Linda Villano v. Shawn Splan (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 147

Facts

The plaintiffs, Linda Villano and Gaetano Villano, commenced this legal malpractice action against the defendant, Shawn Splan, on March 3, 2009 by service of process.   In their revised complaint dated November 12, 2009, the plaintiffs allege the following.  “Beginning September 1, 1999, the plaintiffs sought the services of the defendant in connection with estate planning matters for Stephen Porga, Jr. [ (Porga) ], uncle to Linda Villano ․ as the plaintiffs were to be the sole and intended beneficiaries of [his] estate ․ [T]he defendant issued to [Linda Villano], an opinion concerning the state of the title on property located at 126 Marshal Lane, Derby, Connecticut.”   The plaintiffs refer to Exhibit A, attached to their complaint, which is a copy of a letter dated November 1, 1999 sent by the defendant to Linda Villano.   In that letter, the defendant stated therein:  “[I] reviewed the deed recorded on the Derby Land Records on December 16, 1987, which transferred the real estate located at 126 Marshal Lane, Derby, Connecticut to you and your husband.   The deed transferred a remainder interest in the property to you and your husband.   Your uncle only retained a life estate ․ I believe the fact that your uncle only has a life estate should relieve your fears concerning the house and your business.”   The plaintiffs allege that the letter is an attorney's title opinion letter.

The plaintiffs further allege damages arising out of their reliance on the attorney's title opinion letter.   Specifically, they allege that they “at all times believed that they had received a 100 [percent] interest in the property ․ and further believed that they had good title and right to sell said property ․ The defendant knew or in the exercise of due diligence should have known that the alleged transfer of a 100 [percent] interest in the property by [Porga] to [the plaintiffs], prior to his death was not possible ․ as the plaintiffs only received, a [one-half] interest ․ On November 10, 2008, in connection with a title search that was prepared for the potential buyers of the property ․ it was discovered that [Porga] had not conveyed a 100 [percent] interest in said property via [that] deed ․” ¹ In count one, the plaintiffs claim damages including their payment of the taxes, fees and expenses that they incurred on the property as if they had a 100 percent interest in it and the loss of a sale of the property because they were unable to provide clear title to it.

In the second count the plaintiffs incorporate all of the foregoing and allege further legal malpractice arising out of the probate of the Porga estate.   Specifically, they allege the following “[Porga] died on February 25, 2000 and the defendant submitted for probate [his] estate on behalf of [the plaintiffs] ․ as the sole beneficiaries of the estate.”   The plaintiffs refer to Exhibit B, which is attached to the complaint.   Exhibit B is a succession tax form in which, as alleged in the complaint, “the defendant took the acknowledgment of the plaintiff Linda Villano.   As such, he attested to the veracity of the statements contained therein which in fact were false as [the plaintiffs] did not in fact have a 100 [percent] interest in the property.”   The plaintiffs argue that this form is also an attorney's title certificate or opinion.

On March 26, 2010, the defendant filed an answer and raised the statute of limitations as one of the special defenses.   On April 14, 2010, the defendant filed a motion for summary judgment on the ground that this action is untimely pursuant to General Statutes § 52-577.   The defendant submitted a number of exhibits and a supporting memorandum of law.²  On April 28, 2010, the plaintiffs filed a memorandum in opposition claiming that the action is timely pursuant to General Statutes § 52-584b.   The court heard oral argument at short calendar on June 7, 2010.

Discussion

“Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.   Practice Book [§ 17-46].”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 119, 971 A.2d 17 (2009).  “The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

“Summary judgment may be granted where the claim is barred by the statute of limitations;  Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996);  and is appropriate when material facts concerning the statute of limitations [are] not in dispute ․ Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).”  (Internal quotation marks omitted.)   Lee v. Brenner, Saltzman & Wallman, LLP, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 06 5000728 (January 12, 2010, Bellis, J.) (49 Conn. L. Rptr. 226, 228).

The defendant has moved for summary judgment on the ground that the action is untimely pursuant to the three-year limitation period of General Statutes § 52-577 for an “[a]ction founded upon a tort.”   The plaintiffs maintain in response that this action is timely under General Statutes § 52-584b, for “actions against attorneys in connection with title certificates or opinions,” which they argue is the appropriate statute of limitations.   First, this court must determine which statute applies.   To do so, the court must examine whether the causes of action alleged in the complaint sound in tort or involve a “title certificate” or “title opinion.”   Then, the court must determine whether the action is timely under the relevant statute.

General Statutes § 52-584b provides in relevant part:  “Notwithstanding any provision of the general statutes, no action, whether in contract, tort or otherwise, against an attorney to recover for injury caused by negligence or by reckless or wanton misconduct in the preparation of and the execution and delivery of an attorney's title certificate or opinion, or the title search in connection therewith, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, except that no such action may be brought more than ten years from the date of such delivery ․”

The plaintiffs argue that the November 1999 letter and the succession tax form constitute an “attorney's title certificate or opinion.”   They allege that they discovered their injury on November 10, 2008, when the attorney for buyers of the property conducted a title search and shared the results with the plaintiffs.   They posit that they commenced this suit by service of process on March 3, 2009, which is within two years of their alleged discovery of the injury and within ten years of the date of the November 1999 letter and the succession tax form completed after Porga's death in February 2000.

The issue presented is whether either of the plaintiffs' documents constitutes an attorney's title certificate or opinion for the purposes of § 52-584b.   One court has noted that, generally speaking, “[a]ttorney's title certificates or opinions are prepared by attorneys for their clients before the clients enter into contracts to purchase real property.   The obvious purpose for preparing such a certificate or opinion is to assure one's client that if the property is purchased, his title to it will be free and clear of all encumbrances, and thus that his right to use and enjoy it will not be interfered with.”   Connecticut Attorneys Title Ins. Co. v. McDonough, Superior Court, judicial district of Hartford, Docket No. CV 93 0530925 (December 4, 1996, Sheldon, J.) (18 Conn. L. Rptr. 337, 339) (holding § 52-584b did not apply to performance of title search in connection with issuance of title insurance policy because no attorney-client relationship existed).   Indeed, in the usual context, “a disgruntled purchaser of real property [commences an action] against the attorney who represented him in connection with the purchase.”   Id., 344 n.1. See, e.g, Mesick v. Raczka, Superior Court, judicial district of New Haven, Docket No. 288929 (February 2, 1993, Stanley, J.) (granting summary judgment when plaintiff brought suit within two years of discovering injury but not within ten years of defendant providing title certificate containing scrivener's error as to size of lot).

The defendant relies in part on the legislative history of § 52-584b for the proposition that the statute “was enacted to protect consumers from defective certificates or opinions relating to title.”  A review of the legislative history indicates that the legislature intended to “[extend] the time period in which consumers can bring causes of action against lawyers for negligently providing certificates of title in land transactions.”   24 H.R. Proc., Pt. 4, 1981 Sess., p. 1401, remarks of Rep. Tulisano.  See also 24 S. Proc., Pt. 3, 1981 Sess., p. 676-77, remarks of Sen. Owens (stating purpose was to extend time to discover injury to ten years but to shorten time to file suit to two years from date injury discovered).   This history does not indicate that the legislature considered the question of what documents constituted a title certificate or opinion for the purposes of the statute.

Our Appellate Court addressed the question of whether a letter constituted a title certificate or opinion in Lunn v. Cummings & Lockwood, 56 Conn.App. 363, 743 A.2d 653 (2000).   In that case, the plaintiff and her neighbor sought to partition certain land that they had acquired from an estate.   The defendant attorney wrote a letter dated February 13, 1985 to the president of an association, which, because of certain restrictive covenants on the land, had to approve any proposed partition.   The association granted the plaintiff and her neighbor permission to partition the land.   In her suit for legal malpractice arising out of a subsequent dispute with the association, which prevented her from building on the land, the plaintiff maintained that this letter constituted a “title certificate or opinion” within the meaning of § 52-584b.   The court disagreed.   Because the statute does not define “title certificate or opinion,” the court turned to the well established tenets of statutory interpretation.

“Generally, when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent ․ The words of a statute are to be given their commonly approved meaning unless a contrary intent is clearly expressed ․ In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended ․

“We may resolve the issue by examining the relevant words of the statute, which are ‘title certificate or opinion.’   The nouns certificate and opinion are modified by the word title.   For the purposes of this opinion, therefore, we must determine the meaning of title, which is not defined in our statutes.   There is, however, common law that guides us in ascertaining the common meaning of the word title.

“[W]hen we have construed ‘owner’ in the context of real estate, we have defined the term with reference to title.   When we say, a man has the title to ․ [property], we mean, he is the owner of it;  and vice versa ․ Ownership is an essential incident of title and according to the commonly approved usage of the language ․ an owner is one that owns;  one that has the legal or rightful title whether the possessor or not ․

“A title opinion concerns the validity of title to real properly.   It is distinct from an abstract of title, which merely recites what the land records disclose without giving opinion or advice as to the legal effect of what is found ․

“Numerous authorities have provided general descriptions and examples of title opinions.  [T]he opinion should be a plain statement of what appears in more cryptic form on the examiner's work-sheet ․ It should show the party for whom the report is made, the period covered by the examination, whether made from an accompanying abstract ․ or from the original records aided by an identified abstract or search-sheet.   It should not mention every irregularity but only those which destroy or detract from marketability, and those which indicate more than ordinary business risk.   However, a marketable title is all that the client can usually insist upon and is just what he will expect if versed in real property transactions ․

“We in no way intend our brief review of the structure and content of a title opinion to be exhaustive, it is, however, sufficient for us to determine, as a matter of law, that the letter is not a title opinion or certificate within the meaning of § 52-584b.   The letter does not give an opinion as to the validity or marketability of the title to the land.   It was not written in conjunction with the transfer of the land.   It was written subsequent to the plaintiff's having acquired the land from the Cudd estate.   At the time they purchased the land, the plaintiff and her neighbor did not receive a certificate of title or a title opinion from the defendant.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 371-74.

Both parties cite Lunn to support their respective positions.   In the present case, as the plaintiffs argue, the November 1999 letter contains some of the characteristics of a title opinion or certificate.   It is undisputed that the parties had an attorney-client relationship.   The letter recites that the defendant “reviewed the deed recorded on the Derby Land Records on December 16, 1987,” which is a plain statement of what source defendant relied on in reaching his conclusion.   In the letter, the defendant twice stated that Porga retained only a life estate and once stated that the plaintiffs had a remainder interest in the property.   The defendant stated that “the fact that your uncle only has a life estate should relieve your fears concerning the house and your business.”   These statements can be read as expressing an opinion as to the nature of the plaintiffs' interest in the real property.

Like the letter at issue in Lunn, however, the letter in the present case does not give an opinion as to the marketability of the title to the land.   The plaintiffs allege and the evidence submitted demonstrates that the defendant reviewed the deed in 1999, not as a result of a title search in connection with the transfer of land but “in connection with estate planning matters for [Porga].”   In the deed, Porga indicates that hc believed that, at that time of the conveyance, he alone held the property in fee simple.³  According to the plaintiffs' allegations, Porga in fact conveyed only his one-half interest to the plaintiffs when he executed the deed in 1987.   The defendant wrote the letter in 1999, almost twelve years after the conveyance, and after reviewing only the contents of that deed in connection with planning Porga's estate, not a transfer of land.   Based on the foregoing, the November 1999 letter is not a ‘title certificate or opinion’ for the purposes of § 52-584b.

The defendants maintain that the succession tax form is also a “title certificate or opinion.”   Therein, the plaintiffs are listed as beneficiaries to Porga's estate, including the subject property, and that “the nature of the estate” of the property is listed as “fee” to the plaintiffs.   The defendant prepared the form.   The plaintiff Linda Villano “subscribed and swore to the information within the succession tax form as true and complete” and the defendant took her oath.   The plaintiffs maintain that this “goes beyond merely stating what is found on a deed and should fall within the purview of § 52-584b.”

Nowhere does the succession tax form indicate that the defendant reviewed the land records or that the defendant noted any irregularities which would impact the marketability of the title, nor does it contain any statement that could be construed as a title opinion.   This document was prepared for the department of revenue services in connection with the probate of Porga's estate and not in connection with a land transaction.   Although the court's review in Lunn of what constitutes a title opinion was “not exhaustive,” the succession tax form does not have any of the characteristics which our Appellate Court has indicated are part of the structure and content of a title opinion.   See Lunn v. Cummings and Lockwood, supra, 56 Conn.App. 373-74.   Based on the foregoing, the succession tax form is not a ‘title certificate or opinion’ for the purposes of § 52-584b.

Because neither the November 1999 letter nor the succession tax form is a “title certificate or opinion,” § 52-584b does not control this action.   The next issue is whether the defendant has met his burden to show that he is entitled to summary judgment on the ground that this action is untimely pursuant to § 52-577.   Since the plaintiffs allege in the complaint causes of action sounding in legal malpractice based on the defendant's negligence, § 52-577 applies to the plaintiffs' claims.   See Farnsworth v. O'Doherty, 85 Conn.App. 143, 148-49, 856 A.2d 518 (2004).

“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 ․ General Statutes § 52-577 provides:  No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of ․ [Section] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs ․ 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 ․

“The relevant date of the act or omission complained of, as that phrase is used in § 52-577, is the date when the negligent conduct of the defendant occurs and not the date when the plaintiffs 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 [commenced] ․ 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.)  Piteo v. Gottier, 112 Conn.App. 441, 445-46, 963 A.2d 83 (2009).

“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 polity 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., 450.

In the present case, there are no material facts in dispute as to the relevant dates during which the defendant provided legal services.⁴  A review of the exhibits that the defendant has submitted demonstrates that the last act performed by the defendant in connection with these plaintiffs occurred in January 2001.   Specifically, in response to the defendant's request for admissions, the plaintiffs admit that a particular bill for services, also included as an exhibit with the defendant's memorandum, “reflects the last date of legal services performed by the defendant (and which was paid by the plaintiffs) as being January 25, 2001.”   All legal services rendered by the defendant occurred eight years before this action was commenced in February 2009 and therefore, this action alleging legal malpractice is untimely under § 52-577.

Conclusion

For the foregoing reasons, the defendant's motion for summary judgment on the ground that this action is time-barred is granted.

BELLIS, J.

FOOTNOTES

FN1. “The title search [conducted by the potential buyers] revealed that on March 9, 1955, Stephen Porga Sr. transferred his interest in the subject property to [Porga] and his sister Ethel Porga as tenants in common reserving a life estate for himself.”   Consequently, Porga had only a one-half interest to convey..  FN1. “The title search [conducted by the potential buyers] revealed that on March 9, 1955, Stephen Porga Sr. transferred his interest in the subject property to [Porga] and his sister Ethel Porga as tenants in common reserving a life estate for himself.”   Consequently, Porga had only a one-half interest to convey.

FN2. The defendant's exhibits include an affidavit from a custodian of records who attests that the remaining exhibits are true and accurate copies of the original documents, plaintiffs' responses to the defendant's requests for admission, a copy of the warranty deed executed by Porga in 1988, copies of correspondence including the November 1999 letter and bills for legal services, and a copy of the succession tax form.   The plaintiffs raised ho objection to any of these exhibits..  FN2. The defendant's exhibits include an affidavit from a custodian of records who attests that the remaining exhibits are true and accurate copies of the original documents, plaintiffs' responses to the defendant's requests for admission, a copy of the warranty deed executed by Porga in 1988, copies of correspondence including the November 1999 letter and bills for legal services, and a copy of the succession tax form.   The plaintiffs raised ho objection to any of these exhibits.

FN3. As stated in the 1987 warranty deed executed by Porga in which he conveyed his interest in the property to the plaintiffs:  “I am well seized of the premises, as a good indefeasible estate in [fee simple] and have good right to bargain and sell the same in manner and form as is above written.”.  FN3. As stated in the 1987 warranty deed executed by Porga in which he conveyed his interest in the property to the plaintiffs:  “I am well seized of the premises, as a good indefeasible estate in [fee simple] and have good right to bargain and sell the same in manner and form as is above written.”

FN4. The defendants argue that whether the November 1999 letter or the succession tax form constitutes a title certificate or opinion is an issue of material fact.   This court has concluded that, as a matter of law, neither document is a title certificate or opinion.   See Lunn v. Cummings and Lockwood, supra, 56 Conn.App. 369..  FN4. The defendants argue that whether the November 1999 letter or the succession tax form constitutes a title certificate or opinion is an issue of material fact.   This court has concluded that, as a matter of law, neither document is a title certificate or opinion.   See Lunn v. Cummings and Lockwood, supra, 56 Conn.App. 369.

Bellis, Barbara N., J.