Hunter's Ambulance Service, Inc. v. Shernow

798 A.2d 991, 70 Conn. App. 96, 2002 Conn. App. LEXIS 290
CourtConnecticut Appellate Court
DecidedMay 28, 2002
DocketAC 20973
StatusPublished
Cited by5 cases

This text of 798 A.2d 991 (Hunter's Ambulance Service, Inc. v. Shernow) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hunter's Ambulance Service, Inc. v. Shernow, 798 A.2d 991, 70 Conn. App. 96, 2002 Conn. App. LEXIS 290 (Colo. Ct. App. 2002).

Opinion

Opinion

FOTI, J.

In this civil action sounding in professional malpractice and breach of contract, the plaintiff, Hunter’s Ambulance Service, Inc., appeals from the judgment of the trial court rendered in favor of the defendants, Thomas A. Shemow and the accounting firm of Whitten, Horton and Gibney (Whitten). On appeal, the plaintiff claims that the court improperly (1) refused to strike the testimony of the defendants’ expert witness, (2) found material facts that were not supported by the evidence, (3) concluded that the plaintiff had not proved that it could recover against a third person for his alleged negligence and (4) concluded that the defendants had not breached contractual duties that they owed to the plaintiff. We affirm the judgment of the trial court.

The dispute between the parties arose out of accounting services rendered to the plaintiff by Shemow, a licensed certified public accountant, who, at all times relevant, was an employee working within the scope of his employment at Whitten. The plaintiff originally brought its action in three counts, alleging negligence, breach of contract and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes [98]*98§ 42-110a et seq. The court granted the defendants’ motion to strike the CUTPA count and that decision is not a subject of this appeal.

The basis for the plaintiffs claim of professional malpractice originated in events that preceded the defendants’ involvement with the plaintiff. In 1988, officers of the plaintiff negotiated the purchase of Professional Ambulance Service of Middlesex, Inc. (Professional Ambulance), another corporation that provided ambulance services. Prior to May, 1991, Carlton Helming, a certified public accountant, provided professional accounting services and advice to the plaintiff. During his tenure, Helming was the plaintiffs principal accountant. As part of his services, Helming assisted in negotiating the purchase of Professional Ambulance and advised the plaintiff regarding the purchase and its tax consequences.

On December 9, 1988, the plaintiff entered into an agreement with Professional Ambulance to purchase all of its stock. The parties agreed to close the sale in January, 1989. On January 18, 1989, the plaintiff completed the purchase. Subsequently, Helming prepared corporate tax returns for the plaintiff. His actions in this regard underlie the plaintiffs action. The plaintiff alleged that Helming did not advise it to schedule the closing on the purchase so that it would have occurred during 1988. If Helming had done so, the plaintiff would properly have been able to avail itself of tax savings that would have been available to it under § 338 of the Internal Revenue Code. Also, the plaintiff alleged that Helming thereafter prepared the plaintiffs 1989 and 1990 federal tax returns as if the closing on the sale had occurred in 1988, thereby assuming for the plaintiff significant tax benefits to which it was not entitled.

The professional relationship between the plaintiff and Helming began to deteriorate by the end of 1990. [99]*99In the spring of 1991, the plaintiff terminated Helming’s employment and hired the defendants to serve as the plaintiffs accountant. In the early part of 1992, the Internal Revenue Service (IRS) commenced an audit of the plaintiff that focused on the plaintiffs purchase of Professional Ambulance.

In December, 1991, Helming commenced a civil action against the plaintiff to recover unpaid fees for his services. The plaintiff thereafter pleaded, as a counterclaim in that action, that Helming negligently had prepared the plaintiffs corporate tax returns. The plaintiff claimed, however, that at that time it was unaware of Helming’s negligent tax treatment of its purchase of Professional Ambulance. In the present action, the plaintiff alleged that the defendants negligently failed to advise it as to the extent of Helming’s errors. Specifically, the plaintiff alleged that “[a]t no time did . . . Shernow ever advise the Plaintiff and/or its agents that Helming had committed professional malpractice with respect to the Plaintiffs purchase of [Professional Ambulance] by failing to make the proper election [under § 338] and/or by failing to require that said closing be consummated prior to January 1, 1989, or, that Helming may have knowingly, but at least negligently, taken deductions on behalf of the Plaintiff to which it was not legally entitled.”

The plaintiff further alleged that, on May 11, 1994, it relied on Shemow’s advice and accepted $35,000 from Helming in return for a full and final release of any and all claims that it had, or may have had, against him. Shortly thereafter, on May 29, 1994, the IRS issued a notice of deficiency against the plaintiff for $203,000, along with applicable penalties and interest. This action relates directly to Helming’s tax treatment of the plaintiffs acquisition of Professional Ambulance. The plaintiff also alleged that the department of revenue services for the state of Connecticut had assessed, or would [100]*100assess, additional corporate taxes, along with interest and penalties, against the plaintiff for $105,000.1

The plaintiff alleged that the defendants had committed professional malpractice in that they (1) failed to recognize that Helming had committed professional malpractice in his treatment of the plaintiffs acquisition of Professional Ambulance and to advise them of the same, (2) continued to treat Professional Ambulance’s acquisition in the same manner as Helming had treated it for tax purposes, (3) failed to advise the plaintiff as to the extent of Helming’s negligence and the plaintiffs consequent tax exposure and (4) failed to advise the plaintiff that Helming may have knowingly and improperly claimed tax deductions on its behalf that would subject the plaintiff to back taxes, penalties and interest.

The plaintiff alleged that the defendants’ actions also constituted a breach of the contract for professional services that existed between the parties. In this regard, the plaintiff alleged that the defendants (1) failed to obtain all the necessary information to perform its services for the plaintiff properly, (2) failed to research or become knowledgeable of the laws and regulations applicable to the plaintiffs business and its acquisition of Professional Ambulance, (3) failed to advise the plaintiff properly, (4) failed to use the care and skill used by other certified public accountants in rendering services to the plaintiff, (5) improperly undertook to do work and to prepare and cause to be filed tax documents on the plaintiffs behalf, (6) failed to advise the plaintiff properly as to its tax liabilities, (7) advised the pla.iut.iff as to settling its claim against Helming on the basis of an unskillful and negligent review of documents [101]*101and (8) continued to amortize or depreciate assets under the same tax methods as Helming had used, with full knowledge that such tax treatment was improper.

After conducting a hearing, the court rendered judgment in the defendants’ favor on June 13, 2000. This appeal followed. Additional facts will be set forth in the context of the plaintiffs claims.

I

The plaintiff first claims that the court improperly refused to strike the testimony of the defendants’ expert witness, Stanley Roy. We need not reach the merits of this claim.

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Cite This Page — Counsel Stack

Bluebook (online)
798 A.2d 991, 70 Conn. App. 96, 2002 Conn. App. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunters-ambulance-service-inc-v-shernow-connappct-2002.