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CHANDRA A. BOZELKO v. ANGELICA N.

PAPASTAVROS

(AC 36330)

DiPentima, C. J., and Sheldon and Norcott, Js.

Argued November 20, 2014—officially released March 24, 2015

(Appeal from Superior Court, judicial district of New

Haven, A. Robinson, J.)

Chandra A. Bozelko, self-represented, the appellant

(plaintiff).

Daniel J. Krisch, with whom, on the brief, were

Thomas P. Lambert and Brian E. Tims, for the appellee (defendant).
Opinion

DiPENTIMA, C. J. In this legal malpractice action, the

self-represented plaintiff, Chandra A. Bozelko, appeals

from the summary judgment rendered by the trial court

in favor of the defendant, Angelica N. Papastavros. On

appeal, the plaintiff claims that the court erred when

it (1) concluded that the allegations in the complaint

did not state a claim falling within the gross negligence

exception to the expert witness testimony requirement

for legal malpractice claims; (2) concluded that the

defendant’s affidavit presented evidence of undisputed

material fact; and (3) did not adjudicate the plaintiff’s

two requests for adjudication of discovery disputes in

a timely manner. In addition, the plaintiff claims that

requiring her—an indigent party—to retain an expert

witness in order to adjudicate her claim of legal malpractice violated her right to due process.1 We are not

persuaded by these claims and affirm the judgment of

the court.

The following facts and procedural history are relevant to this appeal. The plaintiff brought this claim of

legal malpractice against the defendant, alleging that

the defendant had inadequately represented herin criminal proceedings.2 On February 10, 2011, the plaintiff

filed the operative amended complaint(complaint) containing three counts.3

In count one, the plaintiff alleged

that on June 7, 2007, she retained the defendant to

represent her with respect to criminal charges that were

pending against her, and that the defendant was negligent in representing the plaintiff prior to and during

trial. In count two, the plaintiff alleged that the defendant breached the fiduciary duty that she owed to the

plaintiff as a result of their attorney-client relationship.

On March 28, 2013, the defendant filed a motion for

permission to file a summary judgment motion, which

the court denied, concluding that there was ‘‘insufficient time for the motion to be filed, responded to,

argued and decided before the June [27, 2013] trial

date.’’ In its order denying the defendant’s motion, however, the court also ordered the plaintiff to disclose her

expert witness ‘‘no less than forty-five days before trial,’’

because ‘‘the issue of expert disclosure may prove dispositive in this matter . . . .’’ In addition, the court

specifically stated that failure ‘‘to comply with this order

will result in the preclusion of the expert from testifying.’’ The court’s order also stated that the defendant

would be able to renew her motion for summary judgment should the plaintiff fail to comply with the disclosure requirement.

On May 17, 2013, the plaintiff filed her expert witness

disclosure, stating that she intended to call James J.

Ruane, her habeas counsel, as an expert witness. The

defendant moved to preclude Ruane from testifying,

arguing that the plaintiff had failed to comply with the
expert disclosure order. While the ruling on that motion

was pending, the defendant renewed her motion for

summary judgment.

On June 11, 2013, the court held a hearing on the

motion to preclude. During that hearing, Ruane testified

that he had not been retained as an expert witness by

the plaintiff, and that he had no opinion to offer in the

case. On the basis of Ruane’s testimony, the court found

that the plaintiff had failed to comply with the court’s

expert disclosure order and issued an order precluding

her from offering expert testimony in the case.4

The plaintiff filed a motion to reargue the preclusion

order, which was granted by the court. During the subsequent hearing on June 27, 2013, the plaintiff advanced

three arguments: (1) that her expert disclosure had

been timely and adequate; (2) that she could use the

defendant as her expert witness instead of Ruane; or,

in the alternative, (3) that this case was exempt from

the expert witness requirement for legal malpractice

actions because the defendant’s actions fell within the

gross negligence exception to the general rule. Upon

the conclusion of the hearing, the court found that, as

a matter of law, the plaintiff was required to support

her allegations with expert witness testimony because

the allegations in the complaint did not rise to the level

of gross negligence. The court then stated that although

it was ‘‘solicitous of self-represented parties and [tried]

to give deference to the fact that they do not have legal

training, they are still bound by the Connecticut rules

of practice. Under those rules, when there is expert

testimony required, [Practice Book §] 13-4 requires that

the disclosures be made that provide not only the identity of the expert but also the nature of the testimony

that is going to be provided.’’ The court then concluded

that the plaintiff could neither use Ruane, who had

testified to not having an opinion to offer, nor use the

defendant, whom the plaintiff had failed to timely and

properly disclose in accordance with the requirements

of our rules of practice on expert witness disclosure.

In conclusion, the court stated that, ‘‘despite being given

ample opportunity . . . over a period of over six years’’

to ‘‘fully and fairly to disclose’’ an expert, the plaintiff

had not done so, and that she failed to provide the court

‘‘with any reason to believe that given more time [she]

would get an expert.’’ On the basis of these conclusions,

the court declined to vacate the preclusion order, determined that it was not required to hold an evidentiary

hearing on the defendant’s motion for summary judgment because there was no genuine issue of material

fact that the plaintiff did not have the required expert

witness, and rendered judgment in favor of the defendant. The court, sua sponte, immediately stayed the

entry of the order for judgment until the plaintiff’s unresolved discovery issues were adjudicated. The court’s

order specifically stated that, pending the resolution

of the discovery issues, it ‘‘will consider whether it is
appropriate to enter final judgment for the defendant

or to vacate the order.’’ The court ultimately rendered

judgment in favor of the defendant on September 23,

2013. This appeal followed. Additional facts will be set

forth as necessary.

We begin by setting forth the applicable standard of

review. Practice Book § 17-49 provides that summary

judgment ‘‘shall be rendered forthwith if the pleadings,

affidavits and any other proof submitted show thatthere

is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.’’

(Internal quotation marks omitted.) Byrne v. Grasso,

118 Conn. App. 444, 447, 985 A.2d 1064 (2009), cert.

denied, 294 Conn. 934, 987 A.2d 1028 (2010). It is well

settled that 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. . . . On appeal, we must determine

whether the legal conclusions reached by the trial court

are legally and logically correct and whether they find

support in the facts set out in the memorandum of

decision of the trial court. . . . Our review of the trial

court’s decision to grant the defendant’s motion for

summary judgment is plenary.’’ (Internal quotation

marks omitted.) Id., 447–48.

I

The plaintiff first claims that the court erred in concluding that the allegations in the complaint did not fall

within the gross negligence exception to the expert

witness testimony requirement for legal malpractice

claims. We are not persuaded.

It is well established that ‘‘[i]n general, the plaintiff

in an attorney malpractice action must establish: (1)

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

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

(4) damages. . . . When proof of the existence of an

attorney-client relationship is conceded, proof of the

second element, a wrongful act or omission, normally

involves expert testimony as to the existence of a professional duty on the part of the attorney and a departure from it by some negligent act or omission. . . .

‘‘As to causation: In legal malpractice actions, the

plaintiff typically proves that the defendant attorney’s

professional negligence caused injury to the plaintiff

by presenting evidence of what would have happened

in the underlying action had the defendant not been

negligent.’’(Internal quotation marks omitted.) Id., 448–

49. The requirement of expert witness testimony in legal

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 evalu-
ate the [attorney’s] actions in light of that standard.’’

Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489

(1990). ‘‘[T]he determination of whether expert testimony is needed to support a claim of legal malpractice

presents a question of law.’’ (Internal quotation marks

omitted.) Byrne v. Grasso, supra, 118 Conn. App. 448.

Despite this general requirement, our courts have

carved out ‘‘a limited exception to this general rule in

cases in which there is present such an obvious and

gross want of care and skill that the neglect [to meet

the standard of care] is clear even to a layperson.’’

(Emphasis added; internal quotation marks omitted.)

Moore v. Crone, 114 Conn. App. 443, 447, 970 A.2d 757

(2009). The exception, however, ‘‘is limited to situations

in which the defendant attorney essentially has done

nothing whatsoeverto represent his or her client’s interests . . . .’’ Pagan v. Gonzales, 113 Conn. App. 135,

141, 965 A.2d 582 (2009); see also Cammarota v. Guerrera, 148 Conn. App. 743, 751–52, 87 A.3d 1134 (concluding that attorney’s act of giving check payable to client

to another individual constituted negligence within

common experience of lay jury not requiring expert

testimony), cert. denied, 311 Conn. 944, 90 A.3d 975

(2014); Paul v. Gordon, 58 Conn. App. 724, 728, 754 A.2d

851 (2000) (holding that no expert testimony required

where attorney allegedly did absolutely nothing to protect plaintiff’s interests).

In this case, the plaintiff’s complaint alleged, inter

alia, that the defendant failed to ‘‘institute a written fee

agreement . . . within a reasonable period of time,’’

misrepresented her trial experience and the length of

her legal career, and initiated contact with the news

media without the plaintiff’s consent. The complaint

further alleged that the defendant failed to familiarize

herself with the underlying facts; to become competent

in criminal trial procedure and laws; to exhibit competency in the practice of law; to deliver a coherent closing

argument; and to maintain attorney-client confidentiality.

The court, viewing the allegations in the complaint

liberally, concluded that ‘‘none of [the] claims assert

allegations that might fairly be read as gross negligence.’’ The court further determined that the ‘‘case

does not involve a claim that [the defendant] did nothing—or essentially nothing in representing [the plaintiff]. On the contrary, the plaintiff’s own claims allege

that [the defendant] did many things in her representation of the plaintiff, albeit they claim she did them

improperly or unprofessionally.’’ Furthermore, the

court found that even if the plaintiff did not need an

expert as to the standard of care, she ‘‘has not addressed

nor provided an expert as to the causation issue’’;(internal quotation marks omitted); which was her burden

as the plaintiff.

Having reviewed the record in the case, we conclude,
as did the trial court, that the allegations in the plaintiff’s

complaint did not state a claim of gross negligence and

therefore required expert witness testimony to assist

the trier of fact in determining the applicable standard

of care and to help evaluate the defendant’s actions in

light of that standard.5 The alleged failures all suggest

actions taken by the defendant that constituted efforts

to represent the plaintiff and were not within the common knowledge of the lay jury. The court properly

determined that the exception to the general requirement of expert testimony in legal malpractice claims

did not apply to this case and that, given the inability

of the plaintiff to present such expert testimony, her

claims of legal malpractice and breach of fiduciary duty

could not have been proven at trial. Thus, the plaintiff’s

first claim must fail.6

II

The plaintiff next claims that the court erroneously

rendered summary judgment in favor of the defendant

because the affidavit filed in support of the motion for

summary judgment failed to establish that there was no

genuine issue of material fact in dispute. The defendant

counters that it was an undisputed material fact in the

case that the plaintiff could not establish her prima

facie case due to a lack of expert witness testimony.

We agree with the defendant.

‘‘Because litigants ordinarily have a constitutional

right to have issues of fact decided by the finder of

fact, the party moving for summary judgment is held

to a strict standard. [It] must make a showing that it is

quite clear what the truth is, and that excludes any

real doubt as to the existence of any genuine issue of

material fact. . . . A material fact is a fact that will

make a difference in the result of the case. . . . [T]he

burden of showing the nonexistence of any material

fact is on the party seeking summary judgment . . . .

It is not enough for the moving party merely to assert

the absence of any disputed factual issue; the moving

party is required to bring forward . . . evidentiary

facts, or substantial evidence outside the pleadings to

show the absence of any material dispute. . . . The

party opposing summary judgment must present a factual predicate for [its] argument to raise a genuine issue

of fact. . . . Once raised, if it is not conclusively

refuted by the moving party, a genuine issue of fact

exists, and summary judgment is inappropriate.’’ (Citations omitted; emphasis altered; internal quotation

marks omitted.) Barasso v. Rear Still Hill Road, LLC,

81 Conn. App. 798, 802–803, 842 A.2d 1134 (2004).

In her affidavit supporting the motion for summary

judgment, the defendant averred that no genuine issue

of material fact existed as to whether the plaintiff could

establish her prima facie case of legal malpractice without expert testimony. To substantiate her allegations,

the defendant provided evidence outside the pleadings
establishing that the plaintiff had failed to comply with

the court’s order mandating the expert’s disclosure and,

as a result, was precluded from introducing an expert

witness. Having reviewed the record, we agree with the

court that despite her burden to provide an evidentiary

foundation demonstrating the existence of a genuine

issue of material fact, the plaintiff failed to provide such

evidence in support of her opposition to the motion for

summary judgment; the plaintiff failed to refute the

material fact that she did not have an expert witness.

Accordingly, we conclude that the court did not err in

its determination that the defendant’s affidavit brought

forward evidentiary facts outside the pleadings establishing an absence of a genuine issue of material fact.

Therefore, the plaintiff’s claim must fail.

III

The plaintiff next claims that the court abused its

discretion by delaying the resolution of hertwo requests

for adjudication of her discovery dispute. We are not

convinced.

We first note that the plaintiff’s claim concerns matters of judicial economy, docket management and control of courtroom proceedings that are particularly

within the province of a trial court. Marshall v. Marshall, 71 Conn. App. 565, 575, 803 A.2d 919, cert. denied,

261 Conn. 941, 808 A.2d 1132 (2002). Thus, our review

of this claim is governed by the abuse of discretion

standard. See id., 574.

‘‘There is no hard and fast rule by which an abuse

of discretion may be determined but, in general, for an

exercise of discretion not to amount to an abuse, it

must be legally sound and there must be an honest

attempt by the court to do what is right and equitable

underthe circumstances of the law, without the dictates

of whim or caprice.’’ (Internal quotation marks omitted.) Sullivan v. Yale-New Haven Hospital, Inc., 64

Conn. App. 750, 754, 785 A.2d 588 (2001). ‘‘Reversal is

required only where an abuse of discretion is manifest

or where injustice appears to have been done.’’(Internal

quotation marks omitted.) Id.

The following facts and procedural history facilitate

our discussion. The defendant first objected to the

plaintiff’s interrogatories on July 28, 2009, which was

almost four years before the June 27, 2013 trial date.

The plaintiff did not raise the issue with the court until

March 4, 2013, when she filed a request, asking the court

to schedule a hearing on the subject. In her request,

however, the plaintiff did not ask for a specific date on

which she wanted the hearing to be held. The court

granted the plaintiff’s request on March 11, 2013, without setting a date. Thereafter, the plaintiff did not file

a request for adjudication of discovery until May 3,

2013. On May 6, 2013, the court ordered the discovery

and other outstanding matters to be adjudicated on May
20, 2013, unless the defendant objected before May 10,

2013. The defendant objected on May 9, 2013. Thereafter, the plaintiff filed her second request for adjudication of discovery on May 20, 2013. On June 3, 2013, the

court ordered the matters to be adjudicated on June

11, 2013. At the June 11 hearing, the court found that

the plaintiff had failed to comply with the expert witness

disclosure order and granted the defendant’s motion to

preclude the plaintiff from offering an expert witness

to support her claims. The defendant then renewed her

motion for summary judgment. The plaintiff raised the

issue of the outstanding discovery, but the court stated

that it would not address discovery before deciding the

legal issue in the case—whether or not the plaintiff

could, as a matter of law, meet her burden of proof

in the case. On June 28, 2013, the court ordered the

outstanding discovery issues to be adjudicated on or

before July 22, 2013, and granted the defendant’s motion

for summary judgment, staying the judgment until after

the adjudication of the discovery dispute. Thereafter,

the issues were adjudicated by the court on July 3, 2013.

Having reviewed the record, we are convinced that

the court did not abuse its discretion in adjudicating

discovery issues. The plaintiff did not raise the issue

with the court until March, 2013—almost four years

after the defendant had objected to her interrogatories.

The court is not responsible for this delay. See Practice

Book § 13-8 (b). The record further reveals that once

the plaintiff had filed her request for adjudication, the

court promptly granted her requests and scheduled

hearings to resolve the matter. We also conclude that

the court did not abuse its discretion by declining to

consider the discovery issues before it had an opportunity to consider the dispositive legal issue in the case,

and the plaintiff could not have been harmed by the

court’s decision because an earlier resolution of the

discovery dispute would not have affected the issue of

expert witness preclusion. Simply stated, our review

does not uncover a manifest abuse of discretion, and no

injustice appears to have been done. Moreover, having

reviewed the record and the transcripts, we note that

the court remained attentive and patient with the plaintiff throughout the proceedings and afforded her more

than sufficient opportunities to present her case. Thus,

the plaintiff’s claim must fail.

IV

The plaintiff’s final claim is that the court violated

her constitutional right to due process by requiring her

to present an expert witness in order to litigate her

claim. Specifically, the plaintiff argues that requiring an

indigent litigant to procure expert witness testimony in

a legal malpractice action ‘‘essentially locks outindigent

plaintiffs and leaves them no way to get redress in [the

courts].’’ We conclude that this claim is inadequately

briefed and decline to afford it review.
In her brief, the plaintiff cites Boddie v. Connecticut,

401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), for

the proposition that ‘‘due process of law prohibits a

[s]tate from denying, solely because of inability to pay

court fees and costs, access to its courts to indigents

who, in good faith seek redress in the courts.’’ (Internal

quotation marks omitted.) She does not, however, indicate whether her claim concerns procedural due process, substantive due process or both, and provides no

meaningful legal analysis under either. See Columbia

Air Services, Inc. v. Dept. of Transportation, 293 Conn.

342, 358 n.7, 977 A.2d 636 (2009) (party should indicate

and provide separate cases and analysis on procedural

and substantive due process claims); see also Bohonnon Law Firm, LLC v. Baxter, 131 Conn. App. 371,

383, 27 A.3d 384 (same), cert. denied, 303 Conn. 902,

31 A.3d 1177 (2011). It is axiomatic that ‘‘[w]e are not

required to review issues that have been improperly

presented to this court through an inadequate brief.

. . . Analysis, rather than mere abstract assertion, is

required in orderto avoid abandoning an issue by failure

to brief the issue properly.’’ (Internal quotation marks

omitted.) State v. Carpenter, 275 Conn. 785, 826, 882

A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct.

1578, 164 L. Ed. 2d 309 (2006); see also Frauenglass &

Associates, LLC v. Enagbare, 149 Conn. App. 103, 111,

88 A.3d 1246 (‘‘[a] claim that does no more than assert

a due process violation without legal analysis is deemed

abandoned’’), cert. denied, 314 Conn. 927, 101 A.3d 273

(2014). Accordingly, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1 We note that even though the court did not make a specific finding as

to the plaintiff’s financial status, it approved several motions to waive the

entry fee and pay the cost of service where the plaintiff certified that she

had no equity and received only a small income from her employment

in prison.

2 Ultimately convicted, the plaintiff was sentenced to ten years incarceration, execution suspended after five years, followed by four years of probation. State v. Bozelko, 154 Conn. App. 750, 756, A.3d (2015).

3 The third count alleged negligent infliction of emotional distress. The

plaintiff withdrew this count on December 19, 2011.

4 The court also concluded that the disclosure was late and inadequate.

5

In addition, the plaintiff claims that the court violated her due process

rights when it declined to hold ‘‘ ‘a trial-like hearing’ ’’ before it engaged in

a ‘‘factual finding’’ on the issue of gross negligence. As we have stated, the

court’s determination was not a factual finding but a legal conclusion that

did not require a hearing. Thus, this claim is without merit.

6 We also agree with the court’s conclusion that the plaintiff’s claims of

breach of fiduciary duty likewise required expert witness testimony. Having

reviewed the plaintiff’s allegations of breach of fiduciary duty and legal

malpractice, we are convinced, as was the court, that ‘‘they mirror one

another; they essentially argue and claim the same thing.’’ As our cases have

held, ‘‘[a]lthough every attorney-client relationship imposes a fiduciary duty

on the attorney . . . a plaintiff cannot avoid [the] burden to present expert

testimony to articulate the contours of that relationship by styling [the]

cause of action as one for breach of fiduciary duty.’’ (Citation omitted.)

Marciano v. Kraner, 126 Conn. App. 171, 178–79, 10 A.3d 572, cert. denied,

300 Conn. 922, 14 A.3d 1007 (2011).