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ELIZABETH BARUNO ET AL. v. JOHN F.
SLANE, JR., ET AL.
(AC 35820)
(AC 35821)
Alvord, Keller and Harper, Js.
Argued April 10—officially released July 8, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. A. William Mottolese, judge
trial referee.)
Leon J. Greenspan, for the appellants in AC 35820
and the appellees in AC 35821 (plaintiffs).
Peter T. Fay, for the appellees in AC 35820 and the
appellants in AC 35821 (defendants).
Opinion
ALVORD, J. This legal malpractice action was
brought by the plaintiffs, Elizabeth Baruno and Gerald
A. Baruno, against the defendants, Attorney John F.
Slane, Jr., and his law firm, Heagney, Lennon & Slane,
LLP, for Slane’s alleged deficient representation of the
plaintiffs in an action against the plaintiffs’ neighbors,
Jianhua Cai Tsoi and Yvonne Chan Tsoi. The plaintiffs
and the defendants now appeal from the judgment of
the trial court, rendered after a trial to the court, in
favor of the plaintiffs. The court found the defendants
liable and awarded the plaintiffs $620,817 in damages.
In AC 35820, the plaintiffs claim that the court should
have awarded civil contempt damages, prejudgment
interest, legal fees, and costs as additional damages
proximately caused by the defendants’ malpractice. In
AC 35821, the defendants claim that the court (1)
improperly concluded that their conduct was a proxi-
mate cause of the damages awarded by the court, (2)
improperly awarded damages for both the diminution
in value of the plaintiffs’ property and the cost to reme-
diate it, and (3) made an improper evidentiary ruling.
We conclude that the plaintiffs failed to prove that the
damages awarded by the court were proximately
caused by the defendants’ legal malpractice, and,
accordingly, we reverse the judgment of the trial court.1
The record reveals the following facts. As of February
1, 2006, the Tsois owned and occupied 36 Montgomery
Lane in Greenwich, which is located adjacent to the
plaintiffs’ property at 38 Montgomery Lane. The legal
description in the 2002 deed of conveyance to the Tsois
identifies their property as lot 2 and parcel Y as shown
on a 1984 subdivision map recorded in the office of the
Greenwich town clerk as map no. 6068. The deed of
conveyance further provides that the Tsoi property is
subject to conditions as set forth in a warranty deed
from Unique Holdings, Inc., to Carlo J. Scarpelli and
Patricia B. Scarpelli dated July 6, 1984, and recorded
in book 1407 at page 223 of the Greenwich land records.
The conditions, inter alia, restrict the use of parcel Y by
prohibiting the placement of any dwelling, outbuilding,
pool, structure, driveway or any other man-made
improvements on that parcel.2
The legal description in the 1986 deed of conveyance
to the plaintiffs provides that their property, identified
as lot 1 on subdivision map no. 6068, was being con-
veyed ‘‘[t]ogether with the right to enforce provisions
and conditions set forth as Item #8 in said deed from
Unique Holdings, Inc., to Carlo J. Scarpelli and Patricia
B. Scarpelli dated July 6, 1984 and recorded in the
Greenwich Land Records in Book 1407 at Page 223.’’
Gerald Baruno subsequently conveyed his interest in
the property to his wife, Elizabeth Baruno, in 1997.3
On or about February, 2006, the plaintiffs learned
that the Tsois intended to construct a new driveway
on parcel Y that would serve a house to be built on the
Tsoi property. The Tsois planned to tear down their
current dwelling and to replace it with a larger house.
The plaintiffs observed machinery that already had
begun to remove trees and brush in preparation for the
excavation necessary for the construction of the
driveway.
The plaintiffs believed that they might have acquired
some rights to parcel Y because they had dumped their
leaves and grass clippings on a portion of that parcel
for several years. Gerald Baruno contacted Slane and
met with him on February 1, 2006, to discuss legal
options for stopping the Tsois’ activities. Gerald Baruno
did not mention any deeded conditions or restrictions
applicable to parcel Y, but he did state that he ‘‘was
under the impression’’ that nothing could be built on
parcel Y. After their discussion, Slane advised Gerald
Baruno that he thought the Tsois’ intended use of the
property could be prevented by bringing an adverse
possession claim against them.
On February 17, 2006, Slane commenced an action
on behalf of Elizabeth Baruno against the Tsois in the
Superior Court seeking a temporary and a permanent
injunction to prevent the Tsois from entering onto a
designated portion of parcel Y that the plaintiffs claimed
they had acquired by adverse possession. The court
denied the application for a temporary injunction, and
the parties proceeded with discovery. At a deposition
of Elizabeth Baruno held on March 14, 2007, Slane and
the plaintiffs discovered that parcel Y was encumbered
by the restrictive covenants that prohibited the Tsois’
activities. The following day, Slane filed a request for
leave to file an amended complaint to add a count
seeking relief on the basis of the restrictive covenants
applicable to parcel Y. The plaintiffs, however, decided
to replace Slane as their attorney in the action against
the Tsois and retained the services of Attorney Frederic
Rickles, of the law firm of Gilbride, Tusa, Last & Spel-
lane, LLC. Slane transferred the plaintiffs’ file to Rickles
on March 29, 2007.
Rickles filed an appearance in lieu of the defendants
on behalf of Elizabeth Baruno. On June 14, 2007, he
filed an amended complaint and a new application for
a temporary injunction that would enjoin the Tsois from
using parcel Y as a driveway or access way or in any
other manner that violated the restrictive covenants
applicable to that parcel. The court issued a temporary
injunction on July 16, 2007, by agreement of the parties.
On May 28, 2008, the plaintiffs and the Tsois entered
into a settlement agreement to resolve the litigation
between them. Under the terms of the agreement, the
Tsois were to pay the plaintiffs $250,000 by May 30,
2010, and were required to perform certain restorative
work to parcel Y. The work requirements were set forth
in a mandatory injunction, issued that same day by
the court, which ordered completion of the restorative
work by August 30, 2008. The Tsois made an initial
payment of $17,000, but failed to make any further pay-
ments or to perform any of the mandated restorative
work. On November 28, 2008, the Tsois were found in
contempt of the court’s orders, and civil penalties were
assessed against them. The Tsois then filed a petition
for bankruptcy, which ultimately was dismissed, but
the plaintiffs made no further efforts to enforce the
contempt order or the agreement.
On July 7, 2008, the plaintiffs commenced the present
legal malpractice action against the defendants for defi-
cient representation in the prior action against the
Tsois. In their single count, twenty-five page complaint,
the plaintiffs alleged that the defendants ‘‘negligently
disregard[ed] their contractual duties to the [plaintiffs],
negligently ignored information presented to them as
to deed restrictions and covenants, performed no such
[title] search or, in the alternative, negligently per-
formed such search and did not ascertain the existence
or applicability of deed restrictions and covenants,
which deed restrictions and covenants were present in
the chain of title, were applicable to both the adjoining
and abutting [plaintiffs’] premises and Tsoi property and
which granted rights to Elizabeth [Baruno] enforceable
against the Tsoi property owners and the Tsoi prop-
erty—if timely and appropriately asserted.’’ The plain-
tiffs further alleged that the ‘‘negligent failure [of the
defendants] to assert such available deed restrictions
and covenants in a timely manner resulted in the inabil-
ity to obtain available injunctive relief by [the defen-
dants] or to mount a timely application for a temporary
restraining order and preliminary injunction, both of
which were available and would have prevented the
Tsoi property owners from continuing tortious acts
. . . .’’ The plaintiffs sought ‘‘[c]ompensatory damages
along with such other, further and different relief as to
[the] court may seem just and proper; together with
the costs and disbursements of this action.’’
During the course of a six day trial, eight witnesses
testified on behalf of the parties and more than seventy-
five exhibits were admitted by the court. At the conclu-
sion of the evidence, the parties’ attorneys requested
the opportunity to file posttrial briefs. The court
ordered the filing of simultaneous briefs and reply
briefs. In the plaintiffs’ posttrial brief, they argued that
the evidence proved that the defendants breached the
applicable standard of care and that the plaintiffs suf-
fered damages proximately caused by that negligence.
The plaintiffs requested the following itemized dam-
ages: legal fees paid to the defendants; legal fees paid
to Rickles and his law firm; expert witness fees and
costs; legal fees paid to Greenspan & Greenspan, the
plaintiffs’ counsel in this legal malpractice action; reme-
diation and repair costs to the plaintiffs’ property; dimi-
nution in value to the plaintiffs’ property; the plaintiffs’
‘‘loss of enjoyment’’ with respect to their property; cost
to restore parcel Y to its original condition; and unpaid
contempt fines assessed against the Tsois.4 The total
amount claimed as damages, as of January 11, 2013,
when the plaintiffs filed their posttrial brief, was
$2,363,823.52.5 The plaintiffs additionally sought pre-
judgment interest at 12 percent. The defendants, in their
posttrial brief, argued that Slane’s representation was
within the applicable standard of care and that none
of the plaintiffs’ claimed damages were proximately
caused by the defendants’ alleged negligence.
On June 6, 2013, the court issued its memorandum
of decision. After stating the applicable law with respect
to legal malpractice and reviewing the testimony of the
parties’ expert witnesses, the court made the following
determinations: ‘‘The court concludes that the defen-
dant Slane departed from the applicable standard of
care when he failed to examine the relevant deeds and
map and base [Elizabeth Baruno’s] cause of action on
the violation of the restrictive covenant rather than
on a theory of adverse possession. The court further
concludes that, had he done so, it is more likely than
not that the court would have granted equitable relief
requiring that parcel Y, in so far as possible, be restored
to its former condition and would have awarded com-
pensatory damages to reflect the injury to [Elizabeth
Baruno’s] property rights arising from his failure to
do so.’’6
Having determined that the defendants committed
legal malpractice, the court then turned to the issue of
damages. The court awarded the plaintiffs $620,817,
which represented the diminution in value to their prop-
erty, remediation costs for their property, legal fees
paid to the defendants before they were replaced by
other counsel,7 legal fees to Gilbride, Tusa, Last & Spel-
lane, LLC, and engineering costs incurred by the plain-
tiffs in connection with the pursuit of their contempt
order against the Tsois. The court rejected the plaintiffs’
claims for damages resulting from the plaintiffs’ inabil-
ity to benefit from and enjoy the use of their property,
costs to restore the Tsois’ property to its former condi-
tion, legal fees to Greenspan & Greenspan,8 unpaid con-
tempt fines levied against the Tsois, and prejudgment
interest. These appeals followed.
We first address the defendants’ claim that the court’s
award of damages should be reversed because the plain-
tiffs failed to prove that any damages were proximately
caused by the defendants’ legal malpractice. Because
we agree with the defendants, our determination with
respect to this claim is dispositive of the remaining
issues in both appeals.
We begin with the applicable legal principles that
govern our analysis. ‘‘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 profes-
sion with the result of injury, loss, or damage to the
recipient of those services . . . . In general, the plain-
tiff in an attorney malpractice action must establish:
(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.)
Hartford Casualty Ins. Co. v. Farrish-LeDuc, 275 Conn.
748, 759, 882 A.2d 44 (2005). ‘‘[W]hen it has been estab-
lished that an attorney . . . has failed 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 [legal] profession
. . . [and that conduct has] result[ed in] injury, loss,
or damage to the [client] . . . the client is entitled to
a recovery against the attorney.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.)
Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231
Conn. 168, 175, 646 A.2d 195 (1994).
‘‘In legal malpractice actions, the plaintiff typically
proves that the defendant attorney’s professional negli-
gence caused injury to the plaintiff by presenting evi-
dence of what would have happened in the underlying
action had the defendant not been negligent. This tradi-
tional method of presenting the merits of the underlying
action is often called the case-within-a-case.’’ (Internal
quotation marks omitted.) Margolin v. Kleban &
Samor, P.C., 275 Conn. 765, 775 n.9, 882 A.2d 653 (2005);
Lee v. Harlow, Adams & Friedman, P.C., 116 Conn.
App. 289, 297, 975 A.2d 715 (2009).
Applying these principles to the present case, we
begin with the unchallenged findings of the trial court
that Slane was in an attorney-client relationship with
the plaintiffs and that he ‘‘departed from the applicable
standard of care when he failed to examine the relevant
deeds and map and base [Elizabeth Baruno’s] cause of
action on the violation of the restrictive covenant rather
than on a theory of adverse possession.’’ Because of
these findings, the plaintiffs are entitled to a recovery
against the defendants if the plaintiffs established at
trial that their claimed injuries were caused by that
wrongful conduct and if they established the amount
of those claimed damages. Hartford Casualty Ins. Co.
v. Farrish-LeDuc, supra, 275 Conn. 759.
Slane commenced the action against the Tsois on
February 17, 2006. The plaintiffs did not claim that the
action should have been commenced before February
17, 2006, but, rather, they claimed, and the court agreed,
that injunctive relief should have been sought on the
basis of the restrictive covenants prohibiting the Tsois’
activities on parcel Y rather than on the theory of
adverse possession. According to the court, it is ‘‘more
likely than not’’ that a court would have granted a tem-
porary injunction ordering the Tsois to halt their activi-
ties if the action properly relied on those restrictive
covenants.9
When Rickles replaced the defendants as Elizabeth
Baruno’s legal counsel in the action against the Tsois,
he filed on June 14, 2007, an amended complaint and
a new application for a temporary injunction, claiming
relief on the basis of the deeded restrictive covenants.
Approximately one month later, on July 16, 2007, the
court issued a temporary injunction. Accordingly, given
the posture of this case and the unchallenged findings
by the trial court, if the application for a temporary
injunction filed by Slane on February 17, 2006, had
requested equitable relief on the basis of the deeded
restrictive covenants, the application ‘‘more likely than
not’’ would have been granted by the court on or about
March 19, 2006. It follows in this case, then, that in
order to award the appropriate amount of damages, the
court required evidence as to the injuries suffered by
the plaintiffs’ between March 19, 2006, the date that a
temporary injunction ‘‘more likely than not’’ would have
issued if properly pursued by the defendants, and July
16, 2007, the actual date that the temporary injunction
did issue against the Tsois. There is no claim by the
plaintiffs that the terms of the injunction would have
been any different if it had issued on March 19, 2006,
rather than on July 16, 2007.10 The proper measure of
damages would be the injuries that resulted from the
Tsois’ activities on parcel Y that were sustained by the
plaintiffs during that sixteen month period of time.11
‘‘[I]n a negligence action . . . [a] causal relation
between the defendant’s wrongful conduct and the
plaintiff’s injuries is a fundamental element without
which a plaintiff has no case . . . .’’ (Internal quotation
marks omitted.) Gurguis v. Frankel, 93 Conn. App. 162,
167, 888 A.2d 1083, cert. denied, 277 Conn. 916, 895
A.2d 789 (2006). ‘‘[A] plaintiff must establish that the
defendant’s conduct legally caused the injuries . . . .’’
(Emphasis added; internal quotation marks omitted.)
Cammarota v. Guerrera, 148 Conn. App. 743, 754, 87
A.3d 1134 (2014). ‘‘Cause in fact, occasionally referred
to as actual cause, asks whether the defendant’s con-
duct ‘caused’ the plaintiff’s injury. Thus, if the plaintiff’s
injury would not have occurred ‘but for’ the defendant’s
conduct, then the defendant’s conduct is a cause in
fact of the plaintiff’s injury. Conversely, if the plaintiff’s
injury would have occurred regardless of the defen-
dant’s conduct, then the defendant’s conduct was not
a cause in fact of the plaintiff’s injury. . . .
‘‘Philosophically, cause in fact is limitless; ‘but for’
the creation of this world, no crime or injury would
ever have occurred. . . . The philosophical sense of
causation includes the great number of events without
which any happening would not have occurred . . .
yet the effect of many of them is so insignificant that
no ordinary mind would think of them as causes. . . .
Therefore, as a practical matter, limits must be estab-
lished. Lines must be drawn determining how far down
the causal continuum individuals will be held liable for
the consequences of their actions. . . . This line is
termed ‘proximate cause.’
‘‘Proximate cause establishes a reasonable connec-
tion between an act or omission of a defendant and the
harm suffered by a plaintiff. . . . Proximate cause
serves to ‘[temper] 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.’ . . . [Our Supreme Court] has
defined proximate cause as ‘[a]n actual cause that is a
substantial factor in the resulting harm . . . .’ ’’ (Cita-
tions omitted; emphasis omitted.) Stewart v. Federated
Dept. Stores, Inc., 234 Conn. 597, 605–606, 662 A.2d
753 (1995).
‘‘The question of proximate causation generally
belongs to the trier of fact because causation is essen-
tially a factual issue. . . . It becomes a conclusion of
law only when the mind of a fair and reasonable [per-
son] could reach only one conclusion; if there is room
for a reasonable disagreement the question is one to
be determined by the trier as a matter of fact.’’ (Citations
omitted; internal quotation marks omitted.) Id., 611.
In the present case, the focus of our inquiry must
center on the damage caused to the plaintiffs by the
failure of the defendants to seek a temporary injunction
on the basis of the deeded restrictive covenants when
Slane commenced the action on February 17, 2006. The
damage, contrary to the plaintiffs’ argument, does not
continue ad infinitum. It is important to remember that
a temporary injunction against the Tsois was ordered
by the court, albeit at a later date than it would have
but for the defendants’ legal malpractice. The plaintiffs
argue that the defendants are responsible for the Tsois’
failure to abide by the terms of the temporary injunc-
tion, the Tsois’ failure to abide by the terms of the
settlement agreement, the Tsois’ failure to abide by the
terms of the mandatory injunction, and the Tsois’ failure
to pay the contempt fines levied against them by the
court. The circumstances of this case do not permit
such a recovery. Instead, as previously discussed, the
plaintiffs were entitled to the damages they could prove
had occurred between March 19, 2006, the date that a
temporary injunction ‘‘more likely than not’’ would have
issued if properly pursued by the defendants, and July
16, 2007, the actual date that the temporary injunction
did issue against the Tsois.12
Accordingly, we focus on whether the plaintiffs
proved damages for that sixteen month period between
March 19, 2006 and July 16, 2007. When Elizabeth Bar-
uno’s action was commenced by the defendants on
February 17, 2006, the Tsois already had begun their
unlawful activities on parcel Y. This was evident from
the pleadings in the second amended complaint13 and
new application for a temporary injunction filed by
Rickles on June 14, 2007, as well as the testimony of
Gerald Baruno at trial.14 In its memorandum of decision,
the court found that ‘‘[a]t or about February 1, 2006,
the plaintiffs . . . observed machinery beginning to
remove trees and brush preparatory to excavation for
the construction of a driveway.’’ There was no claim
that the defendants did not file the action timely.
Approximately two weeks after Slane’s first meeting
with Gerald Baruno, the legal proceeding had com-
menced. The defendants, therefore, could not be
charged for whatever damages were caused by the
Tsois’ unlawful activities between February 1, 2006 and
February 17, 2006. Moreover, a temporary injunction
would not have been granted for a reasonable time
thereafter, as evidenced by Rickles’ efforts. Accord-
ingly, the defendants would not be liable for damages
from the Tsois’ unlawful activities on parcel Y from
February 1, 2006, when Slane first met with Gerald
Baruno, through March 19, 2006, when a temporary
injunction ‘‘more likely than not’’ would have been
granted if the defendants had relied on the restrictive
covenants in the deed as the basis for requesting the
equitable relief.
The record, however, is devoid of evidence to show
the status of parcel Y in mid-March, 2006. Whatever
damage had occurred prior to that point in time could
not be charged to any negligence of the defendants. That
information is critical, however, because the defendants
would be responsible for any additional damage caused
by the Tsois’ activities on parcel Y from mid-March,
2006 through July 16, 2007, when the temporary injunc-
tion was issued by the court. Significantly, the plaintiffs
did not present evidence with respect to the unlawful
activities that occurred during that particular sixteen
month period or the damages that were proximately
caused from those activities during that time. Instead,
the evidence of damages presented by the plaintiffs
related to all of the injuries they claimed to have suf-
fered from the first intrusion of the Tsois onto parcel
Y until the time of trial.15
In sum, the record does not disclose critical informa-
tion that is necessary for a determination as to whether
any damages resulted from the defendants’ legal mal-
practice. There is no evidence as to what unlawful activ-
ities were performed by the Tsois on parcel Y during
the sixteen month period between March 19, 2006 and
July 16, 2007, and what damages, if any, from those
unlawful activities were proximately caused by the
defendants’ negligence during that sixteen month
period. ‘‘[I]n a negligence action . . . [a] causal rela-
tion between the defendant’s wrongful conduct and the
plaintiff’s injuries is a fundamental element without
which a plaintiff has no case . . . .’’ (Internal quotation
marks omitted.) Gurguis v. Frankel, supra, 93 Conn.
App. 167. For these reasons, we conclude that the
court’s award of damages was improper.
The judgment is reversed and the case is remanded
with direction to render judgment in favor of the
defendants.
In this opinion the other judges concurred.
1
The plaintiffs’ failure to prove that the damages awarded by the court
were proximately caused by the defendants’ legal malpractice is dispositive
of both appeals. We therefore do not reach the plaintiffs’ claims or the
defendants’ remaining claims.
2
The 1984 warranty deed contains a section that enumerates various
encumbrances. Item number eight in that section provides in relevant part:
‘‘This deed is given and accepted subject to the following provisions and
conditions, which are imposed for the benefit of the Grantor and its succes-
sors and assigns as the owners of its retained premises on Montgomery
Lane, shown as Lot No. 1 on the aforesaid [subdivision map no. 6068], and
which shall bind and be enforceable against the Grantees and their heirs,
executors, administrators, and assigns as the owners of Lot No. 2 and Lot
No. 3 as shown on said map (since Parcel Y is being incorporated into said
Lot No. 2, and said Parcel X is being incorporated into said Lot No. 3).
‘‘No dwelling, outbuilding, pool, court, or other structure or driveway or
other man-made improvements or plantings shall be placed upon either
Parcel X or Parcel Y, nor shall either parcel be used for driveway or access
way purposes, provided, however, that the Grantees may clear dead trees
[and] shrubs and may place natural plantings upon the northerly portion of
Parcel Y (as distinguished from the southerly portion of Parcel Y, which is
the 20 foot wide strip running generally northeast of Montgomery Lane).
The Grantor reserves the right to mow, plant and otherwise maintain the
said southerly portion of Parcel Y, but shall have no obligation to do so . . . .
‘‘The Grantee covenants and agrees that Parcel X will henceforth form a
part of Lot No. 3 as shown on said map, and will not be sold or conveyed
except as a portion of said Lot No. 3, and that Parcel Y will henceforth form
a part of Lot No. 2 as shown on said map, and will not be sold or conveyed
except as a portion of Lot No. 2.
‘‘These provisions shall run with the land in perpetuity, and shall be
enforceable by the Grantor, its successors and assigns as the owners of Lot
No. 1 as shown on said map; and the Grantor, its successors and assigns
shall have the right to maintain an action at law or in equity to enjoin or
remove any proscribed activity or structure within said Parcel X and/or
Parcel Y; and the legal fees and other expenses associated with enforcing
these restrictions shall be borne and paid by the Grantees, their heirs,
administrators, executors and assigns as the owner or owners of the
restricted Parcels X and Y, or either of them with respect to which enforce-
ment is sought.’’
3
Although Elizabeth Baruno was the sole owner of 38 Montgomery Lane
as of 1997, the present malpractice action was brought and prosecuted
against the defendants by both plaintiffs. Accordingly, references in this
opinion generally are to both plaintiffs, and we refer to a particular plaintiff
only when necessary for clarification as to the facts and procedural history.
4
The Tsois were ordered to pay $500 per day, beginning on December
31, 2008, for each day that they were not in compliance with the court’s
order issued on November 28, 2008. As of December 1, 2012, the unpaid
fines were approximately $730,000.
5
The plaintiffs’ theory of damages, as argued before the trial court and
this court, was characterized by the plaintiffs’ counsel as ‘‘the ‘Dr. Quack’
principle.’’ According to the plaintiffs, ‘‘[l]egally and logically, a malpracticing
attorney is responsible for all damages that are proximately caused by his
negligence—regardless of whether they occurred during or after the period
of representation. . . . If a negligent tortfeasor causes damage to an inno-
cent plaintiff who by reason thereof is the victim of medical malpractice
by a treating physician, the negligent tortfeasor is liable therefor. If Dr.
Quack cuts off the plaintiff’s leg while performing surgery on the arm, the
original tortfeasor who injured the plaintiff’s arm is liable. . . . In order to
assess the damages incurred by the [plaintiffs], the trial court properly
considered the full extent of the damages caused by Slane even though
they continued to manifest beyond his representation of the [plaintiffs].’’
(Citations omitted.)
Under ‘‘the ‘Dr. Quack’ principle,’’ the plaintiffs claim that they are entitled
to any and all damages they suffered and continue to suffer as a result of
the Tsois’ activities. The plaintiffs maintain that such damages would include
the unpaid contempt fees levied against the Tsois, which continue to accrue
at a rate of $500 per day.
6
The defendants have not challenged the court’s determination as to
liability in this appeal.
7
The original complaint filed by Slane sought injunctive relief on the
ground of adverse possession. The amended complaint filed by Rickles
sought injunctive relief on the grounds of adverse possession and the deeded
restrictive covenants applicable to parcel Y. Rickles simply added an addi-
tional basis upon which the plaintiffs sought injunctive relief. The work
performed by Slane, therefore, was adopted and pursued by Rickles when
he replaced Slane.
8
The issue of the recoverability of attorney’s fees for services rendered
by Greenspan & Greenspan was deferred pending the court’s adjudication
as to liability. Following the issuance of the court’s June 6, 2013 memoran-
dum of decision, the parties filed supplemental briefs that addressed that
issue. On July 16, 2013, the court issued a supplemental memorandum of
decision in which it denied Greenspan & Greenspan’s request for attor-
ney’s fees.
9
In the plaintiffs’ posttrial brief, they claimed that a court would have
been required to issue an injunction if the initial complaint had sought
equitable relief on the basis of the restrictive covenants in the Tsois’ deed.
The plaintiffs, maintaining that the deeded restrictive covenants were con-
tractual in nature, made the following arguments: (1) ‘‘Had Slane appre-
hended the language in the deed and pertinent maps, he would have known
that an action for adverse possession was barred. Slane would have known to
apply to the court for contractual injunctive relief based upon the restrictive
covenant as opposed to equitable relief which sets a higher bar than the
deed authorized, contractual injunctive relief—a remedy not dependent
upon judicial discretion’’ (emphasis added); (2) ‘‘[c]ontractually, injunction
was mandated’’; and (3) ‘‘[h]ad Slane promptly made the contractual injunc-
tion application authorized by the restrictive covenant, the court would have
been obligated to grant the same.’’ (Emphasis added.)
The plaintiffs’ claim finds no support in our appellate case law. ‘‘The
issuance of an injunction and the scope and quantum of injunctive relief
rests in the sound discretion of the trier.’’ (Emphasis added; internal quota-
tion marks omitted.) Welles v. Lichaj, 136 Conn. App. 347, 354, 46 A.3d 246,
cert. denied, 306 Conn. 904, 52 A.3d 730 (2012). This is true even when
irreparable harm and lack of an adequate remedy at law are not prerequisites
to the granting of an injunction. For example, when a zoning enforcement
officer seeks to enjoin a violation of the town’s zoning regulations pursuant
to General Statutes § 8-12, it is not necessary for that public official to prove
irreparable harm to the town and lack of an adequate legal remedy. Johnson
v. Murzyn, 1 Conn. App. 176, 177, 469 A.2d 1227, cert. denied, 192 Conn.
802, 471 A.2d 244 (1984). Nevertheless, ‘‘the granting of injunctive relief,
which must be compatible with the equities of the case, rests within the
trial court’s sound discretion. . . . Those equities should take into account
the gravity and wilfulness of the violation, as well as the potential harm to
the defendants.’’ (Citation omitted; emphasis added.) Id., 183.
10
Although the plaintiffs claimed that the building of the new house on
the Tsoi property caused injury to the plaintiffs’ property, the temporary
injunction that was granted on July 16, 2007, did not prohibit activities on
lot 2 of the Tsoi property. The restrictive covenants were applicable to
parcel Y of the Tsoi property only. There was testimony by Rickles that the
front steps of the newly constructed dwelling were located on parcel Y.
The remainder of the new Tsoi dwelling would have been located on lot 2,
which was not burdened by the restrictive covenants. Consequently, any
damages sustained by the construction of the new Tsoi dwelling on lot 2
could not have been proximately caused by the defendants’ failure to secure
a temporary injunction by March 19, 2006.
11
The record reveals that the hearing on the application for a temporary
injunction filed by Slane was held on April 24, 2006. That request for injunc-
tive relief, based on the claim of adverse possession, was denied by the
court. It could be argued that had Slane initially sought equitable relief on
the basis of the deeded restrictive covenants, the court ‘‘more likely than
not’’ would have granted the application at the time of that hearing on April
24, 2006. In that event, the damages would be calculated for the fifteen
month period between April 24, 2006 and July 16, 2007.
12
We note that the Tsois did not stop their unlawful activities on parcel
Y when Elizabeth Baruno commenced the action against them in February,
2006, or when the court issued a temporary injunction by agreement of the
parties in July, 2007. Moreover, the Tsois did not abide by the terms of the
settlement agreement, entered as an order by the court in May, 2008, nor
did they abide by the terms of the mandatory injunction that the court issued
that same day. Furthermore, when contempt fines were levied by the court
against the Tsois for their wilful violation of court orders, the Tsois failed
to pay the fines. In sum, the Tsois were not deterred by any legal attempts
to stop their unlawful activities and have not complied with any of the court
injunctions and orders that have been issued. There is nothing in the record
to suggest that the Tsois would have obeyed the terms of a temporary
injunction if it had issued sixteen weeks earlier than the one that did issue
on July 16, 2007.
13
The second amended complaint alleged: (1) ‘‘On or about February,
2006, and until the present time, the [Tsois] have constructed and continue
to maintain a driveway on property designated as parcel Y on said map no.
6068 in violation of the provisions and conditions in the [1984] deed’’; (2) ‘‘[b]y
constructing and maintaining the driveway and destroying the stonewall and
vegetation located thereon, the [Tsois] are in violation of the restrictive
covenant, conditions and provisions’’ in the 1984 deed; and (3) ‘‘[p]rior to
installing the illegal driveway, [the Tsois] removed trees and other plantings
from parcel Y . . . .’’
14
Gerald Baruno, during cross-examination at trial, acknowledged that
he had testified at a deposition that the Tsois had ‘‘cut down trees and
started doing work prior to February 13 [2006].’’
15
For example, the diminution in value of the plaintiffs’ property was
calculated as of 2011-2012. Also, there was testimony as to the Tsois’ con-
struction of a five foot wall along the driveway sometime during the latter
part of 2007 or 2008.
The plaintiffs argue in their appellate brief: ‘‘Because the breach of the
restrictive covenant and the damages to the [plaintiffs] continued into 2012,
it was appropriate to measure the damages as they existed in 2012.’’ We
disagree.