Opinion
CV186079847S
01-13-2020
Mathew Donarumo et al. v. Lynch, Traub, Keefe and Errante, PC et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#149)
Wilson, J.
FACTS
The plaintiffs, Mathew and Marylou Donarumo, commenced this action on April 2, 2018, against Lynch, Traub, Keefe and Errante, P.C. and Jacobs & Rozich, LLC. In counts one and two of their third revised complaint, filed September 28, 2018, the plaintiffs allege legal malpractice sounding in both negligence and breach of contract, as to defendants, Lynch, Traub, Keefe and Errante, P.C. The alleged legal malpractice stems from the defendant’s representation of the plaintiffs in a civil action against Metropolitan Property and Casualty Insurance Company (Metropolitan), for failure to pay for water, property, and mold damage to the plaintiffs’ home, as a result of ice damming. Presently, the plaintiffs allege legal malpractice sounding in both negligence and breach of contract, and state that the defendant, inter alia: (1) knew or should have known to file an appeal of judgment for the umpire; (2) failed to inform the plaintiffs of the option to file an appeal; (3) knew or should have known not to agree to exclude payment for mold damage from the appraisal agreement; and (4) failed to inform the plaintiffs it entered into an appraisal agreement on their behalf, without their consent.
In counts three and four of their third revised complaint, the plaintiffs also allege legal malpractice sounding in both negligence and breach of contract, as to defendants, Jacobs & Rozich, LLC. For clarity, all references to the defendant in this memorandum are to Lynch, Traub, Keefe and Errante, P.C.
On May 23, 2019, the defendant filed a motion for summary judgment as to both counts one and two of the third revised complaint. In support of its motion, the defendant submits the following evidence: (1) the plaintiffs’ signed retainer agreement dated August 23, 2012; and (2) a copy of Jacobs & Rozich, LLC (successor counsel)’s appearance in the underlying action, filed on January 20, 2014, on behalf of the plaintiffs. The plaintiffs submitted a memorandum in opposition to the motion for summary judgment on July 24, 2019, to which the defendant submitted a reply memorandum on August 21, 2019. In support of the plaintiffs’ memorandum in opposition, they submit: (1) an invoice sent to the plaintiffs by the defendant which reads: "For professional services rendered in the above captioned matter from 03/01/2015 through 03/31/2015, including but not limited to the following: Previous Balance," Pl. Ex. A; and (2) the officer’s return of service for the present case, dated April 2, 2018. In support of the defendant’s reply memorandum it submits: (1) the signed and sworn affidavit of Attorney Brendan Keefe, a partner at the defendant firm; (2) the plaintiffs’ signed retainer agreement dated August 23, 2012; (3) the detailed transaction file list dated August 15, 2019, for services rendered to the plaintiffs from November 21, 2012, through October 7, 2013; and (4) the signed and sworn affidavit of Michael Panela, the office manager and accountant at the defendant firm. Oral argument on the motion was heard at short calendar on September 23, 2019.
DISCUSSION
"Practice Book § 17-49 provides that 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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The court may consider not only the facts, affidavits, and exhibits presented, but also the "inferences which could be reasonably and logically drawn from them ..." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
"Summary judgment may be granted where the claim is barred by the statute of limitations ..." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). "[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." (Citation omitted; internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016). "In these circumstances, it is incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact [as to the timeliness of the action] exists." (Internal quotation marks omitted.) Doe v. West Hartford, 328 Conn. 172, 192, 177 A.3d 1128 (2018).
The defendant argues that the act or omission complained of necessarily happened during its time representing the plaintiffs, which ended at the latest when successor counsel filed its appearance on January 20, 2014. The plaintiffs argue in response that there is a genuine issue of material fact regarding the date the defendant last represented the plaintiffs because the defendant invoiced the plaintiffs in April of 2015 for services rendered in March of 2015. See Pl. Ex. A. The defendant replies that the invoice in dispute reflects a previous balance owed and not further professional services rendered.
Originally, the defendant further argued that count two of the plaintiffs’ complaint, sounding in breach of contract, was also time barred by § 52-577, because it was actually a tort claim couched in contract, and, in the alternative, the defendant argued that it never promised the plaintiffs a specific result, which is required when alleging a breach of contract claim. On May 10, 2019, this court granted Jacobs & Rozich, LLC’s motion to strike count four of the plaintiffs’ third revised complaint, which purported to allege breach of contract as to Jacobs & Rozich, LLC. On July 24, 2019, the plaintiffs withdrew the breach of contract claim against the defendant, in accordance with the court’s grant of Jacobs & Rozich, LLC’s motion to strike a similar count.
"Actions for legal malpractice based on negligence are subject to § 52-577, the tort statute of limitations." Sanborn v. Greenwald, 39 Conn.App. 289, 301, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). "Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues ... [Section] 52-577 provides: No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 468, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). "[Section] 52-577 is an occurrence statute, such that the limitations period begins when the act or omission complained of occurs, not when the plaintiff first discovers an injury." Cruz v. Schoenhorn, 188 Conn.App. 208, 220, 204 A.3d 764 (2019). The limitations period may be tolled if a plaintiff can successfully invoke the continuous representation doctrine. See DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003).
"[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 action; 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." (Emphasis omitted; footnotes omitted.) Id. "[This] 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 ... or a court grants the attorney’s 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 ... Once such a step has been taken, representation may not be said to continue for purposes of the continuous representation doctrine." (Emphasis added; footnotes omitted.) Id., 597-98.
In the present case, the complaint states that successor counsel was hired on December 13, 2013, to replace the defendant. Pl. Rev. Comp. ¶29. Likewise, in the defendant’s motion for summary judgment it states that in January of 2014, successor counsel replaced the defendant when it filed an appearance in the underlying action; Def.’s Mem. Law Supp. Mot. Summ. J., p. 4; and therefore, the defendant asserts that its representation of the plaintiffs ceased in both a formal and de facto way.
Practice Book § 3-9(a) provides in relevant part: "An attorney or party whose appearance has been filed shall be deemed to have withdrawn such appearance upon the filing of a new appearance that is stated to be in place of the appearance on file ..." Here, the defendant provides a copy of successor counsel’s in lieu of appearance for the underlying action, to which, the plaintiff fails to provide contradictory evidence. As a result, pursuant to Practice Book § 3-9(a), the defendant’s appearance was deemed to have been withdrawn and the attorney-client relationship was formally terminated. See Manzo-Ill v. Schoonmaker, 188 Conn.App. 343, 360-61, 204 A.3d 1207, cert. denied, 331 Conn. 925, 207 A.3d 27 (2019) ("On March 11, 2010, successor counsel filed an in lieu of appearance on behalf of the plaintiff pursuant to Practice Book § 3-8. Pursuant to our rules of practice, the appearance of the defendant was deemed to have been withdrawn." [Footnote omitted.]). Next, by retaining successor counsel to replace the defendant in the underlying action, the plaintiffs took a step "that unequivocally indicate[d] that [they] ceased relying on [the defendant’s] professional judgment in protecting [their] legal interests"; DeLeo v. Nusbaum, supra, 263 Conn. 597; therefore, creating a de facto termination of the attorney-client relationship. See Cruz v. Schoenhorn, supra, 188 Conn.App. 226-27 (holding de facto termination existed when plaintiff filed appearance on his own behalf, showing he lost confidence in defendant and no longer sought defendant’s legal representation.). Consequently, there is no genuine issue of fact that the attorney-client relationship between the plaintiff and defendant ended on January 20, 2014, therefore beginning the three-year limitation period in which the plaintiff needed to bring the current action.
Without evidence to contradict a formal or de facto termination of the attorney-client relationship, the court does not need to analyze whether the plaintiff knew of the alleged malpractice or whether the defendant could still mitigate the harm allegedly caused by the malpractice during the continued representation. See DeLeo v. Nusbaum, supra, 263 Conn. 597.
Finally, in the defendant’s reply memorandum, it presents a detailed transaction file list which sets forth when work ceased on the plaintiffs’ case. Def.’s Ex. A, p. 6-7. The defendant also presented a sworn affidavit from its office manager, who clarified that the invoice sent to the plaintiffs was "issued automatically because prior invoices issued for legal work performed in 2013 ha[d] gone unpaid." Def.’s Ex. B. The plaintiffs failed to submit evidence demonstrating that the invoice was actually for work done in March of 2015 and also failed to submit evidence contradicting the arguments of the defendant. As a result, there is no genuine issue regarding the fact that the invoice was not for work done in March of 2015, but was a collection effort by the defendant for the plaintiffs’ unpaid bill. Therefore, the continuous representation doctrine does not apply, tolling of the statute of limitations is not warranted, and pursuant to General Statues § 52-577, the plaintiff had three years from January 20, 2014, in which to bring their legal malpractice action.
Accordingly, the defendant has met its burden of showing the absence of la genuine issue of material fact by providing evidence that the current action was commenced outside of the statutory limitation period. The burden then shifted to the plaintiffs to establish a disputed issue of material fact in avoidance of the statutory limitation. The plaintiffs failed to meet their burden.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment as to count one is granted.