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GERALD MARCIANO v. NEIL W. KRANER ET AL. (AC 31090)
Gruendel, Beach and Sullivan, Js. Argued November 19, 2010--officially released January 18, 2011

(Appeal from Superior Court, judicial district of Hartford, Aurigemma, J.) Zbigniew S. Rozbicki, for the appellant (plaintiff). Timothy Brignole, with whom, on the brief, was Juri E. Taalman, for the appellees (defendants).

Opinion

GRUENDEL, J. The plaintiff, Gerald Marciano, appeals from the judgment of the trial court granting the motion filed by the defendants, Neil W. Kraner and the Law Offices of George B. Bickford,1 to set aside the verdict reached by the jury in favor of the plaintiff. On appeal, the plaintiff claims that the court improperly determined that, in the absence of expert testimony, he could not prevail in his action for breach of fiduciary duty against the defendants. We disagree and, accordingly, affirm the judgment of the trial court. The jury reasonably could have found the following facts. On March 31, 2000, the plaintiff contacted Kraner, who was an attorney practicing with the Law Offices of George B. Bickford in East Granby. The plaintiff explained to Kraner that his mother was in a nursing home, that his father, Francis Marciano, Sr. (Francis, Sr.), had recently developed serious mental health problems and had been admitted to the Institute of Living in Hartford and that he wanted to preserve his inheritance interest in his parents' estate assets in the event of their deaths. Notably, the plaintiff told Kraner that the home in which he and his family had been living since 1996 in Barkhamsted (Barkhamsted property) was owned by his father and that he wanted to obtain title to the Barkhamsted property prior to Francis, Sr.'s death. The plaintiff further informed Kraner that his parents' total estate assets consisted of the Barkhamsted property, with a value of $122,500, a second home in Torrington (Torrington property), worth $132,500, $130,000 in cash and cars worth $22,500, for a total estate value of approximately $407,500. Given this information, Kraner explained that pursuant to state and federal medicaid laws,2 his parents' assets would have to be used to pay for their nursing home care until their total assets had been depleted to $1600, at which point they would qualify for state medicaid assistance in paying their nursing home care expenses.3 Unsatisfied with this result, the plaintiff retained Kraner to review various avenues for preserving the value of his parents' estate while also transferring ownership of the Barkhamsted property and qualifying for state medicaid assistance. Subsequently, Kraner advised the plaintiff that the only way to preserve the value of his parents' assets, including the Barkhamsted property, while also qualifying for medicaid, would be to transfer all of their real and personal property to a disabled child.4 This advice was memorialized in a letter from Kraner to the plaintiff, dated April 14, 2000, which stated in relevant part: ``[P]erhaps the best path for protecting some of your father's assets would be to transfer them to his disabled son. . . . [W]e would need to draft deeds to transfer the real property, and you had expressed [an] interest in having a closing with your brother wherein he could transfer ownership of

[the Barkhamsted] property to you.'' The reference to the ``disabled son'' in Kraner's April 14, 2000 letter was to the plaintiff's brother, Francis Marciano, Jr. (Francis, Jr.), who was living in California at the time and receiving disability benefits. To complete the proposed transaction, Kraner contacted Francis, Jr., who agreed to accept a transfer of the assets from his parents and then in turn transfer the Barkhamsted property to the plaintiff. Kraner also handled all the legal work involved in appointing the plaintiff conservator of Francis, Sr.'s estate and obtaining approval from the Probate Court for the transfer of Francis, Sr.'s assets to Francis, Jr. On October 26, 2000, in Kraner's office, the plaintiff executed two fiduciary deeds for both the Barkhamsted and Torrington properties owned by Francis, Sr., to Francis, Jr. Francis, Jr., also executed a quitclaim deed of the Barkhamsted property to the plaintiff at this closing, and Kraner represented that all three deeds would be recorded shortly thereafter.5 Following the closing, Kraner began the preparation of Francis, Sr.'s application for medicaid benefits. Prior to completing the application, however, Kraner was contacted by the department of social services (department), which informed him that the quitclaim deed from Francis, Jr. to the plaintiff was illegal as an attempt to circumvent medicaid laws and that, if Kraner recorded the quitclaim deed, both he and the plaintiff may be subject to criminal prosecution. Additionally, the department advised Kraner that Francis, Sr.'s medicaid application would not be approved until the department received confirmation that the quitclaim deed had been destroyed.6 Kraner then advised the plaintiff of this information and destroyed the quitclaim deed for the Barkhamsted property. At the time of Francis, Sr.'s death in March, 2003, the plaintiff and Francis, Jr., had several disagreements regarding the distribution of their parents' estate assets. In November, 2004, the plaintiff again contacted Kraner, hoping to consummate a transfer of the ownership of the Barkhamsted property by executing and recording a new deed for the Barkhamsted property. To complete the transfer, Kraner advised the plaintiff that Francis, Jr., would need to execute the deed for the Barkhamsted property. Francis, Jr., however, was unwilling to execute the deed in favor of the plaintiff and, in fact, sold the Barkhamsted property to a third party.7 On March 1, 2005, the plaintiff filed a five count complaint against the defendants, alleging, inter alia, legal malpractice and breach of fiduciary duty. A jury trial ensued and, following the plaintiff's case-in-chief, the defendants filed a motion for a directed verdict. The court granted the defendants' motion as to the count of legal malpractice8 but reserved decision with respect to the count of breach of fiduciary duty until after the jury returned its verdict. On December 19, 2008, the jury returned a verdict in favor of the plaintiff on the

count of breach of fiduciary duty and awarded the plaintiff $196,000 in damages. The defendants then moved to set aside the verdict, arguing that, because the plaintiff failed to present any expert testimony ``to establish the extent of the [defendants'] fiduciary duty and the terms and conditions of a fiduciary duty of a lawyer under the same or similar circumstances'' of the defendants, the plaintiff could not possibly prevail in his cause of action for breach of fiduciary duty. On April 23, 2009, in a memorandum of decision, the court granted the defendants' motion to set aside the verdict, ruling that ``expert testimony was needed to establish whether . . . Kraner had a particular duty to the plaintiff and whether that duty was violated.'' As the court reasoned, the jury's verdict in favor of the plaintiff for breach of fiduciary duty had to be set aside because the plaintiff failed to present any ``expert testimony as to what conduct by the defendants constituted a breach of fiduciary duty.'' The court also explained that ``[t]here was no evidence that . . . Kraner could have taken any legal action to interfere with Francis, Jr.'s ability to dispose of his property as he saw fit.'' Therefore, ``there was no evidence that any conduct by . . . Kraner caused the plaintiff to sustain any damages . . . [and] [t]his lack of any evidence of a causal relationship between the defendants' alleged misconduct and the $196,000 awarded by the jury [was] an additional basis for setting aside the verdict.'' This appeal followed. The plaintiff now claims that the court improperly granted the defendants' motion to set aside the verdict. Specifically, the plaintiff argues that the court incorrectly determined that, in the absence of expert testimony, he could not prevail in his cause of action for breach of fiduciary duty against the defendants. Additionally, the plaintiff argues that the court improperly concluded that ``there was no evidence that any conduct by . . . Kraner caused the plaintiff to sustain any damages.'' Before addressing the merits of the plaintiff's claims, we begin by setting forth the applicable legal principles and standard of review governing our analysis. ``A motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that they did in fact reach. . . . [Put differently], [i]f the jury, without conjecture, could not have found a required element of the cause of action, it cannot withstand a motion to set aside the verdict.'' (Internal quotation marks omitted.) Carrano v. YaleNew Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006). ``Thus, the role of the trial court on a motion to set aside the jury's verdict is not to sit as [an added] juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.'' (Internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 429 n.21, 673 A.2d 514 (1996). As

a corollary, ``it is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence.'' (Internal quotation marks omitted.) Malmberg v. Lopez, 208 Conn. 675, 679

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