the judgment or
to take any other action to protect their interests. The
basis of the court's decision, therefore, was the defendant's
negligent representation of the plaintiffs and not,
as he claims, any violation of the Rules of Professional
Conduct.

The defendant also argued that there was no evidence
to support the plaintiffs' claim that there was a contract
between the plaintiffs and the defendants with respect
to the Deedy action. The defendant acknowledged that
he had agreed to represent the corporation in bankruptcy;
there was a written agreement to that effect.
Alphonse Dubreuil testified that during the defendant's
work on the bankruptcy matter, he asked the defendant
to represent the plaintiffs in the Deedy action. The fact
that the defendant agreed to represent the plaintiffs is
supported by evidence that he entered an appearance
in the matter and filed pleadings on behalf of the plaintiffs.
His claim before this court is disingenuous.