A driveway dispute drove a Greenwich couple into court, where they won a $620,817 malpractice verdict against their former lawyer.
Superior Court Judge William Mottolese ruled on June 6 that attorney John Slane failed to examine maps and deeds that would have led him to realize that clients should have been able to block construction of a neighbor's driveway.
In comments to the Law Tribune, Slane said that the judge was "wrong on the law and the facts."
"We've already filed our notice of appeal," said Slane, of the firm Heagney, Lennon & Slane.
Slane's clients were Elizabeth and Gerald Baruno, who lived at 38 Montgomery Drive in Greenwich. The couple who bought the house next door, at 36 Montgomery Drive, were Jianhua Cai Tsoi and Yvonne Chan Tsoi. For some years, the neighbors shared a fairly long driveway that ran between the homes, which had a fork at one point that lead to the Tsois' house.
In early 2006, the Barunos noticed that their neighbors had brought in machinery to remove brush and trees as they prepared to build a driveway that would serve a new dwelling on the Tsoi property. Up to that point, according to court papers, the Barunos had regularly used that section of property to dump their own grass clippings and leaves. The Barunos went to Slane and asked him if they didn't have some sort of "squatters' rights" to the property that would allow them to block the construction of the driveway.
According to court documents, Gerald Baruno said he told the lawyer that "he was under the impression" that nothing could be built on the parcel.
In mid-February of 2006, Slane filed an adverse possession claim on his clients' behalf. Adverse possession is a method of gaining title to property by showing that a party had continuous possession of a parcel even though they were not the true owner. Squatter's rights are a form of adverse possession.
As part of the claim, Slane asked for a temporary injunction to halt work on the driveway. But a judge turned down that request. The rest of the case proceeded, as did work on the driveway.
It wasn't until May 2007, at a deposition for Elizabeth Baruno, that Slane realized that when the Tsois purchased their property, the title came with a restrictive covenant that specifically stated that no "dwelling, outbuilding, pool, court, or other structure of driveway, or other man-made improvements" could be placed on the land in question.
Though the driveway work was fairly far along, Slane moved to enforce the restrictive covenant.
At that point, the Barunos switched lawyers. They hired Fred Rickles, of Gilbride, Tusa, Last & Spillane, which has offices in Greenwich. Rickles took over the restrictive covenant case, which did not end well for the Barunos. Although the Tsois agreed to pay $250,000 in damages, and to remediate the property, they soon filed for bankruptcy and did neither.
Rickles also filed a suit against Slane, alleging that he was negligent because he did not discover the restrictive covenant earlier. Earlier discovery, he argued, would have resulted in injunctive relief and prevented damage to the property in question.
The defense expert was Barry Hawkins, the past president of the Connecticut Bar Association and an attorney with experience in cases involving restrictive covenants. His view was that the applicable standard of care simply requires an attorney who has been engaged to file a lawsuit to have a "good faith belief that the client has a viable cause of action," and Slane did not violate that standard when he decided to proceed with an adverse possession claim rather than cite a restrictive covenant.
But the court was swayed by the testimony of the plaintiffs' expert, Geoffrey Hecht, a Connecticut attorney who has practiced for 43 years and who has transactional and litigation experience in real estate law. Hecht testified that Slane violated the standard of care because he did not, upon being hired by the Barunos, examine the maps and property deeds in the town's land records. "He certainly had time to spend a few moments examining these deeds," Judge Mottolese wrote in his decision.
The judge awarded the Barunos $250,000 for loss of property value from excess surface water, $120,000 to remediate the damaged property, $2,397 for engineering costs and $238,034 for attorney fees to Gilbride Tusa. They also were awarded $10,386 for fees paid to Slane's law firm. The judge, however, declined to award damages for loss of enjoyment.
Patricia King, the state's chief disciplinary counsel, said that the case has not been referred to her office. But when she hears of a case like this, she would look at it to see if something should be done. "I have no way of knowing what action would be appropriate at this point," King said.