text:
    ALPHONSE T. DUBREUIL ET AL. v. OTTO P. WITT ET AL.
    (AC 23915)
    Foti, Dranginis and Dupont, Js.

      Argued September 11
    officially released December 9, 2003

      Otto P. Witt, pro se, the appellant (named defendant).

      Joseph X. DuMond, Jr., for the appellees (plaintiffs).
   Opinion

DRANGINIS, J.

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

In his second appeal to this court, the defendant Otto P. Witt, an attorney, claims that it was improper for the court to (1) conclude that he had breached the standard of care applicable to attorneys who practice before the Superior Court, (2) allegedly deny him due process of law by failing to inform him that the court intended to take judicial notice of the applicable standard of care, (3) award damages outside the scope of the allegations of the complaint, (4) conclude that his negligence was the proximate cause of the plaintiffs’ injury and (5) conclude that he was in breach of contract. We affirm the judgment of the trial court.

In their two count amended complaint filed April 24, 1997, the plaintiffs alleged, in part, that they had retained the defendant to represent them in a collection action commenced by Deedy Construction Company (Deedy). The plaintiffs further alleged that the defendant had represented them in a negligent manner, violated the Rules of Professional Conduct and breached their contract by failing to attend a pretrial conference, a rescheduled pretrial conference and the short calendar argument on a motion to set aside a judgment of nonsuit that had been entered against them. As a result of the defendant’s alleged negligence and breach of contract, Deedy obtained a judgment of foreclosure against the plaintiffs’ real property. In addition, as a result of the defendant’s negligence and his breach of contract, the plaintiffs suffered harm.

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

Because Aetna did not pay, Deedy commenced an action against the corporation seeking payment of $67,277.88 for services rendered. Theodore A. Harris, an attorney, represented the corporation in the early stages of the litigation, but he withdrew his appearance in March, 1993. Prior to withdrawing from the case, it appears that Harris had some correspondence with Deedy’s attorney about the plaintiffs personally signing a guarantee regarding the debts of the corporation. There is, however, no evidence that the plaintiffs signed the guarantee. At the trial, Alphonse Dubreuil denied that Harris was his attorney and denied that he had agreed to indemnify the corporation. Alphonse Dubreuil also filed an affidavit to that effect, after Deedy had secured a judgment against the plaintiffs.

About the time Deedy commenced its collection action, Alphonse Dubreuil was in failing health, and the corporation was in failing financial condition. Alphonse Dubreuil retained the defendant to represent the corporation in bankruptcy. Alphonse Dubreuil later informed the defendant of the Deedy action and asked him to represent the plaintiffs therein. The defendant filed an appearance in the Deedy action on May 7,1993. During the summer of 1993, the defendant filed a cross complaint against the insurance agency and impleaded Aetna as a third party defendant. The pleadings in the action were closed, and the matter was scheduled for a pretrial conference in June, 1994. The defendant did not attend the pretrial. On the date of the pretrial, Alphonse Dubreuil was hospitalized in intensive care.

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

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

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

The plaintiffs commenced this malpractice action against the defendant in August, 1996. The matter was tried to Judge Hurley; see footnote 1; who rendered judgment for the plaintiffs in May, 1998. The defendant appealed to this court, which reversed the judgment and remanded the case for a new trial. Dubreuil v. Witt, 65 Conn. App. 35, 781 A.2d 503 (2001) (Dubreuil I). The case was tried again to the court, Hon. Joseph J. Purtill, judge trial referee, in November, 2002. Judge Purtill also concluded that the defendant’s representation of the plaintiffs as alleged in the complaint constituted legal malpractice. The defendant again appealed to this court. We agree that the defendant’s conduct violated the standard of care applicable to attorneys who practice before the Superior Court, but for reasons somewhat different from those articulated by the trial court.

Before we address the defendant’s claims, we set forth the proper standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Hart v. Carruthers, 77 Conn. App. 610, 612-13, 823 A.2d 1284 (2003).

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

I

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

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

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

In concluding that the plaintiffs did not need to present expert testimony to prevail in this action, the trial court relied on this court’s holding in Paul v. Gordon, 58 Conn. App. 724, 754 A.2d 851 (2000). In that case, there was such an obvious and gross want of care on the part of the defendant that a layperson would know that the defendant’s conduct violated the standard of care. Id., 728. The facts here, however, are distinguishable from Paul, in which the plaintiffs had retained an attorney to represent them in a summary process action. Id. The Paul attorney did nothing, even though he assured the plaintiffs that he would handle the matter. Id. As a result, the plaintiffs were evicted from their home and lost a substantial sum of money. Id.

Here, the defendant did more than nothing in the Deedy action. He asserted claims against the insurance agency and Aetna on the plaintiffs’ behalf. By his admission, the defendant acknowledged that the plaintiffs had a good defense to Deedy’s claim. A layperson may be expected to understand that an attorney’s failure to attend court proceedings as directed is obvious and gross neglect. Although we recognize that the court may sanction parties whose counsel do not appear for scheduled proceedings; Mamudovski v. BIC Corp., 78 Conn. App. 715, 722, 829 A.2d 47, cert. granted on other grounds, 266 Conn. 915, 833 A.2d 467 (2003); we do not hold that an attorney’s failure to attend a court-ordered pretrial without more constitutes legal malpractice.

The defendant’s alleged malpractice consists of his failure to file a motion to set aside the default and to open the judgment of nonsuit before judgment was rendered, his failure to attend the hearing on the motion for judgment and his failure to attend the hearing on his motion to set aside. Our rules of practice set forth the rules governing those motions. On the one hand, we do not expect a layperson to be familiar with the rules of practice and the importance of setting aside a default before a judgment is rendered or that the standard for setting aside a default is abuse of discretion. See Richards v. Trudeau, 54 Conn. App. 859, 738 A.2d 215 (1999). On the other hand, we expect that a judge of the Superior Court is well aware of the rules of practice and the consequences that may flow from an attorney’s failure to abide by them. A judge also knows the dire consequences that may befall clients whose attorney does not protect their interests properly.

The appellate courts of this state have set forth the law that applies in an action alleging legal malpractice. “Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . .” (Internal quotation marks omitted.) Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990). Generally, to prevail in a case alleging legal malpractice, a plaintiff must present expert testimony to establish the standard of proper professional skill or care. Dunham, v. Dunham, 204 Conn. 303, 317, 528 A.2d 1123 (1987), overruled in part on other grounds, Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996). Furthermore, the plaintiff must prove “(1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages.” (Internal quotation marks omitted.) Vona v. Lerner, 72 Conn. App. 179, 187-88, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).

“The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard. Davis v. Mar-golis, [supra, 215 Conn. 416]. There is an exception to this rule, however, where there is such an obvious and gross want of care and skill that the neglect is clear even to a lay person. Id., 416 n.6. This exception has been applied in the context of a medical malpractice case. Shegog v. Zabrecky, 36 Conn. App. 737, 750-51, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995).” (Internal quotation marks omitted.) Paul v. Gordon, supra, 58 Conn. App. 727-28. Paul held that the exception applies in cases in which the violation of the standard of care is an obvious and gross want of care. Id., 728.

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

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

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

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

II

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

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

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

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

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

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

Ill

The defendant’s next claim is that the court awarded the plaintiffs damages outside the scope of the allegations of the complaint. We are not persuaded.

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

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

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

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

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

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

IV

The defendant’s fourth claim is that the court improperly concluded that his negligence was the proximate cause of the plaintiffs’ injuries. We do not agree.

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

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

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

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

“An issue of proximate cause is ordinarily a question of fact for the trier. ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion . . . .” (Citation omitted; internal quotation marks omitted.) B &D Associates, Inc. v. Russell, 73 Conn. App. 66, 77, 807 A.2d 1001 (2002). The audacity of the defendant’s claim stretches the limits of making fair and accurate representations to this court, particularly in view of his own words that are in evidence, as we will discuss.

The court found that the defendant had filed an appearance in the foreclosure action and a disclosure of defense that the judgment forming the basis of the foreclosure was void or voidable, and that the action against the plaintiffs violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The defendant also filed an answer and a counterclaim against Deedy’s attorney, alleging that the attorney knew the judgment was invalid and that the plaintiffs never personally had guaranteed the contract between Deedy and the corporation.

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

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

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

V

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

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

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

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

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant previously appealed from a judgment for the plaintiffs. In Dubreuil v. Witt, 65 Conn. App. 35,781 A.2d 503 (2001), this court reversed the judgment and remanded the case for a new trial, concluding that the trial court, Hon. D. Michael Hurley, judge trial referee, had denied the defendant the right to cross-examine a witness. Although the defendant had raised the issue of whether expert testimony was needed to conclude that he had committed malpractice in representing the plaintiffs, this court did not reach that issue. Id., 46 n.5.

       Witt’s law firm, Witt and Associates, P.C., was a defendant at trial, but is not a party to this appeal.

       The plaintiffs are Alphonse T. Dubreuil and Marilyn B. Dubreuil, husband and wife.

       The court also took judicial notice of the files in Deedy Construction Co. v. A. Dubreuil Som, Inc., Superior Court, judicial district of New London, Docket No. 101288, which was the collection action, and Deedy Construction Co. v. Dubreuil, Superior Court,, judicial district of New London, Docket No. 107408, which was the foreclosure action.

       Alphonse Dubreuil testified that an agent of the insurance agency had recommended that he talk to Harris, but that he never followed the recommendation.

       The defendant never filed a motion to open the judgment of nonsuit rendered in favor of the agency and Aetna.

       Our holding is limited to the circumstances of this case. We do not hold or imply that a judge of the Superior Court is an expert in every area of the law and that expert testimony does not have to be presented in cases involving other types of legal malpractice tried to the court.

       In his brief, the defendant argues that the court made no finding of fact with respect to the defendant Witt and Associates, P.C., and that it was “clear” error for the court to render judgment against it. As stated in footnote 2, Witt and Associates, P.C., is not a party to this appeal, as the defendant filed a pro se appearance and identified himself as the appellant. Furthermore, the defendant has cited no law in support of his argument and provided no reasoning or analysis for his argument. See State v. Harvey, 77 Conn. App. 225, 230 n.8, 822 A.2d 360, cert. denied, 265 Conn. 906, 831 A.2d 252 (2003). For those reasons, we decline to address it.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    JOSEPH R. KREVIS ET AL. v. CITY OF BRIDGEPORT
    (AC 19438)
    Schaller, Dranginis and Bishop, Js.
    Argued September 19
    officially released December 9, 2003

      JohnR. Mitola, associate city attorney, for the appellant (defendant).

      George C. Springer, Jr., for the appellee (named plaintiff).
   Opinion

SCHALLER, J.

This appeal appears before this court after remand from the Supreme Court. The sole issue is whether the trial court properly granted the motion for summary judgment filed by the defendant, the city of Bridgeport.

The background facts have been set forth in Krevis v. Bridgeport, 64 Conn. App. 176, 177-79, 779 A.2d 838 (2001), rev’d, 262 Conn. 813, 817 A.2d 628 (2003). The facts relevant to this appeal are as follows. After jury selection but prior to trial, the court heard oral argument on the defendant’s motion in limine to exclude evidence relating to punitive damages. During the argument on the motion, the plaintiff, Joseph R. Krevis, referred to the statute that abrogates governmental immunity, General Statutes § 52-557n, but did not mention the actual citation for the statute.

Among the plaintiffs references to the statute was his mention of Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998), which discussed § 52-557n. The plaintiff specifically referred the court and the defendant to Justice Berdon’s concurrence, which addressed § 52-557n. The plaintiff also stated that “as I understand it, is with reference to the governmental immunity statute, which is § 52-572n, I believe it is in there, there’s the section that you talk about a city is not liable for intentional and wilful acts of misconduct of an employee.” In addition, on several occasions during the argument, the plaintiff referred to a governmental immunity statute that would allow a negligence action against a municipality.

Concerning the motion in limine, the court ruled orally that governmental immunity precluded the plaintiff from recovering punitive damages. After considerable discussion between the court, the plaintiff and the defendant, the court allowed the defendant to make an oral motion for summary judgment. The basis of the defendant’s motion for summary judgment was whether the plaintiffs claims were barred by governmental immunity. The court “found governmental immunity applicable to all counts and dismissed the actions.” Krevis v. Bridgeport, supra, 64 Conn. App. 179. The court held that the plaintiff failed to follow the procedures set forth in General Statutes § 7-465, which would have required the plaintiff to bring an action against the individual and then bring an action against the municipality for indemnification.

After the plaintiff appealed to this court, we determined that it was improper for the trial court to have heard the motion for summary judgment. Krevis v. Bridgeport, supra, 64 Conn. App. 179. That decision was reversed by our Supreme Court in Krevis v. Bridgeport, 262 Conn. 813, 817 A.2d 628 (2003). The case was remanded to this court for a determination on the merits of the plaintiffs appeal. Id., 825.

We exercise plenary review over a trial court’s decision to grant a motion for summary judgment. Stokes v. Lyddy, 75 Conn. App. 252, 257, 815 A.2d 263 (2003). “Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . A material fact is a fact which will make a difference in the result of the case.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Stokes v. Lyddy, supra, 257.

During the course of appellate litigation of this case, we decided Spears v. Garcia, 66 Conn. App. 669, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003). In Spears, we held that “although a plaintiff should plead a statute in a complaint that abrogates governmental immunity, fading to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings.” (Emphasis in original.) Id., 676.

Here, the plaintiff made several references to a statute that would abrogate governmental immunity for the negligent acts of its employees. The plaintiff referred the court and the defendant to Williams, in which § 52-557n was discussed. Further, the plaintiff appeared to make explicit reference to the statute, although the plaintiff gave the wrong citation. All of that evidence was sufficient to make a factual issue of whether the defendant was sufficiently apprised of the applicable statute, § 52-557n. The question of whether the defendant was sufficiently apprised of § 52-557n is a material fact because it would change the outcome of the litigation, i.e., the court would not have granted the motion for summary judgment on the ground of governmental immunity. As a matter of law, therefore, we conclude that the court improperly granted the motion for summary judgment.

We note that the court did not have the opportunity to rule on whether the defendant was sufficiently apprised of § 52-557n. “Notwithstanding that fact, we will, in the interests of judicial economy, review the evidence and analyze [whether the defendant received sufficient notice].” Colliers, Dow & Condon, Inc. v. Schwartz, 77 Conn. App. 462, 472, 823 A.2d 438 (2003); see also Almeida v. Liberty Mutual Ins. Co., 234 Conn. 817, 827, 663 A.2d 382 (1995) (when record is clear, court will review evidence, make factual findings in interest of judicial economy). We conclude that the record indicates that the plaintiff placed the defendant on sufficient notice that he intended to rely on § 52-557n to abrogate the defendant’s defense of governmental immunity.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Jean M. Krevis, the wife of Joseph R. Krevis, also was a plaintiff at trial. Only Joseph R. Krevis appealed from the judgments of'the trial court,. We therefore refer in this opinion to Joseph R. Krevis as the plaintiff.

       In Williams, Justice Berdon wrote: “The problem in this case is that the plaintiffs have neither argued before the trial court nor this court that [General Statutes] § 52-557n has changed the law on immunity and/or that we should adopt § 895C of [4 Restatement (Second) of Torts (1979)].” Williams v. New Haven, supra, 243 Conn. 771-72 (Berdon, J., concurring).

       The record states that the plaintiff said “52-572n.” General Statutes § 52-572n concerns product liability. It is clear, however, from the plaintiffs comments following his citation that he was referring to General Statutes § 52-557n because § 52-557n (a) (2) (A) exempts municipalities from liability for acts of employees that constitute “criminal conduct, fraud, actual malice or wilful misconduct . . . .”


author: McLACHLAN, J.

text:
    J. WILLIAM GAGNE, JR. v. ENRICO VACCARO
    (AC 22872)
    West, McLachlan and Peters, Js.

      Argued September 12
    officially released December 9, 2003

      Felix Esposito, with whom was Enrico Vaccaro, pro se, for the appellant (defendant).

      P. Jo Anne Burgh, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

This case returns to us following a remand to the trial court by the Supreme Court. In this appeal, the defendant, Enrico Vaccaro, claims the trial court improperly (1) denied his motion to open and to set aside the judgment, (2) awarded the plaintiff offer of judgment interest and (3) granted the plaintiffs prejudgment remedy of attachment. We affirm the judgment of the trial court.

This action between attorneys originated in a personal injury matter. The plaintiff, J. William Gagne, Jr., brought an action to recover damages for the defendant’s failure to pay him a portion of attorney’s fees recovered in the settlement of that matter in which the plaintiff had performed a significant amount of work. The complaint contained five counts, including a claim of unjust enrichment. The case was tried to the jury, which found in favor of the plaintiff on all five counts and awarded damages in the amount of $328,469.14. Pursuant to Practice Book § 16-37, the defendant filed a motion to open the judgment and to set aside the verdict, and for judgment notwithstanding the verdict, which the court granted.

The plaintiff appealed from that judgment to the Appellate Court; pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1, that appeal was transferred to the Supreme Court. On March 6, 2001, the Supreme Court decided whether a per se rule precluding recovery on the basis of quantum meruit or unjust enrichment, despite the absence of bad faith or client consent, is appropriate when an attorney fails to put into writing a contingency fee agreement pursuant to General Statutes § 52-251c. The court overruled in part Alan E. Silver, P.C. v. Jacobs, 43 Conn. App. 184, 682 A.2d 551, cert. denied, 239 Conn. 938, 684 A.2d 708 (1996), and held that an attorney who neglects to follow the dictates of § 52-251c may collect attorney’s fees from a successor attorney after settlement. Gagne v. Vaccaro, 255 Conn. 390, 408, 766 A.2d 416 (2001). The judgment of the trial court was reversed in part and the case was remanded to that court to render judgment for the plaintiff on the unjust enrichment count. Id., 411.

Subsequently, on May 3, 2001, the plaintiff filed a motion for the calculation of interest pursuant to General Statutes § 52-192a and Practice Book § 17-18. One week later, in response to the plaintiffs application, the court held a prejudgment remedy hearing. In its memorandum of decision issued December 10, 2001, the court found that the plaintiff was entitled to offer of judgment and postjudgment interest, and costs and attorney’s fees, and rendered judgment in favor of the plaintiff on the unjust enrichment count in the amount of $593,302.13. The court also granted the plaintiffs prejudgment remedy application, but deferred calculation of the specific amount. The defendant filed a motion to open and to set aside the judgment, which was denied by the court on May 8, 2002. On May 28, 2002, the defendant filed this appeal. By order dated June 21, 2002, the court set the prejudgment remedy amount.

I

The defendant’s first claim on appeal is that the court improperly denied his motion to open and to set aside the judgment because an unjust enrichment claim cannot legally be tried to a jury. In addition, the defendant contends that the jury’s verdict on that claim was rendered using an erroneous legal standard. We disagree.

“A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990).

A

The defendant first argues that an unjust enrichment claim cannot legally be tried to a jury. It is well settled that there is no right to a jury trial in an equitable action. United States Trust Co. v. Bohart, 197 Conn. 34, 44-45, 495 A.2d 1034 (1985). This appeal, however, presents the issue of whether the court, in exercising its discretion, may ever submit to the jury an unjust enrichment claim when both parties consent.

1

We first address the defendant’s contention that restitution is, in every circumstance, an equitable matter. The defendant has provided the court no authority for that assertion. The Restatement of Restitution, however, takes the opposite view. It delineates six remedies for a person entitled to restitution, including “a judgment at law or decree in equity for the payment of money . . . .” Restatement (First), Restitution, Remedies § 4 (f), p. 18 (1937). The Restatement thus indicates that an action for restitution may be either equitable or legal in nature.

Although the Connecticut decisions referring to this claim as “equitable” are numerous, we find only one that has addressed the dichotomy discussed in the Restatement (First), supra, Remedies § 4 (f). In Misisco v. La Maita, 150 Conn. 680, 684, 192 A.2d 891 (1963), our Supreme Court, consonant with the Restatement view, explained: “[An unjust enrichment claim] is an action in quasi contract, i.e. an obligation, arising by law, on which the same remedy is given as would be given if the obligation arose out of contract. . . . Although the right of recovery is based on equitable principles, it is nevertheless an action at law, the purpose of which is to prevent unjust enrichment. . . . The only remedy is in an award of money damages. There is no merit to the claim of the defendant that the plaintiffs only right of action was in equity and that equitable relief had to be sought.” (Citations omitted.) Under Connecticut law, therefore, a claim in restitution may indeed be legal in nature.

Several jurisdictions have expounded on the distinction drawn in the Restatement. In Jenkins v. Kaplan, 50 N.J. Super. 274, 141 A.2d 802 (1958), the defendant asserted that as the claim was equitable in nature, it was not cognizable by the trial court. The Appellate Division of the Superior Court of New Jersey dismissed that argument, explaining that “[a] money judgment against the party who has been unjustly enriched is the traditional restitutional remedy, and this ‘quasi-contractual’ relief has universally been afforded at law.” Id., 283. Similarly, the United States District Court for the District of Massachusetts in In re Acushnet River & New Bedford Harbor Proceedings, 712 F. Sup. 994, 1003 (D. Mass. 1989), admonished an appellant who “assumes that, because the [United States} Supreme Court [in a certain case had] mentioned the Restatement of Restitution, the remedy it fashioned was an equitable one. This assumption ignores the fact that the jurisdictions of law courts and equity courts have always overlapped with respect to restitution. . . . [M]uch of the relief we now think of as restitutionary was available in the English common law courts in an action of assumpsit.”

In this case, the plaintiffs recovery was through payment of money; indeed, this entire litigation centers solely on the division of legal fees. “[0]rdinarily [a] money judgment is obtained by an action at law . . . .” Restatement (First), supra, § 4, comment (e), p. 21. One court has observed that as a general rule, “an action is to be deemed legal in nature, rather than equitable, where the only relief sought is the collection of money damages.” Attebery v. Attebery, 507 S.W.2d 87, 90 (Mo. App. 1974). We also note that the money payment recovery in this case falls within none of the “equitable” remedies specified in the Restatement. “[I]n many situations a proceeding in equity is denied because the remedy at law is adequate. ...” Restatement (First), supra, introductory note, p. 4. The Pennsylvania Supreme Court has addressed such a situation: “The court below held that this action was cognizable in equity rather than in law because the equitable principle of unjust enrichment was involved. This reasoning overlooks the fact that law courts can and do apply equitable principles so long as the remedy sought is one within their power to grant. Since law courts can give the remedy of money damages, an adequate remedy existed at law in the form of an action in assumpsit and equity therefore had no jurisdiction.” (Emphasis in original.) Meehan v. Cheltenham Township, 410 Pa. 446, 448-49, 189 A.2d 593 (1963). As the court here found money damages to be an adequate remedy, and in light of both the Misisco precedent and the distinction drawn in the Restatement, we conclude that this particular action for restitution more aptly is characterized as legal, rather than equitable, in nature.

2

Even were we to find this claim for restitution to be an equitable one, such a conclusion would not necessarily foreclose its submission to the jury. First, the court is statutorily permitted to submit equitable claims to the jury in certain circumstances. General Statutes § 52-218, as well as Practice Book § 16-10, provides the court in an equitable action the power to submit issues of fact to the jury upon the application of a party. The statute is discretionary, however, and does not create a right to have issues of fact tried by a jury in an equitable action. Once a party has requested the trial court to submit issues of fact to the jury on an equitable claim, the court has the power under § 52-218 to submit such issues to the jury. See Meyers v. Cornwell Quality Tools, Inc., 41 Conn. App. 19, 26, 674 A.2d 444 (1996). Although no such application was presented in this case, that procedure nonetheless reflects the ability to involve juries in equitable matters under certain circumstances.

Second, we note that the “requirements for recovery of restitution are purely factual.” United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506, 512, 802 A.2d 901 (2002). This litigation concerns compensation for the plaintiffs services. Our Supreme Court has “repeatedly held that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described.” (Internal quotation marks omitted.) Shapero v. Mercede, 262 Conn. 1, 9, 808 A.2d 666 (2002). Such determinations properly may be made by the jury. See Presidential Capital Corp. v. Reale, 231 Conn. 500, 510-12, 652 A.2d 489 (1994).

Finally, and perhaps most importantly, Connecticut appellate courts have repeatedly affirmed jury verdicts on unjust enrichment claims. See Fink v. Golenbock, 238 Conn. 183, 210, 680 A.2d 1243 (1996) (“jury found that both defendants . . . had been unjustly enriched”); Franks v. Lockwood, 146 Conn. 273, 277-78, 150 A.2d 215 (1959) (“[f]rom the facts, the jury could have concluded that . . . the enrichment was unjust” [citations omitted]); Naughton v. Hager, 29 Conn. App. 181, 184, 614 A.2d 852, cert. denied, 224 Conn. 920, 618 A.2d 527 (1992); Burns v. Koellmer, 11 Conn. App. 375, 385, 527 A.2d 1210 (1987) (“The court did not err in so charging the jury [on unjust enrichment charge]. The facts which could reasonably have been found by the jury, based upon the evidence, are sufficient to uphold the plaintiffs verdict.”); Epstein v. Automatic Enterprises, 6 Conn. App. 484, 485, 506 A.2d 158 (1986) (affirming jury verdict in favor of plaintiff on unjust enrichment count); Johnson v. Ivimey, 3 Conn. App. 392, 394, 488 A.2d 1275, cert. denied, 196 Conn. 811, 495 A.2d 279 (1985); see also O’Brien v. Seyer, 183 Conn. 199, 205, 439 A.2d 292 (1981) (case submitted to jury on quantum meruit basis).

This court has neither been presented with nor found any authority indicating that submission of an unjust enrichment claim to the jury is erroneous or impermissible. To agree with the defendant’s assertion that an unjust enrichment claim “cannot legally be tried to a jury” would be effectively to eviscerate the legitimacy of those judgments. We decline that invitation. The court may submit to the jury an unjust enrichment claim in those circumstances in which it determines that the matter is one primarily legal in nature.

3

The defendant’s challenge to the denial of its motion to open and to set aside the judgment is fatal for yet another reason. Irrespective of our determination that the claim for restitution in this case is a legal one, we find that the defendant waived the right to object on the ground that an unjust enrichment claim may never be tried to a jury.

Waiver is “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); McClain v. Manson, 183 Conn. 418, 428, 439 A.2d 430 (1981). “It involves the idea of assent, and assent is an act of understanding. . . . The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct.” (Internal quotation marks omitted.) MacKay v. Aetna Life Ins. Co., 118 Conn. 538, 547-48, 173 A. 783 (1934); General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., 50 Conn. App. 701, 711-12, 719 A.2d 77 (1998), aff'd, 251 Conn. 56, 738 A.2d 168 (1999). “In order to waive a claim of law it is not necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy.” Jenkins v. Indemnity Ins. Co. of North America, 152 Conn. 249, 257-58, 205 A.2d 780 (1964).

On July 20, 1995, the defendant claimed this matter to a jury. In neither his request to charge nor his supplemental request to charge did the defendant object to the submission of the unjust enrichment claim to the jury, nor did he take exception to the charge as given by the court, which submitted the issue to the jury. Moreover, the defendant consented to the interrogatories presented to the jury without objection. “Consent to a jury trial of issues not triable by a jury as a matter of right need not be express. By merely failing to object to the submission of such issues to the jury, the parties agree that the jury’s verdict has the same effect as if a right to a jury trial existed. . . .”47 Am. Jur. 2d, Jury § 11 (1995); see also State v. Ramos, 201 Conn. 598, 604, 519 A.2d 9 (1986); State v. Hersey, 78 Conn. App. 141, 156, 826 A.2d 1183 (defendant “implicitly waived his right to challenge the court’s charge”), cert. denied, 266 Conn. 903, 832 A.2d 65 (2003).

At no time during the trial did the defendant object to the jury’s consideration of the unjust enrichment claim. Following the jury’s verdict in favor of the plaintiff, the defendant filed a motion to open the judgment and to set aside the verdict, and for judgment notwithstanding the verdict, never asserting as a ground the claim he now makes that the jury was without authority to decide the unjust enrichment claim.

On appeal to this court and then to the Supreme Court, the defendant had ample opportunity to raise that specific claim. Yet, as the briefs submitted reflect, he never did so. Perhaps most telling is the fact that after the Supreme Court issued its decision, the defendant filed a motion for reconsideration. Not a word addressed his objection. When before the trial court on remand, the defendant again remained silent as to his objection. In neither his memorandum of law in support of his objection to the plaintiffs postjudgment motions nor his reply memorandum of law did the defendant raise his objection.

On December 28, 2001, almost seven years after commencement of the action, the court found that the plaintiff was entitled to offer of judgment and postjudgment interest, and costs and attorney’s fees, and rendered judgment in favor of the plaintiff on the unjust enrichment count of the complaint. The defendant subsequently filed a motion to open and to set aside that judgment, arguing for the first time that the jury could not entertain the unjust enrichment claim. The court denied the motion.

From the commencement of his action to an audience before the highest court of our state, the defendant repeatedly failed to raise his objection. By his failure to do so, it was waived. In Pickel v. Automated Waste Disposal, Inc., 65 Conn. App. 176, 180, 782 A.2d 231 (2001), we stated that “[w]e have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.” (Internal quotation marks omitted.) The court did not abuse its discretion in denying the defendant’s motion to open and to set aside the judgment in this instance.

B

The defendant also contends that the jury’s verdict on his claim was rendered using an erroneous legal standard. In essence, the defendant argues that as the bad faith finding made by the jury was held unnecessary by the Supreme Court’s decision in Gagne v. Vaccaro, supra, 255 Conn. 409-11, the presence of that finding renders the jury’s verdict “unsound and invalid.” We disagree.

As the defendant concedes in his brief, the trial court rejected that finding and set it aside. When the Supreme Court decided that no bad faith was required for recovery, it remanded the case to the trial court with direction to render judgment on the unjust enrichment count.

On remand, the trial court was bound by the law of the case doctrine. That doctrine “expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power.” (Internal quotation marks omitted.) S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 798, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). “Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).

In Wagner v. Clark Equipment Co., 259 Conn. 114, 130-31, 788 A.2d 83 (2002), the court stated that “[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . . [0]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.” (Internal quotation marks omitted.) That rule, however, seemingly should apply only to trial court determinations. Here, the trial court was directed by the Supreme Court to render judgment for the plaintiff on the unjust enrichment count. Bound by the law of the case, the court had no choice but to comply with that directive. See Dacey v. Connecticut Bar Assn., 184 Conn. 21, 23, 441 A.2d 49 (1981). There is no abuse of discretion.

II

The defendant next claims the court improperly awarded the plaintiff offer of judgment interest. Specifically, he contends that as unjust enrichment is an “ ‘equitable remedy not available at law,’ ” offer of judgment interest is not available under § 52-192a. The defendant’s claim raises an issue of statutory interpretation, which “involves a question of law and, thus, our review is plenary.” Poirier v. Zoning Board of Appeals, 75 Conn. App. 289, 294, 815 A.2d 716, cert. denied, 263 Conn. 912, 821 A.2d 766 (2003).

Offer of judgment interest may be awarded pursuant to § 52-192a (a) in “any civil action based upon contract or seeking the recovery of money damages . . . .” Thus, the plaintiff here must recover money damages to implicate that statute. The defendant argues that the plaintiff was awarded the equitable remedy of restitution and not money damages. We disagree.

We already have determined that the plaintiffs unjust enrichment claim was legal, not equitable, in nature. In discussing available remedies, the Restatement of Restitution provides that “a claimant has an election to obtain money damages at law or to obtain specific restitution in equity . . . .” (Emphasis added.) Restatement (First), supra, introductory note, p. 10. In Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 666, 368 A.2d 6 (1976), the court, citing the Restatement, concluded that “[a showing of unjust enrichment] entitles the plaintiff to an. award of money damages.” See also Misisco v. La Maita, supra, 150 Conn. 684 (awarding money damages on unjust enrichment claim); United Coastal Industries v. Clearheart Construction Co., supra, 71 Conn. App. 512 (unjust enrichment a doctrine “allowing damages for restitution”).

The defendant’s reliance on Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 687 A.2d 1270 (1997), is misplaced, for in that case, the trial court “acknowledged that its judgment was in the form of an injunction . . . .” (Internal quotation marks omitted.) Id., 783. Likewise, the plaintiff in Ravitch v. Stollman Poultry Farms, Inc., 162 Conn. 26, 27, 291 A.2d 213 (1971), sought, in addition to money damages, a decree that the land and buildings be impressed with a trust for the benefit of the plaintiff. No such additional relief is present in this case. Rather, the plaintiff sought and was awarded a money recovery. In Dinapoli v. Cooke, 43 Conn. App. 419, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d 124 (1996), cert. denied, 520 U.S. 1213, 117 S. Ct. 1699, 137 L. Ed. 2d 825 (1997), we stated that the word “damages” means “a compensation in money for a loss or damage.” (Internal quotation marks omitted.) Id., 427. That is precisely what the plaintiff recovered in this case. The court properly awarded the plaintiff offer of judgment interest on those money damages.

Ill

The defendant’s final claim is that the court improperly granted the plaintiffs prejudgment remedy of attachment. The issue before us is whether, once an appeal has been filed, final judgment has been rendered. The defendant’s claim raises an issue of statutory interpretation, which “involves a question of law and, thus, our review is plenary.” Poirier v. Zoning Board of Appeals, supra, 75 Conn. App. 294.

General Statutes § 52-278a (d) defines a prejudgment remedy as “any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment but shall not include a temporary restraining order.” Following the Supreme Court’s remand, the plaintiff filed a prejudgment remedy application with the trial court and a hearing was held. Judgment was rendered for the plaintiff on December 28, 2001. In its memorandum of decision, the court deferred resolution of the prejudgment remedy issue until after the conclusion of a special proceeding. On May 28,2002, the defendant filed this appeal. By order dated June 21, 2002, the court set the prejudgment remedy amount. The defendant argues that the prejudgment remedy statute is inapplicable because § 52-278a (d) allows a prejudgment remedy only “prior to final judgment . . . .”

The seminal trial court decision of Brookfield v. Greenridge, Inc., 35 Conn. Sup. 49, 393 A.2d 1316 (1977), confronted that very argument. The court stated that the legislature in 1975 “enacted [General Statutes] § 52-278h which states that an application for prejudgment remedy may be filed ‘at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly.’ ... By that provision the legislature intended a broad expansion of the time in which a prejudgment remedy could be used.” (Emphasis in original.) Id., 51.

The purpose of the prejudgment remedy statute is “to secure the defendants’ assets, forestalling the dissipation thereof, while awaiting a final judgment.” Cahaly v. Benistar Property Exchange Trust Co., 73 Conn. App. 267, 277, 812 A.2d 1, cert. granted on other grounds, 262 Conn. 925, 814 A.2d 378 (2002). The term “final judgment” is not plain and unambiguous. Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 486, 547 A.2d 528 (1988). As the court in Brookfield explained: “To ascertain the intended meaning of ‘final judgment’ as it is used in the prejudgment remedy context the court must look to the purpose of the statute. . . . The purpose of the statute is to allow a plaintiff who can show probable cause that he will eventually succeed on the merits to encumber property of the defendant to protect himself from obtaining a judgment which cannot be satisfied. At the same time the statute seeks to protect the defendant from unreasonable encumbrances. It is as necessary to protect a plaintiff who has won at the trial level, when the final disposition of the case awaits appellate proceedings, as it is to protect that same plaintiff before trial. There is no reason to assume that the legislature intended, by using the phrase ‘final judgment,’ to deprive a plaintiff, who awaits final disposition of the case, of the protection afforded by this statute. . . . The court is of the opinion that a prejudgment remedy is available to a plaintiff who has won at the trial level and whose case is on appeal.” (Citations omitted.) Brookfield v. Greenridge, Inc., supra, 35 Conn. Sup. 51-52. For more than twenty-five years, Connecticut trial courts have agreed, consistently holding that a prejudgment remedy is available to a party who has won at the trial level and whose case is on appeal.

Moreover, the only Connecticut appellate decision to consider that issue cites favorably to Brookfield. In East Lyme v. Wood, 54 Conn. App. 394, 400, 735 A.2d 843 (1999), the defendants claimed that because the underlying injunction action was not pending, the matter at issue was a postjudgment remedy, not a prejudgment remedy. We flatly rejected such a contention: “This claim has no merit. The case is still in court, and the town is seeking a determination of the amount that the defendants owe for property clearing. Until that determination is made, the town is entitled to a prejudgment attachment to secure any monetary order that may be rendered.” Id. The present case was still in court and the plaintiff was still seeking a recovery of the amount the defendant owed when the application for the prejudgment remedy was filed. We therefore hold that a prejudgment remedy is available to a party who has prevailed at the trial level and whose case is on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       A detailed account of the underlying history of this litigation is presented in Gagne v. Vaccaro, 255 Conn. 390, 392-97, 766 A.2d 416 (2001).

       Unjust enrichment is a common-law doctrine “allowing damages for restitution, that is, the restoration to a party of money, services or goods of which he or she was deprived that benefited another.” United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506, 512, 802 A.2d 901 (2002).

       We note that the Restatement (Third), Restitution and Urgust Enrichment, currently under revision, also contains that delineation. The provisional reporter’s note states that “money relief can be legal or equitable . . . .” Restatement (Third), Restitution and Urgust Enrichment (Discussion Draft) (March 31, 2000), Remedies § 4, p. 28.

       “A person entitled to restitution is entitled, in an appropriate case, to a remedy by aproceeding in equity, and not merely to a remedy by a proceeding at law (see § 4). The available remedies by a proceeding in equity include: (1) a decree establishing and enforcing a constructive trust of property; (2) a decree establishing and enforcing an equitable lien upon property; (3) a decree that the plaintiff be subrogated to the position of another claimant against the defendant. . . .” Restatement (First), supra, Restitution, Equitable Remedies — introductory note, p. 640.

       General Statutes § 52-218 provides: “Jury may try issues of fact in equitable action. Upon the application of either party, the court may order any issue or issues of fact in any action demanding equitable relief to be tried by a jury of six.”

       Practice Book § 16-10 reiterates that discretion: “No issues of fact in an equitable action shall be tried to the jury except upon order of the judicial authority. Upon the application of any party, the judicial authority may order any issue or issues of fact in any action demanding equitable relief to be tried by a jury, and such application shall be deemed to be a request for a jury of six. . . .”

       In fact, paragraph one of the defendant’s supplemental request to charge appears to encourage the submission of the claim to the jury.

       That motion was denied on April 11, 2001.

       Rather than contesting the validity of the underlying judgment, both memoranda instead argue against an award of offer of judgment interest.

      The defendant asserts that his objection “cries out” for plain error review. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Corona, 69 Conn. App. 267, 273-74, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002). “[The] Plain Error Rule . . . cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct.” (Internal quotation marks omitted.) Id., 274. Because we find that the defendant waived his objection, plain error review does not apply.

       “The law of the case doctrine applies only to subsequent proceedings in the same case. ” (Emphasis in original.) Forte v. Citicorp Mortgage, Inc., 66 Conn. App. 475, 481, 784 A.2d 1024 (2001). Moreover, “it is a well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court.” Dacey v. Connecticut Bar Assn., 184 Conn. 21, 23, 441 A.2d 49 (1981).

       General Statutes § 52-192a (a) provides in relevant part: “After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, not later than thirty days before trial, file with the clerk of the court a written ‘offer of judgment’ . . . offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. . . .”
      General Statutes § 52-192a (b) provides in relevant part: “If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiffs ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount . . . .”

       The defendant did not seek an articulation of the court’s ruling.

       See part IA 1.

       See Federal Deposit Ins. Corp. v. Caldrello, Superior Court, judicial district of New London, Docket No. 89511581 (February 6, 2002) (Hon. Joseph J. Purtill, judge trial referee); Winsted Land Development Co. v. Design Collaborative Architects, P.C., Superior Court, judicial district of Litchfield, Docket No. 960071571S (October 20, 1999) (25 Conn. L. Rptr. 618) (Frazzini, J.) (“verdict may be a final judgment for some purposes, i.e., appeal, but not for others”); Jacques All Trade Corp. v. Brown, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 90-0381618S (August 31,1998) (22 Conn. L. Rptr. 581) (Lavine, J.); Connecticut National Bank v. Giacomi, Superior Court, judicial district of Waterbury, Docket No. 105860 (April 7, 1994) (11 Conn. L. Rptr. 351) (Blue, J.); Coble v. Maloney, Superior Court, judicial district of Waterbury, Docket No. 089843 (January 4, 1993) (8 Conn. L. Rptr. 136) (Blue, J.) (level of probable cause “certainly greater after trial”).