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*********************************************** 
LOUIS D. CORNEROLI v. RONALD W.

KUTZ ET AL.

(AC 39507)

DiPentima, C. J., and Alvord and Eveleigh, Js.

Syllabus

The plaintiff sought to recover damages from the defendant attorney and

the defendant law firm for their alleged legal malpractice in connection

with their representation of the plaintiff in a probate matter involving

the plaintiff’s claim to the proceeds of a sale of a certain painting. The

painting had been purchased for $3 by the plaintiff’s cousin, D. After D

died, the plaintiff entrusted the painting to B, who, unbeknownst to

the plaintiff, sold the painting to A for approximately $1.2 million. A

subsequently sold the painting to an unknown purchaser for millions

of dollars more than what he paid for it. After the plaintiff learned about

the sales of the painting, he brought an action for, inter alia, fraud and

conversion in New York against B, A, and the unknown purchaser, which

the New York court dismissed as to all parties except B. Subsequently,

after commencing an action against, inter alia, the plaintiff, B, and A,

the estate of D reached a settlement agreement for $2.4 million with A,

and withdrew its claim against the plaintiff. The plaintiff brought a

probate action claiming that he was entitled to 50 percent of the settlement because of an alleged former business partnership with D. The

Probate Court granted the estate’s motion to disallow the plaintiff’s

claim, and, thereafter, the defendants, on behalf of the plaintiff, filed

an appeal of the Probate Court’s decision in the Superior Court. The

estate filed a motion to dismiss the appeal for lack of subject matter

jurisdiction on the ground that the appeal was untimely, which the trial

court granted, and this court affirmed the dismissal. Subsequently, the

plaintiff filed the present legal malpractice action on the basis of the

defendants’ failure to timely prosecute the appeal from the Probate

Court on his behalf. The trial court granted the defendants’ motion for

summary judgment and rendered judgment thereon, from which the

plaintiff appealed to this court. On appeal, he claimed, inter alia, that

it was improper for the trial court to require expert testimony on the

issue of causation and, in the alternative, the testimony of his expert,

M, on the issue of causation was sufficient to defeat summary judgment. Held:

1. The trial court properly rendered summary judgment in favor of the

defendants on the basis of its conclusion that there was insufficient

expert testimony on the issue of causation: Connecticut law generally

requires the plaintiff in a legal malpractice action arising from prior

litigation to prove, through expert testimony, that but for the alleged

breach of duty, it was more likely than not that he would have prevailed

in the underlying cause of action, and, in the present case, the plaintiff

failed to prove that, had the defendants filed a timely appeal from the

decision of the Probate Court, he was more likely than not to prevail

on appeal to the Superior Court, as the opinions of M regarding causation

were based on possibility, not probability, and M’s testimony, thus, failed

to clearly express an opinion that had the defendants timely filed the

appeal to the Superior Court, the plaintiff was more likely than not

to prevail; furthermore, even if M expressed his opinions in terms of

reasonable probabilities rather than possibilities, there was an inadequate basis for any opinion by M on the issue of causation, as the Probate

Court’s decision relied on the preclusive effect of the New York action,

and because M was unfamiliar with the substance of that action, he had

no basis on which he could opine, beyond mere speculation, as to what

the result of an appeal to the Superior Court would have been.

2. This court declined to review the plaintiff’s claim that the trial court

improperly considered the defendants’ reply brief in support of the

motion for summary judgment, which, contrary to its certification, was

not received by the plaintiff’s counsel prior to the morning of the hearing

on the defendants’ motion for summary judgment, that claim having

been raised for the first time on appeal to this court and having been
inadequately briefed; moreover, the plaintiff could not prevail on his

claim that the trial court improperly permitted the defendants to file

their surreply, as the record was clear that the defendants sought and

received the court’s permission to file the surreply.

Argued January 9—officially released July 17, 2018

Procedural History

Action to recover damages for legal malpractice, and

for other relief, brought to the Superior Court in the

judicial district of Middlesex, where the court, Aurigemma, J., granted the defendants’ motion for summary

judgment and rendered judgment thereon, from which

the plaintiff appealed to this court. Affirmed.

Daniel H. Kennedy III, with whom was R. Bartley

Halloran, for the appellant (plaintiff).

Cristin E. Sheehan, with whom, on the brief, was

Michelle Napoli-Lipsky, for the appellees (defendants).
Opinion

ALVORD, J. The plaintiff in this legal malpractice

action, Louis D. Corneroli, appeals from the summary

judgment rendered by the trial court in favor of the

defendants, Ronald W. Kutz and Kutz & Prokop, LLP.

On appeal, the plaintiff claims that the court improperly

(1) rendered summary judgment in favor of the defendants on the basis of its conclusion that there was

insufficient expert testimony on the issue of causation,

and (2) considered certain documents filed by the

defendants. We affirm the judgment of the trial court.

The plaintiff’s present appeal marks yet another chapter in a saga of extensive litigation over the last twenty

years. The litigation arises out of the serendipitous purchase of an original John Singer Sargent painting by the

plaintiff’s late cousin, Salvatore D. D’Amico (decedent).

The defendants represented the plaintiff in a probate

matter involving the plaintiff’s claim to the proceeds of

the sale of that painting, and in subsequent appeals to

the Superior and Appellate Courts.

In its memorandum of decision, the trial court set

forth the following findings of the Probate Court. ‘‘The

decedent frequented tag sales in hopes of finding undervalued assets. At some point in 1978, he acquired for

$3 a painting which turned out to be an original [John

Singer] Sargent painting called ‘Carmencita Dancing’

worth several million dollars. The problem encountered

by the decedent was that he was unable to get the

painting authenticated and thus was unable to realize

the full value of the painting during his lifetime. At some

point, the decedent’s cousin, Louis Corneroli, began

working with the decedent, driving him around and also

becoming involved in his various projects, including the

effort to authenticate the Sargent painting. Mr. Corneroli contends that he and the decedent had a partnership in which they agreed to work on matters together

and equally split the profits realized from their activity.

The estate of Salvatore D. D’Amico strenuously denies

any such partnership. . . .

‘‘After the decedent died, Mr. Corneroli took possession of the painting and entrusted it to Mark Borghi,

who owned and operated an art gallery in New York

and who was in a better position to have the painting

authenticated than Mr. Corneroli. . . . Unbeknownst

to Mr. Corneroli, Mr. Borghi sold the painting to a Mr.

[Warren] Adelson, another art dealer who specialized

in Sargent paintings, for approximately $1.2 million.

Mr. Adelson turned around and sold the painting for

millions more than what he paid for it, again without

the knowledge of Mr. Corneroli. At some point, Mr.

Corneroli learned of the sale of the painting and filed

the Corneroli Complaint in New York, suing Mr. Borghi,

Mr. Adelson and John Doe, the still unknown purchaser

of the painting, alleging, inter alia, fraud, conversion
and breach of contract claims. Judge Ira Gammerman,

of the Supreme Court of the state of New York, after

hearing testimony from Mr. Corneroli on the Corneroli

complaint, found that Mr. Corneroli testified that he

had an agreement with Mr. Borghi under which the

parties were to divide the sales price of the sale of

the painting with Mr. Borghi receiving half and Mr.

Corneroli receiving half. . . . Mr. Corneroli freely

acknowledged during the trial that both the decedent

while living and his estate had a 50% interest in the

painting. . . . The Corneroli complaint, however,

alleged that Mr. Corneroli was the sole owner of the

painting. . . .

‘‘After hearing the testimony of Mr. Corneroli, the

New York court dismissed the case as to all parties

except Mr. Borghi. It is crystal clear from the transcript

that the claim against Mr. Adelson was dismissed ‘with

prejudice.’ . . . . The New York court further found

the potential recovery from Mr. Borghi in Mr. Corneroli’s favor to be approximately $313,000, which was

roughly one quarter of the sales price of the sale of

the painting from Mr. Borghi to Mr. Adelson. . . . Mr.

Corneroli acknowledged that he received about that

amount in either paintings or cash in July, 2003, and

that the parties thereafter returned to Connecticut to

open an estate for the decedent so that the estate could

pursue its share.

‘‘The administrators of the newly-opened estate of

D’Amico took a vastly different view of the history than

Mr. Corneroli. Based on their belief that Mr. Corneroli

had denied knowledge as to the location of the painting

shortly after the death of the decedent and further had

not disclosed that he had given the painting to the New

York art dealer until shortly before the proceedings in

New York occurred, the estate took the position that

there never was any partnership and that Mr. Corneroli

had absconded with the painting after the decedent

died. The estate filed a lawsuit in federal court in

December, 2003, which suit was dismissed without prejudice. A new suit was filed in July, 2005, in which the

estate sued, inter alia, Mr. Corneroli, Mr. Borghi and

Mr. Adelson, alleging that the painting had been stolen

by Mr. Corneroli and that title never passed due to this

fact. The estate sought a declaratory judgment that it

was the owner of the painting, a replevin of the painting

back to the estate and damages from Mr. Corneroli for

his alleged misdeeds. Mr. Corneroli filed an answer with

special defenses to the complaint in which he generally

alleged that his actions were taken as a partner of the

decedent and that he did not steal the painting. Mr.

Corneroli did not, however, file a counterclaim or seek

to join the [estate] in its claims against the other defendants, including Mr. Adelson.

‘‘A two day mediation to resolve the case occurred

on December 11 [and] 12 at New Britain Superior Court.
Counsel for Mr. Corneroli attended on the first day but

did not return for the second day. The remaining parties

reached an agreement on the second day, which

involved Mr. Adelson paying the [estate] the sum of

$2.4 million. In a lengthy agreement put on the record,

the [estate] indicated that the settlement was subject

to the [estate] obtaining a release of Mr. Corneroli and

the Probate Court approving the settlement as well. It

does not appear any formal notice was provided to Mr.

Corneroli of the settlement, however, his attorney was

called in connection with executing a release, which

was refused. The Probate Court hearing occurred and

the settlement was approved by the Probate Court. The

case against Mr. Corneroli was withdrawn. Thereafter,

Mr. Corneroli, in reviewing the probate file, learned

about the settlement amount for the first time. He filed

a claim with the estate dated August 23, 2007, in which

he stated that he was a partner with the decedent in

attempting to get the painting authenticated and that

their agreement was that any funds received as a result

of getting the painting authenticated would be split

equally and thus he was entitled to receive 50 [percent]

of the 2.4 million settlement.’’ (Emphasis omitted; footnote omitted.) The estate moved to disallow the plaintiff’s claim as untimely.

The Probate Court assumed for purposes of deciding

the motion that the plaintiff’s claim of partnership was

true, but nonetheless granted the estate’s motion to

disallow the plaintiff’s claim. The court concluded that

‘‘if, in fact, a partnership existed, the New York action

represented the one opportunity it had to obtain a recovery in this matter against Mr. Adelson,’’ and ‘‘the dismissal of the New York action against Mr. Adelson,

with prejudice, indicates to the court that Mr. Corneroli’s future opportunity to pursue a claim against

Mr. Adelson, either individually or as part of a partnership, has been forever precluded.’’ The court further

determined that the plaintiff or, alternatively, the partnership, ‘‘had no claim against Mr. Adelson,’’ and ‘‘upon

the conclusion of the New York litigation, the last

remaining asset of any ‘partnership’ was the $300,000

claim against Mr. Borghi, which Mr. Corneroli testified

to, but which could not be the subject of any award

. . . as the estate was not a party plaintiff in the action.

Mr. Corneroli cannot claim any interest in that claim

as he received his judgment in that amount against Mr.

Borghi already.’’

On the basis of its conclusion that ‘‘the New York

litigation fully and finally resolved any issues of partnership assets and . . . the fruits of the litigation brought

thereafter by the estate in no way can be determined

to be considered a partnership asset as a matter of law,’’

the court characterized the plaintiff’s claim against the

estate as an attempt to claim ‘‘an interest in a partnership asset which, as a matter of law, is not a partnership

asset.’’ The Probate Court granted the estate’s motion
to disallow the plaintiff’s claim and, on March 27, 2008,

sent notice of its decision to the parties and counsel.

On June 4, 2008, the defendants, on behalf of the

plaintiff, filed an appeal of the Probate Court’s decision

in the Superior Court. The estate moved to dismiss the

appeal for lack of subject matter jurisdiction, claiming

that the appeal was untimely. The court granted the

motion and dismissed the appeal as untimely.1 This

court affirmed the dismissal, and our Supreme Court

declined to hear the matter. See Corneroli v. D’Amico,

116 Conn. App. 59, 67, 975 A.2d 107, cert. denied, 293

Conn. 928, 980 A.2d 909 (2009).

In 2012, the plaintiff filed this legal malpractice action

on the basis of the defendants’ failure to timely prosecute the appeal from the Probate Court on his behalf.

In his fourth amended complaint, the plaintiff alleged

that the defendants were negligent in their representation of him in the underlying probate matter, and that

‘‘[h]ad the defendants filed a timely appeal, the plaintiff

would have had a reasonable basis for a successful

outcome of the de novo appeal.’’

On April 28, 2016, the defendants moved for summary

judgment, arguing that no genuine issue of material fact

existed because the plaintiff had ‘‘failed to disclose any

expert who can opine on the issue of proximate cause,

a necessary element in any legal malpractice action.’’

On July 27, the court issued a memorandum of decision,

in which it granted the defendants’ motion. This

appeal followed.

I

The plaintiff first claims that the trial court improperly rendered summary judgment in favor of the defendants on the basis of its conclusion that there was

insufficient expert testimony to create a genuine issue

of material fact as to causation. Specifically, he argues

that it was improper for the court to require expert

testimony on the issue of causation, and that even if it

were proper, his expert’s testimony on the issue of

causation was sufficient to defeat summary judgment.

We disagree.

The following procedural history is relevant to our

resolution of this claim. During discovery, the plaintiff

disclosed two experts: (1) Attorney John A. Berman, a

retired probate judge, and (2) Professor Jeremy

McClane, a professor at the University of Connecticut

School of Law.2

During his deposition, Professor McClane testified

that he is an expert on partnership law. He extensively

opined on the issue of partnership in the underlying

probate matter, testifying as to his belief that there was

‘‘a reasonable basis for a successful outcome of the

appeal’’ because there was ‘‘both a reasonable basis

that Corneroli would have been able to show that there

was a partnership and that the painting was partnership
property and that any disposition or any money coming

out of a disposition of that painting was also partnership

property . . . .’’ When questioned on the issue of causation, the following colloquy occurred:

‘‘[The Defendants’ Counsel]: Can you state to a reasonable degree of probability that the result of any

appeal—of the outcome of an appeal in the Superior

Court would have been different as opposed to [the

Probate Court’s] decision?

* * *

‘‘[Professor McClane]: I mean, it’s hard to say what

the outcome of a litigation would be just because there

are so many moving parts, so many things involved, the

skill of the lawyers, you know, what the jury thinks of

the witnesses, but I think that there is certainly a very

good chance that the outcome would have been different than what was indicated in [the Probate Court’s]

opinion.

‘‘[The Defendants’ Counsel]: But can you say to a

reasonable degree of probability that it’s more likely

than not the outcome would have been different?

* * *

‘‘[Professor McClane]: I think there’s a very good

chance the outcome would have been different. I don’t

know that I can say more likely than not. I’m not saying

it is or it isn’t. I just don’t think I can really say simply

because, you know, if you were to believe everything—

if a finder of fact were to believe everything that is in

all of this testimony and all of these document, then I

think, yes, there’s a—it’s likely that the outcome would

be different because I think they would understand that

this is a partnership asset and the claim is really about

liquidating the partnership asset and getting the value

for it. But I can’t opine on whether or not people are

going to believe one set of testimony over another.

‘‘[The Defendants’ Counsel]: Okay. So sitting here

today, you can’t testify—you can only testify you believe

there’s a very good chance the outcome would have

been different, not that it’s more likely than not it would

have been different?

* * *

‘‘[Professor McClane]: I can say that if at a trial everybody believed—that all of the testimony of Mr. Corneroli were believed, then I think it’s more likely

than not.

‘‘[The Defendants’ Counsel]: And what are the

chances that all of his testimony would be believed?

* * *

‘‘[Professor McClane]: I don’t have the crystal ball to

say that, unfortunately.’’

On April 28, 2016, the defendants moved for summary
judgment. In their memorandum in support of the

motion, the defendants argued that no genuine issue

of material fact existed with respect to the issue of

causation because ‘‘neither of the plaintiff’s disclosed

experts have offered testimony that the plaintiff would

have prevailed on legal and/or factual grounds had the

probate appeal been timely commenced and had the

Superior Court conducted a trial de novo on the merits

of [the] plaintiff’s claims.’’ With respect to Professor

McClane’s testimony on the issue of causation, the

defendants argued that he ‘‘could not state to a reasonable degree of probability that the outcome of a timely

appeal would have differed from [the Probate Court’s]

decision.’’ The defendants highlighted Professor

McClane’s testimony that: (1) it was ‘‘hard to say what

the outcome of a litigation would be just because there

are so many moving parts’’; (2) he did not know if he

could say ‘‘more likely than not’’ that the outcome would

have been different; (3) he was not ‘‘saying it is or it

isn’t’’ more likely than not; (4) he could not opine as

to whether a fact finder would believe ‘‘one set of testimony over another’’; and (5) he did not ‘‘have the crystal

ball’’ to evaluate the chances of the fact finder believing

the plaintiff’s testimony. The defendants noted that the

Probate Court assumed for purposes of its analysis that

a partnership existed between the plaintiff and the decedent with respect to the painting, and that Professor

McClane could not ‘‘articulate any basis on which the

Superior Court would have reached a different result.’’

The defendants further argued that Professor McClane’s

testimony spoke to ‘‘possibilities, not probabilities,

which is legally insufficient to meet the burden of

proof,’’ and accordingly, the plaintiff had failed to establish a prima facie case of legal malpractice.

The trial court rendered summary judgment in favor

of the defendants on July 27, 2016. In its memorandum

of decision, the court concluded that ‘‘Professor

McClane could not state to a reasonable degree of probability that the outcome of a timely appeal would have

differed from [the Probate Court’s] decision,’’ and highlighted his testimony that he did not know if he could

say ‘‘more likely than not’’ that the outcome would have

been different, and that he was not ‘‘saying it is or it

isn’t’’ more likely than not. The court further concluded

that ‘‘Professor McClane failed to offer any testimony

as to his bases for challenging the decision of [the

Probate Court].’’ Specifically, the court noted that Professor McClane’s testimony did not provide a basis for

challenging the Probate Court’s conclusion that the

New York action represented the plaintiff’s only opportunity to recover against Adelson under any legal theory. The court concluded: ‘‘[N]either [Professor

McClane’s] deposition testimony nor his affidavit provide any basis to support the opinion that Mr. Corneroli

would probably have prevailed in his de novo probate

appeal. To the contrary, Professor McClane testified
that he was not familiar with the substance of [the

Probate Court’s] opinion or Mr. Corneroli’s litigation

history vis-a`-vis the painting at issue. The opinion of

the Probate Court was rational, logical and based on

Mr. Corneroli’s prior litigation with respect to the painting. In order to decide contrary to the opinion of [the

Probate Court], a Superior Court Judge would certainly

need a good reason. Professor McClane has completely

failed to articulate such [a] reason. Thus, he provided

no basis for any opinion as to causation. Without such

a basis there is no genuine issue of material fact. Summary judgment enters in favor of the defendants.’’

We begin with the applicable standard of review and

principles of law that guide our analysis. ‘‘Practice Book

§ 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other

proof submitted show that there is no genuine issue as

to any material fact and that the moving party is entitled

to judgment as a matter of law. In deciding a motion

for summary judgment, the trial court must view the

evidence in the light most favorable to the nonmoving

party. . . . The party moving for summary judgment

has the burden of showing the absence of any genuine

issue of material fact and that the party is, therefore,

entitled to judgment as a matter of law. . . . Our

review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary. . . .

Summary judgment in favor of a defendant is proper

when expert testimony is necessary to prove an essential element of the plaintiff’s case and the plaintiff is

unable to produce an expert witness to provide such

testimony. . . .

‘‘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 . . . . Generally, a plaintiff alleging legal malpractice must prove all of the following elements: (1)

the existence of an attorney-client relationship; (2) the

attorney’s wrongful act or omission; (3) causation; and

(4) damages. . . .

‘‘The essential element of causation has two components. The first component, causation in fact, requires

us to determine whether the injury would have occurred

but for the defendant’s conduct. . . . The second component, proximate causation, requires us to determine

whether the defendant’s conduct is a substantial factor

in bringing about the plaintiff’s injuries. . . . That is,

there must be an unbroken sequence of events that tied

[the plaintiff’s] injuries to the [defendant’s conduct].

. . . This causal connection must be based [on] more

than conjecture and surmise. . . . [N]o matter how

negligent a party may have been, if his negligent act
bears no [demonstrable] relation to the injury, it is not

actionable . . . .

‘‘The existence of the proximate cause of an injury

is determined by looking from the injury to the negligent

act complained of for the necessary causal connection.

. . . In legal malpractice actions arising from prior litigation, the plaintiff typically proves that the . . . attorney’s professional negligence caused injury to the

plaintiff by presenting evidence of what would have

happened in the underlying action had the [attorney]

not been negligent. This traditional method of presenting the merits of the underlying action is often

called the case-within-a-case. . . . More specifically,

the plaintiff must prove that, in the absence of the

alleged breach of duty by her attorney, the plaintiff

would have prevailed [in] the underlying cause of action

and would have been entitled to judgment. . . . To

meet this burden, the plaintiff must produce evidence

explaining the legal significance of the attorney’s failure

and the impact this had on the underlying action.’’ (Citations omitted; emphasis omitted; footnote omitted;

internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282–84, 147 A.3d 1023 (2016).

We first address the plaintiff’s argument that it was

improper to require expert testimony on the issue of

causation because the ‘‘probability of success of the

underlying case is an ultimate issue.’’ According to the

plaintiff, ‘‘[i]t would be inappropriate for Mr. Corneroli

to disclose an expert on the underlying issue, as the

court can directly decide the merits of the underlying

case.’’ This argument is entirely without merit.

Section 7-3 (a) of the Connecticut Code of Evidence

provides in relevant part: ‘‘Testimony in the form of an

opinion is inadmissible if it embraces an ultimate issue

to be decided by the trier of fact, except that . . . an

expert witness may give an opinion that embraces an

ultimate issue where the trier of fact needs expert assistance in deciding the issue.’’ In regard to the issue of

causation in legal malpractice cases, our Supreme Court

recently ruled that ‘‘although there will be exceptions

in obvious cases, expert testimony . . . is a general

requirement for establishing the element of causation

in legal malpractice cases. Because a determination of

what result should have occurred if the attorney had not

been negligent usually is beyond the field of ordinary

knowledge and experience possessed by a juror, expert

testimony generally will be necessary to provide the

essential nexus between the attorney’s error and the

plaintiff’s damages.’’ (Footnotes omitted.) Bozelko v.

Papastavros, supra, 323 Conn. 284–85. In Bozelko, our

Supreme Court recognized the need for expert assistance to decide the issue of whether an attorney’s

alleged malpractice caused the claimed injury. In light

of the holding in Bozelko, we reject the plaintiff’s argument that it is improper to permit an expert to testify
as to his opinion on causation in a legal malpractice

case.3 See also Dixon v. Bromson & Reiner, 95 Conn.

App. 294, 299–300, 898 A.2d 193 (2006) (‘‘in a legal

malpractice case such as this, an expert witness is necessary to opine whether the defendant’s alleged breach

of care proximately caused the plaintiff’s alleged loss

or damages’’).4

Because we have concluded that, to defeat summary

judgment, the plaintiff was required to present expert

testimony to prove causation, we must now examine

the substance of Professor McClane’s testimony to

determine whether summary judgment was proper.

‘‘Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if

they are to be admissible in establishing causation. . . .

To be reasonably probable, a conclusion must be more

likely than not. . . . Whether an expert’s testimony is

expressed in terms of a reasonable probability that an

event has occurred does not depend upon the semantics

of the expert or his use of any particular term or phrase,

but rather, is determined by looking at the entire substance of the expert’s testimony.’’ (Internal quotation

marks omitted.) Drew v. William W. Backus Hospital,

77 Conn. App. 645, 662–63, 825 A.2d 810, cert. granted,

265 Conn. 909, 831 A.2d 249 (2003) (appeal withdrawn

December 22, 2003).

As we have noted, Connecticut law generally requires

the plaintiff in a legal malpractice action arising from

prior litigation to prove, through expert testimony, that

but for the alleged breach of duty, it was more likely

than not that he would have prevailed in the underlying

cause of action. In this case, the plaintiff was required

to prove that, had the defendants filed a timely appeal

from the decision of the Probate Court, he was more

likely than not to prevail on appeal to the Superior

Court. On appeal to this court, the plaintiff argues that

‘‘Professor McClane’s deposition testimony and expert

disclosure make it clear that he believes with a reasonable probability that Mr. Corneroli would have prevailed

in the de novo probate appeal.’’ We disagree.

Reviewing in its entirety Professor McClane’s testimony, and viewing that testimonial evidence in a light

most favorable to the plaintiff, we conclude that the

plaintiff failed to produce the expert testimony necessary to prove the essential element of causation in his

legal malpractice action. The substance of Professor

McClane’s testimony on the issue of causation can be

summarized as follows: (1) he found it ‘‘hard to say

what the outcome of a litigation would be just because

there are so many moving parts’’; (2) there was ‘‘certainly a very good chance’’ that the plaintiff would have

prevailed on appeal from the Probate Court; (3) even

though he thought that there was a ‘‘very good chance’’

that the plaintiff would have prevailed on appeal, he

did not know that he could ‘‘say more likely than not’’;
(4) he was not saying that ‘‘it is or it isn’t’’ more likely

than not that the plaintiff would prevail on appeal; (5)

he could not ‘‘opine on whether people are going to

believe one set of testimony over another’’; (6) if, at a

trial, ‘‘all of the testimony of Mr. Corneroli were

believed,’’ it was ‘‘more likely than not’’ that he would

prevail; and (7) he did not have a ‘‘crystal ball’’ to opine

on the chances of the fact finder believing all of the

plaintiff’s testimony. It is clear from this testimony that

Professor McClane’s opinions regarding causation were

based on possibility, not probability. Those possibilities

depended on the ‘‘many moving parts’’ that Professor

McClane described, which included: (1) the skill of the

lawyers; (2) the jury’s opinion of the witnesses; (3) the

likelihood of the fact finder believing the testimony

and documents; (4) the jury’s understanding that the

painting was a partnership asset; (5) the jury’s understanding that ‘‘the claim is really about liquidating the

partnership asset and getting the value for it’’; and (6)

the likelihood of ‘‘everybody’’ believing the testimony

of the plaintiff. Professor McClane’s testimony fails to

clearly express an opinion that had the defendants

timely filed the appeal to the Superior Court, the plaintiff was more likely than not to prevail.5

Furthermore, even if we were to assume that Professor McClane expressed his opinions in terms of reasonable probabilities rather than possibilities, we conclude

that there was an inadequate basis for any opinion by

Professor McClane on the issue of causation. The Probate Court largely based its decision on its observation

that ‘‘if, in fact, a partnership existed, the New York

action represented the one opportunity it had to obtain

a recovery in this matter against Mr. Adelson.’’ As the

trial court noted, Professor McClane failed to review

the New York decision. Professor McClane testified that

he understood the plaintiff’s involvement in the New

York litigation and he understood that the plaintiff’s

claim against Mr. Adelson was dismissed with prejudice, but that, in addition to not reading the New York

court’s decision, he also did not: (1) read the transcripts

of that case; (2) review the evidence presented in that

case; or (3) know what the cause of action was in

that case. When questioned about his opinion as to the

Probate Court’s conclusion that the New York action

precluded the probate claim, the following colloquy

occurred:

‘‘[The Defendants’ Counsel]: And in the last paragraph

of page three, exhibit 4, it begins, quote, ‘The plain

conclusion reached by this court, however, is that if,

in fact, a partnership existed, the New York action represented the one opportunity it had to obtain a recovery

in this matter against Mr. Adelson,’ close quote. Do you

see that?

‘‘[Professor McClane]: Yes, I do.

* * *
‘‘[The Defendants’ Counsel]: Do you agree as to

that conclusion?

‘‘[Professor McClane]: I don’t actually have any basis

on which to evaluate that conclusion, simply because

I don’t know what the action—what the specific cause

of action was in New York.

‘‘For example, were they suing for a breach of a

contract of sale between the partnership and Mr. Borghi? In that case, then that claim is obviously foreclosed.

But if there was another sort of duty, some kind of

unlawful conversion or something like that, then that’s

not foreclosed by the New York action.

‘‘But, again, I just don’t know, right. So I don’t want

to speculate.

‘‘[The Defendants’ Counsel]: And you’re not here to

testify about the effect of that decision; correct?

‘‘[Professor McClane]: Yeah.’’ (Emphasis added.)

The question with respect to the issue of causation

is whether, on appeal, the plaintiff was more likely than

not to prevail. The result in the Probate Court was

determined in large part by the preclusive effect of the

New York action. Professor McClane conceded that to

opine on the preclusive effect of the New York action,

he would have to engage in speculation. Since the Probate Court’s decision relied on the preclusive effect

of the New York action, and Professor McClane was

unfamiliar with the substance of that action, he had no

basis on which he could opine, beyond mere speculation, as to what the result of an appeal to the Superior

Court would have been.6 See, e.g., Weinstein v.

Weinstein, 18 Conn. App. 622, 636–37, 561 A.2d 443

(1989) (where expert did not examine books or records

of business, trial court did not abuse discretion by refusing to allow testimony regarding valuation of business

because there was insufficient basis for opinion on

that issue).

We conclude that the defendants established the lack

of a genuine issue of material fact concerning the issue

of causation, such that they were entitled to judgment

as a matter of law. Even viewing the evidence in the

light most favorable to the plaintiff, we conclude that

he failed to present evidence that would raise such an

issue. Accordingly, the court properly rendered summary judgment in favor of the defendants.7

II

The plaintiff also claims that the trial court improperly: (1) considered the defendants’ reply brief in support of the motion for summary judgment, and (2)

permitted the defendants to file a surreply brief in further support of the motion for summary judgment.

These claims are meritless.

The following procedural history is relevant to our
resolution of these claims. The defendants filed their

motion for summary judgment and supporting memorandum on April 28, 2016. On June 6, the plaintiff filed

his memorandum in opposition to the defendants’

motion for summary judgment. On June 14, the defendants filed a reply brief in further support of their

motion for summary judgment. On the last page of the

reply brief, the defendants’ counsel certified that a copy

was ‘‘mailed or electronically delivered on this 14th day

of June, 2016, to all counsel . . . .’’

On June 20, the court heard argument on the defendants’ motion for summary judgment. At that time, the

plaintiff’s counsel represented to the court that

although the defendants’ counsel certified that a copy

of the reply brief ‘‘was e-mailed and sent via mail to

both my office and [co-counsel’s] office,’’ they had not

received a copy. Counsel further represented that she

discovered that the reply brief had been filed that morning when a paralegal checked the court docket prior

to the hearing. Counsel argued that this was prejudicial,

as she had not yet researched any of the cases cited

in the defendants’ reply brief. Counsel requested the

court’s permission to file a surreply brief within one

week, stating: ‘‘[W]e’re okay moving forward with the

argument today, but we would like a chance to respond

without them then responding again, but I think out of

fairness.’’8 The court granted the request of the plaintiff’s counsel to file a surreply brief within a week of

the hearing.

On June 27, as permitted by the court, the plaintiff

filed a surreply brief in opposition to the defendants’

motion for summary judgment. The plaintiff attached

to his surreply, as exhibit B, an affidavit of Professor

McClane, which stated:

‘‘On March 31, 2016, I sat for a deposition by Defendants’ counsel in Hartford, Connecticut. . . .

‘‘I was questioned by the Defendants’ counsel as to

the probability that Mr. Corneroli would have been successful on his appeal from Probate Court had the Defendants filed a timely appeal. I testified that there was a

reasonable basis for a successful outcome of that appeal

and that there was a very good chance the outcome

would have been different than it was in the Probate

Court. I believe it was reasonably probable. . . .

‘‘When queried as to whether it was ‘more likely than

not’ I did not understand the terminology in the context

of the pending legal malpractice action. As I now understand the Defendants’ position, I am comfortable that

my reasonable probability standard well exceeds more

likely than not. . . .

‘‘It was my opinion on March 31, 2016, and it is still

my opinion, that it is more likely than not that Mr.

Corneroli would have been successful had the Defendants filed a timely appeal.’’
On June 30, the defendants filed their own surreply

brief in further support of the motion for summary

judgment. The defendants argued that exhibit B to the

plaintiff’s surreply constituted a ‘‘sham affidavit,’’ an

‘‘affidavit in opposition to a motion for summary judgment that contradicts the affiant’s prior deposition testimony,’’ which the court should reject. The defendants

acknowledged that Connecticut courts had not

expressly adopted the sham affidavit rule but cited

cases in which courts had applied the ‘‘underlying rationale for the rule’’ in deciding motions for summary

judgment. The defendants argued that the affidavit was

an attempt to ‘‘submit contradictory testimony from

[the plaintiff’s] own expert to avoid the entry of summary judgment,’’ and that the affidavit was improper,

untimely, lacked credibility, and could not ‘‘be

explained as the result of confusion.’’ The defendants

argued that the affidavit was an attempt to materially

alter Professor McClane’s testimony and, alternatively,

violated the court’s scheduling order as the introduction

of additional testimony from an expert after expert

discovery concluded.

On July 1, the plaintiff filed an objection to the defendants’ surreply. The plaintiff cited Practice Book § 11-

10,9 which requires a party seeking to file a surreply

to obtain permission from the court, and argued that

because the defendants had failed to seek permission

to file their surreply, it was not properly before the

court. Also on July 1, the defendants filed a caseflow

request, in which they requested the court’s permission

to file a surreply. The defendants listed as a reason for

the request: ‘‘Plaintiff’s counsel offered an affidavit from

his expert which contradicts prior testimony. Defendants request that the court give due consideration to

a surreply addressed to issues raised by the plaintiff’s

brief including the expert affidavit.’’ On July 18, the

court overruled the plaintiff’s objection.10

The plaintiff argues, for the first time on appeal, that

the court improperly considered the defendants’ reply

brief, which, contrary to its certification, was not

received by the plaintiff’s counsel prior to the morning

of the hearing on the defendants’ motion for summary

judgment. We conclude that the plaintiff has abandoned, by failing to adequately brief, this claim. The

plaintiff devotes three sentences of his brief to this

issue, in which he does not cite or analyze any case

law but merely makes bare factual assertions. See footnote 7 of this opinion. Furthermore, ‘‘[t]o review claims

articulated for the first time on appeal and not raised

before the trial court would be nothing more than a

trial by ambuscade of the trial judge.’’ (Internal quotation marks omitted.) Bragdon v. Sweet, 102 Conn. App.

600, 607, 925 A.2d 1226 (2007). Accordingly, we decline

to review this claim.

The plaintiff also argues that the court improperly
permitted the defendants to file the June 30 surreply.

Specifically, he argues that, because the defendants

‘‘neither made any oral request nor filed a request for

leave for permission to make such a filing’’ pursuant

to Practice Book § 11-10, the surreply ‘‘was not properly

before the court.’’ We disagree.

Practice Book § 11-10 (c) provides: ‘‘Surreply memoranda cannot be filed without the permission of the

judicial authority.’’ The record here is clear that the

defendants sought, and received, the court’s permission

to file the surreply. After it considered the plaintiff’s

objection, the court overruled the objection and granted

the defendants permission to file the surreply.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 45a-186 (a) requires the filing of an appeal in the

Superior Court no later than thirty days after the mailing of the Probate

Court’s decision. See Corneroli v. D’Amico, 116 Conn. App. 59, 67, 975 A.2d

107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009).

2 Although, in his expert disclosure, the plaintiff represented that Attorney

Berman would opine on the issue of causation, at his deposition, Attorney

Berman was unable to do so. When asked if he had an opinion ‘‘as to whether

it is more probable than not that the Superior Court would have decided

in Mr. Corneroli’s favor,’’ Attorney Berman responded: ‘‘I do not have. That

would be—I didn’t prepare for that answer or that question.’’ He further

testified that he could not ‘‘answer whether or not [the plaintiff] would

prevail.’’

In its memorandum of decision, the court concluded that Attorney Berman’s testimony was ‘‘insufficient to establish a prima facie case on the

issue of causation,’’ and noted his concessions ‘‘that he does not know and

cannot predict whether [the Probate Court’s] decision would have been

upheld or reversed on appeal,’’ and that he was ‘‘not prepared to opine as

to whether it was more probable than not that the Superior Court would

have found in Mr. Corneroli’s favor on appeal.’’ On appeal to this court, the

plaintiff does not challenge the court’s conclusions as to Attorney Berman.

Furthermore, the plaintiff’s counsel conceded during oral argument before

this court that Attorney Berman only opined as to the applicable standard

of care. Accordingly, we address the plaintiff’s claim only as it relates to

the opinions of Professor McClane.

3 The plaintiff similarly argues that by rendering summary judgment in

favor of the defendants, the trial court decided an issue of fact as to whether

Professor McClane’s opinion as to causation was sufficient. This argument

also is without merit, because as we have explained, to defeat summary

judgment in his legal malpractice case, the plaintiff was required to present

expert testimony on the essential element of causation. See Bozelko v.

Papastavros, supra, 323 Conn. 284–85.

4 The plaintiff now contends that the trial court’s statement that ‘‘to decide

contrary to the opinion of [the Probate Court], a Superior Court judge would

certainly need a good reason,’’ indicates a misunderstanding of the nature

of a de novo appeal from the Probate Court. Specifically, the plaintiff argues

that since the appeal of a probate decision to the Superior Court ‘‘is not a

challenge to the Probate Court’s decision’’ but, rather, is ‘‘a new action,’’ a

plaintiff in a probate appeal to the Superior Court ‘‘has no duty to demonstrate any flaws in the Probate Court decision.’’ We do not understand the

court’s statement to indicate a misunderstanding of the nature of a de novo

appeal. The court’s statement merely recognizes that, to create a genuine

issue of material fact to defeat summary judgment, the plaintiff’s expert

must opine that the plaintiff more likely than not would have prevailed on

appeal to the Superior Court, and explain the bases for that opinion. That

necessarily would require Professor McClane to provide a ‘‘good reason’’

as to why the Superior Court would ‘‘decide contrary to the opinion of [the

Probate Court] . . . .’’

Furthermore, the plaintiff did not request an articulation on this point,

and ‘‘[t]o the extent that the [trial] court’s decision is ambiguous . . . it

was [the appellant’s] responsibility to seek to have it clarified.’’ (Internal
quotation marks omitted.) DiRienzo Mechanical Contractors, Inc. v. Salce

Contracting Associates, Inc., 122 Conn. App. 163, 169, 998 A.2d 820, cert.

denied, 298 Conn. 910, 4 A.3d 831 (2010). ‘‘In the absence of a motion for

articulation . . . it would be sheer speculation for this court to assume

that the trial court applied the incorrect legal standard.’’ (Citation omitted;

internal quotation marks omitted.) Daly v. DelPonte, 27 Conn. App. 495,

507, 608 A.2d 93 (1992), rev’d on other grounds, 225 Conn. 499, 624 A.2d

876 (1993).

5 The plaintiff also argues that the trial court improperly found that an

expert must employ the phrase ‘‘more likely than not’’ as to the issue of

causation. The court, however, in its memorandum of decision, cited this

court’s decision in Drew v. William W. Backus Hospital, supra, 77 Conn.

App. 663, acknowledging that the sufficiency of an expert’s testimony does

not depend on his use of any particular term or phrase. We, therefore, reject

the factual premise of the plaintiff’s argument.

6 During his deposition, Professor McClane also opined that there was ‘‘a

reasonable basis for a successful outcome of the appeal,’’ because there

was ‘‘a reasonable basis that Corneroli would have been able to show that

there was a partnership and that the painting was partnership property and

that any disposition or any money coming out of a disposition of that painting

was also partnership property . . . .’’ Professor McClane further testified

that although he was aware that the Probate Court, for purposes of deciding

the motion to disallow the claim against the decedent’s estate, assumed

that a partnership did in fact exist between the plaintiff and the decedent,

in his opinion, this assumption was ‘‘internally inconsistent’’ with some of

the conclusions that the Probate Court reached in that decision. The plaintiff

now argues that this testimony demonstrates Professor McClane’s opinion

that it was reasonably probable that the plaintiff would have prevailed had

the defendants filed a timely appeal. In light of our conclusion that Professor

McClane did not have an adequate basis for his opinions, we need not

address this argument.

7 The plaintiff also argues that the trial court: (1) improperly opined that

the Probate Court’s decision was rational and logical ‘‘without any review

or knowledge of evidence’’ presented during the probate proceedings; (2)

improperly rendered summary judgment in favor of the defendants without

any information regarding the evidence that would be presented at a de

novo trial; and (3) failed to ‘‘contemplate’’ that new evidence, not presented

to the Probate Court, may exist and be presented during a de novo trial to

the Superior Court. We conclude that the plaintiff has abandoned these

claims through inadequate briefing.

‘‘It is well settled that [w]e are not required to review claims that are

inadequately briefed. . . . We consistently have held that [a]nalysis, rather

than mere abstract assertion, is required in order to avoid abandoning an

issue by failure to brief the issue properly. . . . [F]or this court judiciously

and efficiently to consider claims of error raised on appeal . . . the parties

must clearly and fully set forth their arguments in their briefs. We do not

reverse the judgment of a trial court on the basis of challenges to its rulings

that have not been adequately briefed. . . . The parties may not merely

cite a legal principle without analyzing the relationship between the facts

of the case and the law cited. . . . [A]ssignments of error which are merely

mentioned but not briefed beyond a statement of the claim will be deemed

abandoned and will not be reviewed by this court.’’ (Internal quotation

marks omitted.) Benedetto v. Dietze & Associates, LLC, 159 Conn. App. 874,

880–81, 125 A.3d 536, cert. denied, 320 Conn. 901, 127 A.3d 185 (2015). The

plaintiff has devoted just over a page of his brief to these three arguments,

in which he does little more than briefly recite various factual assertions

and one general principle of probate law. Accordingly, these claims are

briefed inadequately, and we decline to review them.

8 The plaintiff’s counsel at no time objected to the court’s consideration

of the defendants’ reply brief, nor moved to strike the reply brief.

9 Practice Book § 11-10 (c) provides: ‘‘Surreply memoranda cannot be filed

without the permission of the judicial authority.’’

10 In its memorandum of decision, the trial court refused to consider the

affidavit. The court cited the decision of the United States Court of Appeals

for the Second Circuit in Perma Research & Development Co. v. Singer Co.,

410 F.2d 572, 578 (2d Cir. 1969), in which that court said: ‘‘If a party who

has been examined at length on deposition could raise an issue of fact

simply by submitting an affidavit contradicting his own prior testimony, this

would greatly diminish the utility of summary judgment as a procedure for

screening out sham issues of fact.’’ The trial court went on to conclude that,
even if it were to ‘‘overlook the improbability of Professor McClane’s claim

that when he was deposed, he did not understand what ‘more likely than

not’ meant, neither his deposition testimony nor his affidavit provide any

basis to support the opinion that Mr. Corneroli would probably have prevailed in his de novo probate appeal,’’ as Professor McClane testified that

he was not familiar with the substance of the Probate Court’s opinion or

the New York litigation vis-a`-vis the painting.

The plaintiff now argues that the court erred by refusing to consider the

affidavit. This claim warrants only a brief analysis. It is within the trial

court’s discretion whether to accept or decline supplemental evidence in

connection with a motion for summary judgment. Nieves v. Cirmo, 67 Conn.

App. 576, 587 n.4, 787 A.2d 650, cert. denied, 259 Conn. 931, 793 A.2d 1085

(2002). Although the court permitted the plaintiff to file a surreply for the

purpose of responding to the defendants’ reply brief, the plaintiff went

beyond merely responding to the defendants’ reply brief and attached an

affidavit containing statements by Professor McClane, a witness that the

defendants would not have the opportunity to redepose prior to the court’s

decision on the motion for summary judgment. This court will not, on

appeal, disturb the trial court’s discretion to refuse to consider supplemental

evidence submitted after full briefing and argument on a motion for summary judgment.