Opinion
FBTCV166054125S
05-17-2017
Mary Elizabeth Cummings, Co-Executor of the Estate of Janette M. Cummings v. Barbara W. Reynolds et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Defendants Barbara W. Reynolds and Barbara W. Reynolds, LLS (" Reynolds") have moved for summary judgment to dismiss the claims of plaintiffs, Mary Elizabeth Cummings and Joseph Killian, individually and as co-executors of the estate of Janette M. Cummings (" Decedent"), on the ground that they are barred by the applicable statutes of limitations. For the reasons stated below, the motion for summary judgment is granted.
The Standards for Deciding a Motion for Summary Judgment
" The standards . . . [for] review of a . . . motion for summary judgment are well established. 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case . . ." DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 115-16, 49 A.3d 951 (2012), quoting H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-60, 783 A.2d 993 (2001) (citations omitted).
The Legal Malpractice Claims are Barred Under C.G.S. § 52-577
The First, Second and Third Counts of the Amended Complaint sound in legal malpractice. Plaintiffs allege that Reynolds, an attorney, was engaged by plaintiffs and the Decedent to prepare a deed to transfer Decedent's house to plaintiffs " pursuant to Title 19, so that the real property would be protected from reimbursement to the State as legally available." On September 16, 2002, the Decedent executed two quitclaim deeds prepared by Reynolds that plaintiffs thought would transfer Decedent's house and a vacant lot to Mr. Killian and Ms. Cummings. The deeds were duly recorded. Decedent died on May 28, 2013. In February 2014, when they were selling the house, plaintiffs discovered that the deed failed to describe the house and it still belonged to Decedent on the date of her death. As a result, plaintiffs as executors were required to pay $96, 993.77 to the Department of Administrative Services as reimbursement for remuneration provided to Decedent under Title 19.
Legal malpractice claims are governed by the three-year statute of limitations for torts in C.G.S. § 52-577: " [n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." See Sanborn v. Greenwald, 39 Conn.App. 289, 301, 664 A.2d 803 (1995). Section 52-577 is a statute of repose that starts on the date the action or omission occurs and may bar an action even though no claim has accrued and plaintiff has not even discovered that he or she has sustained actionable harm. Id. at 301-06. Accord, Flannery v. Singer Asset Finance Company, LLC, 312 Conn. 286, 311, 94 A.3d 553 (2014) (" with [occurrence] . . . statutes, the limitations periods typically begins to run as of the date the complained of conduct occurs, and not the date when the plaintiff first discovers his injury"). " Section 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs . . . When conducting an analysis under § 52-577, 'the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed.' . . . The three year limitation period of § 52-577 begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." Collum v. Chapin, 40 Conn.App. 449, 451, 671 A.2d 1329 (1996) (citations omitted). " Ignorance of his rights on the part of the person against whom the statute has begun to run, will not suspend its operation." Weyher v. Cohen, 2016 WL 1397422 *9 (Conn.Super. 2016) (Lee, J.), quoting Piteo v. Gottier, 112 Conn.App. 441, 446, 963 A.2d 83 (2009).
Plaintiff argues that the statute of limitations should be tolled under C.G.S. § 52-584 because " the actionable harm was not reasonably discoverable . . ." It is well-settled that " [a]ctions for legal malpractice based on negligence are subject to § 52-577, the tort statute of limitations." Sanborn, 39 Conn.App. at 301. As an occurrence statute, the limitation period " typically begins to run as of the date the complained of conduct occurs, and not the date when the plaintiff first discovers his injury." Flannery, 312 Conn. at 311. The " actionable harm" concept in the personal injury statute of limitations is based on express language in C.G.S. § 52-584, not included in C.G.S. § 52-577. See Tarnowsky v. Socci, 271 Conn. 284, 287-88, 856 A.2d 408 (2014).
" 'Ignorance of his rights on the part of the person against whom the statute has begun to run, will not suspend its operation. He may discover his injury too late to take advantage of the appropriate remedy. Such is one of the occasional hardships necessarily incident to a law arbitrarily making legal remedies contingent on mere lapse of time.' Bank of Hartford County v. Waterman, 26 Conn. 324, 330 (1857)." Piteo, 112 Conn.App. at 446.
In Flannery, 312 Conn. at 308-09, the Supreme Court discussed the shifting burden of proof on a summary judgment motion based on a statute of limitations:
Summary judgment may be granted where the claim[s] [are] 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 . . .
[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 . . . (Citations omitted.)
Defendants argue the act complained of, the drafting of the deed, was completed on September 16, 2002, when it was executed by Decedent. This action was commenced on December 9, 2015, thirteen years and three months later. Plaintiff seeks to avoid summary judgment by invoking the continuous course of conduct doctrine that tolls the statute of limitation under certain circumstances described by the Supreme Court in Flannery, 312 Conn. at 311-13:
In certain circumstances, however, we have recognized the applicability of the continuing course of conduct doctrine to toll a statute of limitations. Tolling does not enlarge the period in which to sue that is imposed by a statute of limitations, but it operates to suspend or interrupt its running while certain activity takes place . . . Consistent with that notion, " [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." . . .
The test for determining whether the continuing course of conduct doctrine should apply has developed primarily in negligence cases. " For instance, we have recognized the continuing course of conduct doctrine in claims of medical malpractice . . . In doing so, we noted that [t]he continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied . . . The continuing course of conduct doctrine has also been applied to other claims of professional negligence in this state . . ."
In these negligence actions, this court has held that in order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . .
Therefore, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff . . .
" A second requirement for the operation of the continuing course of conduct doctrine is that there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . This court has held this requirement to be satisfied when there was wrongful conduct of a defendant related to the prior act." . . . Such later " wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . ."
In sum, " [i]n deciding whether the trial court properly granted the defendant's motion for summary judgment, we must determine if there is a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." (Citations omitted; emphasis added.)
Plaintiffs point to two meetings with Reynolds in October 2009 and February 2011, and the fact that Decedent's Last Will and Testament remained in Reynold's safe keeping until its retrieval after her death, as proof that plaintiffs continued to have a special relationship with Reynolds as their estate planning attorney. Plaintiffs argue that in October 2009 and again in February 2011, when the parties met concerning Decedent's estate planning, Reynolds asserted that the Decedent's house had already been transferred to plaintiffs. Plaintiffs amended an interrogatory response that had stated their attorney-client relationship terminated in 2011 and stated in an affidavit by Mr. Killian that he called Reynolds in February 2014, after the " failed closing" and they had learned the house had not been transferred in 2002: " [i]t was at this point in time that I believed the Defendants' representation of myself, my sister, and my mother's estate terminated." However, there is no evidence that Reynolds acted as plaintiffs' attorney after February 2011, in particular, there is no evidence that Reynolds represented plaintiffs at the 2014 closing or in connection with Decedent's estate. Thus, the only evidence of the continuation of any professional relationship by plaintiffs with Reynolds after the 2002 deed indicated that her representation ended in 2011. Merely acting as the keeper of Decedent's' Will would not suffice to establish continuance of the type of special relationship that would toll the statute of limitations. If limitations periods were tolled merely because original wills and trust documents are being safeguarded in law firm vaults and safes throughout the state that would effectively end the application of statutes of limitations for Connecticut trust and estate attorneys on claims related to estate planning. Compare, Flannery, 312 Conn. at 308 (after termination of attorney-client relationship duty to disclose prior conflict " no longer existed . . . ongoing nondisclosure was not a continuing breach of such duty that could toll the statute of limitations indefinitely"). Neither the statutory language nor case law support such a broad exception to the policies of " finality, repose and avoidance of stale claims and stale evidence" underlying statutes of limitation. Flannery, 312 Conn. at 322.
The evidence suggests that Reynolds was Decedent's attorney in connection with her estate planning; there is no evidence she represented the other plaintiffs except that Mr. Killian avers in his affidavit that all three plaintiffs retained Reynolds in 2002 for legal advice and guidance concerning the transfer of Decedent's real property pursuant to Title 19. The Killian affidavit indicates the 2009 and 2011 meetings with Reynolds were to " address issues related to the Decedent's estate" and later stated Reynolds " was our attorney" who would have been consulted if plaintiffs " required any additional planning for my late mother's estate, " which suggests Reynolds was Decedent's attorney, and did not represent the other plaintiffs. That they may have been beneficiaries of the estate would not make them Reynolds' clients. For purposes of this motion, however, the Court assumes all three plaintiffs were Reynolds' clients.
Moreover, the negligence complained of occurred and was complete when the deed was executed on September 16, 2002. The complaint alleged that defendants were negligent in " [f]ailing to transfer the house to the Plaintiffs" in 2002, 2009 and 2011. The evidence submitted indicates that the negligence claim is based on the deed that failed to convey Decedent's house prepared in 2002. There are no allegations of conveyances in 2009 and 2011; the only evidence of her representation of plaintiff's post-deed is that in 2009 and 2011 Reynolds twice affirmed that the house had been conveyed by the 2002 deed. Although the Killian affidavit states ambiguously the 2009 and 2011 meetings were " to address issues related to the Decedent's estate planning" when Reynolds " confirmed the Property had already been transferred . . ." there are no facts alleged from which the Court could infer that the advice and services rendered on those occasions related to the conveyance in 2002; indeed, the opposite inference is justified, that all parties assumed that transfer had already been made and were focused on other aspects of Decedent's estate plan.
Nor is it alleged that the representations allegedly made in 2009 and 2011 were intentionally false or negligently made by Reynolds. Compare, Sanborn, 39 Conn.App. at 297 (" defendant here had no duty to notify the plaintiff of the alleged mistake in the stipulation in the absence of proof that he subsequently learned that his drafting was negligent"). Missing is any allegation or evidence that Reynolds was aware that the house had not been conveyed by the 2002 deed. Without knowledge of the earlier drafting error in the deed for the 2002 transfer of the house, Reynolds' mistaken statements in 2009 and 2011 would not be " wrongful conduct of a defendant related to the prior act." Flannery, 312 Conn. at 312, quoting Watts v. Chittenden, 301 Conn. 575, 583-85, 22 A.3d 1214 (2011).
As the Supreme Court observed in Flannery, 312 Conn. at 321-22, to toll the statute of limitations absent a continuing special relationship or subsequent wrongful acts related to the prior negligence, tolling based merely on non-disclosure of earlier tortious acts " would render the three year statutes of limitation meaningless."
Even if one were to assume that the statements in 2009 and 2011 constituted " wrongful" related acts, the botched transaction was completed in 2002; the 2009 statement was made seven years later; the 2011 statement was made nine years after the original deed was executed. Both statements were made more than three years before this action was commenced in 2015. In Flannery the Supreme Court followed its prior decision in Watts, 301 Conn. at 595-98, which held claims " would be disallowed, as with any continuing tort, when the instances of wrongdoing comprising the course of conduct are separated by a gap that exceeds the length of the applicable statute of limitations. In such cases, although the course of conduct postdating such a gap may remain actionable (so long as the action is timely commenced from the last instance of misconduct), recovery is barred for the instances of misconduct predating the gap." 312 Conn. at 315. " In other words, in a tort action, following an initial wrong, the subsequent activity triggering tolling itself must occur before the three-year statute of limitation has run, to effectively toll it." Flannery, 312 Conn. at 315-16 (citation and internal quotation omitted). Here, there are gaps greater than three years between the original deed in 2002 and the subsequent acts in 2009 and 2011; the action was commenced in 2015 more than three years after the last attorney-client interaction between the parties in 2011.
One difference between this case and Flannery is that here, if there had been disclosure of the error in the 2002 deed, the title issue could have been rectified by having Decedent execute a replacement deed prior to Decedent's death in 2013. In Targonski v. Clebowicz, 142 Conn.App. 97, 110-11, 63 A.3d 1001 (2013), the Appellate Court held the conveyancing attorney had an ongoing duty to notify his former clients of his failure to secure a right-of-way in connection with the land purchase, where, subsequent to closing, sellers' attorney repeatedly contacted defendant offering to execute an easement agreement. The Targonski Court, 142 Conn.App. at 109-10, distinguished Sanborn as a case where the drafting attorney did not know about the error and it could not be remedied:
In Sanborn, 39 Conn.App. at 297-98, the Appellate Court stated: " [t]here is no tolling of statutes of limitations in either tort or contract actions for the failure of an attorney to tell a client that a document drafted by the attorney could be inaccurate because, once the representation of the client is complete and the document executed, any warning would be ineffective . . . The doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete, such as medical malpractice, rather than one where the situation cannot change, such as legal malpractice arising from negligent drafting of the written word." That would not appear to be the case here during Decedent's lifetime because a corrected deed would have resolved the title issue had anyone known about the drafting error. This would not necessarily resolve the Title 19 reimbursement problem for remuneration during the period prior to such corrected conveyance.
As general matter, once the attorney-client relationship ends, the prior representation does not give rise to any continuing duty . . . Thus, in Sanborn, this court held that " [t]here is no tolling of statutes of limitations in either tort or contract actions for the failure of an attorney to tell a client that a document drafted by the attorney could be inaccurate because, once the representation of the client is complete and the document executed, any warning would be ineffective." . . . In that case, however, this court, in deciding not to apply the continuing course of conduct doctrine, explained that no duty existed between an attorney and a client after the attorney negligently drafted a document because the client did not offer evidence that (1) the attorney subsequently learned that his drafting was negligent; (2) the attorney was capable of remedying any problems associated with the negligent drafting; and (3) any warning from the defendant to the plaintiff would be effective . . . The clear implication of this holding is that even after an attorney's representation of a client ends, he owes a duty to his client, which relates back to his original wrong of rendering negligent services to the client, to correct the results of such prior negligence if he later learns of the negligence at a time when he has the power to remedy the problems arising from it. See Haas v. Haas, 137 Conn.App. 424, 433, 48 A.3d 713 (2012) ('continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct' . . .). By force of simple logic, this duty continues until such time as he takes action to cure his prior negligence or the opportunity to cure such prior negligence ceases to exist.
The Court in Targonoski held that " [t]he defendant's failure to inform the plaintiffs of the defects in their deeds or of their opportunity to cure them . . . constituted later wrongful conduct in violation of a continuing duty related to the defendant's original breach." 142 Conn.App. at 111. That action was commenced within three years of the attorney's receipt of letters and faxes relating to the missing easement. Here, by contrast, there is no evidence that Reynolds knew about the drafting error in the 2002 deed in time to do anything about the situation before expiration of the limitations period. By the time Mr. Killian called Reynolds and informed her about the drafting error in February 2014, it was too late.
Plaintiffs cite Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.App. 151, 164-66, 795 A.2d 572 (2002), as authority for tolling the statutes of limitation under the continuous representation doctrine. " For the continuous representation doctrine to apply to a legal malpractice action and to operate to toll the statute of limitations, the client must show that (1) the attorney continued to represent him, and (2) the representation related to the same transaction or subject matter as the allegedly negligent acts. S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., supra, 32 Conn.App. [786] at 791, 631 A.2d 340 [(1983)]." Id. at 166. This doctrine is analogous to the continuous conduct doctrine based on proof of a continuing special relationship between the parties that gives rise to a continuing duty that would toll limitations in the appropriate case. Arguably, the same elements should apply, which would require proof of a continuing violation of duty. See Flannery, 312 Conn. at 312-13. There is no evidence of continued representation of plaintiffs by Reynolds after February 2011, almost four years before this action was commenced, so the limitations period was not tolled before it expired. Moreover, subsequent estate planning would not qualify as " the same transaction or subject matter" as the drafting of the 2002 deed for the reasons stated above. Simply referring to past conduct alone would not extend or revive an expired limitations period.
Unfortunately, expiration of the applicable statute of limitation forecloses even a meritorious claim, Targonski, 142 Conn.App. at 106, and may protect even a defendant who is alleged to have engaged in " reprehensible" conduct. Flannery, 312 Conn. at 323.
Because the three-year statute of limitations in C.G.S. § 52-577 expired before plaintiffs commenced this action, the summary judgment motion to dismiss the legal malpractice claims in the First, Second and Third Counts must be granted.
The Fourth, Fifth and Sixth Counts Are Barred By the Applicable Statute of Limitation
In the Fourth, Fifth and Sixth Counts plaintiffs allege breach of a retainer agreement. In his affidavit Mr. Killian states that Reynolds was retained by all three plaintiffs in 2002 " to provide legal advice and guidance concerning the transfer of the Decedent's real property to Ms. Cummings and Mr. Killian pursuant to Title 19, so that the real property would be protected from reimbursement to the State as legally available."
No evidence has been provided that there was a written retainer agreement and the parties have proceeded as if it were an oral agreement.
Defendant argues that any breach of contract occurred on September 12, 2002, when the deed was executed, and thus is barred by the three-year limitations for oral contracts in C.G.S. § 52-581, which provides: " (a) No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues."
It is well-settled that " when a client instructs an attorney to perform certain tasks or to perform in a specified manner, '[t]he undertaking then becomes contractual in nature . . .'" Meyers v. Livingston, Adler, Pulda and Kelly, P.C., 311 Conn. 282, 87 A.3d 534 (2014). Construed favorably for plaintiffs, the allegation that Reynolds was retained to prepare a deed to convey the Decedent's house to Killian and Cummings was specific enough to constitute a contract assented to by Reynolds. Id. 292, 297. See also Stowe v. Smith, 184 Conn. 194, 199, 441 A.2d 81 (1981). The allegations relating to the meetings in 2009 and 2011 do not constitute separate breaches of contract by Reynolds, but rather are merely representations about past conduct that do not themselves violate any specific instructions or agreements with her clients.
This is a close call because Reynolds did prepare a deed that was executed by Decedent but due to scrivener's error it did not convey the house, which sounds in legal malpractice. On the other hand, Mr. Killian's affidavit avers the parties contracted to achieve a specific result: to convey Decedent's interest in the house out of her ownership to Mr. Killian and Ms. Cummings under Title 19. See Meyers, 311 Conn. at 294 (breach of contract claim when attorney failed to perform task called for under contract).
" With respect to the governing legal principles, it is well established that claims may be brought against attorneys sounding in contract or in tort, and that '[s]ome complaints state a cause of action in both contract and tort.'" Meyers, 311 Conn. at 290 (citation omitted). The deficient performance of a contract sounds in tort. Id. at 294. " 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 . . ." Id. at 291.
" The elements of a breach of contract claim are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages . . . In other words, '[a]n action in contract is for the breach of a duty arising out of a contract . . . [whereas] an action in tort is for a breach of duty imposed by law.'" Meyers, 311 Conn. at 291.
The question remains what statute of limitations to apply to the contract claims. Plaintiffs did not assert that the six-year statute in C.G.S. § 52-576 applies, but instead they ignored defendants' argument that C.G.S. § 52-581 applied to the contract claims and argued for tolling under the continuous conduct or continuous representation doctrines or that the limitations period should be measured from discovery by analogy to C.G.S. § 52-584, which would not toll any limitations period in this case for the reasons stated above.
In Fishbein v. Ressler, 2015 WL 897551 *4-5 (Conn.Super. 2015) (Nazzaro, J.), Judge Nazzaro denied a motion for summary judgment concluding defendant had not borne his burden to establish that plaintiff's contract fell outside the statute of limitations because he failed to " provide evidence for the court to determine which statute of limitations applies." Both parties here appear to assume that the three-year statute in C.G.S. § 52-581 applies because there is no written contract alleged to have been entered into by the parties. Defendants denied plaintiffs' allegation that they had retained Reynolds. Defendants did not submit an affidavit in support of the summary judgment motion. If the Court were just to consider defendants' submissions the Court would follow Judge Nazarro's lead and deny the motion for summary judgment on the contract counts. However, Mr. Killian's affidavit provides sufficient evidence for the Court to conclude that the retainer agreement was fully executed by Reynolds in 2002, and culminated in the execution of the deed that purported to convey Decedent's house to Mr. Killian and Ms. Cummings on September 16, 2002. As a fully executed contract, the longer six-year limitations period under C.G.S. § 52-576 would apply whether or not there was a written contract. See Bagoly v. Riccio, 102 Conn.App. 792, 799, 927 A.2d 950 (2007). The longer statute of limitations is not much comfort to plaintiffs because it expired on September 16, 2008, approximately a year before the parties met in 2009, and over seven years before this action was commenced on December 18, 2015. For the reasons stated above, the limitations period was not tolled. The motion for summary judgment on the Fourth, Fifth and Sixth Counts is granted.
" This court has addressed the distinction between § § 52-581 and 52-576. 'These two statutes, each establishing a different period of limitation, can both be interpreted to apply to actions on oral contracts. Our Supreme Court has distinguished the statutes, however, by construing § 52-581, the three-year statute of limitations, as applying only to executory contracts . . . A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations . . . It is well established, therefore, that the issue of whether a contract is oral is not dispositive of which statute applies. Thus, the . . . argument that § 52-581 automatically applies to the oral contract between the parties is incorrect. The determinative question is whether the contract was executed.'" Bagoly, 102 Conn.App. at 799 (citations omitted).
It would be a waste of judicial resources and tax the parties unduly if the Court were to deny the motion simply because defendants incorrectly pled C.G.S. § 52-581 as the applicable statute rather than C.G.S. § 52-576. In retrospect, the better course would have been to plead both statutes of limitation alternatively. The result would be the same in this case under either statute.