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STUART v. FREIBERG—DISSENT

EVELEIGH, J., dissenting. Irespectfully disagree with

the majority’s conclusion that the claims of fraud, negligent misrepresentation, and accounting malpractice set

forth in the complaint filed by the plaintiffs, William A.

Stuart and Jonathan Stuart,1 do not present material

issues of fact for the jury. In my view, the majority is

really questioning the reasonableness of the parties’

claimed reliance on the professional advice ofthe defendant, Richard M. Freiberg. The majority states that ‘‘the

plaintiffs did not present sufficient counterevidence to

show how they were otherwise able to rely on a false

statement or misrepresentation . . . .’’ We have previously stated, however, that the reasonableness of a

reliance is a matter of fact for the trier. Further, the

majority inserts its own opinion of causation although

this court has repeatedly held that, in the absence of

extraordinary circumstances, causation is a matter of

fact for the trier. Therefore, I respectfully dissent from

the majority opinion.

I agree with the majority’s recitation of the facts.

Therefore, I will not repeat the facts for the purposes

of this opinion. I will insert additional facts only as

needed as part of the discussion.

I

I disagree with the majority that the trial court appropriately applied the summary judgment standard to the

facts of this case. ‘‘Pursuant to Practice Book § 17-49,

the party seeking summary judgment has the burden of

showing the absence of any genuine issue [of] material

facts which, under applicable principles of substantive

law, entitle him to a judgment as a matter of law . . .

and the party opposing such a motion must provide an

evidentiary foundation to demonstrate the existence of

a genuine issue of material fact. . . . [A] party opposing [a motion for] summary judgment must substantiate

its adverse claim by showing that there is a genuine

issue of material fact together with evidence disclosing

the existence of such an issue. . . . On a motion by

the defendant for summary judgment, the burden is on

the defendant to negate each claim as framed by the

complaint . . . . It necessarily follows that it is only

[o]nce the defendant’s burden in establishing his or

her entitlement to summary judgment is met [that] the

burden shifts to the plaintiff to show that a genuine

issue of fact exists justifying a trial.’’ (Citations omitted;

internal quotation marks omitted.) Iacurci v. Sax, 313

Conn. 786, 808–809, 99 A.3d 1145 (2014). ‘‘[I]n deciding

a motion for summary judgment, the trial court must

view the evidence in the light most favorable to the

nonmoving party.’’ (Internal quotation marks omitted.)

DiPietro v. Farmington Sports Arena, LLC, 306 Conn.

107, 116, 49 A.3d 951 (2012).
Respectfully, in my view, both the trial court and the

majority have failed to view the evidence regarding

fraud, negligent misrepresentation and accounting malpractice in the light most favorable to the plaintiffs.

The majority concludes that there is no issue of material

fact regarding the fraud and negligent misrepresentation counts because there is no showing of reliance on

the part of the plaintiffs. The majority states that

‘‘[a]side from William’s affidavit, the plaintiffs do not

direct our attention to any counterevidence outside of

the pleadings that could support their essential element

of reliance.’’ (Emphasis omitted.) I respectfully disagree. In my view, the facts that one of the plaintiffs had

a telephone call with the defendant in which financial

matters were discussed and that the defendant forwarded financial statements to the plaintiffs, is sufficient to raise a genuine issue of material fact as to the

fraud and negligent misrepresentation claims.

I further agree with the majority of the Appellate

Court, which stated that ‘‘[u]nder these circumstances,

it is of no legal significance that the plaintiffs had no

direct contact with the defendant. In sum, the record

available to the court, particularly Judge Adams’ decision in Stuart v. Stuart, [Superior Court, judicial district

of Stamford-Norwalk, Complex Litigation Docket,

Docket No. X08-CV-02-0193031-S (June 28, 2004) (37

Conn. L. Rptr. 367), aff’d, 112 Conn. App. 160, 962 A.2d

842 (2009), rev’d in part, 297 Conn. 26, 996 A.2d 259

(2010)], provides sufficient counterbalance to the

defendant’s filings in support of his motion for summary

judgment to render resolution of the issue of reliance

to the adjudication of fact finders and not to summary

disposition by the court short of trial.’’ Stuart v. Freiberg, 142 Conn. App. 684, 702, 69 A.3d 320 (2013). I

note, as did the Appellate Court, that Judge Adams’

memorandum of decision in Stuart v. Stuart, supra,

was submitted to the trial court in the present case by

the defendant, as it was appended to his motion for

summary judgment. Stuart v. Freiberg, supra, 699 n.13.

The Appellate Court further noted that ‘‘the court’s

detailed and fact-laden memorandum of decision in Stuart v. Stuart, supra, [37 Conn. L. Rptr.] 367, makes

clear the court’s finding that the defendant provided

accounting assistance to [Kenneth] while that lengthy

litigation was pending and that, during the litigation,

improper acts were committed by [Kenneth] with the

assistance of the defendant, to the detriment of the

beneficiaries of [Stuart’s] estate.’’ Stuart v. Freiberg,

supra, 142 Conn. App. 700. ‘‘For example, in its memorandum of decision, the court, Adams, J., noted: ‘[Kenneth’s] record keeping was haphazard at best. John

Slade, an accountant hired by [Kenneth] to assist with

the books and records of the [family trust] and partnership from early 1992 to 1994, told [Kenneth] that he

had to be more organized in keeping records. . . . The
plaintiffs’ expert, John [D.] Dempsey, a [certified public

accountant], found that the lack of record keeping was

notable and that he had never seen a case where the

books were so incomplete and funds so commingled.

. . . Dempsey also described the work of [the defendant] . . . who worked for [Kenneth] from 1994 to

2001, as designed to hide, rather than disclose the truth.

. . . Furthermore, [Kenneth] failed to produce the

annual accountings required by the [trust]. Although

certain partial information was given out from time to

time it was incomplete and unverified. The court was

never shown a complete [t]rust accounting for any

period of time.’ . . . Elsewhere in its memorandum of

decision the [trial] court noted: ‘[T]he regularity and

extent that [Kenneth] directed the use of partnership

funds for his personal benefit is staggering. This course

of action was explicitly articulated by both [the defendant and Kenneth]. In a letter dated February 26, 1998,

[the defendant] advised New Milford Savings Bank . . .

that [Kenneth] received from [Stuart’s estate, the trust,

the partnership and others, certain] non taxable funds

related to executive perks, deferred compensation and

loans. . . . About two weeks later, [the defendant]

elaborated: Basically all of [Kenneth’s] living expenses

are paid from the above referenced entities . . . and

are charged or reclassified at the end of each year.

These amounts have been in excess of $90,000 per

annum.’ ’’ (Citation omitted.) Id., 700–701 n.14.

In addition, I am persuaded that William’s affidavit,

which was submitted in opposition to the motion for

summary judgment, also raises a genuine issue of material fact that he relied on the financial advice from the

defendant.2

In my view, the content of this affidavit

provides more than a sufficient basis to justify the denial

of the motion for summary judgment on the three separate counts. A material issue of fact clearly exists

regarding the fictitious credit of $490,755 (i.e., fraud),

the two different versions of the accounting statements

(i.e., fraud or at the very least negligent misrepresentation), and the commingling of personal and estate funds

(i.e., malpractice). Certainly, when considering these

facts in a light most favorable to the nonmoving party,

the summary judgment motion must fail.

In addition, Dempsey submitted an affidavit in opposition to the motion for summary judgment, detailing

aspects of the defendant’s accounting practices that did

not comply with professional standards.3

In my opinion,

Dempsey’s affidavit also supports the plaintiffs’ claim

that he established a genuine issue of material fact

sufficient to survive summary judgment.

The majority appears to rely on the issue of reliance

for its conclusion regarding the accounting malpractice

count, as it did in the fraud and negligent misrepresentation count. Specifically, the majority states that ‘‘the

plaintiffs have not presented any arguments that would
allow us to reach a different result here from that

already reached on the fraud and negligent misrepresentation counts.’’ However,reliance orthe reasonableness

thereof has never been an element of a professional

malpractice claim. Instead, in my view, the majority

inserts its own opinion into an area that has classically

been left for the jury—causation. I would therefore

affirm the judgment of the Appellate Court on the

ground that the affidavits and records in the present

case clearly establish that a material issue of fact exists

with regard to all three counts within the plaintiffs’

complaint, namely, fraud, negligent misrepresentation

and accounting malpractice.

The majority appears to discard William’s affidavit

as conclusory. In my view, however, William is entitled

to state that he relied on the financial statements that

were sent to him, if for no other reason than to establish

the fact that something was being done regarding the

estate, which lulled the plaintiffs to forbear seeking the

ouster of the executor. It has long been established

that the reliance, which is necessary to establish both

negligent representation and fraud, may take the form

of forbearance. See Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 112, 837 A.2d 736 (2003).4

Further, this court has held that forbearance need not

be proven by direct evidence, but may be proven by

circumstantial evidence. See First Federal Savings &

Loan Assn. of Rochester v. Charter Appraisal Co., 247

Conn. 597, 614, 724 A.2d 497 (1999). It appears that the

majority discounts William’s statement that he relied

on both the financial statements and the telephone call

by stating this could not possibly be true since William

and Johnathan did not examine the financial statements. In my view, however, the majority’s conclusion

is really based on a finding that it was not reasonable

for William to rely on the financial statement and

rejecting that reliance out of hand.

We have stated, however, that the reasonableness

of reliance is a question for the trier of fact. Coppola

Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 352 n.6, 71 A.3d 480 (2013).

‘‘Although we conclude that no special relationship is

required to state a claim of negligent misrepresentation,

the plaintiff must allege and prove that the reliance on

the misstatement was justified or reasonable. We have

consistently held that reasonableness is a question of

fact forthe trierto determine based on all of the circumstances.’’ Williams Ford, Inc. v. Hartford Courant Co.,

232 Conn. 559, 579–80, 657 A.2d 212 (1995). Thus, in

Williams Ford, Inc., when the defendant made certain

misstatements to the plaintiff we stated that: ‘‘[w]e

believe that both of these arguments go to the issue of

whether the reliance on the misstatements was justified

rather than to the existence of a duty. . . . In making

this determination, the fact finder certainly could take

into account the casualness of the allegedly false state-
ments and the context in which they were made.

Although the reliance upon casual misstatements might

not be reasonable in a given case, we are not persuaded

that the absence of a special relationship between the

parties is justification for precluding a cause of action

based on negligent misrepresentation in all cases involving casual misstatements.’’ (Citations omitted.) Id. Further, in Coppola Construction Co. v. Hoffman

Enterprises Ltd. Partnership, supra, 352 n.6, when

dealing with a motion to strike, we stated that ‘‘[t]he

complaint does not expressly state that the plaintiff’s

reliance on [the individual defendant’s] misrepresentations was reasonable, but, given [his] position with

respect to [the corporate defendant], and the lack of any

argument to the contrary . . . we read the pleadings to

be inclusive of that element of the negligent misrepresentation tort. In any event, we note that the reasonableness of the plaintiff’s reliance will be a question of fact

for the trier.’’ In effect, by stating that the matter of

reliance is conclusory in the affidavit, the majority is

foreclosing the plaintiffs from making allegations

regarding an essential element of proof in their case—

reliance. Instead, I would conclude that the reasonableness of the reliance is a question for the trier of fact,

rather than summarily disposing of the case.

Furthermore, in his affidavit, William explained that

‘‘[a]s a result of [the defendant’s] creation of the fictitious credit, the property known as 434–436 Hurlbutt

Street was transferred out of the [e]state, and resulted

in a direct monetary loss to me and Jonathan.’’ William

also averred that the defendant ‘‘began combining the

transactions of all entities and [Kenneth] personally,

such that we had to engage a forensic accountant at a

cost to Jonathan and me of over $400,000, to untangle

the web of deceit that [the defendant] had created.’’

Thus, contrary to the majority’s assertion, William’s

affidavit was not conclusory, but explained what

actions the plaintiffs took as a result of the defendant’s actions.

In view of the fact that I disagree with the majority

regarding the sufficiency ofthe documentation to create

an issue of fact, I must reach an issue which the majority, in view of its conclusions, did not need to address.

Therefore, with regard to the second and third counts,

negligent misrepresentation and accounting malpractice, I will now discuss my view that the defendant,

although hired by Kenneth as executor of Stuart’s

estate, owed a legal duty to the plaintiffs as the

estate’s beneficiaries.5

II

The majority concludes that ‘‘the plaintiffs did not

present sufficient counterevidence to demonstrate that

there existed a genuine issue of material fact with

respect to their accounting malpractice count.’’ I disagree and would conclude that the plaintiffs established
a prima facie case of professional negligence sufficient

to defeat the defendant’s motion for summary judgment

as to that count.

As this court stated, in the context of attorney malpractice claims, in Krawczyk v. Stingle, 208 Conn. 239,

244, 543 A.2d 733 (1988), ‘‘[a]s a general rule, attorneys

are not liable to persons other than their clients for the

negligent rendering of services. A number of jurisdictions have recognized an exception to the general rule

when the plaintiff can demonstrate that he or she was

the intended orforeseeable beneficiary of the attorney’s

services.’’ The same reasoning applies with equal force

to an accountant hired by the executor of an estate. In

Krawczyk, this court acknowledged the exception to

the rule recognized in other states and noted that

‘‘[a]ccordingly, courts have held that the intended beneficiary has a cause of action against an attorney who

failed to draft a will in conformity with a testator’s

wishes . . . . The question before us is whether such

liability should be further expanded to encompass negligent delay in completing and furnishing estate planning

documents for execution by the client.’’ (Citations omitted.) Id., 245. This court seemed to accept, sub silencio,

the fact that Connecticut would acknowledge the initial

exception. This court then proceeded to indicate the

factors that would be important in any consideration of

expanding the exception. ‘‘Determining when attorneys

should be held liable to parties with whom they are not

in privity is a question of public policy. . . . In

addressing this issue, courts have looked principally to

whether the primary or direct purpose of the transaction was to benefit the third party. . . . Additional factors considered have included the foreseeability of

harm, the proximity of the injury to the conduct complained of, the policy of preventing future harm and

the burden on the legal profession that would result

from the imposition of liability.’’ (Citations omitted.)

Id., 245–46. This court in Krawczyk declined to expand

the extension because it held that the time constraint

might conflict with the attorney’s duty to properly represent his client. In other words, if he felt that he might

be liable to the beneficiaries, the attorney, whom did

not have all of the information that was needed to make

a considered decision, might rush the testator into a

decision that was not warranted. There is no time constraint issue presented in this case.

With these principles in mind, I turn to an analysis

of the facts in the present case in comparison to the

relevant principles of law. I note at the outset that a

few states have already acknowledged that an action

by beneficiaries of an estate or trust may lie against an

accountant. See Estate of Smith v. Underwood, 127

N.C. App. 1, 5, 487 S.E.2d 807 (1997) (action by trust

beneficiaries against accountant for breach of fiduciary

duty); see also Jewish Hospital v. Boatmen’s National

Bank, 261 Ill. App. 3d 750, 766, 633 N.E.2d 1267 (1994)
(finding that accountant owed duty to remainder beneficiaries of decedent’s estate, despite fact that beneficiaries were not clients of accountant). Further, other states

have found attorneys for an estate liable to the beneficiaries. ‘‘It is the duty of a fiduciary of an estate to serve

as representative of the entire estate. Such fiduciary,

in the administration of an estate, owes a duty to beneficiaries to act in a manner which protects the beneficiaries’ interests. We believe that this duty places the

beneficiaries in privity with the executor.’’ Elam v.

Hyatt Legal Services, 44 Ohio St. 3d 175, 176, 541 N.E.2d

616 (1989); see also Bucquet v. Livingston, 57 Cal. App.

3d 914, 916–17, 129 Cal. Rptr. 514 (1976).

A

Intended Beneficiaries

The plaintiffs certainly have presented a material

issue of fact regarding whether the plaintiffs were the

intended or foreseeable beneficiaries of the defendant’s

actions. The evidence shows that the defendant was

hired by the executor, paid by estate funds, had at least

one conversation regarding financial statements with

one of the plaintiffs, and forwarded the financial statements of the estate to the plaintiffs. Furthermore, it

was established that the defendant knew that he was

working on behalf of the estate, and he was also aware

that the plaintiffs, along with Kenneth, were the

remaining beneficiaries of the estate.

The preparation of accurate financial statements

would have been a direct benefit to the estate and,

therefore, to the plaintiffs. Accurate information would

have allowed the plaintiffs to fully appreciate the extent

of their distribution. According to the information set

forth in the affidavits, the defendant produced inaccurate financial statements, and, in some instances, dual

financial statements showing different figures. These

documents served to deceive the beneficiaries and

worked to Kenneth’s advantage. The fact that the defendant was willing to talk to one of the plaintiffs and

forwarded the financial statements to both of them

indicates his knowledge that the statements were prepared for, and intended to benefit, the plaintiffs.

On the basis of the foregoing, I would conclude that

the plaintiffs have established a genuine issue of material factregarding whetherthey were the intended beneficiaries of the defendant’s professional advice.

B

Foreseeability of Harm

The plaintiffs also established a genuine issue of

material fact as to whether the harm to them was foreseeable. If the accountant presented two different financial statements for the same period of time, created a

fictitious credit for the benefit of one beneficiary, and

commingled estate funds with the personal funds of
one beneficiary, it certainly presents an issue of fact

for the jury whether it was foreseeable that harm would

be caused to the other two beneficiaries, both of whom

were unaware of the fictitious account, commingling

of funds and the two financial statements.

C

Proximity of Injury

Dempsey’s affidavit clearly establishes a genuine

issue of material fact that the defendant breached the

standard of care. As stated previously in this opinion,

Dempsey’s affidavit states that: the accounting records

kept by the defendant ‘‘fell short of the typical standard

[Dempsey] would expect of a [c]ertified [p]ublic

[a]ccountant’’; the defendant ‘‘prepared two sets of consolidated financial statements for the same fiscal year’’;

several checks written to pay for Kenneth’s personal

expenses were not recorded by the defendant on the

books of the estate or its related entities; the defendant

had created a fictitious entry on the estate’s books in

which he gave Kenneth a credit of $490,755; the defendant’s records were ‘‘designed to hide, rather than disclose the truth’’; and there were significant ‘‘lynchpin

documents’’ that were never produced, which precluded Dempsey from establishing additional damages.

See footnote 3 of this dissenting opinion.

Further, William’s affidavit establishes a question of

fact as to the injury and its causal connection to the

breach of the standard of care. As stated previously in

this opinion, William’s affidavit states that: the defendant created a fictitious credit in the amount of $490,755

on the books of the partnership despite the fact that

there was no legitimate basis for such a credit; the

defendant misrepresented the true state of the estate’s

assets and liabilities by creating this fictitious credit;

‘‘the property known as 434–436 Hurlbutt Street was

transferred out of the [e]state,’’ causing the plaintiffs a

direct monetary loss; and the defendant combined the

transactions of the estate and its related entities with

Kenneth’s personal finances such that the plaintiffs

‘‘had to engage a forensic accountant at a cost . . . of

over $400,000 . . . .’’ See footnote 2 of this dissenting opinion.

On the basis of the foregoing, I would conclude that

there is sufficient evidence to establish a genuine issue

of material fact regarding all of the required elements

of a professional malpractice claim. I note further that

‘‘[t]he issue of proximate causation is ordinarily a question of fact for the trier. . . . Conclusions of proximate

cause are to be drawn by the jury and not by the court.

. . . It becomes a conclusion of law only when the

mind of a fair and reasonable [person] could reach

only one conclusion; if there is room for a reasonable

disagreement, the question is one to be determined by

the trier as a matter of fact.’’ (Internal quotation marks
omitted.) Grenier v. Commissioner of Transportation,

306 Conn. 523, 558, 51 A.3d 367 (2012). In light of the

affidavits submitted in the present matter, in my view,

there is room for reasonable disagreement and the matter should be presented to the jury.

D

Preventing Future Harm

The malpractice of any professional, along with negligent misrepresentation, have been recognized as justifiable causes of action in Connecticut for decades. The

purpose of allowing such causes of action is not only

to restore the injured party, but also to provide notice

to a class of defendants that similar conduct may be

subject to civil penalties, in the hope of preventing such

conduct in the future. The allowance of this type of

cause of action will place accountants, and all professionals who work for estates, on notice that they must

conduct their actions in an effort to represent all beneficiaries, not any one beneficiary in particular.

E

Burden on Accounting Profession by Imposing Liability

While the imposition of this type of claim might result

in additional claims against accountants, it is the type

of claim that can be covered by the accountant’s malpractice insurance, which any accountant would normally carry in regard to the representation of his clients.

While the number of claimants may increase, the actual

liability may not change in a case, such as this one,

where an accountantrepresents an estate. Forinstance,

if the accountant made an error in preparing an estate

tax return such that the estate had to pay $300,000 more

in taxes than necessary, the accountant could be the

subject of a civil action to recover the moneys brought

by the executor of the estate. In a case such as this

one, the beneficiaries would be allowed to join that

action. If there were a recovery on behalf of the estate,

however, there would be no additional recovery by the

beneficiaries. Thus, there would be no additional burden imposed on the accountant.

In the present case, however, if the facts as alleged

were proven, it would be evident that an accountant

was working with an executor to the detriment of the

beneficiaries. In such a case, the executor would probably not bring an action against the accountant. Therefore, the beneficiaries would have the ability to bring an

action against the accountant to recoup the distributive

share that they lost as the result of the accountant’s

negligence. The public policy of compensating victims

through a tort complaint is, therefore, satisfied.

In light of these considerations, I would conclude

that the public policy dictates that the accountant who

represents an executor in the preparation of financial

statements or tax returns is liable to the beneficiaries
of the estate.

III

I would conclude that the plaintiffs raised genuine

issues of materialfact as to the claims offraud, negligent

misrepresentation, and accounting malpractice and

would, accordingly, affirm the judgment of the Appellate Court. Therefore, I respectfully dissent.

1 Like the majority, in the interest of simplicity, I refer to the plaintiffs

and their elder brother, Kenneth J. Stuart, Jr., individually by first name and

to their father, Kenneth J. Stuart, Sr., by the family surname. See footnote

5 of the majority opinion.

2 This affidavit provided in relevant part: ‘‘5. [The defendant] was hired

by Kenneth . . . when he was acting in the capacity of executor of [Stuart’s] [e]state.

‘‘6. Jonathan and I previously brought suit against [Kenneth], and proved

that he illegally commingled funds of the [e]state, stole monies from the

[e]state for his personal use, and unduly influenced [Stuart] when he was

mentally incompetent.

‘‘7. During the course of our litigation against [Kenneth], [the defendant]

was the accountant for the [e]state and its related entities.

‘‘8. [The defendant] regularly assisted [Kenneth] and his counsel in preparing accounting reports for the [e]state and its related entities.

‘‘9. [The defendant] addressed his [e]state [a]ccounting reports to the

‘beneficiaries of the [e]state of . . . Stuart’ and sent them to Jonathan and

me through [Kenneth’s] counsel.

‘‘10. [The defendant] also sent certain [e]state accounting reports to various third parties, which facilitated [Kenneth’s] ability to continue to steal

monies from the [e]state and its related entities.

‘‘11. In at least one accounting report, [the defendant] prepared two different versions, submitting one to a third party to induce them to loan money

to [Kenneth] and the [e]state entities, and providing the other copy to Jonathan and me through counsel.

‘‘12. In one accounting report that he prepared, [the defendant] designated

a payment to Smith College, which was for the benefit of [Kenneth’s] daughter and not an [e]state expense, as an arbitration expense.

‘‘13. In another accounting report that he prepared, [the defendant] designated the purchase of a Rolex watch for [Kenneth’s] wife as a purchase of

inventory, as if it had actually been an [e]state expense.

‘‘14. [The defendant] created a fictitious credit in the amount of $490,755

on the books of [the partnership], despite that there was no legitimate basis

for that credit.

‘‘15. By creating the fictitious credit of $490,755, [the defendant] misrepresented the true state of the [e]state’s assets and liabilities.

‘‘16. As a result of [the defendant’s] creation of the fictitious credit, the

property known as 434–436 Hurlbutt Street was transferred out of the

[e]state, and resulted in a direct monetary loss to me and Jonathan.

‘‘17. I had at least one conversation with [the defendant] in which we

discussed the accounting for the [e]state and its related entities.

‘‘18. In a conversation with me, [the defendant] admitted that he was

unable to determine the true value of the [e]state monies that [Kenneth]

had spent on himself.

‘‘19. [The defendant] prepared reports for the [e]state and its related

entities, and I relied on those accounting reports. . . .

‘‘22. As the accountant for . . . the [e]state [and its related] entities, [the

defendant] began combining the transactions of all entities and [Kenneth]

personally, such that we had to engage a forensic accountant at a cost to

Jonathan and me of over $400,000, to untangle the web of deceit that [the

defendant] had created.

‘‘23. I relied on [the defendant], as a [c]ertified [p]ublic [a]ccountant, to

provide accurate accounting information for the [e]state and its related

entities.

‘‘24. As a result of my reliance of [the defendant’s] reports, I suffered

pecuniary damages, as we delayed pursuing removal of [Kenneth] as [e]xecutor of the [e]state.

‘‘25. Jonathan and I have suffered personal financial losses as a result of

[the defendant’s] actions, by both the reduction of the [e]state’s assets and

by the monies we expended to unravel the complex and deceitful accounting

reports he had prepared.’’

3

In his affidavit Dempsey averred as follows: ‘‘8. I found the accounting
records kept by [the defendant] for the [e]state fell short of the typical

standard I would expect of a [c]ertified [p]ublic [a]ccountant. For example:

‘‘a. The [d]efendant prepared two sets of consolidated financial statements

for the same fiscal year (2000). Both were addressed to the beneficiaries

of the [e]state. One set was delivered to [Kenneth’s] bank in support of a loan

application; the other was delivered several months laterto the beneficiaries.

‘‘b. The [d]efendant failed to account for all transactions recorded in the

[partnership] checking account . . . I found that several checks written to

pay [Kenneth’s] personal expenses were not recorded by [the defendant]

on the books of the [e]state entities.

‘‘c. I found that the [d]efendant had created a fictitious entry on the

[e]state’s books in which he gave [Kenneth] a credit of $490,755, despite

that there was no legitimate basis for that credit.

‘‘9. I testified on October 21, 2003 that I believed [the defendant’s] records

to be designed to hide, rather than disclose the truth.

‘‘10. In addition to the inadequate accounting, there were significant

lynchpin documents that were never produced, which precluded me from

establishing additional damages that I believe existed.’’

‘‘Summary judgment is a method of resolving litigation when 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.’’ (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). The

majority places great emphasis on the operative complaint and its usage of

the term reliance as opposed to the term causation. However, while the

complaint may have been inartfully drawn, it can always be amended either

prior to trial, or after trial to conform to the proof. Dempsey’s affidavit,

however, in my view, creates an issue of fact regarding accounting malpractice count. Since we rely on not only the pleadings, but affidavits and any

other proof, I believe that an issue of fact has been created in this count.

Indeed, William averred in his affidavit that ‘‘as a result of [the defendant’s]

creation of the fictitious credit, the property known as 434–436 Hurlbutt

Street was transferred out of the [e]state, and resulted in a direct monetary

loss to me and Jonathan.’’ Further, Dempsey’s mention of a $490,755 fictitious

credit would further indicate a loss to the plaintiffs, and a causal connection

to the accounting malpractice.

4 The plaintiffs’ complaint clearly contains a forbearance allegation. Specifically count one of the operative complaint explicitly alleges that ‘‘[t]he

aforesaid representations were in fact, misrepresentations, and the plaintiffs

relied on [the defendant’s] misrepresentations as aforementioned, in that

they, including without limitation, delayed pursuing the removal of [Kenneth]

from his position as fiduciary of the [e]state . . . because they believed

[the defendant’s] statements to be true, and that they delayed pursuing their

claims in Superior Court against [Kenneth] in reliance on [the defendant’s]

misrepresentations.’’ This allegation was subsequently incorporated, by reference, in both the second and third counts of the operative complaint.

5 The issue of duty is not relevant to the fraud count.