Opinion
No. HHD-CV-04-4006045
October 19, 2006
MEMORANDUM OF DECISION ON DEFENDANT MICHAEL H. CLINTON'S MOTION FOR SUMMARY JUDGMENT
The defendant, Michael H. Clinton, (Clinton) moves for summary judgment on Counts One and Two of the plaintiffs' complaint dated November 22, 2004. The defendant claims there is no dispute of material fact and he is entitled to judgment on both counts as a matter of law. For the following reasons, the motion for summary judgment is granted.
I FACTS AND PROCEDURAL BACKGROUND
The plaintiffs, Marc Weiner and TMG Marketing, Inc., brought this legal malpractice action against the defendants, Michael Clinton, Steven Varney and Brown, Paindiris Scott, LLP. Plaintiffs seek reimbursement for damages assessed against them and costs they incurred following a default for failure to properly respond to discovery in the case of Lawton v. Weiner, 91 Conn.App. 698, 882 A.2d 151 (2005). Plaintiffs also seek reimbursement for the costs incurred in efforts to cure the default judgment entered against them in that case. The procedural history of the underlying case and the entry of the default is set forth in Lawton, Id., 701-04. In or about June of 1998, plaintiffs Weiner and TMG hired Clinton to represent them in defense of an action filed in Connecticut Superior Court by Michael Lawton. Lawton was a photographer who had entered into a contract with Weiner and TMG to have them market his photography. In the underlying action, Lawton was seeking damages for tortious interference with business relations, conversion, violation of Connecticut Unfair Trade Practices Act (CUTPA), breach of fiduciary duty, breach of an implied covenant of good faith and fair dealing, defamation, violation of the Connecticut Antitrust Act, and recording of private telephone calls in violation of General Statutes § 52-570d. After Weiner and TMG filed a notice of compliance with discovery requests on February 8, 1999, Lawton filed a motion for sanctions against them for failure to comply fully with his discovery requests. On May 21, 1999, the court ordered Weiner and TMG to "provide substantive responses to all discovery requests within fourteen days . . ." On June 15, 1999, Lawton filed a motion for default for Weiner and TMG's failure to comply with the May 21, 1999 discovery order. Clinton did not directly notify the plaintiffs of the pendency of this motion for default before his representation ceased. Clinton ceased representing Weiner and TMG with respect to this matter on or about June 25, 1999, when Attorney Steven Varney and the law firm of Brown, Pandiris and Scott filed an appearance in lieu of him. The court granted the motion for default on June 29, 1999. Clinton had taken no action to address the default motion, assuming "the court would simply prohibit [plaintiffs] from attempting to introduce any evidence which would be relevant to the discovery requests and that successor counsel Varney would satisfy any further requests." (Tab 2 to Motion for Summary Judgment, Clinton Affidavit, ¶ 6). Notice of the default was sent to counsel of record on July 2, 1999. Varney filed a motion to set aside the default and a motion for clarification on July 26, 1999. The court granted the motion for clarification on July 29, 1999, but denied the motion to set aside the default on August 16, 1999. Weiner and TMG filed a notice of defenses on August 27, 1999, to which Lawton objected on August 31, 1999. The court sustained Lawton's objection. On July 26, 1999, Weiner and TMG were "clearly aware of the default." Id., 708.
The defendant served requests for admission dated May 27, 2005, directed to plaintiff Weiner. Plaintiff did not deny the requests, raise any objection or seek an extension of time to reply. Pursuant to Practice Book § 13-23, the matters are deemed admitted. (See request for admission, ¶ 1.)
See request for admission, ¶ 2.
Practice Book § 17-34(a) provides that a defaulted defendant who files a notice of defenses within ten days of the notice of a default can "contradict the allegations of the complaint and prove matters of defense in addition to contesting the amount of damages." Lawton v. Weiner, supra, 91 Conn.App. 707.
After the denial of the motion to set aside the default, at Attorney Varney's request, Clinton prepared an affidavit describing his conduct in connection with the discovery order and explaining why he believed that no response to Lawton's motions for sanctions or default or supplemental discovery responses had been necessary. Clinton executed this affidavit and forwarded it to Varney on September 1, 1999. On September 3, 1999, Varney filed this affidavit with the court, annexed to a "Motion for Reargument re Motion to Set Aside Default." The court denied the motion for reargument. After a hearing in damages in January 2000, the plaintiffs suffered a default judgment in excess of $500,000.00.
A certified copy of the Motion for Reargument with the affidavit attached as Exhibit C is attached to defendant's motion for summary judgment at Tab 2. The exhibits appended to the plaintiffs' motions opposing summary judgment are unauthenticated and uncertified. However, the defendant has made no objection to them and have relied on some of them. Thus, the court has discretion to consider these documents in deciding the defendant's summary judgment motion. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
II STANDARD OF REVIEW
The standards for granting a motion for summary judgment are well established. Summary judgment may properly be granted where the pleadings, affidavits, and any other proof submitted establish that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). A material fact is "one which will make a difference in the result of the case." Barrett v. Southern Connecticut Gas Co., 172 Conn. 362, 378, 374 A.2d 1051 (1977).When deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Barrett v. Danbury Hospital, 232 Conn. 242, 654 A.2d 748 (1995). However, when a motion for summary judgment is supported by affidavits and other documents, the non-moving adverse party, by affidavit or as otherwise provided by the Practice Book, "must set forth specific facts showing that there is a genuine issue for trial . . ." Kakadelis v. DeFabritis, 191 Conn. 276, 280, 464 A.2d 57 (1983) (Internal quotation marks omitted). Mere assertions of fact are insufficient to establish the existence of an issue of material fact and if the adverse party does not respond with competent evidence the court may rely on the movant's evidence. Id., 191 Conn. 280-81. Allegations of pleadings not admitted by a party are not proof of their contents and do not constitute documentary proof of the existence of a genuine issue as to any material fact on a motion for summary judgment. "The court's consideration of a motion for summary judgment is limited to the evaluation as a matter of law of the documentary proof submitted under § 380 [now § 17-45]." Paine Webber Jackson Curtis, Inc. v. Winters, 13 Conn.App. 712, 721-22, 539 A.2d 712 (1988).
Evidence in support of motions for summary judgment and in opposition to such motions must be admissible evidence. Evidence that is inadmissible cannot be relied upon for purposes of a motion for summary judgment. Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1924); see Practice Book Sections 17-45, 17-46. If the non-moving party fails to respond with specific facts, the court is entitled to rely upon the facts stated in the affidavit of the movant. Id. If such affidavit, pleading or 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, the motion for summary judgment should be granted. Practice Book Section 17-49.
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts. (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).
Summary judgment is appropriate where the suit is barred by the statute of limitations. Daily v. New Britain Machine Co., 200 Conn. 562, 566-70, 512 A.2d 893 (1986).
III Count Two — The Breach of Contract Claim
In plaintiffs' Count Two, they allege that they entered into a contract for legal services with Clinton relative to the lawsuit filed against them by Michael Lawton in Connecticut Superior Court, docket number CV 98-0489322 in which Lawton sought monetary damages from the plaintiffs. Plaintiffs do not assert that Clinton promised the plaintiffs he would accomplish anything specific and have not alleged or provided any written retainer or other documented contractual agreement with Clinton. The allegations simply state he was hired to defend the lawsuit. Plaintiffs further allege that under the express and/or implied terms of Clinton's contract to provide legal services to them, Clinton owed a duty to the plaintiffs to use reasonable care, skill and diligence in providing legal services in accordance with the applicable standard of care for legal professionals. In ¶ 10, the plaintiffs' allegations as to Clinton's breach are nothing more than a reiteration of their negligence allegations in Count One. Their damage claims are also identical to those set forth in Count One. The recitations in Count One, therefore, merely restate the standards applicable to a professional negligence claim.
Plaintiffs have never amended their contractual claim although the defendant previously raised the insufficiency of Count Two due to the lack of allegations based on failure to perform a specific promised action in his memorandum of law in support of a motion to strike dated January 10, 2005.
Recently, the Appellate Court concluded that where a plaintiff asserts little more than a negligence claim cloaked in contractual language, the three-year limitations period of § 52-577 is applicable, not the six-year period governing contract actions. Alexandru v. Strong, 81 Conn.App. 68, 79, CT Page 19356 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). See also Cafferty v. Stillman, 79 Conn.App. 192, 196-98, 829 A.2d 881 (2003) ("a claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach"). Earlier, in Shuster v. Buckley, 5 Conn.App. 473, 478, 500 A.2d 240 (1985), the Appellate Court held, "Where the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence, the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services").
Although plaintiffs correctly argue that they have the right to plead in contract and negligence, in Cafferty, supra, the Appellate Court, citing Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 559 A.2d 712 (1989), noted that the earlier case "does not stand for the proposition . . . that one may bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract. Thus we believe that a claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach. Additionally, that case [ Mac's Car City, Inc.] is distinguishable from a true contract claim in which a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result." (Citations omitted.) Id., 197. The question before the trial court is whether the allegations in the contract count set forth a claim in contract or in tort. If the language of the contract count, construed in the light most favorable to its preservation, is no more than a legal malpractice claim clothed in contract terms, the three-year statute of limitations applies. Here, the plaintiffs have not alleged that their damages were caused by the defendant's failure to perform a specific promised action, but were caused by his failure to use "reasonable care, skill and diligence." See Id., 198. The case on which plaintiffs rely, Hill v. Williams, 74 Conn.App. 654, 662, 813 A.2d 130 (2003) is distinguishable because in Hill, the court "found that the plaintiff had alleged that the defendant attorney had promised to take specific actions that he later refused to undertake and the plaintiff suffered damages as a result." "[O]ne [cannot] bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract. (Citations omitted.)" Alexandru v. Strong, supra, 81 Conn.App. 79.
Accordingly, the court finds that the breach of contract claim in Count Two is only a legal malpractice claim cloaked in contract terms, and therefore, as a legal malpractice claim, the three-year statute of limitations period for actions in tort, as set forth in General Statutes § 52-577, is also applicable to plaintiffs' Count Two.
Plaintiffs claim that a defendant may not challenge the sufficiency of a claim on a motion for summary judgment. The Connecticut Supreme Court recently clarified the question of using a summary judgment motion to test the legal sufficiency of a complaint, holding that: "[W]e conclude that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed." Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005). As the Court noted, it is the plaintiff's obligation "to allege some recognizable cause of action in his complaint . . . Thus, failure by the defendants to demur to any portion of the complaint does not prevent them from claiming that the [plaintiff] had no cause of action and that a judgment [in favor of the defendants was] warranted." Id., 402, (quoting Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970)). The "desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried." (Citation omitted.) Id. Moreover, the court also noted in Larobina that a plaintiff who states in his brief to the trial court that the defendants cannot use a motion for summary judgment to challenge the legal sufficiency of his complaint but also argues that his complaint is legally sufficient "waives any objection to the use of the motion for that purpose and any claim that he should be permitted to replead." Id., 403. Plaintiffs have similarly argued here and have neither replead nor requested an opportunity to do so. (See Plaintiffs' Memorandum in Opposition to Motion for Summary Judgment dated June 27, 2006, p. 1, where plaintiffs state: "A motion to strike would have more clearly exposed the fallacy of the defendant's argument, however . . . plaintiffs have alleged all the necessary elements of a breach of contract claim against the defendant.").
IV THE THREE-YEAR STATUTE OF LIMITATIONS WITH RESPECT TO BOTH COUNT ONE AND TWO HAS NOT BEEN TOLLED DUE TO FRAUDULENT CONCEALMENT
This action was commenced sometime on or after November 22, 2004, when the summons and complaint were signed. It was served on defendant Clinton on December 1, 2004 and filed in court on December 7, 2004. Clinton claims that there is no genuine issue of material fact as to his special defense to both counts that the three-year statute of limitations (General Statutes § 52-577) expired before the plaintiffs commenced their action against him. DeLeo v. Nussbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003).
Although there were earlier intimations on the part of the plaintiffs that they also intended to rely on the "continuous representation" doctrine, their complaint itself unequivocally states defendant Clinton represented plaintiffs in defense of the underlying action "until [successor counsel, Varney] appeared as counsel for the plaintiff in lieu of defendant Clinton on or about June 25, 1999 and took over the handling of [plaintiffs'] defense." (Complaint, Count One, ¶ 3).
The plaintiffs filed the following claims as a reply in avoidance of the statute of limitations defense to their Counts One and Two: "The defendant, acting in the capacity of a fiduciary, affirmatively concealed from the plaintiffs and/or failed to make proper disclosure to the plaintiffs of the wrongdoing set forth in the plaintiffs' complaint that gives rise to the plaintiffs' causes of action," and "The defendant fraudulently concealed from the plaintiff the wrongdoing set forth in the plaintiffs' complaint that gives rise to the plaintiffs' causes of action in violation of Conn. Gen. Stat. § 52-595," and as a result is "estopped and/or barred" from asserting the statute of limitations defense. The plaintiffs argue that Varney deliberately concealed and failed to notify the plaintiffs of the "combined professional negligence of Clinton and Varney" because his interests were "aligned with the interest of Clinton and adverse to the interest of the plaintiffs." Plaintiff Weiner (Affidavit of Marc Weiner, attached to Memorandum In Opposition to Plaintiffs' Motion for Summary Judgment dated June 27, 2006), claims that Clinton told him the case had gone poorly due to litigation choices made by Weiner and did not disclose his failure to respond to the court's discovery order or the existence of the default motion. Weiner also claims Clinton failed to provide Weiner with a copy of the affidavit he gave to Varney in September of 1999. Weiner asserts that Varney stated to Weiner, both in discussions and in a letter dated March 12, 2001, that Clinton had not been negligent and that Varney believed Weiner had no bona fide claim against Clinton relative to the entry of the default. Weiner claims he did not become aware of Clinton's professional negligence until he finally obtained a copy of the 1999 Clinton affidavit in the fall of 2003. Weiner claims, upon learning "facts" that had previously been "concealed" from him, he sought legal representation for a potential legal malpractice claim.
The defendant maintains that for two reasons, fraudulent concealment is unavailing here. He claims plaintiffs knew or are presumed to have known the relevant facts long before November 22, 2001, the start of the three-year period prior to the commencement of the action, because he affirmatively disclosed all relevant facts to Varney, plaintiffs' successor counsel, in September of 1999, which precludes even an inference of deliberate concealment. He argues that the facts relating to his alleged professional negligence were made known to his codefendant, Varney, who was then acting as plaintiffs' attorney and agent, and that Varney's knowledge of Clinton's alleged negligence is therefore imputed to the plaintiff.
Where a claim arises out of legal representation, the limitations period begins to run when the representation in the same underlying matter terminates, notwithstanding a claim of tolling premised on the continuous representation doctrine. Farnsworth v. O'Doherty, 85 Conn.App. 145, 150, 856 A.2d 518 (2004); Sanborn v. Greenwald, 39 Conn.App. 289, 297-98, 664 A.2d 803 (1995) cert. denied 235 Conn. 925, 666 A.2d 1186 (limitations period for legal malpractice claim generally begins to run when representation ends because attorney no longer in position to remedy any deficiency in representation). Here, plaintiffs explicitly allege that the end point of their attorney-client relationship with Clinton was on or about June 25, 1999. Complaint, Count 1, ¶ 3. See Deleo v. Nussbaum, supra, 263 Conn. 597-98 (representation deemed terminated when attorney discharged or permitted to withdraw from representation, or client takes concrete step indicating that client "has ceased relying on attorney's professional judgment in protecting his legal interests"). Accordingly, the plaintiffs cannot meet the first prong of the continuous representation test for legal malpractice claims absent proof of fraudulent concealment of the alleged conduct constituting the malpractice.
General Statutes § 52-595 provides, "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." The statute restates the previous equitable rule. See Phalen v. Clark, 19 Conn. 421, 438 (1849). In Martinelli v. Bridgeport Roman Catholic Dioceses, 196 F.3d 409, 427 (2nd Cir. 1999) the court held that "because the statute provides that, after tolling, 'the cause of action shall be deemed to accrue . . . at the time when the person entitled to sue thereon first discovers its existence,' there plainly can be no effective tolling for a plaintiff who was aware of the existence of his or her cause of action from the time the claim originally accrued . . . [T]he plaintiff must be ignorant of the facts that the defendant has sought to conceal for the statute of limitations to toll." "This appears to comport with the general law to the effect that: 'There can be no concealment which will prevent the running of the statute of limitations where the cause of action is known to the plaintiff or there is a presumption of such knowledge.' 51 Am.Jur.2d § 148, p. 720." Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London at New London, Docket No. 547104 (September 27, 2000, Corradino, J.). In addition, equitable tolling only permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence, he is unable to obtain vital information bearing on the existence of his claim. (Citation omitted.) (Emphasis added). Gallop v. Commercial Painting Co., 42 Conn.Sup. 187, 192, 612 A.2d 826 (1992) ( 6 Conn. L. Rptr. 9). When a plaintiff learns of information that would lead to discovery of a cause of action through due diligence, the statute of limitations runs even if there has been fraudulent concealment. 54 CJS "Limitations of Actions," § 89, p. 128.
The plaintiffs have the burden of proving fraudulent concealment on the part of Clinton tolled the statute of limitations. "[T]o establish that the defendant had fraudulently concealed the existence of [plaintiff's] cause of action and so has tolled the statute of limitations, the [plaintiff] had the burden of proving that the [defendant was] aware of the facts necessary to establish this cause of action . . . and that [it] had intentionally concealed those facts from the [plaintiff]." Bound Brook Ass'n. v. Norwalk, 198 Conn. 660, 665, CT Page 19360 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S.Ct. 81, 93 L.Ed.2d 36 (1986); Krondes v. Norwalk Savings Society, 53 Conn.App. 102, 114, 728 A.2d 1103 (1999). To meet this burden, it is not sufficient for the plaintiff to prove merely that it was more likely than not that the defendant has concealed the cause of action. The plaintiff has to "prove fraudulent concealment by the more exacting standard of clear, precise, and unequivocal evidence." See Cutsumpas v. Connecticut Light Power Co., 16 Conn.App. 108, 112-13, 546 A.2d 962 (1988).
The factual documentation provided by the defendant reveals that in an affidavit dated September 1, 1999, he clearly disclosed to the plaintiffs' successor counsel, Varney, the factual background that lead to the entry of the default against the plaintiffs in the underlying action. This affidavit was filed by Varney in a publicly accessible court record on September 3, 1999, along with a "Motion for Reargument re Motion to Set Aside Judgment." Once the attorney-client relationship between plaintiffs and Clinton in the Lawton case terminated in 1999, Clinton, even if he believed plaintiffs had a valid claim of malpractice against him, was under no obligation to advise them. In fact, since plaintiffs were subsequently represented by Varney, and Clinton and the plaintiffs were arguably in potentially adversarial positions, it may not have been ethical for Clinton to communicate with them about circumstances surrounding the default except through Varney. Plaintiffs' claim that Varney subsequently conspired with Clinton to conceal Clinton's negligence is refuted by the fact that Varney filed a motion to reargue and set aside the default and annexed Clinton's affidavit to the motion. It was Varney, not Clinton, who opined to the plaintiffs that they did not have a cause of action in malpractice against Clinton. This arguably could be legal malpractice on Varney's part, but there is no evidence of fraudulent concealment by Clinton. The evidence relied upon by the plaintiffs fails to show any intent on Clinton's part to conceal facts, nor does it support a finding that Clinton's alleged concealment was "directed toward obtaining a delay in the filing of this action" to take advantage of the statute of limitations. Lippitt v. Ashley, 89 Conn. 451, 480, 94 A. 995 (1915); Krondes v. Norwalk Savings Society, supra, 53 Conn.App. 114-15.
Rule 4.2 of the Rules of Professional Conduct states, "[A] lawyer shall not communicate about the subject of representation with a party the lawyer knows to be represented by another lawyer in the matter, when the lawyer has the consent of the other lawyer or is authorized to do so."
Plaintiffs equate Varney's claimed erroneous advice on the efficacy of a claim against Clinton relevant to disclosed facts with concealment of those facts. "Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant's conduct caused such injury . . . The statute [of limitations] begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof . . . The focus is on the plaintiff's knowledge of facts, rather than on discovery of applicable legal theories." (Citations omitted; internal quotation marks omitted.) (Emphasis added.) Mountaindale Condominium Ass'n., Inc. v. Zappone, 59 Conn.App. 311, 323, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000). Plaintiffs present no evidence whatsoever that Clinton concealed the affidavit from them, much less that he did so intentionally. Plaintiffs do not dispute that the affidavit was filed with the court in the underlying action or that it was given to Varney. Varney, as a matter of law, was their agent at the time. See Kubeck v. Foremost Foods Co., 190 Conn. 667, 673, n. 6, 461 A.2d 1380 (1983) ("attorney-client relationship is one of agency"). Plaintiffs, citing Reardon v. Mutual Life Ins. Co., 138 Conn. 510, 86 A.2d 570 (1952), argue that at the time Varney received the September 1, 1999 affidavit from Clinton, Varney was somehow acting adversely to plaintiffs, so as to avoid his own liability for professional negligence, and therefore was not acting as their agent. Plaintiffs maintain that it is a reasonable inference to draw from the evidence and pleadings that Varney understood that if the plaintiffs pursued a negligence claim against Clinton, this in turn would lead to a claim against him. However, plaintiffs do not allege or provide any evidence to support their assumption that Clinton conspired with Varney to mislead them on the validity of a claim based on Clinton's alleged professional negligence. The only documented evidence on this issue suggests that Clinton attributed the problems in the discovery process in the underlying litigation were due to choices Weiner made. (Affidavit of Marc Weiner, ¶ 6.) Any inference that Clinton or Varney believed one or both of them had committed malpractice is merely speculative, which is not a sufficient basis upon which to oppose summary judgment. Plaintiffs have offered no evidence to suggest that either Varney or Clinton believed that Clinton was responsible for the default or that Clinton made any misrepresentations intended to mislead plaintiffs. "Fraud is not to be presumed, but must be strictly proven." Connell v. Colwell, 214 Conn. 242, 252, 571 A.2d 116 (1990) (Internal citation and quotation marks omitted.)
Even in ¶ 2 of the Settlement Agreement between Lawton and Clinton, Varney and others, which plaintiffs attach as Exhibit 2 to their surreply memorandum, Clinton and Varney make no admission as to liability.
Although ". . . summary judgment procedure is particularly inappropriate where the inference which the parties seek to have drawn deals with questions of notice, intent and subjective feelings and reactions, it remains 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 exists." (Internal citations and quotations omitted.) Id., 251. On 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 a motion for summary judgment." (Internal citations and quotation marks omitted.) Buell Industries, Inc. v. Great New York Mutual Insurance Co., 259 Conn. 527, 558 791 A.2d 489 (2002). Plaintiffs' only "evidence" of a conspiracy between Clinton and Varney is nothing more than a conclusory allegation, and is far from clear, precise or unequivocal.
There is no basis here to conclude that Clinton intentionally and fraudulently concealed facts to mislead the plaintiffs and avoid a malpractice suit. Again, it is the plaintiffs' knowledge of the facts, rather than the subsequent discussions of a legal theory supported by those facts, that caused the statute of limitations to run. Although the burden of proving lack of fraud may shift to a fiduciary, Clinton, as of September 1999, had no fiduciary relationship with the plaintiffs relative to the Lawton matter. Plaintiffs cannot claim Clinton had a duty to warn or to advise them on the issue of the default beyond the time of his representation of them in the lawsuit, and statements he made to Varney did not perpetuate a duty when he was no longer handling the case or capable of remedying the problem. See Sanborn v. Greenwald, supra, 39 Conn.App. 296-97.
In legal malpractice cases, the statute of limitations is tolled under the doctrine of continuing representation only if plaintiff shows 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." Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, 22c, 69 Conn.App. 151, 166, 795 A.2d 572 (2002). The operative date is the date Clinton last represented plaintiffs in the Lawton matter. See Kaltman-Glasel v. Dooley, 228 F.Sup.2d 101, 106 (Conn. 2002).
Plaintiffs, whether or not they relied on Varney, should have been able to discern facts supporting a malpractice claim against Clinton as early as 1999. Plaintiffs claim their reliance on Varney's advice as to whether there was a basis to sue Clinton in malpractice excuses their duty to investigate. In a recent case, Delanno, Inc. v. Peace, (Ark. 2006) an attorney allegedly made a misrepresentation to a client regarding a tax clearance letter that caused the client damage. The Arkansas Supreme Court held, "[Plaintiff] also argues that because an attorney stands in a fiduciary relationship to his client, the client should be able to rely without qualification upon the statements of the attorney . . . The acceptance of this argument would unduly restrict the applicability of the statute of limitations to legal malpractice actions based on misstatements by attorneys. We are unwilling to say that the fiduciary duty owed by an attorney to his client eliminates the client's duty to exercise reasonable diligence in analyzing the accuracy of the attorney's statements."
Moreover, even in the absence of an agency relationship with Varney to establish the presumption of knowledge, plaintiffs' own evidentiary submission establishes that they had sufficient awareness of a potential cause of action to preclude reliance on fraudulent concealment to toll the limitations period as of March 2001.
Exhibit 1, attached to plaintiffs' Sur-reply Memorandum dated August 14, 2006, is a letter dated March 1, 2001 from Attorney Randall Carreira, who represented Lawton and argued his appeal of the underlying Lawton case. Carreira advises Varney: "It should be made clear, given the judgment now existing, that Marc Weiner and TMG Marketing, Inc. may have considered bringing an action against Michael Clinton considering his management of the case, and further acknowledges, "time is running out on that claim." Varney sent Weiner a copy of Carreira's letter on March 12, 2001. Weiner also attests in his affidavit that he received a letter dated March 12, 2001 from Varney, his counsel, which makes clear that he and Varney had discussed "in the past" the possibility of a claim against Clinton "relative to the entry of default." (Weiner Affidavit, ¶ 8 and Exhibit C.) Thus, prior to March 12, 2001, more than three years before this lawsuit was commenced, plaintiffs had knowledge of a potential claim against Clinton.
The plaintiffs undisputably had access to all documents filed with the court relative to the entry of the default and Varney's subsequent attempts to set it aside. They also had filed an appeal of the underlying matter, arguing that the default should have been set aside. Clearly, they had sufficient access to all the information surrounding the entry of the default more than three years before the filing of this lawsuit. The "means of knowledge existed and the circumstances we such as to put a plaintiff of ordinary prudence on inquiry. There was knowledge of what could have been readily ascertained by such inquiry, and the [plaintiffs] learned of information that would lead to the discovery of a cause of action through due diligence." Mountaindale Condominium Assn., Inc. v. Zappone, supra, 59 Conn.App. 322. In the absence of evidentiary support for at least two of the essential elements of a fraudulent concealment claim against Clinton, plaintiffs have failed to meet their burden in opposing summary judgment to produce at least some evidence of a material fact in dispute. The record is devoid of evidence that Clinton intended to conceal the fact of the default from the plaintiffs, much less that he intentionally concealed the fact of the default for the express purpose of delaying plaintiffs' discovery of their purported claims. Under the circumstances that occurred here, the plaintiffs cannot successfully establish fraudulent concealment of a cause of action on Clinton's part.
CONCLUSION
Since (1) both Counts One and Two sound in tort; (2) the events of which the plaintiffs complain took place more than three years prior to the plaintiffs' institution of this action against Clinton, and (3) the statutes of limitations was never tolled, summary judgment shall enter in favor of defendant Clinton on Counts One and Two.