Opinion
HHDCV166072772S
10-09-2018
David KACZMARCZYK v. Patricia AYARS et al.
UNPUBLISHED OPINION
OPINION
Dubay, J.
The present action arises from a dispute between the plaintiff, David Kaczmarczyk, and the defendants, Patricia Ayars, an attorney licensed to practice law in the state of Connecticut, and the law firm of Ayars & Associates, L.L.C. (law firm), regarding legal malpractice that Ayars allegedly committed in prosecuting three civil actions on the plaintiff’s behalf while working at the law firm. Currently before the court is the defendants’ motion for summary judgment. For the reasons set forth subsequently in this memorandum, the defendants’ summary judgment motion is denied.
Hereafter, Ayars and the law firm are referred to, collectively, as the defendants, and individually by name where appropriate.
FACTS
On November 9, 2016, the plaintiff filed a one-count complaint, which is the operative complaint, against the defendants. The sole count of the complaint sounds in legal malpractice on a theory of negligence.
It is important to note that, on December 22, 2016, the defendants filed a request to revise the plaintiff’s complaint, seeking, inter alia, to "separate out his complaint into three separate counts because the claims against the defendants do not grow out of a single occurrence or transaction." On January 18, 2017, the plaintiff filed an objection to this requested revision on the ground that his "complaint states a single cause of action- legal malpractice; thus, it is properly pleaded in a single count." In this regard, the plaintiff argued that "[a] single count is appropriate where there is a single occurrence or transaction or closely related occurrences or transactions ... Here that transaction or transactions include the defendants’ three failed attempts to obtain redress for the plaintiff’s ongoing and compounding damages." (Citation omitted; internal quotation marks omitted.) On January 30, 2017, the court, Scholl, J., sustained the plaintiff’s objection to the defendants’ requested revision.
In the complaint, the plaintiff alleges the following facts. The plaintiff lived in and owned a unit in Gateway Estates Condominiums (condominium), located in East Hartford. At some point prior to March 2003, water began to leak into the plaintiff’s unit, which caused damage to the interior of the unit, damage to the plaintiff’s personal property, and extensive mold proliferation within the unit. The condominium declined to remedy the leakage and compensate the plaintiff for his losses.
On approximately September 10, 2003, the plaintiff retained the defendants to represent him and pursue his claims stemming from the leakage. At all relevant times, Ayars was "employed and/or a principal" at the law firm and acted as the law firm’s "agent, servant or employee." During their "continuous representation" of the plaintiff, the defendants filed three civil actions on his behalf: (1) Kaczmarczyk v. Gateway Estates Assn., Inc., Superior Court, judicial district of Hartford, Docket No. CV-04-0835002-S (Kaczmarczyk I ), (2) Kaczmarczyk v. Gateway Estates Assn., Inc., Superior Court, judicial district of Hartford, Docket No. CV-05-4017253-S (Kaczmarczyk II ), and (3) Kaczmarczyk v. Ellington 233, LLC, Superior Court, judicial district of Hartford, Docket No. CV-09-5034486-S (Kaczmarczyk III ).
The defendants filed Kaczmarczyk I on approximately June 15, 2004. In February 2005, the court dismissed Kaczmarczyk I because Ayars failed to attend a court-scheduled pretrial conference. The defendants did not file a motion to set aside the February 2005 judgment of dismissal. Rather than doing so, the defendants filed Kaczmarczyk II on approximately October 4, 2005. In early June 2007, the court dismissed Kaczmarczyk II for the defendants’ failure to prosecute the action with reasonable diligence. Although the defendants subsequently filed, inter alia, a motion to open the June 2007 judgment of dismissal, they filed this motion in the wrong action and, consequently, the court did not consider it.
On approximately December 3, 2009, the defendants filed Kaczmarczyk III. The court thereafter rendered a judgment of nonsuit against the plaintiff on December 23, 2013, because, in late October 2013, Ayars failed to attend an on-site inspection of the plaintiff’s unit. Subsequently, by letter dated January 4, 2014, Ayars informed the plaintiff of the December 2013 judgment of nonsuit and that she would no longer represent him. The defendants’ "continuous representation" of the plaintiff ended that same day.
In the complaint, the plaintiff further alleges that the defendants owed him a duty to represent him with the care and skill that is customarily possessed and exercised by reasonably prudent attorneys practicing in the state of Connecticut. Specifically, the plaintiff alleges that Ayars, while acting on the law firm’s behalf, breached this duty in several different ways. Each instance of professional negligence relates to events that occurred in Kaczmarczyk I, Kaczmarczyk II, or Kaczmarczyk III . The plaintiff also alleges that, as a direct and proximate result of the defendants’ breach of duty, he sustained injuries and other losses. Finally, in his prayer for relief, the plaintiff seeks, inter alia, money damages.
On March 8, 2017, the defendants filed an answer and four special defenses to the plaintiff’s complaint. In their first special defense, the defendants pleaded that the plaintiff’s legal malpractice claims are time barred by the statute of limitations set forth in General Statutes § 52-577. Additionally, in their second special defense, the defendants pleaded that the plaintiff’s "third lawsuit filed in 2009" is time barred by the statute of limitations set forth in General Statutes § 52-584.
General Statutes § 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."
General Statutes § 52-584 provides in relevant part: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ..."
On March 20, 2018, the defendants filed the present motion for summary judgment. A memorandum of law accompanies the motion. In support of the summary judgment motion, the defendants submit several exhibits as documentary evidence.
On May 23, 2018, the plaintiff filed a memorandum of law in opposition to the defendants’ motion for summary judgment. In support of his summary judgment motion, the plaintiff submits his own affidavit, the affidavit of John Scully, the plaintiff’s counsel, and several exhibits. On June 13, 2018, the defendants filed a reply to the plaintiff’s opposing memorandum of law. Oral argument was heard at short calendar on June 25, 2018.
DISCUSSION
The legal standard governing summary judgment motions is well settled. 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." Practice Book § 17-49. "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). "The facts at issue [in the context of summary judgment] are those alleged in the pleadings." (Internal quotation marks omitted.) Russell v. Mitchell Properties, Inc., 148 Conn.App. 635, 638, 87 A.3d 591, cert. denied, 314 Conn. 912, 100 A.3d 404 (2014).
Turning to the present case, the defendants essentially advance two claims in support of their motion for summary judgment. The defendants first claim that their summary judgment motion may properly be granted as to the "individual claims" of legal malpractice alleged in the plaintiff’s one-count complaint. In this regard, the defendants argue that "it is appropriate to sever the plaintiff’s claims as to Ayars’ breaches of the standard of care in connection with her representation of the plaintiff in Kaczmarczyk I, Kaczmarczyk II and Kaczmarczyk III ." The defendants’ second claim is, in essence, twofold. First, the defendants argue that the plaintiff’s legal malpractice claims regarding Kaczmarczyk I and Kaczmarczyk II are time barred by the statute of limitations set forth in § 52-577. Next, the defendants argue that the plaintiff’s claims with respect to Kaczmarczyk III are time barred and, therefore, the plaintiff cannot prove causation.
The court’s analysis in the present case begins and ends with the defendants’ first claim, as the defendants are essentially seeking summary judgment on the allegations of the complaint relating to Kaczmarczyk I and Kaczmarczyk II, along with the allegations pertaining to Kaczmarczyk III. "In Connecticut, [t]here is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue." (Internal quotation marks omitted.) Glidepath, LLC v. Lawrence Brunoli, Inc., Superior Court, judicial district of Hartford, Docket No. CV-10-6014624-S (December 21, 2012, Peck, J.). "The division results from two different interpretations of [Practice Book] § 17-51 ..." Salatto v. Hospital of St. Raphael, Superior Court, judicial district of New Haven, Docket No. CV-09-5032170-S (October 6, 2010, Robinson, J.) (50 Conn.L.Rptr. 729, 731). Section 17-51 provides: "If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim."
"On one hand, some [trial] courts have granted partial summary judgment as to certain specifications of a cause of action contained within a single count, if it appears illogical to retain those specifications when they cannot ultimately succeed ... Other [trial] courts have stated, [s]ummary judgment is unavailable as to particular allegations in a count when such an adjudication does not dispose of an entire cause of action ..." (Citations omitted; emphasis added; internal quotation marks omitted.) Wahba v. J & J Blasting Corp., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6020764-S (November 4, 2014, Tobin, J.T.R.) (59 Conn.L.Rptr. 267, 269). As our Supreme Court has explained, "[a] cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different cause of action is stated ... If, however, the plaintiff’s claims for relief grow out of a single occurrence or transaction or closely related occurrences or transactions they may be set forth in a single count and it does not matter that the claims for relief do not have the same legal basis." (Citations omitted; internal quotation marks omitted.) Burgess v. Vanguard Ins. Co., 192 Conn. 124, 125-26, 470 A.2d 244 (1984).
For instance, in Wahba, a defendant filed a motion for partial summary judgment with respect to some- but not all- of the allegations contained in two counts, each of which sounded in negligence and strict liability, respectively. Wahba v. J & J Blasting Corp., supra, 59 Conn.L.Rptr. 267. The defendant sought partial summary judgment on these allegations because they in part predicated the negligence and strict liability causes of action on work that the defendant allegedly performed prior to December 2010, and, to this extent, the causes of action were barred by the statutes of limitation set forth in § 52-577 and § 52-584. Id. The court, Hon. David R. Tobin, judge trial referee, denied the defendant’s partial summary judgment motion. Id., 269. In so doing, the court first relied on Snodgrass v. Mulhearn, Superior Court, judicial district of New Britain, Docker No. CV-03-0523029-S (May 18, 2006, Shaban, J.), to draw a distinction between "a case in which a court was asked to remove a cause of action which was improperly joined with another cause of action within the same count from an attempt to surgically remove actual allegations ... rather than the cause of action ..." (Emphasis added; internal quotation marks omitted.) Id. The court noted that "the latter is unequivocally impermissible." Id. Finally, the court "[agreed] with the majority of Superior Courts which have considered the issue and [found] that a motion for partial summary judgment, which does not dispose of all causes of action alleged in a single count, is not acceptable under our rules of practice." Id.
In the present case, as in Wahba, the defendants’ summary judgment motion is procedurally improper. Here, the plaintiff has a unitary cause of action that consists of the closely related events that allegedly occurred during Kaczmarczyk I, Kaczmarczyk II, and Kaczmarczyk III, and which was properly pleaded in a single count. See footnote 2 of this memorandum. The court cannot grant summary judgment as to the allegations pertaining to Kaczmarczyk I and Kaczmarczyk II on the basis of § 52-577 because it would not dispose of the plaintiff’s cause of action in its entirety (i.e., the judgment sought would not account for Kaczmarczyk III ). For the same reason, the court cannot grant summary judgment as to Kaczmarczyk III on timeliness grounds (i.e., the judgment sought would not account for Kaczmarczyk I and Kaczmarczyk II ). In each scenario, rather than attempting to remove an entire cause of action that the plaintiff improperly joined with another cause of action in the sole count of his complaint, the defendants are attempting to surgically excise factual allegations from the single cause of action alleged in the plaintiff’s complaint. This is impermissible under our rules of practice.
CONCLUSION
For the reasons set forth previously in this memorandum, the defendants’ summary judgment motion is denied.