author: PELLEGRINO, J.

text:
    PATRICK WOOD v. CLUB, LLC, ET AL.
    (AC 32738)
    Robinson, Espinosa and Pellegrino, Js.

      Argued October 25, 2011
    officially released April 17, 2012

      Jan C. Trendowski, for the appellant (named defendant).

      Frank C. Bartlett, Jr., for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant Club, LLC, appeals from the judgment of the trial court, following a jury trial, rendered in favor of the plaintiff, Patrick Wood. On appeal, the defendant claims that (1) the court improperly allowed the plaintiffs expert to testify, (2) the court erred in refusing to instruct the jury on liability for actions of third parties, (3) the evidence was insufficient to establish that the plaintiff was within the scope of risk allegedly created by the defendant’s conduct, (4) the court erred in charging the jury on future medical expenses, (5) the court erred in excluding testimony on the plaintiffs intoxication and (6) the court erred in permitting testimony on the defendant’s reputation. We disagree with the defendant and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 24,2007, the plaintiff went to a birthday party at the Thirsty Turtle, a nightclub, which was owned by the defendant. The party was arranged by the plaintiff’s girlfriend, Mary Kristian Larosa, who reserved the downstairs bar and lounge area of the establishment from 8 to 10 p.m. At the end of that time period, the space was opened to the general public, at which point a group of male patrons who were not members of the plaintiff’s party entered the downstairs area. This group of men stood to the side of the bar area talking amongst themselves and watching members of the plaintiffs party. The men began making inappropriate comments to the women whom they were watching. Eventually, they tried dancing with several of the female members of the plaintiffs party. Their attempts at dancing with the women amounted to unwanted advances and made many of the women visibly uncomfortable. Some of the women reported the behavior of these men to the bar staff. The plaintiff termed the behavior of these male patrons as the men “dancing up” on the women, or, approaching the female patrons from behind and “grinding onto” their bodies. When the plaintiff observed one of the men approaching Larosa, he placed his arm around her and turned his back to the man in order to prevent the man from disturbing her. The plaintiff then was immediately hit over the head with a glass bottle. The assailant ran out of the nightclub where he was pursued by Gregory Boehmcke, the general manager of the Thirsty Turtle. Boehmcke provided the Stamford police with an identification of the assailant, but an arrest was never made. The plaintiff suffers partial permanent impairment due to the injuries sustained from the assault.

The plaintiff filed this action against the defendant alleging both negligent and reckless supervision of premises. The jury returned a verdict in favor of the plaintiff in the amount of $300,000, which was comprised of $60,000 in economic damages and $240,000 in noneconomic damages. The court rendered judgment in favor of the plaintiff in accordance with the jury’s verdict. The defendant filed a motion to set aside the verdict, a motion for a directed verdict and a motion for remittitur, which were denied by the court. This appeal followed.

I

We first address the defendant’s claims that the court abused its discretion in admitting or precluding certain testimony.

A

The defendant first claims that the court improperly allowed the plaintiffs bar security expert, Kevin DePalma, to testify on the ground that he lacked the necessary qualifications. The plaintiff claims that the court did not abuse its discretion in allowing DePalma to testify as an expert because the court properly concluded that DePalma had greater knowledge than the average juror in the field of bar security. We agree with the plaintiff that DePalma possessed the necessary qualifications to render expert testimony and that the court did not abuse its discretion in allowing him to give opinion testimony.

Before trial, the plaintiff disclosed DePalma as his expert in bar security. The plaintiff asserted in his disclosure that DePalma would testify that the actions of the security staff of the defendant fell below the standard of care for bar security, that the standard of care required the defendant’s security staff to intervene when complaints were first made of the aggressive dancing and that, had the security staff for the defendant properly performed their duties, the assault of the plaintiff would not have occurred.

DePalma was called to testify on the first day of trial and was offered as an expert witness. On voir dire, he testified that he was employed for three and one-half years on the security staff of a bar in New Haven. Although DePalma had no formal training, he testified that he helped to develop the security standards for the bar that employed him. He also testified that he did not consider himself to be an expert in the field of bar security. Initially, the court refused to qualify DePalma as an expert, but it reversed its ruling after considering certain portions of DePalma’s deposition testimony that the plaintiff presented to the court. During his deposition, DePalma testified: “I definitely have a greater knowledge than any person walking in off the street. Working in the security field four years, I have had— like I said, I have had a lot of altercations. I know how to talk to people and diffuse situations before they happen. I know I should be aware of the whole overcast of people, to watch to see what happens, and I should be watching certain people because they seem more aggressive. If they are drinking and they get more aggressive, they tend to fight and it could have been prevented if somebody was aware of these people aggressively dancing on girls who are not wanting their dancing.” The court indicated that there was humility in DePalma’s voir dire testimony and that the deposition testimony laid a foundation for DePalma’s expertise and suggested that he was familiar with the standards of care in the field and met the threshold standard for an expert. On this basis, the court reversed its initial ruling and allowed DePalma to testify.

We begin our review of this issue by setting forth our well established standard of review regarding a trial court’s ruling on the admissibility of expert testimony. “[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn. 487, 514-15, 853 A.2d 460 (2004); see also State v. Griffin, 273 Conn. 266, 274-75, 869 A.2d 640 (2005); Pestey v. Cushman, 259 Conn. 345, 368-69, 788 A.2d 496 (2002); Kenney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 371, 889 A.2d 829 (2006). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 477, 970 A.2d 592 (2009). “Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm.” Farrell v. Bass, 90 Conn. App. 804, 811, 879 A.2d 516 (2005), citing Rokus v. Bridgeport, 191 Conn. 62, 70, 463 A.2d 252 (1983).

Our Supreme Court has articulated the test for the admission of expert testimony, which is deeply rooted in common law. “Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. West, 274 Conn. 605, 629, 877 A. 2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005); Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 167-68, 847 A.2d 978 (2004); see also Conn. Code Evid. § 7-2. In other words, “[i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” (Internal quotation marks omitted.) State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987).

On the basis of his testimony, there can be no doubt that DePalma had knowledge of the field of bar security that was not common to the average person and that it was helpful to the jury in evaluating the security protocol of the defendant. DePalma had worked in the field of bar security for three and one-half or four years. During that time he worked one to three shifts per week at a bar in New Haven. His hours of employment were typically on Thursday, Friday and Saturday nights— those nights of the week when the bar was most busy. Although the bar at which he worked had no written standards of security, DePalma had a general knowledge of the field of bar security drawn from his tenure in the field. He was aware of the standards and expectations of some bars and establishments through his conversations with fellow members of his profession.

It is not relevant, as was alluded to at trial, that DePalma had no formal education, certification or license in the field of bar security. As our Supreme Court has stated, “[i]t is not essential that an expert witness possess any particular credential, such as a license, in order to be qualified to testify, so long as his education or experience indicate that he has knowledge on a relevant subject significantly greater than that of persons lacking such education or experience.” (Emphasis added; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 62, 717 A.2d 724 (1998). Through his vocational experience and his on the job training, DePalma honed the ability to identify problem patrons and, as he testified, to “diffuse situations before they happen.” This skill set made him particularly fit to render the opinion that unsolicited and aggressive dancing with women would lead to an altercation. Accordingly, we conclude that the court did not abuse its discretion in allowing DePalma to testify as an expert witness. See New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn 478. (“reversal is required [only] where the abuse is manifest or where injustice appears to have been done” [internal quotation marks omitted]).

B

Next, we address the defendant’s claim that the court erred in excluding evidence that might prove that the plaintiff was intoxicated at the time of the assault. The defendant claims that the testimony on intoxication was relevant as to the issue of the plaintiffs credibility and his ability to recall events that he later testified about at trial. The plaintiff claims that this evidence was irrelevant because his testimony was uncontro-verted and his credibility was never called into question. We conclude that the court properly excluded evidence relating to the plaintiffs intoxication.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” State v. Avis, 209 Conn. 290, 298, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989). As we stated in our discussion of the defendant’s claim that the court improperly allowed expert testimony, we will only reverse an evidentiary ruling of a trial court if we find both an abuse of discretion and harm to the defendant. See Farrell v. Bass, supra, 90 Conn. App. 811.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.” (Internal quotation marks omitted.) State v. Gupta, 297 Conn. 211, 238, 998 A.2d 1085 (2010). In this case, the issues to be determined were whether the defendant was negligent and reckless in its supervision of its premises. The plaintiffs level of intoxication, or lack thereof, had no bearing on those issues. We therefore conclude that the court’s exclusion of testimony on the plaintiffs intoxication was proper.

C

We next address the defendant’s claim that the court should not have permitted testimony on the defendant’s reputation. At trial, the defendant objected to this testimony on the ground of “relevance.” On appeal, the defendant argues that the evidence was inadmissible on the ground of “hearsay.”

The plaintiff claims that this issue is not preserved properly because the defendant raises a different claim on appeal as to the inadmissibility of the evidence. We agree with the plaintiff that the defendant’s claim was not preserved properly. See, e.g., Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 425, 944 A.2d 925 (2008) (“plaintiff cannot now for the first time present a different claim on appeal”). Therefore we decline to address the defendant’s claim.

II

We next consider the defendant’s claims that the court erred in certain instructions to the jury.

A

We first address the defendant’s claim that the court erred in its instructions to the jury by not instructing the jury on the liability for the actions of third parties as per the defendant’s request to charge. The defendant specifically argues that the omission of that instruction meant that the jury was not given the opportunity to consider whether the assault was of the same general nature as the foreseeable risk created by aggressive dancing, a question that if answered in the negative, would ostensibly absolve the defendant of liability.

We set forth our well settled standard of review on jury instructions. “A challenge to the validity of jury instructions presents a question of law over which this court has plenary review.” Pickering v. Rankin-Carle, 103 Conn. App. 11, 14, 926 A.2d 1065 (2007). “When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 142-43, 757 A.2d 516 (2000). Our Supreme Court has further stated that a “corat is under no duty at any time to charge in the exact language requested. . . . Failure to charge precisely as proposed by a [party] is not error where the point is fairly covered in the charge. . . . Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues.” (Citations omitted.) Tomczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981).

The following additional facts are relevant to the defendant’s claim. The defendant requested that the court charge the jury with regard to the duty to protect a person from the wrongful conduct of third persons. The plaintiff objected to the defendant’s proposed charge on the ground that the jury might be confused by such an instruction. In declining to give the requested instruction, the court distinguished the facts of the present case from the facts of Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995), the case cited as authority for the requested charge. On appeal, the defendant contends that as a result of the court’s failure to charge as requested, the jury never considered whether the assault was of the same general nature as dancing. The defendant further claims that it was forced to meet an undefined standard with regard to cause and foreseeability. We disagree and conclude that, when viewed as a whole, the charge as given adequately conveyed the legal principles necessary for the determination of proximate cause, including whether the assault on the plaintiff by the third party was of the same general nature as the foreseeable risk created by the defendant’s conduct. Under these circumstances, we need not decide whether the court improperly refused to charge in the specific manner requested by the defendant.

The court’s detailed charge provided in relevant part as follows: “When . . . some other cause . . . contributes so powerfully to the production of an injury as to make [the] defendant’s negligence contribution to the injury merely trivial or inconsequential, the defendant’s negligence must be rejected as a proximate cause of the injury for it has not been a substantial factor in bringing about the injury. To prove that an injury is a reasonably foreseeable consequence of negligent conduct a plaintiff need not prove that the defendant actually foresaw or should have foreseen the extent of the harm suffered or the manner in which it incurred— occurred rather. Instead, the plaintiff must prove that it is a harm of the same general nature as that which a reasonably prudent person in the defendant’s position should have anticipated in view of what the defendant knew or should have known at any time of the negligent conduct.” This charge was legally accurate and adequate to provide the jury with the necessary guidance in deliberating as to the element of causation. See Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 609-10. When viewed as a whole, the charge adequately conveyed to the jury all of the legal principles necessary for the determination of the issues before it, including proximate cause. The defendant’s claim, therefore, must fail.

B

Next, we address the defendant’s claim that the court erred in instructing the jury on the issue of future medical treatment as per the plaintiffs request. The defendant specifically claims that there was no evidence presented that future medical treatment was necessary and foreseeable. The plaintiff claims that the charge on future medical treatment was reasonably supported by the evidence. We agree with the plaintiff.

The following additional facts are necessary for the resolution of this claim. The plaintiff testified that he was receiving treatment from Ms cMropractor, Marc D. Peyser, at least once every two months and that he had plans to continue that treatment at the same or greater frequency. A review of the record corroborates the plaintiffs claim that he received regular treatment, first from Richard E. Pinsky, a chiropractor, and then from Peyser. Moreover, although Peyser’s assessment did not state whether the plaintiff required future medical treatment, it did indicate that the plaintiff had suffered 5 percent “whole person permanent impairment” due to the assault by the assailant and that the plaintiff experienced periodic exacerbation of Ms symptoms. Furthermore, Peyser’s patient notes, dated less than two months before the date of the plaintiffs testimony, indicated that the plaintiffs neck pain was “worse lately,” that Ms diagnosis was the same and that the plaintiff was to return for further treatment. We therefore conclude that the court’s instruction on future medical treatment found reasonable support in the evidence adduced during trial. See Godwin v. Danbury Eye Physicians & Surgeons, P.C., supra, 254 Conn. 139.

Ill

The defendant’s final claim is that the evidence was msufficient to establish that the harm suffered by the plaintiff was within the scope of the risk created by the defendant’s conduct. We disagree.

As an imtial matter, we note that “[t]he standards governing our review of a sufficiency of evidence claim are well established and rigorous. . . . [I]t is not the function of tMs court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. ... In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.” (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 656-67, 904 A.2d 149 (2006).

Our Supreme Court has stated that “a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant’s conduct.” (Emphasis added.) Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983). “[T]o be within the scope of the risk, the harm actually suffered must be of the same general type as that which makes the defendant’s conduct negligent in the first instance.” (Emphasis in original; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 609. The question is whether, viewed in the light most favorable to sustaining the verdict, the evidence was sufficient to establish that the harm suffered by the plaintiff was within the scope of risk created by the defendant’s failure to mitigate aggressive dancing. Viewed in light of the principles set forth previously, we conclude that the evidence was sufficient in this regard.

Boehmcke, the defendant’s general manager, testified that the security staff at the Thirsty Turtle was responsible for identifying and defusing potential situations because those situations can escalate into violence. Boehmcke further testified that a male patron making a female patron feel uncomfortable is a potential situation that can escalate into violence — an opinion that was echoed substantially by DePalma. In addition, the plaintiff presented evidence that at least one of the female patrons had complained to the bartender concerning the activities of the male patrons at the Thirsty Turtle on the night in question. Given this evidence, the jury reasonably and legally could have concluded that the harm suffered by the plaintiff was within the scope of the risk created by the defendant’s conduct.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff brought this action against Club, LLC, and Post Road Entertainment, doing business as the Thirsty Turtle (Post Road). After the court rendered its judgment, the plaintiff filed a motion to substitute PRE Partners, LLC, as a party defendant in place of Post Road, stating that it recently had learned that the operator of the Thirsty Turtle was, in fact, PRE Partners, LLC, and that Post Road was a trade named used by PRE Partners, LLC, when doing business in Connecticut. The court denied the plaintiff’s motion to substitute, ruling that it was not appropriate to cite in a new defendant posljudgment. The court added that Post Road did not describe any legally cognizable entity, a finding that has not been challenged. We conclude that Post Road is not a party to this appeal, and therefore refer in this opinion to Club, LLC, as the defendant.

       The defendant also argues that the court improperly denied its motion for directed verdict. The defendant claims that the court erred in denying that motion because it improperly considered evidence that was presented during its case-in-chief. The defendant claims that this evidence should not have been considered under Practice Book § 16-37 because the motion was made after the plaintiff rested but prior to when the defendant presented evidence. Because the defendant raises this issue for the first time in its reply brief, we do not consider it on appeal. “Claims of error by an appellant must be raised in his original brief ... so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appelllee’s brief, that function does not include raising an entirely new claim of error.” (Citation omitted; internal quotation marks omitted.) Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 659 n.2, 594 A.2d 958 (1991).

       The plaintiff also alleged a count sounding in spoliation of evidence, which was stricken by the court.

         Section 7-2 of the Connecticut Code of Evidence provides: “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”

       We also have reviewed the defendant’s argument that the court admitted the testimony of DePalma solely on the basis that precluding him as a witness would have unfairly “blindsided” the plaintiff and perhaps “knocked out” the plaintiffs case. On the contrary, the court’s decision to allow DePalma to testify, after originally ruling otherwise, appears to have been significantly informed by the deposition testimony of DePalma, in which he described his expertise in greater detail. Assuming, arguendo, that the court’s decision to allow DePalma to testify was based solely on procedure, we would nonetheless conclude that the court did not abuse its discretion on the basis that there is adequate evidence in the record establishing DePalma’s expertise.

       Assuming, arguendo, that the court improperly allowed DePalma’s testimony, such error is harmless on the ground that the appropriate standard of care for bar security was not in dispute. For example, the defendant’s bar manager, Boehmcke, substantially agreed with DePalma concerning the proper standard of care to be employed by bar security personnel. Moreover, DePalma agreed that the standard of care as set forth in the defendant’s employee manual was appropriate.

       We note, moreover, that our case law and rules of evidence preclude the admission of evidence when its probative value is outweighed by the harm caused by its admission. The testimony on the plaintiffs intoxication level was not probative of the issues to be determined by the court and would have served no greater purpose than to harm the plaintiff and to confuse the jury. See Conn. Code Evid. § 4-3; see also, e.g., State v. Rinaldi, 220 Conn. 345, 356, 599 A.2d 1 (1991).

       Assuming, arguendo, that the court’s exclusion of testimony on the plaintiffs intoxication was improper, such error is harmless because his recollection of the assault was corroborated by Larosa and the plaintiffs brother, Benjamin Wood. The testimony of Larosa and Benjamin Wood alleviates any concern that the plaintiffs alleged intoxication rendered his testimony unreliable.

       To the extent that the defendant may be deemed to have preserved the claim that the trial court improperly allowed testimony on the defendant’s reputation, the defendant cannot prevail on that claim. Review of a trial court’s decision to permit testimony is reviewed under an abuse of discretion standard and subject to reversal only if the error was both improper and harmful. See Farrell v. Bass, supra, 90 Conn. App. 811. Our principles of evidence prohibit the use of character evidence to establish that one acted in accord with the conduct alleged. As our Supreme Court has stated, “the character or reputation of a party is deemed by the law to be irrelevant in determining the merits of the controversy (Emphasis added; internal quotation marks omitted.) Bosworth v. Bosworth, 131 Conn. 389, 391, 40 A.2d 186 (1944). So too, our rules of evidence state that “[e]vidence of a trait of character of a person is inadmissible for the purpose of proving that the person acted in conformity with the character trait on a particular occasion . . . .” (Emphasis added.) Conn. Code Evid. § 44 (a). The scope of this prohibition, therefore, is one limited only to evidence used to establish that a defendant acted in a way that conformed to particular conduct on a particular occasion. In this case, although the liability of the defendant was in question, there was no dispute that the plaintiff was struck on the head with a glass bottle at the defendant’s establishment. The defendant’s “bad reputation” was not used to prove that the plaintiff was assaulted at the Thirsty Turtle, and, consequently, the prohibition does not apply. The court, therefore, did not act improperly in permitting testimony on the defendant’s bad reputation.
      Yet assuming, arguendo, that the court improperly allowed that testimony, such error is nonetheless harmless as the defendant’s own general manager, Boehmcke, admitted that there were fights at the Thirsty Turtle both before and after the assault on the plaintiff.

       The defendant’s request to charge states in relevant part: “The plaintiff claims that the defendant was negligent in failing to provide adequate security to prevent a third person from committing crimes on the premises that were likely to cause harm to persons such as the plaintiff.
      “You have already been instructed on the duties owed to an invitee by one who controls the premises. In this case, if you find that the plaintiff was an invitee and if you find that the defendant was in control of the premises, the defendant owed a duty to take reasonable steps to safeguard the plaintiff on the premises from the criminal acts of third persons provided the plaintiff also proves [1] that the defendant had notice of the risk and [2] that the defendant’s conduct placed the plaintiff within the scope of risk. ”

       Specifically, the court noted that in Stewart, the plaintiff business invitee was attacked by a third party who was not an invitee, whereas in the present case, both the plaintiff and the attacker were business invitees of the defendant.

       The court’s entire instruction on causation is as follows: “If you find that the defendant was negligent in any of the ways alleged in the plaintiffs complaint, you must next decide if such negligence was a legal cause of any of the plaintiffs claimed injuries.
      “Legal cause has two components, cause in fact and proximate cause. A cause in fact is an actual cause. The test for cause in fact is simply would the injury have occurred were it not for the defendant’s negligence. If your answer to this question is yes, then the defendant’s negligence was not a cause in fact of the plaintiffs injuries.
      “Proximate cause means there must be a significant causal connection between the act or omission of a defendant and any injury or damage sustained by the plaintiff. An act or omission is a proximate cause if it was a substantial factor in bringing about or actually causing the injury. If an injury was a direct result of the defendant’s act or omission it was proximately caused by such an act or omission. If a defendant’s act or omission had such an effect in producing the injury that reasonable persons would regard it as being a cause of the injury, then the act or omission is a proximate cause.
      “Under the definition I have given you, negligence can be a proximate cause of the injury if it is not the only cause or even the most significant cause of the injury provided it contributes materially to the production of the injury and thus a substantial factor in bringing it about.
      “Therefore, when a defendant’s negligence combines with one or more causes to produce an injury, such negligence is a proximate cause of the injury if its contributions to the production of the injury in comparison to all other causes is material or substantial.
      “When, however, some other cause . . . contributes so powerfully to the production of an injury as to make [the] defendant’s negligence contribution to the injury merely trivial or inconsequential, the defendant’s negligence must be rejected as a proximate cause of the injury for it has not been a substantial factor in bringing about the injury. To prove that an injury is a reasonably foreseeable consequence of negligent conduct a plaintiff need not prove that the defendant actually foresaw or should have foreseen the extent of the harm suffered or the manner in which it incurred — occurred rather. Instead, the plaintiff must prove that it is a harm of the same general nature as that which a reasonably prudent person in the defendant’s position should have anticipated in view of what the defendant knew or should have known at any time of the negligent conduct.”

       The plaintiff also argues that, in any event, the defendant waived the right to challenge the charge on future medical treatment on appeal because no objection to the introduction of that evidence was raised at trial. A review of the transcript, however, reveals that the court did understand the defendant to be making an objection to the charge on future medical treatment. As a result, it is clear that the court effectively was alerted to a claim of potential error while there was still time for the court to act. The defendant, therefore, has properly preserved this claim for appeal. See Pestey v. Cushman, supra, 259 Conn. 366-67.

       As stated earlier in this opinion, the court denied the defendant’s motion for a directed verdict and its motion to set aside the verdict.

       We also note that the trial court, in ruling on the defendant’s motion for a directed verdict, indicated that “[t]he dancing as described met a ‘threatening’ appearance.”


source: Caselaw Access Project

author: BEACH, J. LAVINE, J., BISHOP, J.,

license: Public Domain

text:
    ANDREA MEYERS v. LIVINGSTON, ADLER, PULDA, MEIKLEJOHN AND KELLY, P.C.
    (AC 32692)
    Lavine, Beach and Bishop, Js.

      Argued November 10, 2011
    officially released April 17, 2012

      Thomas P. Willcutts, for the appellant (plaintiff).

      Proloy K. Das, with whom were Bernard F. Gaffney and, on the brief, Richard F. Banbury, for the appel-lee (defendant).
   Opinion

BEACH, J.

The plaintiff, Andrea Meyers, appeals from the summary judgment rendered by the trial court in favor of the defendant, Livingston, Adler, Pulda, Mei-klejohn & Kelly, P.C. On appeal, the plaintiff claims that the court erred in granting the defendant’s motion for summary judgment on the ground that the action was commenced beyond the applicable statute of limitations. We affirm the judgment of the trial court.

The record reveals the following. The defendant represented the plaintiff in an action against Shek Hong, Joanne Hong, Hontek Corporation and T.C. Specialty Products, Inc. While representing the plaintiff in that action, the defendant agreed to represent another client, Diane Thibodeau, who had similar claims against the same parties. The defendant joined the claims of the plaintiff and Thibodeau into a single legal action. On December 14, 1999, a settlement of the litigation was reported on the record. The terms of the settlement were reviewed in open court, and the plaintiff was canvassed by the court. In February, 2000, the defendants in that action filed a motion to enforce the settlement agreement because the plaintiff had declined to sign a release. By motion dated February 22, 2000, the defendant sought to withdraw its appearance on behalf of the plaintiff. On February 25, 2000, the plaintiff executed the settlement agreement and release. The defendant received the settlement check and, after deducting a portion for attorney’s fees and/or expenses owed, ultimately remitted the balance to the plaintiff.

The plaintiff served a one count complaint on February 21, 2006. The plaintiff claimed that the defendant was not entitled to an attorney’s fee because its representation was unprofessional. She alleged that the defendant “breached its contract duties” to her by bringing about a settlement of the prior action in furtherance of Thibodeau’s interests and against the interests of the plaintiff. The defendant filed an answer and special defenses, in which it asserted, inter alia, that the action was barred by the statute of limitations.

The defendant filed a motion for summary judgment on the ground that the plaintiffs claim sounded in tort and was barred by the applicable three year statute of limitations; General Statutes § 52-577; or, in the alternative, that it was barred by the six year statute of limitations for contract claims. General Statutes § 52-576. The court initially denied the defendant’s motion, finding that the action, which was served on February 21, 2006, was initiated within the statute of limitations for contract claims, which began to run on February 25, 2000, when the plaintiff executed the settlement agreement in the underlying action.

In January, 2010, the court granted the defendant’s motion to reargue the denial of its motion for summary judgment. At reargument, the defendant argued that the plaintiffs complaint sounded in tort, not contract. The court vacated its prior ruling in which it had denied the defendant’s motion for summary judgment and granted the motion for summary judgment, reasoning that the complaint sounded in tort and that the three year limitations period on tort actions had run. The court additionally found that if it were a contract action, it still was not commenced within the six year statute of limitations because the statute began to run on December 14,1999, the date on which the alleged injury was inflicted, more than six years before the action was brought in February, 2006.

In June, 2010, the plaintiff filed a motion to reargue the court’s granting of the defendant’s motion for summary judgment. After reconsideration of the parties’ arguments, the court denied the relief requested and affirmed its decision granting the defendant’s motion for summary judgment. The court determined that the complaint claimed both legal malpractice and breach of contract and that because the plaintiff was fully aware of her claims by December 14, 1999, but did not bring the action until 2006, her claim was barred by both the three year legal malpractice and six year contract statutes of limitations. This appeal followed.

We first set forth the applicable standard of review. “[T]he scope of our review of the granting of a motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Summary judgment may be granted where the claim is barred by the statute of limitations.” (Citations omitted; internal quotation marks omitted.) Rosenfield v. I. David Marder & Associates, LLC, 110 Conn. App. 679, 684, 956 A.2d 581 (2008).

The plaintiff claims that the court erred in granting the defendant’s motion for summary judgment based on its statute of limitations defense. The plaintiff contends that the court improperly determined that her cause of action had accrued on December 14, 1999. She asserts that her cause of action did not accrue until February 25, 2000, and thus service of the action on February 21, 2006, was within the six year statute of limitations for contract claims. Her argument appears to assume that her cause of action properly sounded in contract.

In order to resolve the plaintiffs claim, we must first examine the complaint to determine the nature of the cause of action raised. Whether the plaintiffs complaint sounds in tort, contract or both depends on the allegations in the complaint. “Interpretation of the pleadings is a question of law over which our review is plenary.” Weiner v. Clinton, 106 Conn. App. 379, 384, 942 A.2d 469 (2008).

“Connecticut law recognizes that one may bring against an attorney an action sounding in both negligence and contract. ... At the same time, one cannot bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract. . . . [T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims.” (Citations omitted; internal quotation marks omitted.) Id., 383. “When a defendant’s liability to a plaintiff is premised, however, on principles of tort law . . . the plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in his complaint . . . and consequently a reviewing court may pierce the pleading veil to ensure that such is not the case. . . . Thus, in doing so, we look beyond the language used in the complaint to determine the true basis of the claim. . . . Whether the plaintiffs cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint. . . . 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 .... The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Citations omitted; internal quotation marks omitted.) Pelletier v. Galske, 105 Conn. App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008).

In her complaint, the plaintiff alleged that “[p]ursuant to the express and/or implied terms of the contract for legal services to represent the plaintiff in the lawsuit . . . [the defendant] owed to the plaintiff a duty of undivided loyalty and a duty to pursue and follow the plaintiffs interests, wishes and instructions in the prosecution of the lawsuit.” The complaint alleged that the defendant breached its “contract duties” in that it “pursued the interests of Diane [Thibodeau] in derogation of the interests, wishes and instructions of the plaintiff in bringing about the settlement of the lawsuit; and/or . . . failed and/or refused to follow the express wishes and instructions of the plaintiff to reject the settlement offer in the lawsuit and to continue to prosecute the lawsuit.”

A fair reading of the complaint reveals that the plaintiff did not allege a contract claim. In a true contract claim, “a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result.” Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (2003). The plaintiff does not allege in her complaint that the defendant breached a contract with the plaintiff for legal services by failing to obtain a specific result or to perform a specific task. The unambiguous language of the parties’ contract for legal services, which was attached as an exhibit to the defendant’s motion for summary judgment, reveals that the contract did not promise a specific result or the performance of specific tasks.

Although the plaintiff invokes contract language in her complaint, analysis reveals that the claim functionally is one of professional negligence. The plaintiff alleged in her complaint that the defendant acted tor-tiously on the ground that the joining of Thibodeau’s claim and the settlement terms of the prior action served Thibodeau’s interest rather than hers. The gravamen of the complaint is an allegation that the defendant breached its professional duties. The allegation fits squarely within the definition of a malpractice claim: “the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances . . . with the result of injury, loss, or damage to the recipient of those services . . . .” (Internal quotation marks omitted.) Pelletier v. Galske, supra, 105 Conn. App. 81. “[W]here the plaintiff alleges that the defendant negligently performed legal services . . . the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services.” (Internal quotation marks omitted.) Id., 83.

Because the sole cause of action in the complaint sounds in tort, it is governed by the three year statute of limitations set forth in § 52-577. We need not address the issue discussed by the plaintiff regarding the accrual date of her cause of action. Regardless of whether it accrued on February 25, 2000, or December 14, 1999, the plaintiffs initiation of an action in February, 2006, is well beyond the three year time bar.

The judgment is affirmed.

In this opinion LAVINE, J., concurred in the result.

LAVINE, J.,

concurring. I agree that the judgment of the trial court should be affirmed. With regard to motions for summary judgment, “[t]he judgment sought 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.” Practice Book § 17-49.

Whether the action by the plaintiff, Andrea Meyers, sounds in contract or tort does not affect the outcome of this case. In its ruling on the plaintiffs motion for reconsideration, the court stated, “[a]s noted in the [affidavit of the plaintiff dated July 20, 2009 . . . the plaintiff was aware prior to the December 14, 1999 settlement that [Diane] Thibodeau had been joined with her as a plaintiff over her objection, and she had to settle for less money even though her case was stronger than that of Ms. Thibodeau. She admits that she was fully aware of the conflict of interest by the defendants who later withdrew as her attorneys because of the conflict. This conflict was both legal malpractice and breach of the contract she had with the defendants. As for the injury she sustained as a result, in the transcript of the hearing before [Judge Peck, she] acknowledged the settlement was ‘of all of plaintiffs’ claims, INCLUDING THEIR OUTSTANDING WORKERS’ COMPENSATION CLAIMS.’ ... As explained in her affidavit, she did not want to give up this claim and did not want to settle for the overall sum of $110,000.00 of which she was to get [one-third]. These and other injuries she asserts were caused by the conflict of interest. There is no factual dispute because all of this are admissions by the plaintiff herself in her affidavit. Because this case was not brought until 2006, the [three] year tort and the [six] year contract breach statutes of limitations [apply]. As for the plaintiff’s estoppel claim, it is rej ected because the plaintiff was fully aware of the claims on December 14, 1999, regardless of whether she had all documents from the defendants.” (Emphasis in original.) On the basis of my review of the record, I agree with the court and would affirm the summary judgment.

BISHOP, J.,

dissenting. In affirming summary judgment, the majority concludes that the trial court correctly determined that the complaint by the plaintiff, Andrea Meyers, sounds in negligence and not contract and, therefore, the plaintiffs claim is time barred by General Statutes § 52-577. The basis of the court’s conclusion appears to be twofold: first, the complaint sounds in negligence, and, second, the plaintiff does not allege that the defendant, Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., breached its contract by failing to obtain a specific result and, therefore, did not allege a trae contract claim. I respectfully disagree with the majority’s reasoning and the conclusion it reaches. Because I believe the complaint adequately sets forth a contract claim that is governed by the six year statute of limitations in General Statutes § 52-576 and because the date on which the plaintiffs claim accrued is fact bound and contested, I would reverse the judgment of the trial court and remand for further proceedings.

It is axiomatic that the interpretation of pleadings is a question of law and, therefore, our assessment of the legal nature of the complaint on appeal is plenary. Montanaro v. Gorelick, 73 Conn. App. 319, 323, 807 A.2d 1083 (2002). In making this determination, I am mindful of Connecticut’s legal tradition to “construe pleadings broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988).

With regard to claims against attorneys, this court has previously held that not all such claims must necessarily be construed as sounding in tort. Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 530, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). Furthermore, in Connecticut, “[o]ne may bring against an attorney an action sounding in both negligence and contract.” Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (2003). Nor must tort claims be separated from contract claims in a complaint. As this court has previously indicated: “We have uniformly approved the use of a single count to set forth the basis of a plaintiffs claims for relief where they grow out of a single occurrence or transactions or closely related occurrences or transactions, and it does not matter that the claims for relief do not have the same legal basis.” (Internal quotation marks omitted.) Hill v. Williams, 74 Conn. App. 654, 661, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). I am aware, as well, that this courtz has cautioned that a plaintiff may not escape a tort statute of limitations simply by bringing a tort claim cloaked in contract language as those, as a matter of law, are not breach of contract claims. See Pelletier v. Galske, 105 Conn. App. 77, 81, 936 A.2d 689 (2007), cert. denied, 286 Conn. 921, 943 A.2d 1100 (2008). These precepts guide my analysis.

Unlike the majority, I believe a fair and liberal reading of the underlying complaint in the present case reveals that, although the complaint contains allegations that may sound in tort, it also contains allegations, based on express or implied contract, that the defendant refused to take specific action requested and directed by the plaintiff. In paragraph seven of the complaint, the plaintiff alleges that “[the defendant] breached its contract duties to the plaintiff in one or more of the following respects:

“(a) it pursued the interests of Diane [Thibodeau, another client who had similar claims against the same parties, as did the plaintiff] in derogation of the interests, wishes and instructions of the plaintiff in bringing about a settlement of the lawsuit;
“(b) it failed and/or refused to follow the express wishes and instructions of the plaintiff to reject the settlement offer in the lawsuit and to continue to prosecute the lawsuit.”

These claims, I believe, are not merely negligence claims cloaked in contract terms. Rather, I view them as claims that, contrary to express or implied agreement, the defendant failed to follow the plaintiffs instructions to take specific actions in regard to her case and settled against her interests. As a consequence of resolving the case contrary to her instructions and to the terms of the retainer agreement, the plaintiff claims that the defendant is not entitled to payment of legal fees. Accordingly, as a claim for relief, the plaintiff seeks a return of fees paid and a remittal to her of fees held in escrow by the defendant.

In concluding that the complaint does not sound in contract, the majority appears to posit that a claim against an attorney is based in contract only if it alleges that the attorney failed to obtain a specific result. The majority states: “In a true contract claim, a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result. Caffery v. Stillman, [supra, 79 Conn. App. 197]. The plaintiff does not allege in her complaint that the defendant breached its contract with the plaintiff for legal services by failing to obtain a specific result or to perform a specific task. The unambiguous language of the parties’ contract for legal services, which was attached as an exhibit to the defendant’s motion for summary judgment, reveals that the contract did not promise a specific result or the performance of specific tasks.” (Internal quotation marks omitted.)

Respectfully, I believe the majority applies Caffery too broadly and takes the cited language out of its factual context. Certainly, as noted by Caffery, a claim that a defendant failed to obtain a specific result after agreeing to do so sets forth a contract claim. Caffery did not purport, however, to circumscribe the world of contract law as it relates to attorney defendants. Indeed, as this court recognized in Connecticut Education Assn., Inc. v. Milliman USA, Inc., 105 Conn. App. 446, 938 A.2d 1249 (2008), “Allegations of a lawyer’s refusal to take certain actions indicated an intentional act rather than inadvertence or negligence and went beyond being merely couched in the language of tort . . . .” (Internal quotation marks omitted.) Id., 459. Accordingly, in Hill, the court applied the six year statute of limitations for contracts to allegations in the plaintiffs complaint seeking to hold the defendant liable for “his refusal to perform his duties pursuant to his contracts with the plaintiff.” Hill v. Williams, supra, 74 Conn. App. 662. As in Hill, where the plaintiff alleged that the defendant refused to take certain actions in furtherance of his contractual duties, so, too, the plaintiff in the present appeal has alleged that the defendant refused her specific instructions in regard to pursuing a satisfactory resolution of her claims.

My conclusion that the plaintiff adequately has set forth a breach of contract claim does not imply, of course, a belief that the plaintiff is entitled to prevail because that ultimate determination will require fact-finding after a fair hearing, a task beyond our ken on review. “It is well settled that the existence of a contract is a question of fact.” (Internal quotation marks omitted.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 216, 932 A.2d 401 (2007). So, too, is the question of whether an actionable breach has occurred. Colliers, Dow & Condon, Inc. v. Schwartz, 77 Conn. App. 462, 471, 823 A.2d 438 (2003). In the present case, although it is apparent from the face of the fee retainer agreement that the defendant did not expressly agree to follow the plaintiffs directions in the pursuit of her claims, I believe the determination of whether such a requirement may reasonably be inferred from the language of the contract, and the circumstances of its making, would similarly require a fact-laden hearing.

Furthermore, my determination that the complaint adequately sets forth a contractual claim does not end the necessary analysis of whether summary judgment was correctly rendered. In the present case, the trial court determined that, even if the complaint sets forth a contractual claim, it arose more than six: years before the action was commenced and, therefore, was barred by § 52-576. In reaching its determination, however, I believe that the court incorrectly decided facts in dispute. The court concluded that the plaintiffs contract claim arose on December 14, 1999, the date on which the parties to the plaintiffs underlying claim put a settlement agreement on the record in court. The plaintiff claims, however, that the defendant’s contractual obligations to her continued beyond December 14, 1999, and did not accrue until February 25, 2000, the date on which she alleges she executed a settlement agreement under duress and the date on which she claims her fee dispute with the defendant arose. From the plaintiffs brief, it is clear that a portion of the complaint is premised upon a fee dispute and that the plaintiff claims that the fee dispute with the defendant did not arise until the date on which she signed the agreement against her instructions. This aspect of the plaintiffs claim clearly highlights the presence of a factual dispute regarding when the claim arose.

Finally, the plaintiff claims that the defendant should be estopped from asserting that any contract based claims arose on December 14, 1999, because of its refusal to turn her file over to her until several months after the defendant moved to withdraw from its representation of her on the basis of a conflict of interest. As to this claim, the court determined that the defendant should not be estopped from asserting a statute of limitations defense because the plaintiff knew of her harm in December, 1999. In response, the plaintiff points out, however, that her estoppel claim is not premised on when she learned that counsel was acting against her wishes but rather on her claim that because the defendant unreasonably withheld her file from her for several months, the defendant should be deprived, as a sanction, from claiming that she should have earlier brought her action. Because the determination of the date on which the plaintiffs cause of action in contract accrued requires an evidentiary hearing, the issue of estoppel is not presently ripe for legal assessment. Rather, I would reverse the judgment of the court and remand the matter for further proceedings in accordance with law. If, on remand, the issue of estoppel again arises, the court may determine that an evidentiary hearing is necessary to resolve any factual issues enmeshed in the plaintiffs assertion of estoppel as part of its analysis of the claim’s legal viability.

Accordingly, I respectfully dissent.

       There is no claim in the complaint that the filing of the motion to withdraw constituted a breach of the representation agreement.

       The plaintiff specifically stated in her complaint that the defendant “breached its contract duties to the plaintiff in one or more of the following respects: (a) it pursued the interests of . . . [Thibodeau] in derogation of the interests, wishes and instructions of the plaintiff in bringing about a settlement of the lawsuit; and/or, (b) it failed and/or refused to follow the express wishes and instructions of the plaintiff to reject the settlement offer in the lawsuit and to continue to prosecute the lawsuit.”

       The defendant argued that the alleged breach of contract occurred, if at all, on December 14, 1999.

       The defendant argues that the complaint can properly be read to state a cause of action in tort only; to this extent, it implicitly claims that the court erred in finding that the action sounded in both contract and tort. We note that the defendant filed a preliminary statement of issues stating an intent to raise alternate grounds for affirmance. Although the preliminary statement of issues is phrased generally, it has not been contested, and the plaintiff had the opportunity to respond in a reply brief to the argument that the defendant made in its brief.

       The contract does, of course, specifically require representation; the plaintiff’s claim is that the representation was executed unethically. This does not equate to no representation at all.
      The dissent agrees that a claim alleging a failure to obtain a specific result pursuant to an agreement sounds in contract. Caffery v. Stillman, supra, 79 Conn. App. 197. We agree with the dissent that there may be other contractual duties set forth in an agreement. For example, a complaint alleging a refusal to perform specific tasks required by a contract also may set forth a contract claim. Hill v. Williams, 74 Conn. App. 654, 662, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). In either event, there is a specific result or task set forth in an agreement that the attorney has promised to do; an allegation that the attorney failed or refused to do that specific task may constitute a contract claim. The retainer agreement in the present case, however, does not require the defendant to do anything specific that the defendant did not do. The only task that the retainer agreement required the defendant to do was to represent the plaintiff. The plaintiff does not claim that the defendant failed to represent her at all. We do not agree with the dissent that an allegation that an attorney failed to follow a request of a client, in the absence of an agreement to do so, states a cause of action in contract in the context of professional negligence.
      In Caffery, this court stated: “[T]he plaintiff claimed that the present case is indistinguishable from Hill v. Williams, [supra, 74 Conn. App. 662], in which we concluded that one of the plaintiffs counts did sound in contract and, thus, was not barred by the tort statute of limitations. Contrary to the plaintiffs assertions, our determination of the issue before us is not governed by the reasoning of Hill. In Hill, we found that the plaintiff had alleged that the defendant had promised to take specific actions that he later refused to undertake and that the plaintiff suffered damages as a result. Id., 659. Here, although the plaintiff alleged that the defendant had promised to bring aliability action against the city, the plaintiff does not claim that he sustained damages as a consequence of the defendant’s failure to bring such an action. Rather, he claims that the promise to bring such an action was premised on an incorrect understanding of the law and that he suffered damages as a result of the defendant’s failure to understand the limits of the legal remedy.” Caffery v. Stillman, supra, 79 Conn. App. 197-98. Similarly, in the present case, the plaintiff claims that the manner in which the defendant performed its legal services was improper. An allegation that one failed to perform professional services with the proper degree of skill sounds in legal malpractice. See Pelletier v. Galske, supra, 105 Conn. App. 81.

       The concurrence is correct in noting that even if it were a contract claim, summary judgment is, nonetheless, appropriate.

       As the majority correctly points out, the plaintiff does not allege that the defendant failed to represent her at all. She does, however, allege that the defendant failed to take specific action on her behalf through her claim that the defendant failed to follow her wishes and instructions regarding settlement of the case. In light of the terms of the contract, I believe that this allegation, coupled with the plaintiffs request for remittance of the fees being held in escrow, adequately sets forth a claim founded in contract. Thus, although the plaintiffs complaint does not set forth the explicit allegation that the defendant’s refusal to follow her directions regarding settlement is the breach for which she seeks a return of fees held in escrow, I believe that claim is implicit in the allegations set forth by the plaintiff coupled with her request for payment of the fees held in escrow. While surely the complaint could have been more artfully and expressly drawn, its imprecision does not defeat its essence as a complaint founded in contract. In sum, construing the complaint broadly, I believe that it is reasonable to conclude that the plaintiffs contract claim is founded on the notion that the defendant’s alleged failure to follow her instructions regarding settlement resulted in an unsatisfactory resolution of her claims, contrary to the provision of the contract entitling the defendant to fees upon the claim’s satisfactory resolution.

       I recognize that the complaint sets forth a claim for damages in addition to a return and remittance of fees. To the extent that the claim of relief for damages relates to the allegations of the complaint regarding the defendant’s alleged breach of duty of undivided loyalty, it may well be barred by § 52-577. To the extent that the majority holds that this claim is time barred, I agree.

       It is important to note that, unlike a typical tort based malpractice claim, this one count complaint contains no allegations that the defendant’s conduct was negligent or that its performance was below a standard of competence. Taken as a whole, the complaint succeeds or fails as a contract claim.

       An illustration of the confusion and uncertainty regarding this inquiry is suggested by the court’s rulings regarding the start date for purposes of applying the statute of limitations. The record reveals that on November 17, 2009, the court denied the defendant’s motion for summary judgment based on the statute of limitations with the notation: “The motion is denied because the date of suit, February 21, 2006 was within the statute of limitations. The statute began to run February 25, 2000.” Thereafter, on June 8, 2010, the court issued the following order: “The court finds that this is a legal malpractice action and not a breach of contract action. Further, the plaintiff became aware of her injury (conflict of interest) in December of 1999. This lawsuit was not brought until 2006, thereby violating the three year (tort) and six year (contract) statutes of limitations. The denial of the motion for summary judgment is vacated and summary judgment is granted for the above reasons.”