Opinion
FSTCV166027369
07-11-2017
Janine Marshall v. Thomas M. Shanley
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT (NOS., 112 & 121)
Hon. Charles T. Lee, J.
The plaintiff, Janine Marshall, commenced this action for legal malpractice against the defendant, Thomas Shanley, by service of a summons and complaint on January 11, 2016. The complaint contains two counts. Count One alleges legal malpractice against the defendant for negligence in providing legal representation and counsel to the plaintiff in a prior action for the dissolution of her marriage from her ex-husband. Specifically, plaintiff claims that Attorney Shanley committed malpractice in failing to adequately secure life insurance proceeds pursuant to her separation agreement incorporated into the divorce decree as intended. Count Two is brought on behalf of the plaintiff's daughter (LM), a minor, alleging that she is a third party beneficiary to the separation agreement, and therefore, the defendant breached his obligations to her when he failed to perform his duties as an attorney during the dissolution of marriage action in that he failed to provide that Mr. Marshall's obligation to pay for the educational expenses would survive his death and be an obligation of the estate.
On December 27, 2016, the defendant filed his answer and special defenses, claiming that the plaintiff's claims are barred by the statute of limitations, that the plaintiff has been paid the monies promised under Article VIII of the settlement agreement, and that the plaintiff has waived her rights to bring suit under Article XVI of the settlement agreement. With respect to the claims brought on LM's behalf, the defendant argues that he never had an attorney-client relationship with LM and that LM is not a third party beneficiary of either the attorney-client relationship between the plaintiff and the defendant or the separation agreement.
On December 15, 2016, the defendant moved for summary judgment with respect to Count Two of the plaintiff's complaint (#112). The defendant filed a supporting memorandum of law, affidavits, and various supporting exhibits. The plaintiff filed a memorandum in opposition to this motion for summary judgment on January 13, 2017, with affidavits and various supporting exhibits.
On January 23, 2017, the defendant moved for summary judgment with respect to Count One of the plaintiff's complaint (#121). The defendant filed a supporting memorandum of law, affidavits, and various supporting exhibits. The plaintiff filed a memorandum in opposition to this motion for summary judgment on February 14, 2017, with affidavits and various supporting exhibits. Both motions were heard at short calendar on March 13, 2017.
As more fully explained below, the court grants both motions for summary judgment on the ground that the statute of limitations for bringing this suit has expired.
BACKGROUND
The undisputed facts are as follows: The plaintiff hired the defendant in 2007 to represent her interests in divorce proceedings with her husband, William J. Marshall. As part of this process, the defendant investigated the assets held by Marshall. The defendant then negotiated a separation agreement that required Mr. Marshall to designate plaintiff as a beneficiary in the amount of $750,000 under any of three listed life insurance policies for as long as he owed plaintiff alimony. In addition, Article 4.1 of the separation agreement provided that Marshall would be responsible for paying LM's college education for up to four years, including tuition, room and board, textbooks, and other reasonable educational expenses. The separation agreement was incorporated into the divorce decree entered on July 29, 2009. On December 27, 2012, Mr. Marshall died.
The plaintiff then became involved in litigation with Marshall's previous ex-wife, Erika Marshall. Plaintiff learned Erika Marshall also had a divorce decree which required her to be designated a beneficiary in the amount of $1,750,000 under the same three policies listed in plaintiff's decree. The policies were insufficient to cover both obligations. As a result, the insurance companies filed two interpleader actions, which were heard by this court. Plaintiff also made a claim to Mr. Marshall's estate based on his obligation to pay for LM's higher education. The estate did not respond and so the claim was deemed rejected and plaintiff commenced litigation against the executrix. Amended Revised Complaint, Paragraphs 32-34.
The interpleader cases were United States Life Ins. Co. v. Marshall, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6023619-S, and United Central Life Ins. Co. v. Marshall, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6023033-S, .
The estate case was Marshall v. Tilt, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6022534-S.
The two interpleader actions and the action against the estate were resolved with stipulations in November 2015. This court entered final judgment on December 2, 2015 in the interpleader actions, and the plaintiff withdrew the estate action. The plaintiff received a total of $750,000, $420,000 coming from insurance proceeds and the $330,000 being paid by Mr. Marshall's estate.
CONTENTIONS OF THE PARTIES
On January 23, 2017, the defendant filed a motion for summary judgment with respect to Count One of the plaintiff's complaint claiming that there is no genuine issue of material fact that the plaintiff's claim is barred by the relevant statute of limitations, General Statutes § 52-577. Second, the defendant claims that there is no genuine issue of material fact that the plaintiff waived her claim against him in the text of the separation agreement.
On February 14, 2017, the plaintiff filed her opposition to the defendant's motion for summary judgment, claiming that the statute of limitations was tolled because her claims against the defendant arose only after Marshall's death and that the claim against the defendant was not justiciable until that occurrence. In addition, the plaintiff claims that the language contained in the separation agreement does not constitute a waiver of her rights against the defendant for professional negligence.
The defendant filed a separate motion for summary judgment on December 15, 2016, in which he claims that he is entitled to summary judgment with respect to Count Two of the plaintiff's complaint. First, the defendant argues that there is no dispute of material fact that there was no attorney-client relationship between LM and himself. Second, the defendant argues that there is no genuine issue of material fact that LM was not a third party beneficiary to the separation agreement.
On January 13, 2017, the plaintiff filed her opposition to the defendant's motion for summary judgment dated December 15, 2016. The plaintiff concedes that no attorney-client relationship existed between LM and the defendant. The plaintiff claims that issues of material fact exist as to whether LM is a third party beneficiary under both the separation agreement and the contract for services between the plaintiff and defendant, and therefore, she has a cause of action against the defendant to recover the money promised under the separation agreement.
Because the resolution of the motion against Count Two is dependent upon resolution of the motion against Count One, the two motions for summary judgment are addressed together in this memorandum.
DISCUSSION
A. Standard of Review
The primary purpose of a motion for summary judgment is to obtain judgment in a case where there are no material facts in dispute. The summary judgment procedure " is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). A motion for summary judgment shall be granted when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Id., 279; Practice Book § 17-49. When determining whether a genuine issue as to any material fact exists, the evidence must be viewed in the light most favorable to the non-moving party. Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010); LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002). The test is whether the moving party would be entitled to a directed verdict on the same facts. Weber v. U.S. Sterling Securities, Inc., 282 Conn. 722, 728, 924 A.2d 816 (2007); Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [S]ummary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).
" [T]he 'genuine issue' aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969). " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" We emphasize the important point, that [a]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact . . ." (Internal quotation marks omitted.) Id., 550. Furthermore, a non-moving party's conclusory affidavits alone are insufficient grounds to deny a motion for summary judgment. Id., 557. " We acknowledge that [o]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion . . . A party may not, however, rely on mere speculation or conjecture as to the true nature of the facts to overcome . . . summary judgment." (Internal quotation marks omitted.) Walker v. Housing Authority, 148 Conn.App. 591, 597, 85 A.3d 1230 (2014).
B. Statute of Limitations
The defendant argues that the plaintiff did not file her legal malpractice claim within the three year statute of limitations provided by General Statutes § 52-577, and thus, the action is not timely and summary judgment must enter on his behalf " An action alleging legal malpractice or negligence is a tort claim subject to the three year statute of limitations set forth in § 52-577." Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 714, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). General Statutes § 52-577 provides that: " No action founded upon a tort shall be brought but within three years from the act or omission complained of."
" In construing our general tort statute of limitations . . . we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred. Fichera v. Mine Hill Corp., 207 Conn. 204, 212, 541 A.2d 472 (1988). The date of the act or omission complained of is the date when the . . . conduct of the defendant occurs." (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 583, 22 A.3d 1214 (2011). " [Section] 52-577 is an occurrence statute and . . . its limitation period does not begin when the plaintiff first discovers an injury." Valentine v. LaBow, 95 Conn.App. 436, 445 n.8, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). " The three year limitation period of § 52-577, therefore, begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., supra, 167 Conn.App. 714. " Although allowing a statute of limitations defense may result in meritorious claims being foreclosed, that must be so. A statute of limitations promotes two important interests: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose." (Internal quotation marks omitted.) Id.
The plaintiff argues that her claim was not justiciable until Marshall's death on December 27, 2012, because she could not have discovered her injury until that date at the earliest. In addition, the plaintiff argues that her case was not ripe until the resolution of the interpleader cases determining the distribution of life insurance assets because she was unable to adequately plead damages for her legal malpractice claim. As explained above, the plaintiff does not need to be aware of the injury for the statute of limitations to apply. The court will therefore evaluate at what point the plaintiff's claim became ripe against the defendant.
The plaintiff brought an earlier companion case. See Marshall v. Shanley, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6022518-S, . In the companion case, this court ruled that the plaintiff's case was ripe for adjudication in its memorandum of decision dated September 22, 2015 denying defendant's motion to dismiss. In the motion to dismiss, Attorney Shanley argued that the plaintiff's claim was not ripe for adjudication because the plaintiff's damages were still uncertain due to the ongoing interpleader actions. The plaintiff argued that her case was ripe because the alleged injury stemmed from the defendant's negligence during the drafting of the separation agreement in 2009. Interestingly, the parties have now adopted the opposite positions regarding ripeness in the present motion for summary judgment.
" 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 profession with the result of injury, loss, or damage to the recipient of those services." (Internal quotation marks omitted.) Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 649, 850 A.2d 145 (2004). " In general, the plaintiff 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.) Grimm v. Fox, 303 Conn. 322, 329, 33 A.3d 205 (2012). " In legal malpractice actions, the plaintiff typically proves that the defendant attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent. This traditional method of presenting the merits of the underlying action is often called the case-within-a-case." (Internal quotation marks omitted.) Baruno v. Slane, 151 Conn.App. 386, 396, 94 A.3d 1230, cert. denied, 314 Conn. 920, 100 A.3d 851 (2014).
The court notes that, generally, damages must be shown in order to bring forth a claim of legal malpractice. However, given the case law cited above, it also recognizes that the statute of limitations is a necessary exception to this rule. The question presented by this issue of ripeness in a malpractice case has been specifically addressed by our Appellate Court. In Fontanella v. Marcucci, 89 Conn.App. 690, 877 A.2d 828 (2005), the Appellate Court was faced with the issue of whether a legal malpractice claim was ripe where the underlying case had not yet been fully resolved. Id., 694. The plaintiff in Fontanella brought suit against a car manufacturer claiming injuries as a result of a defective seatbelt. During the pendency of the litigation against the car manufacturer, the plaintiff was advised by his attorney to sell the damaged vehicle to his insurer without first preserving the defective seatbelt as evidence. The plaintiff then brought suit against his attorney for malpractice arising from the failure to properly advise the plaintiff as to preserving the seatbelt for later inspection in the underlying case. On appeal, the Appellate Court reasoned that " [t]he malpractice suit . . . was not ripe until the damage due to the failure to preserve the seatbelt was evident." Id., 703. Accordingly, the court held that the pendency of the motorist's underlying product liability action against the automobile manufacturer tolled the respective statutes of limitation in motorist's action for legal malpractice and breach of contract. Id.
Four years later, in Lee v. Harlow, Adams & Friedman, P.C., 116 Conn.App. 289, 975 A.2d 715 (2009), the Appellate Court recognized another practical dilemma in dealing with legal malpractice claims where the extent of the injury cannot be ascertained until the conclusion of another related pending matter. Id., 298. Lee involved an option right, which was never properly recorded on the land records by either the mortgagee or the plaintiff's former attorneys. In the malpractice action against the plaintiff's attorneys, the defendants moved to dismiss, arguing that the malpractice claim was not ripe because the plaintiff had already obtained an unenforced judgment against the mortgagee, which would fully compensate him for his damages.
The Appellate Court found that, because the underlying action had concluded, the plaintiff's claims were nonetheless justiciable. The Court reasoned that " the defendants' malpractice occurred when they failed to file certain documents on the land records and [the mortgagee] sold the last condominium unit, causing [the plaintiff] to incur expenses in an attempted to secure his rights under the stipulated judgment in the underlying case . . . Although the precise amount of damages was uncertain, [the plaintiff] sufficiently had alleged the necessary elements of a legal malpractice cause of action: he had alleged that there had been an attorney-client relationship and that he had sustained legal injury that was proximately caused by an act or omission of his attorneys." Lee v. Harlow, Adams & Friedman, P.C., supra, 116 Conn.App. 304.
The Appellate Court further concluded, relying on Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 952 A.2d 1 (2008), that the fact that the plaintiff's exact damages were contingent on the outcome of another pending matter, namely the enforcement and collection on the judgment from the mortgagee, was not dispositive in determining the issue of ripeness. Id., 116 Conn.App. 306-07. According to the Appellate Court, " even though the precise amount of [the plaintiff's] damages was not known at the time he brought suit, because he was attempting to reduce or to minimize those damages, that uncertainty did not render his claims unripe and non-justiciable . . . That he sought to minimize the damages allegedly caused by the defendants' malpractice had no implication on his allegation of a legal injury. The amount of his damages may be uncertain because of his continued attempts to minimize those damages, but the fact that he has alleged that he sustained some legal injury is not uncertain." Id.
The reconciliation of Fontanella and Lee can be found in the fact that the underlying case in the former had not yet concluded, and it was not clear if the attorney's error would produce any harm. In Lee, the error had permitted the condominium to be sold to a third party, so plaintiff had definitely been injured, even though the amount of the injury could not yet be determined. Similarly, in the present case, the underlying dissolution of marriage has concluded, and defendant's error meant that plaintiff's benefits were inadequately secured because of the competing claims to the policies on behalf of Mr. Marshall's first wife. As in Lee, the extent of the damages was not yet ascertained, but the harm was done.
The plaintiff's complaint alleges negligence in the defendant's professional duty as an attorney, and that those failures led to the damages she currently is seeking. Thus, the injury resulted from conduct that took place in 2009 and was incorporated into the divorce decree entered on July 29, 2009. Accordingly, the plaintiff was required to file a malpractice action on or before July 29, 2012, whether she was aware of the negligence at that time or not. This action was not filed until 2016, well outside of the time period allowed by General Statutes § 52-577. For this reason, the defendant's motion for summary judgment as to Count One is granted.
C. Waiver
As the court has concluded that plaintiff's malpractice claim against Attorney Shanley is barred by General Statutes § 52-577, it does not reach the defendant's arguments regarding waiver.
D. LM as a Third Party Beneficiary
The plaintiff concedes that " LM never hired or retained [the defendant] to represent her in the divorce proceedings." (Plaintiff's Opposition #120 at 3.) Therefore, the only theory on which LM could recover would be as a third party beneficiary to a contract. It is undisputed that Article 4.1 of the separation agreement states the following, in pertinent part: " After utilization of any and all custodial accounts, savings, and gifts designated as educational funds for the benefit of the child, the husband shall be responsible for the payment of the child's post-secondary college education up to four (4) years." (Defendant's Memorandum #121, Exhibit A at 10.) The plaintiff argues that LM was an intended beneficiary of the separation agreement and the contract for legal services between the plaintiff and the defendant. The plaintiff further contends that, as a third party beneficiary, LM has a cause of action against the defendant based on his negligence in performing his duties as attorney for the plaintiff. However, LM, via the plaintiff, has alleged a legal malpractice case against the defendant in Count Two of the complaint. As discussed above, the three year statute of limitations of General Statutes § 52-577 bars the assertion of a legal malpractice claim against Attorney Shanley based on his negligence in connection with the 2009 settlement agreement and divorce decree. As that is the basis of the claims in Count Two, it too must be dismissed pursuant to the statute of limitations, and summary judgment must be granted with respect to Count Two of the plaintiff's complaint.
CONCLUSION
By reason of the foregoing, the defendant's motions for summary judgment as to Counts One (#121) and Two (#112) are granted.