Opinion
FSTCV155014853S
03-10-2016
Harry F. Weyher, III v. Gary I. Cohen et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (NO. 107)
Hon. Charles T. Lee, J.
On October 2, 2015, the defendants Gary I. Cohen, The Law Offices of Gary I. Cohen, P.C. (Firm), and Marci Finkelstein filed this motion for summary judgment against all three counts of the complaint filed by plaintiff Harry F. Weyher, III. Defendants represented Mr. Wehyher's now ex-wife, Anda Weyher, in divorce proceedings. Mr. Weyher sues defendants for negligence, legal malpractice and intentional misrepresentation. The defendants move for summary judgment arguing that they owed no duty to plaintiff because they were not in an attorney-client relationship with him, and that his claim sounding in intentional misrepresentation is barred by the statute of limitations. As more fully explained below, defendants' motion for summary judgment is granted in its entirety.
Background
On July 21, 2015, the plaintiff, Harry F. Weyher III, filed a three-count complaint against the defendants, described above. The complaint alleges the following. In early December of 2009, Cohen, Finkelstein, and the Firm represented Anda G. Weyher in her divorce proceedings against the plaintiff. On July 13, 2015, the plaintiff discovered that the defendants were parties to a suit styled Greenan v. Cohen, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV-13-6017645-S, which was withdrawn on November 19, 2014. From the Greenan complaint, the plaintiff learned that Finkelstein had been suspended from the practice of law in Connecticut from June 1, 2010 until February 14, 2011, a time period that coincided with the defendants' representation of Ms. Weyher. In early October of 2010, via their attorneys, the plaintiff proposed to Ms. Weyher that the parties file joint tax returns. Finkelstein drafted, modified, and negotiated an indemnification agreement on behalf of Ms. Weyher. The parties were unable to successfully negotiate an agreement and Ms. Weyher and the plaintiff ultimately filed separate tax returns. As a result of the separate filings, the plaintiff paid substantially more in taxes than if he and Ms. Weyher had filed their taxes jointly.
Plaintiff claims Finkelstein knowingly engaged in the practice of law while her license was suspended and that Cohen and the Firm violated rules 5.3(2), 5.3(3)(A), and 5.3(3)(B) of the Rules of Professional Conduct by knowingly enabling the practice of law by Finkelstein and/or by failing to supervise her. The defendants failed to properly assess or investigate the risk of the tax advice given to Ms. Weyher and violated their duty of loyalty to Ms. Weyher by allowing a suspended attorney to give her tax advice. The defendants knowingly billed for Finkelstein's work and maintained her credentials as lawyer on their letterhead. As a result, plaintiff asserts claims for negligence, legal malpractice, and intentional misrepresentation. The plaintiff demands monetary and punitive damages, the costs of this action, and other relief.
Contentions of the Parties
The defendants argue that they are entitled to summary judgment on counts one and two because (1) negligence and legal malpractice claims require that the plaintiff allege and prove the existence of a duty owed to the plaintiff, and, except in limited circumstances not present here, a lawyer owes no duty to a non-client; (2) it is undisputed that there existed no attorney-client relationship between the parties; and (3) the defendants owed their entire duty of loyalty and professional competence to Ms. Weyher, and the plaintiff's interests were adverse to their client. Therefore, defendants had no obligation to protect plaintiff's interests, financial, or otherwise. As to the final count, sounding in intentional misrepresentation, the defendants argue that summary judgment should be entered in their favor because, pursuant to General Statutes § 52-577, tort actions are subject to a three-year limitations period. The defendants contend that the plaintiff brought this action on or about July 21, 2015, yet the conduct alleged to have been misrepresented occurred before February 14, 2011. Therefore, the three-year limitation period expired before the action was commenced.
On October 30, 2015, the plaintiff submitted a " reply" to the defendants' motion for summary judgment. Therein, the plaintiff contends that the court should not grant summary judgment as to the first and second counts because (1) the plaintiff is not claiming that the defendants owed him a duty of care but, instead, he is claiming that the defendants breached a " standard of care" under the Rules of Professional Conduct by allowing Finkelstein to practice law without a license; (2) a " standard of care" is distinct from a client-driven " duty of care, " and is the accepted standard of care used by peers and fellow professionals, which is owed to any party by any negligent professional; and (3) every legal function performed by Finkelstein during the period of her suspension constituted malpractice by the defendants. As to the third count, the plaintiff argues that the court should not grant summary judgment because (1) the continuous course of conduct doctrines applies to toll the statute as a result of the defendants' repeated wrongdoing throughout multiple tax years until April 15, 2013, the date on which the plaintiff most recently suffered harm by virtue of being unable to file a joint tax return; (2) the plaintiff's action is not time-barred because a plaintiff's cause of action does not accrue until the plaintiff knows, or through reasonable diligence, should know that the injury was caused, and the plaintiff first learned that Finkelstein was suspended on July 13, 2015; and (3) the plaintiff could not have reasonably discovered the wrongdoing until November 18, 2014, when the court issued a decision in the Greenan case.
Mr. Weyher is self-represented in this action, although he was represented by counsel in the underlying divorce proceedings.
Plaintiff also presented several other procedural arguments against summary judgment, specifically that (1) the plaintiff has yet to be provided with the discovery he sought in his Request for Disclosure and Production and the court should give him an opportunity to obtain facts that are essential to his opposition; (2) the plaintiff's motion to compel joinder of his ex-wife is germane to this action because of admissions contained in the answer and the inseparability and dependence of the plaintiff's interest with those of Ms. Weyher; and (3) there exists a potential conflict of interest with the defendants representing Ms. Weyher in a separate matter while at the same time being beneficiaries of her agreement not to join as plaintiff in this action.
On November 4, 2015, the defendants filed a reply memorandum in which they maintain that (1) it is undisputed that the plaintiff was never the defendants' client, and, therefore, as a matter of law, the defendants do not owe the plaintiff a duty of care; (2) any alleged misrepresentation could only have occurred prior to February 14, 2011, when Finkelstein's administrative suspension from practice ended, therefore, the three-year limitations period of General Statutes § 52-577 expired on February 13, 2014; (3) the plaintiff has failed to identify any legal authority or provide any contrary evidence to dispute any of the grounds that the defendants present for summary judgment; (4) the plaintiff is not entitled to have the court postpone the entry of summary judgment on unsupported and vague suggestions that, if he is allowed time for discovery, genuine issues of disputed fact are bound to emerge, and, furthermore, the plaintiff has not identified what documents are allegedly available and essential to his opposition. The motion was heard at oral argument on November 9, 2015.
As more fully discussed below, the defendants' motion for summary judgment is granted. The defendants have met their initial burden, plaintiff fails to raise a genuine issue of material fact, and the undisputed facts and relevant law dictate that a determination be made in favor of the defendant. The plaintiff raises procedural arguments that do not raise a genuine issue of fact and are rejected by the court.
Findings of Fact
The undisputed facts are as follows.
A. The Parties and Ms. Weyher
This dispute arises from the defendants' representation of Ms. Weyher in her divorce proceedings against the plaintiff. Ms. Weyher was represented by Cohen and the Firm. The Firm's practice focuses on matrimonial and family law. At all relevant times in this complaint, Finkelstein maintained an office at the Firm and acted as an associate of the Firm. (Finkelstein now practices in Florida.) She was administratively suspended from the practice of law in Connecticut from June 1, 2010, until February 14, 2011 for failing to make payments to the client security fund after her return from out of state to resume practice in Connecticut. Finkelstein's name appeared on the Firm's letterhead, and she continued to practice law at the Firm during the period of her suspension. Finkelstein's status as an attorney was automatically restored on February 14, 2011, when she filed her registration and made payment to the client security fund. On July 13, 2015, the plaintiff discovered that the defendants were parties to a suit in the matter of Greenan litigation. From the complaint filed in that suit, the plaintiff learned that Finkelstein had been suspended from the practice of law in Connecticut during a period that coincided with the defendants' representation of Ms. Weyher.
B. Legal Malpractice, Negligence and Intentional Misrepresentation
In early October 2010, via their attorneys, the plaintiff proposed to Ms. Weyher that the parties continue to file joint tax returns. On October 8, 2010, Finkelstein sent an e-mail to the plaintiff's attorney attaching a proposed agreement that provided that Ms. Weyher would file a joint tax return if the plaintiff would agree to indemnify Ms. Weyher for any tax liability. The parties were unable to reach agreement on the terms of the indemnity agreement, and, accordingly, filed separate returns, which allegedly resulted in plaintiff's increased tax liability.
Attorney Cohen was not cc'd on the e-mail exchanges. The e-mails indicate decision-making action by Finkelstein, advice to her client, and the active practice of law. Finkelstein's work was reflected in the Firm's invoices. The plaintiff commenced this action against the defendants, alleging negligence, legal malpractice and intentional misrepresentation on or about July 21, 2015.
Discussion
" 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual 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 and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
A. Negligence
" The essential elements of negligence are well established: duty, breach of that duty, causation, and actual injury." RK Constructors v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). " [T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). " 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.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012). " Although the issue of causation generally is a question reserved for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997). " [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection." (Internal quotation marks omitted.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 182, 646 A.2d 195 (1994).
B. Legal Malpractice
" In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages . . . When proof of the existence of an attorney-client relationship is conceded, proof of the second element, a wrongful act or omission, normally involves expert testimony as to the existence of a professional duty on the part of the attorney and departure from it by some negligent act or omission." Lee v. Harlow, Adams & Friedham, P.C., 116 Conn.App. 289, 297, 975 A.2d 715 (2009). " As to causation: In legal malpractice actions, the plaintiff typically proves that the . . . attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent. This traditional method of presenting the merits of the underlying action is often called the 'case-within-a-case.'" Id.
" Courts have refrained from imposing a duty on an attorney to a non-client when imposing such a duty would have the potential to interfere with the ethical obligations owed by an attorney to his or her client . . . A central dimension of the attorney-client relationship is the attorney's duty of [e]ntire devotion to the interest of the client . . . The Connecticut Supreme Court reasoned that it must take care not to adopt rules which interfere with the attorney's duty of robust representation of the interests of his or her client . . . The duty of entire devotion to the client is not limited to litigation matters as transactions involving contractual negotiations do involve parties with adverse interests." (Citations omitted; internal quotation marks omitted.) First American Title Ins. Co. v. Martucci, Superior Court, judicial district of Windham, Docket No. CV-10-6002278-S (Dec. 14, 2011, Vacchelli, J.) .
C. Intentional Misrepresentation
" The essential elements of an action in common law [intentional misrepresentation] . . . are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury . . . [T]he party to whom the false representation was made [must claim] to have relied on that representation and to have suffered harm as a result of the reliance." (Internal quotation marks omitted.) Simms v. Seaman, 308 Conn. 523, 548, 69 A.3d 880 (2013).
D. Statute of Limitations
" [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 960 (2006). " [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." Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 321.
General Statutes § 52-577 provides in relevant part that: " No action founded upon tort shall be brought but within three years from the date of the act or omission complained of."
" [I]n 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 [our Supreme Court has] 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.) Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.App. 151, 160, 795 A.2d 572 (2002).
E. Discovery
Practice Book § 17-47 provides, " [should] it appear from the affidavits of a party opposing the motion that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just." Practice Book § 17-49 provides in relevant part that, " judgment sought 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."
Analysis
A. Negligence
Here, the plaintiff's interest was adverse to Ms. Weyher's interest because Ms. Weyher was seeking a divorce from the plaintiff. Ms. Weyher has also refused to join the plaintiff's suit against the defendants. " As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services. A number of jurisdictions have recognized an exception to this general rule when the plaintiff can demonstrate that he or she was the intended or foreseeable beneficiary of the attorney's services." Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988). The facts do not support a contention that the plaintiff was a foreseeable beneficiary of the services that the defendants provided to Ms. Weyher. Here, the plaintiff was represented by counsel at the time that the defendants gave Ms. Weyher tax advice. The plaintiff's counsel negotiated the terms of the agreement with the defendants. The plaintiff claims that a standard of care and fiduciary duty were breached; however, the defendants' duty was to Ms. Weyher and not the plaintiff. The plaintiff had an attorney to assess the consequences and advocate on the plaintiff's behalf. The defendants did not owe the plaintiff a duty.
Even assuming that the defendants owed the plaintiff a duty, there can be no question that the negligence claim fails as to causation. The plaintiff alleged that he was injured because Finkelstein gave tax advice while suspended and the Firm allowed her, a suspended attorney, to engage in the practice of law. The plaintiff, however, has provided no evidence as to how Finkelstein's suspension affected or relates to the advice given to Ms. Weyher. The plaintiff contends that his injury is a result of the tax advice that Finkelstein provided, specifically, that she advised Ms. Weyher to file separate tax returns. A review of the record, however, including the copy of the email exchanges submitted by the plaintiff, shows that Ms. Weyher was personally unwilling to file joint tax returns unless the plaintiff indemnified her and that the defendants were negotiating an agreement for indemnification. (See. Pl.'s Comp., pp. 11-12.) In her affidavit, Finkelstein stated: " Accordingly, pursuant to Mrs. Weyher's wishes, I advised plaintiff's then counsel that Mrs. Weyher would agree to file a joint tax return, but only if plaintiff agreed to indemnify her . . . Without the protection of an indemnification agreement, Mrs. Weyher was unwilling to risk the potential personal tax liability of a joint tax return and opted to file an individual income tax return, as was her right." (See Def.'s Mot. Summ. J., Ex. B.) Furthermore, at oral argument the defendants stated that any advice given to Ms. Weyher would have been the same whether or not Finkelstein was licensed. The plaintiff did not refute this and has not provided any evidence to show that his injury is the result of the tax advice given by an unlicensed attorney and not the result of the failure of Mr. and Mrs. Weyher to agree upon an indemnification agreement.
B. Legal Malpractice
The plaintiff contends that the same facts that allegedly support its negligence claim support a claim for legal malpractice. It is undisputed that the defendants were not the plaintiff's attorneys. In fact, the defendants represented the plaintiff's ex-wife in marital dissolution proceedings. The defendants, therefore, had an attorney-client relationship with her, and her interests were directly adverse to the plaintiffs. The plaintiff was represented by an attorney during the marital dissolution proceedings. For the foregoing reasons, the plaintiff cannot, as a matter of law, establish an essential element of his legal malpractice claim against the defendants.
Nevertheless, plaintiff claims that the Rules of Professional Conduct impose a duty on legal practitioners which would support his claims for damages against the defendants. Practice Book § 2-47B provides: " No attorney, who knows or should have known that an attorney's license has been deactivated, shall employ the deactivated attorney to engage in any law-related activities or to act as a paralegal or legal assistant, without the permission of the court, as provided in this section . . . During the period of employment of the deactivated attorney, the supervising attorney or his or her firm shall not assume representation of any matter on behalf of any client previously represented by the deactivated attorney or for whom the deactivated attorney had previously provided any legal services in the ten year period prior to deactivation."
A violation of this section by the deactivated attorney or the supervising attorney constitutes a violation of Rule 8.4(4) of the Rules of Professional Conduct. Rule 8.4(4) provides that it is professional misconduct for a lawyer to " engage in conduct that is prejudicial to the administration of justice."
However, our appellate courts have long recognized that the Rules of Professional Conduct applicable to attorneys do not provide a basis upon which civil liability may be premised. Noble v. Marshall, 23 Conn.App. 227, 231, 579 A.2d 594 (1990); Biller Associates v. Peterken, 269 Conn. 716, 722, 849 A.2d 847 (2004). In Biller Associates, supra, 269 Conn. 722-23, our Supreme Court stated, " Indeed, one of the introductory provisions of the Rules of Professional Conduct expressly provides that a '[v]iolation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.' Rules of Professional Conduct, scope, in Connecticut Practice Book (2004) p. 3." Accord Perugini v. Giuliano, Superior Court, judicial district of Waterbury, Docket No. CV 10 5016077, (July 26, 2012, Dooley, J.) (claim based on a violation of the Rules of Professional Responsibility legally insufficient).
It is useful to note that Attorney Finkelstein has already faced proceedings before a grievance committee, where her case was dismissed for lack of probable cause.
C. Intentional Misrepresentation and the Statute of Limitations
To maintain a cause of action of intentional misrepresentation, the plaintiff must show that the defendants knowingly concealed a fact. In this case, the defendants have provided evidence that they were without knowledge of Finkelstein's suspension. In his affidavit, Cohen states: " Prior to February 14, 2011, I had no knowledge of the administrative suspension." (See Def.'s Mot. Summ. J., Ex. A.) In her affidavit, Finkelstein stated: " On February 14, 2011, I attempted to complete my annual attorney registration . . . It was only then that I discovered that I was under administrative suspension. Prior to that date, I had no reason to believe that my license was suspended." Finkelstein goes on to state that " [t]hough I engaged in law practice during the period I was under administrative suspension, I did so completely inadvertently and unintentionally, as I had no knowledge that my license to practice was under suspension." (See Def.'s Mot. Summ. J., Ex. B.) The plaintiff has failed to provide any evidence of the defendants' alleged intentional misrepresentation.
Furthermore, the statute of limitations had expired with respect to this count (as well as the others). " Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues." (Internal quotation marks omitted.) Piteo v. Gottier, 112 Conn.App. 441, 445, 963 A.2d 83 (2009). " The relevant date of the act or omission complained of, as that phrase is used in § 52-577, is the date when the [wrongdoing] of the defendant occurs and not the date when the plaintiff's first sustain damage. 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Id., 445-46.
The plaintiff commenced this action on July 21, 2015. The claim of intentional misrepresentation is based on defendants holding Ms. Finkelstein out as an attorney qualified to practice in Connecticut while she was under suspension. It is undisputed that Ms. Finkelstein was reinstated to the practice of law in Connecticut on February 14, 2011. Therefore, given the plaintiff's allegations, the last date that any alleged wrongful conduct could have occurred is February 14, 2011. As a result, the statute of limitations expired for the plaintiff at the latest on February 14, 2014, well before the commencement of this action.
The plaintiff argues that he is entitled to a tolling of the statute of limitations under the continuous course of conduct doctrine because the effect of the defendants' initial wrongdoing, the failure to disclose the status of Ms. Finkelstein in connection with the advice to file separate tax returns, was repeated throughout multiple tax years in that the plaintiff and Ms. Weyher continued to file separate taxes until April 15, 2013. The plaintiff, therefore, contends that April 15, 2013 (the tax return deadline for the 2012 fiscal year) is the date of the most recent wrongful effect. The defendants contend that the continuous course of conduct doctrine does not apply here because its application requires the showing of a preexisting and continuing duty and subsequent acts of misconduct by the defendants.
The defendants' argument is strongly supported by the facts and case law. The defendants were not the plaintiff's attorneys and never became his attorneys, and, therefore, a pre-existing or continuing duty did not arise from an attorney-client relationship. The plaintiff relies on Watts v. Chittenden, 301 Conn. 575, 22 A.3d 1214 (2011), for the proposition that the court does not need to establish that there was a preexisting duty to justify the application of the continuous course of conduct doctrine. This proposition is misplaced. The court in Watts stated that its decision to apply the continuous course of conduct to toll the statute of limitations, without a determination of duty, was limited to actions involving intentional infliction of emotional distress. Id., 301 Conn. 596.
Even assuming that the defendants owed the plaintiff a pre-existing duty or that it was not necessary to establish one, the application of the doctrine requires a continuing duty and subsequent wrongful conduct. Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 313, 94 A.3d 553 (2014). It is not enough for the plaintiff to allege that the initial wrongful conduct (the failure to disclose Ms. Finkelstein's status while her license was suspended) had an effect for subsequent years because the plaintiff and Ms. Weyher continued to file separate tax returns. On the contrary, after Ms. Finkelstein's negotiations in October of 2010 and her reinstatement in February 14, 2011, the defendants took no affirmative actions which caused the plaintiff injury and did not represent plaintiff. See Flannery v. Singer Asset Finance Co., LLC, supra, 312 Conn. 286 (declined to apply the continuous course of conduct doctrine to toll the statute of limitations where attorney failed to disclose his prior conflict of interest to former client but attorney-client relationship terminated outside of limitation period.) Accordingly, plaintiff has not adduced any facts supporting the application of the continuous course of conduct doctrine.
Finally, the plaintiff contends that the court should look to the date of his discovery of Ms. Finkelstein's suspension in its determination of whether the statute of limitations is tolled. The plaintiff argues that the court should consider later dates such as July 13, 2015, when the plaintiff first learned that Finkelstein was suspended, or November 18, 2014, which is the date that the court issued a decision in the Greenan case. However, as held by the authorities discussed above, " 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 . . . Ignorance of his rights on the part of the person against whom the statute has begun to run, will not suspend its operation." Piteo v. Gottier, 112 Conn.App. 441, 963 A.2d 83 (2009). The plaintiff filed this action on July 21, 2015, more than three years from the date of the alleged wrongful conduct and, accordingly, the third count is time-barred.
D. The Need for Additional Discovery and Other Arguments
The plaintiff also attempts to invoke Practice Book Section 17-47 as a ground for opposing summary judgment because he claims that he has not completed discovery with defendants and " intends to expand his request for production and disclosure." This assertion is insufficient to resist summary judgment. Plaintiff did not identify any documents or other discovery he would be able to obtain during discovery that would allow him to " present facts essential to justify [his] opposition."
The plaintiff also contends that his motion to compel joinder of Mrs. Wehyer is germane to this action. The court disagrees, and denied the motion on November 13, 2015.
Finally, plaintiff asserts that defendants have a conflict of interest representing Ms. Weyher in this litigation. First, this is not a basis for opposing a motion for summary judgment. Second, the contention is not supported by the facts. The defendants have previously provided an affidavit by Ms. Weyher who stated that: (1) she understands that she has a right to consult with an independent attorney regarding the plaintiff's offer to join this lawsuit; (2) she does not consent to being made a party to this lawsuit-in any capacity; (3) she does not believe that she has an interest in the lawsuit nor has any desire to defend any interest on behalf of herself or her former husband; and (4) she is fully satisfied with the representation she was offered by Cohen and his colleagues. Under these facts, the court does not find any conflict of interest applicable to defendants in this case. Further, the right to assert such a conflict of interest belongs to Ms. Weyher, not plaintiff. In any event, any such conflict would be insufficient to overcome the factual bases for defendants' motion for summary judgment.
Conclusion
For the foregoing reasons, the defendants' motion for summary judgment is granted as to all counts of the complaint.