Opinion
FSTCV146022518
07-11-2017
Janine Marshall v. Thomas M. Shanley
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (NO. 136)
Hon. Charles T. Lee, J.
The plaintiff, Janine Marshall, commenced this action for legal malpractice against the defendant, Thomas Shanley, by service of a summons and complaint on June 16, 2014. The plaintiff's claim before the court is based on the defendant's alleged negligence in providing legal representation and counsel to the plaintiff in a prior action for the dissolution of her marriage from her ex-husband. Specifically, plaintiff claims that Attorney Shanley committed malpractice in failing to adequately secure life insurance proceeds and shares of stock pursuant to the separation agreement incorporated into the divorce decree as intended. On December 27, 2016, the defendant filed his answer and special defenses, claiming that the plaintiff's claims are barred by the statute of limitations, that the plaintiff has been paid the monies promised under Article VIII of the settlement agreement, and that the plaintiff has waived her rights to bring suit under Article XVI of the settlement agreement.
On January 23, 2017, the defendant moved for summary judgment with a supporting memorandum of law, affidavits, and various supporting exhibits. The plaintiff filed a memorandum in opposition on February 14, 2017, with affidavits and various supporting exhibits. The motion was heard at short calendar on March 13, 2017.
As more fully explained below, the court grants defendant's motion for summary judgment on the ground that the statute of limitations for bringing this suit has expired.
BACKGROUND
The undisputed facts are as follows, as the defendant has admitted them in his answer or are supported by evidence submitted by both parties. The plaintiff hired the defendant in 2007 to represent her interests in divorce proceedings with her husband, William J. Marshall. As part of this process, the defendant investigated the assets held by Marshall. The defendant then negotiated a separation agreement that required Mr. Marshall to designate plaintiff as a beneficiary of $750,000 under any of three listed life insurance policies for as long as he owed plaintiff alimony. The separation agreement was incorporated into their divorce decree entered on July 29, 2009. On December 27, 2012, Mr. Marshall died.
The plaintiff then became involved in litigation with Marshall's previous ex-wife, Erika Marshall. Plaintiff learned Erika Marshall also had a divorce decree which required her to be designated a beneficiary in the amount of $1,750,000 under the same three policies listed in plaintiff's decree. The policies were insufficient to cover both obligations. As a result, the insurance companies filed two interpleader actions, which were heard by this court. The two interpleader actions were resolved with a stipulation dated November 25, 2015, and this court entered final judgment on December 2, 2015. (Plaintiff's Ex. A at 68; Defendant's Ex. B.) The plaintiff received a total of $750,000, $420,000 coming from insurance proceeds and the $330,000 being paid by Mr. Marshall's estate.
The cases were United States Life Ins. Co. v. Marshall, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6023619-S (September 30, 2015; Lee, J.) [61 Conn.L.Rptr. 67, ]; United Central Life Ins. Co. v. Marshall, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6023033-S, (October 5, 2015; Lee J.)
CONTENTIONS OF THE PARTIES
On January 23, 2017, Attorney Shanley filed the present motion for summary judgment, in which he claims that he is entitled to summary judgment with respect to the plaintiff's complaint. First, the defendant argues that there is no genuine issue of material fact that the plaintiff's claim is barred by the relevant statute of limitations, General Statutes § 52-577. Second, the defendant claims that there is no genuine issue of material fact that the plaintiff waived her claim against him in the text of the 2009 separation agreement.
On February 14, 2017, the plaintiff filed her opposition to the defendant's motion for summary judgment. The plaintiff claims that the statute of limitations was tolled because her claims against the defendant arose only after Mr. Marshall's death and she learned of the conflicting claims to the insurance proceeds; until that occurrence, the claim against the defendant was not justiciable. In addition, the plaintiff claims that the language contained in the separation agreement does not constitute a waiver of her rights against the defendant for professional negligence.
DISCUSSION
A. Standard of Review
The primary purpose of a motion for summary judgment is to obtain judgment in a case where there are no material facts in dispute. The summary judgment procedure " is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). A motion for summary judgment shall be granted when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Id., 279; Practice Book § 17-49. When determining whether a genuine issue as to any material fact exists, the evidence must be viewed in the light most favorable to the nonmoving party. Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010); LaFlamme v. Dallessio, 261 Conn. 247, 250, 802 A.2d 63 (2002). The test is whether the moving party would be entitled to a directed verdict on the same facts. Weber v. U.S. Sterling Securities, Inc., 282 Conn. 722, 728, 924 A.2d 816 (2007); Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
" Summary judgment may be granted where the claim is 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 . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). " [S]ummary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).
" [T]he 'genuine issue' aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969). " A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
" We emphasize the important point, that [a]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact . . . (Internal quotation marks omitted.) Id., 550. Furthermore, a nonmoving party's conclusory affidavits alone are insufficient grounds to deny a motion for summary judgment. Id., 557. " We acknowledge that [o]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion . . . A party may not, however, rely on mere speculation or conjecture as to the true nature of the facts to overcome . . . summary judgment." (Internal quotation marks omitted.) Walker v. Housing Authority, 148 Conn.App. 591, 597, 85 A.3d 1230 (2014).
B. Law of the Case
On December 3, 2014, the defendant, Attorney Shanley, filed a motion to dismiss the plaintiff's action for lack of subject matter jurisdiction, on the ground that the plaintiff's case was not ripe for adjudication based upon pending actions regarding the life insurance benefits. The plaintiff argued that the claim was ripe for adjudication because it involved the underlying malpractice claim and failure to adequately review the separation agreement. In its memorandum of decision, this court found that the plaintiff's claim was ripe for adjudication. In relevant part, the decision stated: " the plaintiff nonetheless based her claims on the defendant's failure to properly review [a previous separation] Agreement and the life insurance policies listed in Schedule B of the 2009 Agreement as well as not providing an adequate mechanism for securing the life insurance proceeds and shares of stock following William Marshall's death. The injury here arises from the defendant's failure in performing his due diligence as an attorney, which allegedly caused the plaintiff not to receive those financial assets promised to her and to require her involvement in litigation against potentially valid and competing claims." Marshall v. Shanley, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6022518-S, (September 22, 2015; Lee, J.).
Interestingly, the parties now take the opposite positions that they argued in the motion to dismiss.
The court will follow its ruling on the defendant's motion to strike, applying the law of the case. " The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power." (Citation omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). " Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Emphasis omitted; internal quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 404, 685 A.2d 1108 (1996). In their briefs regarding the motion to strike, both parties argued the issue of ripeness and cited the same cases discussing ripeness that they now assert in the present motion for summary judgment. In its memorandum of decision regarding the motion to strike, the court explained the distinctions between the relevant authorities cited. In addition, it determined that the defendant's alleged failure to adequately perform his due diligence in researching a prior agreement and the named beneficiary of the life insurance policies sustained a claim of legal malpractice, and therefore, the matter was ripe for adjudication. No facts have changed since the court's ruling on the motion to strike as to the ripeness of the malpractice claim. Therefore, the court adopts its previous findings on the motion to strike.
C. Statute of Limitations
The defendant argues that the plaintiff did not file her legal malpractice claim within the three year statute of limitations provided by General Statutes § 52-577, and thus, the action is not timely and summary judgment must enter on his behalf. " An action alleging legal malpractice or negligence is a tort claim subject to the three year statute of limitations set forth in § 52-577." Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 714, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). General Statutes § 52-577 provides that: " No action founded upon a tort shall be brought but within three years from the act or omission complained of."
" In construing our general tort statute of limitations . . . we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred. Fichera v. Mine Hill Corp., 207 Conn. 204, 212, 541 A.2d 472 (1988). The date of the act or omission complained of is the date when the . . . conduct of the defendant occurs." (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 583, 22 A.3d 1214 (2011). " [Section] 52-577 is an occurrence statute and . . . its limitation period does not begin when the plaintiff first discovers an injury." Valentine v. LaBow, 95 Conn.App. 436, 445 n.8, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). " 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." (Internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., supra, 167 Conn.App. 714. " Although allowing a statute of limitations defense may result in meritorious claims being foreclosed, that must be so. A statute of limitations promotes two important interests: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose." (Internal quotation marks omitted.) Id.
The plaintiff argues that her claim was not justiciable until Marshall's death on December 27, 2012, because she could not have discovered her injury until that date at the earliest. As explained above, the court has already determined that this case sterns from the defendant's alleged negligence in actions surrounding the 2009 separation agreement, and that those claims were ripe for adjudication. In addition, relevant authority indicates that the date of occurrence is not when the plaintiff first discovers the injury. Id.; Valentine v. LaBow, supra, 95 Conn.App. 445 n.8. There is no dispute that the divorce decree was entered on July 29, 2009. As a result, applicable authority required her to file her malpractice action on or before July 29, 2012. This action was not filed until 2014, well outside of the time period allowed by General Statutes § 52-577. For this reason, the defendant's motion for summary judgment is granted.
In addition, the plaintiff argues that her case was not ripe until the resolution of other interpleader cases determining the distribution of the life insurance assets because she was unable to adequately plead damages for her legal malpractice claim. As discussed at some length in the court's memorandum of decision regarding the defendant's motion to strike, Lee v. Harlow, Adams & Friedman, P.C., 116 Conn.App. 289, 975 A.2d 715 (2009), stands for the proposition that damages do not need to be fully quantified before bringing suit in order to be considered justiciable. The Appellate Court in Lee stated that " even though the precise amount of [the plaintiff's] damages was not known at the time he brought suit, because he was attempting to reduce or to minimize those damages, that uncertainty did not render his claims unripe and nonjusticiable . . . That he sought to minimize the damages allegedly caused by the [defendant's] malpractice had no implication on his allegation of a legal injury. The amount of his damages may be uncertain because of his continued attempts to minimize those damages, but the fact that he has alleged that he has sustained some legal injury is not uncertain." Lee v. Harlow, Adams & Friedman, P.C., supra, 116 Conn.App. 306-07. The reasoning used by the Appellate Court in Lee indicates that the plaintiff's claim was ripe as soon as the injury occurred because at that point she could have alleged a legally cognizable injury, had she been aware of it. Specifically, due to the failure to ascertain the provisions of Mr. Marshall's prior divorce decree, her settlement was subjected to a prior, conflicting claim. Because the plaintiff's claim could have been brought from the date of the completion of the separation agreement, the statute of limitations began running on July 29, 2009. Yet, the present action was filed over three years later, in 2014. Accordingly, summary judgment is granted with respect to the statute of limitations.
Undoubtedly, this construction of General Statutes § 52-577 may lead to a harsh result, but our appellate courts have determined that the interest in finality and facility of proof outweighs the occasional unfortunate result.
D. Waiver
As the court has already concluded that this action is barred by General Statutes § 52-577, it does not reach the defendant's arguments regarding waiver.
CONCLUSION
By reason of the foregoing, the defendant's motion for summary judgment is granted.