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CT: Substantial Evidence Gets Lawyer Off the Hook

Viola v. O’Dell, 108 Conn. App. 760, 950 A.2d 539 (Conn. App. 2008)

CT: Underlying zoning action

Student Contributor: Laura Binski

Facts: The client operated a landscaping business in the downtown business district zone. The client’s business involved the sale of landscaping equipment, but no retail sales occurred on site. Instead, customers would place orders over the phone and the equipment would be delivered directly to the customer. Zoning enforcement officials ordered the client to cease and desist the business. The client then hired the lawyer to represent him in challenging the zoning order. The zoning board held a meeting and denied the clients appeal of the zoning order. The client then filed in Superior Court to appeal the board’s decision. However, the lawyer failed to timely file the appellate brief and the client’s appeal was dismissed. The client then filed a legal malpractice action. The court granted summary judgment in favor of the lawyer on the basis that there was no genuine issue that the lawyer’s negligence had caused any harm to the plaintiffs.

Issue: Was there a genuine issue that the lawyer’s negligence had caused harm to the clients?

Ruling: No. To prevail in this case, the clients would need to show that there was no substantial evidence to support the zoning board’s determination. Analysis of the zoning regulation indicated that the client’s business was similar to that of a greenhouse or nursery, both of which are prohibited in a downtown business area. In addition, the business did not meet the downtown business district purpose to “encourage high density, pedestrian-oriented commercial development” because all sales were conducted by telephone. Thus, substantial evidence existed to support the board’s determination that the client’s business was engaging in non-permitted use. The case would have lost on the merits, so the lawyer’s failure to file a timely appeal does not amount to causation of the harm.

Lesson: Evidence that the client would have won their underlying case is required in legal malpractice actions. In order for the client to show that the trial court improperly decided that there was no genuine issue of fact as to the element of causation, he needed to persuade the court that he could have likely prevailed in their underlying appeal. Since the client would have lost the underlying case, the lawyer’s negligence in timely filing the appeal does not amount to a genuine issue on causation. 

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Posted in: Case Within a Case, Connecticut, Land Use, Zoning, Proximate Cause, Real Estate