Opinion
No. CV 03 0523350 S
January 4, 2006
MEMORANDUM OF DECISION, RE MOTION 112.25 MOTION FOR SUMMARY JUDGMENT
The instant action sounds in breach of contract and legal malpractice. Plaintiff alleges by way of a Second Amended Complaint dated April 12, 2004, that his cause of action originally arises out of a foreclosure action that began in 1992 against a Ms. Rose Marie Cymbala. The Plaintiff was represented by the law firm of Tarlo, Levy and Droney, P.C. (hereinafter Levy and Droney).
At the close of the Plaintiff's case in the original foreclosure action the Trial Court granted the Defendant's Motion to Dismiss said action on the basis that the Plaintiff had failed to put on sufficient evidence to establish a prima facie case. The Appellate Court affirmed the action of the Trial Court. The Plaintiff subsequently retained the services of the law firm of Rogin, Nassau, Caplan, Lassman Hirtle, LLC (hereinafter "Rogin Nassau") to pursue a legal malpractice claim against Levy and Droney. The Plaintiff asserted that Levy Droney had not properly prepared and presented the case; and had improperly sued only in tort. Levy and Droney subsequently filed a Motion for Summary Judgment asserting that the three-year statute of limitations for bringing a tort action against it had expired prior to the initiation of the action by Rogin Nassau. The Plaintiff subsequently, by written contract obtained the services of new counsel, the Defendant herein, I.D. Marder Associates (hereinafter "Marder").
The Plaintiff alleges that pursuant to its contract with Marder, Marder filed an objection to Levy Droney's Motion for Summary Judgment. However Marder only claimed that the statute of limitations had not started to run until the trial court in the original foreclosure action had issued a written memorandum of decision, rather than running from the date that the court ruled from the bench. Marder did not raise any other arguments in support of the Objection. The trial court subsequently granted Levy Droney's Motion for Summary Judgment on the grounds that the action was not timely brought.
Marder continued to represent the Plaintiff and initiated a second malpractice action. This one also sounding in tort, but this time the action was brought against the law firm of Rogin Nassau. The Plaintiff alleged that Rogin Nassau had committed malpractice by failing to commence the action against Levy and Droney within the statutory time period. Rogin Nassau subsequently filed a Motion for Summary Judgment on the grounds that they had timely brought the action because the time period for filing the action had been tolled pursuant to the doctrines of continuing course of conduct and continuing course of representation.
On August 9, 1999 the trial court granted the Motion for Summary Judgment, holding that the statute of limitations had not expired.
On November 9, 1999 the Plaintiff's present counsel filed an Appearance in lieu of Marder. Plaintiff, through the new counsel appealed the trial court's decision granting the Motion for Summary Judgment, however, on April 16, 2002, the decision was upheld by the Appellate Court.
The Plaintiff now brings the instant action against Marder in tort for its alleged negligent representation of the Plaintiff in the claim against Levy Droney and in the claim against Rogin Nassau. The Plaintiff's complaint is also brought in contract.
On March 21, 2005 the defendants moved for permission to file a Motion for Summary Judgment. On June 27, 2005, the court (P. Robinson, J.). granted said motion.
The Defendants also filed the actual Motion for Summary Judgment on said date.
The Defendants assert in their Motion for Summary Judgment that their representation of the Plaintiff ended on November 9, 1999 when the Plaintiff's present counsel filed an in lieu of appearance. The Defendants further assert that this action which commenced in October 1993 is time barred pursuant to the provisions of § 52-577 C.G.S.
On June 22, 2005 the Plaintiff filed an Objection to the Motion for Summary Judgment. The Plaintiff asserts that summary judgment should not be granted for reason that its action was "timely filed within three years of the Appellate Court's April 16, 2002 opinion that recognized for the first time the doctrine of continuing legal representation." The Plaintiff further asserts that the subject action was brought within "the six year statute of limitations for breach of written contract as set forth in C.G.S. § 52-576, or the three years limitations period set forth in C.G.S. § 52-581."
See Objection at page 6.
See Objection at page 7.
Discussion
Section 17-45 of the Connecticut Practice Book concerns the proceedings for motions for summary judgment. It provides that:
A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. The motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion and the supporting materials, unless the judicial authority otherwise directs. The adverse party [prior to the day the case is set down for short calendar] shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.
Before addressing the merits of the defendant's motion, a brief review of the standards for the granting of a motion for summary judgment is warranted:
Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. (Internal quotation marks omitted.) Orkney v. Hanover Ins. Co., 248 Conn. 195, 201, 727 A.2d 700 (1999).
CT Page 84 QSP, Inc. v. The Aetna Casualty Surety Co., 256 Conn. 343, 351 (2001).
As to Count One: Breach of Contract
Count One of the Plaintiff's Complaint sounds in breach of contract. The Plaintiff alleges that Defendants represented him through September 23, 1999. The Plaintiff alleges that the Defendants breached the subject contract by failing to provide competent representation. Furthermore, Count One states in pertinent part that: "The Defendant expressly and impliedly breached its contract with the Plaintiff in that: . . . 6. That the two-year statute of limitations had been breached by Rogin Nassau and as such the Plaintiff had a viable cause of action against Rogin Nassau." The Plaintiff alleges damage as a result of reliance on these express and implied promises.
This date appears to be in error, the actual date should be November 9, 1999.
Claims one through five and seven are in actuality negligence claims: (1) failure to argue continuing representation against Levy Droney, (2) failure to appeal the trials court's decision in Levy Droney action, (3) failure to bring contract suit against Rogin Nassau, (4) failure to allege that Rogin Nassau committed malpractice by failing to bring a breach of contract claim against Levy Droney, (5) express promise that Rogin Nassau had breached 2-year Statute of Limitations and as such an appeal of Judge Wagner's decision [granting Levy Droney's Motion for Summary Judgment in the first malpractice action] was unnecessary, and (7) [The Defendants asserted or promised that] the time period for suing Levy Droney was time-barred and therefore a cause of action could not be pursued when in fact it was not time-barred, under doctrine of continuing course of representation.³
The issue before this court is whether the Plaintiff's allegations in Count One regarding the Defendants' representation in the suit against Rogin, Nassau support a breach of contract claim or are merely a negligence claim couched in contract language.
Our State's Supreme Court has recognized an action in contract against an attorney. See Stowe v. Smith, 184 Conn. 194, 198-99, 141 A.2d 81 (1981) (the benefit which the plaintiff would have received under a will prepared in accordance with the contract is so directly and closely connected with the benefit which the defendant promised to the testatrix that under the allegations of the complaint the plaintiff would be able to enforce the contract); see also Robbins v. McGuinness, 178 Conn. 258, 261-62, 423 A.2d 897 (1979) (upholding verdict for defendant attorney on breach of contract count for improperly done title search where six-year Statute of Limitations had expired).
In the instant action the plaintiff not only alleges breach of contract, but legal malpractice. "It is possible for a negligence claim and a contract claim to arise out of the same facts, and a breach of contract claim may be heard in the same case claiming medical malpractice. Whether the plaintiff's cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint. 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 . . ." The elements of a breach of contract action are "the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). (Internal citations and quotation marks omitted.)
"[A] claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach." Caffery v. Stillman, 79 Conn.App. 192, 197, 829 A.2d 881 (2003). The tort Statute of Limitations will apply, though, where the complaint in question is couched in tort language rather than contract language Shuster v. Buckley, 5 Conn.App. 473, 500 A.2d 240 (1985).
The Defendants argue in their Motion for Summary Judgment that the Plaintiff only alleged breach of contract in the Complaint to get around torts Statute of Limitations. They further assert that the applicable Statute of Limitations is the three year Statute of Limitation for tort actions, not the six-year Statute of Limitation for contract actions.
Upon completing its review of the Complaint, the Motion for Summary Judgment and the Objection thereto, this Court has come to the conclusion that what the Defendants are actually raising are issues concerning the legal sufficiency of the breach of contract action as opposed to a tort action as it is alleged in the Amended Complaint. Although issues of the legal sufficiency of a complaint are usually raised in a Motion to Strike, it is now settled law in this State that a Motion for Summary Judgment may be used to challenge the legal sufficiency of a complaint.
Our case law addressing the question of whether a motion for summary judgment may be used instead of a motion to strike to challenge the legal sufficiency of a complaint and, if so, under what circumstances, requires some clarification. In Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 408-09, 279 A.2d 540 (1971), this court suggested that in light of the similarities between the procedures, the use of a motion for summary judgment for such a purpose is proper. See also Pane v. Danbury, 267 Conn. 669, 674 n. 7, 841 A.2d 684 (2004) (allowing use of motion for summary judgment to challenge legal sufficiency of complaint when plaintiff did not raise objection in trial court); Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32 n. 17, 699 A.2d 964 (1997) (treating motion for summary judgment as motion to strike); Hossan v. Hudiakoff, 178 Conn. 381, 382 n. 1, 423 A.2d 108 (1979) (court declined to consider whether use of motion for summary judgment instead of motion to strike was procedurally proper when motion to strike properly would have been granted); Gaudino v. East Hartford, 87 Conn.App. 353, 357-58, 865 A.2d 470 (2005) (motion for summary judgment may be used to challenge legal sufficiency of complaint); but see Burke v. Avitabile, 32 Conn.App. 765, 772, 630 A.2d 624 (purpose of motion for summary judgment is not to test legal sufficiency of complaint but to test for presence of contested factual issues), cert. denied, 228 Conn. 908, 634 A.2d 297 (1993). We also have recognized, however, that the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because "[t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court . . . [while the] granting of a motion to strike allows the plaintiff to replead his or her case." (Citation omitted; internal quotation marks omitted.) Pane v. Danbury, supra, 674 n. 7, quoting Rivera v. Double A Transportation, Inc., 248 Conn. 21, 38 n. 3, 727 A.2d 204 (1999) (Berdon, J., dissenting); cf. Kroll v. Steere, 60 Conn.App. 376, 384 n. 6, 759 A.2d 541 (motion for summary judgment may be treated as motion to strike when plaintiff did not claim that she should have been allowed to replead), cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000).
Larobina v. McDonald, 274 Conn. 394, 400 (2005).
Although the Supreme Court has determined that a Motion for Summary Judgment may be used to challenge the legal sufficiency of complaint, such challenges are not without limitation.
. . . [W]e conclude that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading. See Boucher Agency, Inc. v. Zimmer, supra, 160 Conn. 410. If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed. See Practice Book § 10-7 (filing of answer constitutes waiver of right to file motion to strike complaint). "It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint . . . Thus, failure by the defendants to demur to any portion of the . . . complaint does not prevent them from claiming that the [plaintiff] had no cause of action and that a judgment [in favor of the defendants was] warranted." (Citation omitted; internal quotation marks omitted.) Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970). Moreover, this court repeatedly "has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried." Fernandez v. Estate of Ayers, 56 Conn.App. 332, 334-35, 742 A.2d 836 (2000) (citing cases).
Larobina v. McDonald, Supra at 401-01.
As was previously stated herein, upon completing its review of the claim of a breach of contract in Count One, this Court finds that it is clear on the face of the complaint that said claim is legally insufficient. However, the Court does not find that this is a situation wherein the Defendant can establish that the defect could not be cured by repleading. The Defendants' Motion for Summary Judgment as to this Count is therefore denied.
As to Counts Two and Three: "Tort"
The Plaintiff alleges that the Defendants were negligent in their representation of the Plaintiff in Rosenfeld v. Levy Droney and in Rosenfeld v. Rogin, Nassau as evidenced by various omissions cited in the operative complaint. With respect to the latter case, Plaintiff alleges that Defendants had continuing course of conduct and special relationship with him through Appellate Court decision dated April 4, 2002, because Ds' failure to raise doctrines of continuing conduct/representation were concealed until Appellate Court ruling (ruling triggered Plaintiff's injury).
Defendants argue that the Motion for Summary Judgment should be granted because the count is barred by Section 52-577. C.G.S. "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
"[A] plaintiff may invoke the [continuous representation] doctrine, and thus toll the statute of limitations, when the plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter; and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period." DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003).
"With regard to the first prong, we conclude that the representation continues for the purposes of the continuous representation doctrine until either the formal or the de facto termination of the attorney-client relationship The formal termination of the relationship occurs when the attorney is discharged by the client, the matter for which the attorney was hired comes to a conclusion, or a court grants the attorneys motion to withdraw from the representation. A de facto termination occurs if the client takes a step that unequivocally indicates that he has ceased relying on his attorney's professional judgment in protecting his legal interests, such as hiring a second attorney to consider a possible malpractice claim or filing a grievance against the attorney." DeLeo v. Nusbaum, 263 Conn. 588, 597-98, 821 A.2d 744 (2003).
At oral argument, the Plaintiff cited Mallen on Legal Malpractice (§ 22.12, p. 1427) for the point that although the majority of jurisdictions do not allow tolling of the Statute of Limitations during an appeal, a minority of jurisdictions do allow tolling during an appeal. This court notes that the State of Connecticut is not cited for either position in Mallen.
After oral argument, the Plaintiff submitted a second supplemental memo in opposition, citing Fontanella v. Marcucci, CT Page 89 89 Conn. App 690 A.2d (2005), for the proposition that Connecticut law supports tolling the Statute of Limitations while the underlying action is on appeal. In Fontanella, the Appellate Court held that "because of the complexity of the legal and factual issues arising out of the spoliation of evidence relating to the product liability claim, the legal malpractice claim was not capable of being adjudicated by the judicial power until the underlying product liability claim was resolved by final judgment." Id., 692.
In response to the Plaintiff's submission, the Defendants submitted a reply brief arguing that the present case is more like Mayer v. Biafore, Florek O'Neill, 245 Conn. 88, 713 A.2d 1267 (1998). In Mayer, our Supreme Court held that: "All legal malpractice cases are based on underlying rights, for which the plaintiff originally sought legal representation. To require that the underlying dispute as to those rights, in all cases, must be completely resolved prior to bringing a malpractice action would unduly restrict the plaintiff's remedy against the allegedly negligent lawyer. Here, because the trier of fact hearing the plaintiff's malpractice case must determine, on the basis of proper instructions as to the law, whether an uninsured motorist action is time barred, there is no need for a prior determination that the statute of limitations has run as a condition precedent to the plaintiff pursuing this case." Id., 92.
The Defendants represented the Plaintiff in Rosenfield v. Levy Droney until the trial court granted Levy Droney's Motion for Summary Judgment, thereby concluding the matter. The case at issue wasn't filed until September 23, 2003. Therefore, with respect to the Defendants' alleged negligence in Rosenfeld v. Levy Droney, the Statute of Limitations has expired and the Defendants are entitled to summary judgment as to Counts Two and Three.
Wagner, J., April 16, 1997 according to Plaintiff's memo in opposition.
As to Count Four: Accidental Failure of Suit
The Defendant asserts that "[t]he Plaintiff cannot rely upon Section 52-592 in the Fourth Count Since he Voluntarily Withdrew the Prior Action."
The Plaintiff alleges that on September 16, 2002, he withdrew his tort action against I. David Marder Associates, LLC on the basis of the implications of the Appellate Court's decision rendered in Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, 69 Conn.App. 151 (2002).
Officially released April 16, 2002.
³ Section 52-576(a) C.G.S. provides in pertinent part that: "No action for an account, or on any simple or implied contract, or on any contract in wilting, shall be brought but within six years after the right of action accrues . . ."
The subject Count provides that it is brought on the basis of § 52-592 C.G.S. This section of the Connecticut General Statutes is commonly known as the "accidental failure of suit statute." Subsection 52-592(a) provides that:
If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.
It is undisputed that the former action cited by the Plaintiff was voluntarily withdrawn. "Where a plaintiff has voluntarily withdrawn his action, he may not take advantage of the extension of time provided by the accidental failure of suit statute; Baker v. Baningoso [ 134 Conn. 382, 387]." Lydem v. Feldman, 36 Conn.Sup. 121 (1979). Summary Judgment is therefore granted as to this Count.
Conclusion
For all of the foregoing reasons, the Defendants' Motion for Summary Judgment is denied as to Count One, but it is granted as to Counts, Two, Three and Four. So ordered.