Domaine Guerrera, Executrix to the Estate of Domenic Guerrera v. LLC (2010)

MEMORANDUM OF DECISION

This case is a suit to recover unpaid rent allegedly due under a written lease of restaurant property to the defendant, Signore's Place, LLC. (“Signore's”).  By way of a third-party complaint, Signore's alleges legal malpractice and negligent representation against Franklin G. Pilicy, Esq., Law Office of Franklin G. Pilicy, P.C. (referred to collectively as “Pilicy”) and Christopher N. Parlato, Esq. (“Parlato”).  The third party complaint was served upon Pilicy and Parlato on May 11, 2009.   Parlato has set forth a special defense in which he alleges that Signore's claims are barred by the applicable 3-year statute of limitations, C.G.S. § 52-577.   Based upon that special defense, Parlato has moved for summary judgment on the negligence and negligent misrepresentation claims against him.   The motion for summary judgment is supported by copies of pleadings, from the file.   Signore's objection is supported by an affidavit of a member of Signore's and three uncertified documents.   The motion was argued at the short calendar on November 15, 2010.   For the reasons given, the motion for summary judgment must be granted.

“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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Southwick at Milford Condominium Ass'n., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009).  “It necessarily follows that it is only [o]nce [a] [movant's] burden in establishing [its] entitlement to summary judgment is met [that] the burden shifts to [a] [nonmovant] to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Himmelstein v. Windsor, 116 Conn.App. 28, 45 n. 14, 974 A.2d 820, cert. granted in part by 293 Conn. 927, 980 A.2d 910 (2009).

“[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The Third Amended Third Party Complaint dated September 18, 2009 is the operative pleading being attacked.   It contains three counts directed against Parlato, two of which are the subject of this motion for summary judgment:  negligence and negligent misrepresentation.   These counts contain allegations that prior to May 30, 2005, Signore's retained Pilicy to represent the business in extending the restaurant lease for an additional 5-year term beyond the expiration date of November 30, 2005.   It is further alleged that Parlato, as an associate of Pilicy or as solo practitioner, agreed to obtain the five-year lease extension.   It is further alleged that Parlato obtained the 5-year extension but advised Signore's that the lease had not been extended and that it would have to vacate the premises.   It is alleged that Signore's vacated the premises on or about January 31, 2006 based upon the advice of Parlato.   Finally, on August 16, 2007, Signore's was sued in this case for breach of the extended lease.

Count six is based upon professional negligence against Parlato in that Parlato inaccurately advised Signore's that the lease had not been extended and advised Signore's to vacate the premises.   Count seven is based upon negligent misrepresentation by Parlato in advising Signore's that the lease had not been extended.

The third party complaint was served on May 11, 2009, more than three years after Signore's vacated the premises on or about January 31, 2006.   Parlato argues that the 3-year statute of limitations had expired before the third party complaint was filed.

In response to Parlato's argument, Signore's relies upon the continuous course of conduct doctrine to toll the limitations period of § 52-577.¹  In support of this argument, Signore's cites the Supreme Court's decision in DeLeo v. Nusbaum, 263 Conn. 588, 597 (2003).   That case adopted a “continuous representation doctrine” in the context of legal malpractice.   “Under the rule we adopt today, a plaintiff may invoke the doctrine, and thus toll the statute of limitations, when the plaintiff can show:  (1) that the defendant continued to represent him with regard to the same underlying matter;  and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation.   With regard to the first prong, we conclude that the representation continues for the purposes of the continuous representation doctrine until either the formal or the de facto termination of the attorney-client relationship.   The formal termination of the relationship occurs when the attorney is discharged by the client, the matter for which the attorney was hired comes to a conclusion, or a court grants the attorney's motion to withdraw from the representation.”  Id., 597.  “While we anticipate that these standards would be applicable to all attorney malpractice cases, we acknowledge that the implications of tolling for attorney-client relationships in the context of litigation may not be the same as those for other attorney-client relationships.   Accordingly, our holding today is limited to cases in which an attorney is alleged to have committed malpractice during the course of litigation.”   Id., note 4. The Appellate court has noted that the DeLeo holding is limited:  “[The holding of DeLeo was] limited to cases in which an attorney is alleged to have committed malpractice during the course of litigation.”  Piteo v. Gottier, 112 Conn.App. 441, 448-49 (2009).

The court does not need to decide if the DeLeo holding can be applied to legal malpractice claims which do not arise out of litigation because Signore's has not presented any evidence that Parlato continued to represent Signore's after Signore's vacated the property on or before January 31, 2006.   Signore's relies upon an affidavit of Michelina Signore, a member of Signore's Place LLC., in which she states very little.   She says that she retained Parlato on or about February 21, 2004, that they would meet at the restaurant to discuss the lease, that she contacted Parlato in August 2007 when this suit was brought, and that at that time she still believed that Parlato was her lawyer.   This affidavit does not present any material fact which must be decided.   The negligence alleged against Parlato all took place before Signore's vacated the property.   Signore's does not allege and offer evidence of any act or failure to act by Parlato after January 31, 2006.   Once Signore's vacated the property on or about January 31, 2006 there was nothing else for Parlato to do.   The matter for which Parlato had been hired had come to a conclusion.   The fact that Signore's still considered Parlato to be their lawyer does not mean that the statute of limitations could never begin to run on his negligence.   Signore's has not provided the court with any evidence that Parlato's representation of Signore's continued after the property was vacated.   Signore's has not cited the court to any case law which would be helpful to its argument, including Judge Bellis's case relied upon by Signore's.   That case helps Parlato, not Signore's.   In that case, Judge Bellis found that there was no evidence that defendant law firm's representation of the plaintiff in the drafting of an employment agreement continued beyond the execution of the agreement.   In summary, Judge Bellis concluded her analysis of the continuous representation doctrine by granting summary judgment in favor of the defendant and stating:  “As such, the plaintiff has failed to produce evidence that raises an issue of fact as to whether the continuous representation doctrine tolls the statute of limitations as to the legal malpractice count.   The same analysis applies to the plaintiff's argument that the doctrine tolls the statute of limitations for the plaintiff's breach of fiduciary duty and negligent misrepresentation counts as well.”  Lee v. Brenner, Saltzman & Wallman, supra.   The same considerations apply here.   For the reasons set forth above, Parlato's motion for summary judgment is granted.

BY ORDER OF THE COURT,

John W. Pickard, J.

FOOTNOTES

FN1. Signore's argues that the proper statute of limitations is actually C.G.S. 52-584 and, in support of this proposition, cites Judge Barbara Bellis in the Superior Court case of Lee v. Brenner, Saltzman & Wallman, Superior Court judicial district of Ansonia-Milford at Derby, Docket No. 06-5000728 (January 12, 2010).   But, this case does not support Signore's argument.   In fact, Judge Bellis makes it clear that C.G.S. Sec. 52-577 applies to claims of legal malpractice and to claims of negligent misrepresentation which, as here, do not include allegations of damages to person or property..  FN1. Signore's argues that the proper statute of limitations is actually C.G.S. 52-584 and, in support of this proposition, cites Judge Barbara Bellis in the Superior Court case of Lee v. Brenner, Saltzman & Wallman, Superior Court judicial district of Ansonia-Milford at Derby, Docket No. 06-5000728 (January 12, 2010).   But, this case does not support Signore's argument.   In fact, Judge Bellis makes it clear that C.G.S. Sec. 52-577 applies to claims of legal malpractice and to claims of negligent misrepresentation which, as here, do not include allegations of damages to person or property.

Pickard, John W., J.