Opinion
No. CV 04-4001596
November 3, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #126
This action arises out of the plaintiff's purchase of a cafe on May 17, 2001, and its eventual loss thereof in May 2002, due to a failure of the business. The plaintiff, KGM Corporation, commenced the action against five defendants on July 14, 2004. Two of the defendants, Mart-Mel, Inc., and Mel Horowitz, move for summary judgment on count thirteen of the plaintiff's amended complaint on the ground that the negligent and fraudulent misrepresentation claims alleged therein are barred by the statute of limitations in General Statues § 52-577. KGM Corporation counters that Kenneth D. Peterson, its president and director, and Horowitz, the former owner of the cafe, had a special relationship that tolled that statute of limitations under the continuing course of conduct doctrine.
Count thirteen is the only count in which the plaintiff alleges a claim against these defendants.
General Statues § 52-577 provides that: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
"To 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." (Internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 275, 640 A.2d 74 (1994).
[T]he application of the continuing course of conduct doctrine [is] conspicuously fact-bound." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 210 746 A.2d 730 (2000). Nevertheless, " before the doctrine can be applied, a duty must be first found to have existed. The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 526, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001).
"The so-called special relationship . . . is a separate reason to find tolling under the doctrine apart from `later wrongful conduct.' Connecticut Appellate Courts do not appear to have had occasion to define what is exactly meant by a special relationship and the full implications of finding that the limitations statute should be tolled when such a relationship is in fact found." Bobbin v. Sail the Sounds, LLC, Superior Court, judicial district of New London, Docket No. CV 02 0563884 (September 12, 2003, Corradino, J.) ( 35 Conn. L. Rptr. 473, 474). "[T]he relationship must be something out of the ordinary and of such a level to defeat the very sound and entrenched policies behind the statute of limitations." Grey v. Stamford Health Systems, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0182783 (June 6, 2005, Dooley, J.) ( 39 Conn. L. Rptr. 603, 607).
A review of appellate and trial level cases discussing the doctrine as a whole or other parts thereof provides some guidance on the matter. In Partitions, Inc. v. Blumberg Associates, Inc., Superior Court, judicial district of Hartford, Docket No. CV 98 0576664 (October 9, 2001, Beach, J.), the court noted that in general, the courts have determined that the following types of special relationship are sufficient to toll the statute of limitations under the continuing course of conduct doctrine "attorney-client, physician-patient or some related sort of fiduciary type relationship in which one party reasonably reposes trust in the other to exercise continuing care on his (her) behalf." Evidence that a special relationship exists is not, in and of itself, sufficient to invoke the doctrine. Our Supreme Court has indicated that in order to use the doctrine, under the later wrongful conduct prong, a plaintiff must establish that the defendants: "(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." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 370, 746 A.2d 753 (2000). In general, the second and third elements are the ones in dispute.
In the context of medical malpractice claims, a plaintiff can satisfy the requirement of showing a doctor owed a continuing duty to the plaintiff that was related to the initial treatment by either of two methods. By establishing that: (1) the doctor continued to treat the plaintiff for the same or a related condition; or (2) the doctor was aware of the risks of the initial treatment at the time the doctor last treated the plaintiff. See Witt v. St. Vincent's Medical Center, supra, 252 Conn. 372. In the latter context it is the doctor's awareness, that "[gives] rise to the defendant's continuing duty to warn . . ." Id. The third element is satisfied by showing that the defendant continually breached his or her duty by failing to warn the plaintiff of the risks of the treatment. Id., 373.
Similarly, in the context of legal malpractice claims, a plaintiff can establish that an attorney owed a continuing duty to the plaintiff that was related to the attorney's initial wrongful act by one of three ways. By establishing that: (1) the attorney continued to represent the plaintiff in the same or in a related matter; see Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, LLC, 69 Conn.App. 151, 161, 795 A.2d 572 (2002); (2) the attorney initiated contact with the plaintiff thereafter and promised to do something in the future that was related to the initial matter; or (3) the attorney was aware that his or her initial conduct was negligent. Sanborn v. Greenwald, 39 Conn.App. 289, 297, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).
In the alternative, in a legal malpractice action "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." (Emphasis in original.) DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003).
Other fiduciary types of relationship can also support the continuing course of conduct doctrine. If such a relationship exists, "the statute of limitations does not run so long as either the trust or the fiduciary relationship exists." McDonald v. Hartford Trust Co., 104 Conn. 169, 189, 132 A. 902 (1926). In the context of discussing a claim of breach of fiduciary duty, the Supreme Court has observed that "[i]t is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . we have recognized that not all business relationships implicate the duty of a fiduciary . . . In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary.
"In the seminal cases in which this court has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another." (Citations omitted; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2002). On the other hand, "[i]n the cases in which this court has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence." Id., 39. Furthermore, "[t]he law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other." (Internal quotation marks omitted.) Id., 41.
The Supreme Court has also observed 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." Blanchette v. Barrett, supra, 229 Conn. 276. "The court seems to say that it is fair to have the `continuous course of conduct rule' operate where there is a fiduciary relationship or relationship between two parties so that one of the parties has an ongoing responsibility to right any wrongs he or she may have done or bring them to the injured party's attention — the latter party relying on the relationship of trust might very well not be as attentive to protecting his or her interests, thus the rigor of the limitations statutes should be relaxed." Lestrange v. Kontout, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 94 0046929 (November 4, 1997, Corradino, J.) ( 21 Conn. L. Rptr. 11, 12).
A plaintiff who establishes that a fiduciary relationship exists must still provide evidence that the defendant breached "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." Fichera v. Mine Hill Corp., 207 Conn. 204, 209, 541 A.2d 472 (1988). In discussing this issue the Supreme Court has noted that, "[w]here 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. See Giglio v. Connecticut Power Light Co., [ 180 Conn. 230, 242, 429 A.2d 486 (1986)] ('repeated instructions and advice given to the plaintiff by the defendant' concerning a furnace it had previously converted and left in a defective condition); Giambozi v. Peters, 127 Conn. 380, 385, 16 A.2d 833 (1940) ('[w]hen . . . injurious consequences arise from a course of treatment [by a physician], the statute does not begin to run until the treatment is terminated'); cf. Handler v. Remington Arms Co., [ 144 Conn. 316, 321, 130 A.2d 793 (1957)] (duty to warn of danger of defective cartridge, `an inherently dangerous article,' held to continue in existence until time of injury)." Fichera v. Mine Hill Corp., supra, 207 Conn. 210. In Sipples v. Lewis, Superior Court, judicial district of New London, Docket No. CV 0557403 (July 9, 2002, Corradino, J.) ( 32 Conn. L. Rptr. 486, 487), the court noted that " Fichera seems to set up the following universe for the operation of the continuing duty doctrine (1) where the alleged wrongdoer by ongoing contact maintains a continuing relationship with a customer concerning a certain product or job ( Giglio) (2) where there is a professional relationship which by its nature requires that there is a continuing duty; and (3) the Handler situation where an inherently dangerous product will in the future create danger for a user and the law therefore creates a continuing duty operative to the time of injury so such activity can be controlled more effectively by the operation of tort liability."
In contrast, as the Supreme Court explained, "[i]n Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 13, 459 A.2d 115 (1983), we held that the alleged negligence of a contractor in failing to safeguard a dangerous hole left on the job site after it had completed its work `would not in itself establish that it had a continuing duty to warn of the danger or to safeguard the hole.' We affirmed the summary judgment granted by the trial court in that case because the plaintiff had presented no facts, by affidavit or otherwise, that would reasonably have supported an inference that the duty to protect against the hazard left upon the premises extended for any substantial period beyond the time of the contractor's departure from the site. Similarly, in Prokolkin v. General Motors Corp., 170 Conn. 289, 301, 365 A.2d 1180 (1976), we held that the concept of a continuing `duty to warn' of a defect as a basis for a claim of negligence that would toll the statute of limitations was inapplicable to a products liability action claiming strict liability for the sale of a defective product, where the statute runs from the date of sale, `the act or omission complained of.'" Fichera v. Mine Hill Corp., supra, 207 Conn. 209.
In addition, in several cases courts have decided that a special relationship does not generally exist when the relationship between the parties consists of a contract for a single service or purchase, or for the sale of a product or goods. In Harte Nissan, Inc. v. Market Scan Information Systems, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 99 0268959 (January 17, 2003, Fischer, J.), the court noted that "the act of entering into an agreement for the purchase of computer equipment and software does not, by itself, create the type of special relationship necessary for the doctrine to apply." See also Gazza v. Bandit Industries, Inc., Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 99 0499931 (May 11, 2001, Aurigemma, J.) (no special relationship existed between seller and purchaser of used woodchipper); McKeon v. Rinaldi, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001110 (May 11, 2005, Matasavage, J.) (no special relationship between builder and buyer of house).
As the Supreme Court has noted, "[w]e are aware of no authority holding that the perpetrator of a fraud involving merely a vendor-vendee relationship has a legal duty to disclose his deceit after its occurrence and that the breach of that duty will toll the statute of limitations. Such a relationship does not give rise to obligations equivalent to those of a fiduciary." Fichera v. Mine Hill Corp., supra, 207 Conn. 210.
After a review of the affidavit of Kenneth D. Peterson it is the opinion of the court that no "special relationship" existed between the plaintiff and the defendant Mel Horowitz or any representative of the defendant corporation that would give raise to a continuing duty that remained in existence after the alleged commission of the original wrong.
Therefore, any breach of duty would be completed as of the time of the sale of the business and therefore this action would be barred by § 52-577 of the Connecticut General Statutes which requires that an action such as this be brought within 3 years of the act or omission complained of.
Therefore, the motion for summary judgment filed by the defendant's Melvyn Horowitz and Matt-Mel, Inc. on Count XIII of the amended complaint is granted.
In light of this opinion the court does not reach the other grounds set forth by the movants in support of their motion for summary judgment.