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, negligent representation and breach of contract 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.   Pilicy has moved to strike all three causes of action filed against him.   This motion was argued at the short calendar on November 15, 2010.

The Third Amended Third-Party Complaint dated September 18, 2009 is the operative pleading being attacked.   Count one sets forth a claim for breach of contract against Pilicy.   Counts two and three set forth identical claims for professional negligence against Pilicy.   Count four sets forth a claim for negligent misrepresentation against Pilicy.   The grounds for this motion to strike are that counts two, three, and four are time-barred as a matter of law, and that count one fails as a matter of law because it insufficiently alleges breach of contract as a separate and distinct cause of action, and is simply a tort claim couched in contract terms.

The major issue before the court is whether the statute of limitations bar sought by Pilicy can be raised with a motion to strike rather than with a special defense.  “Ordinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike ․ This is because a motion to strike challenges only the legal sufficiency of the complaint and might ․ deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense.”  (Citations omitted.   Internal quotations marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 344-45, note 12 (2006).   Exceptions to this general rule, however, have been recognized, including where “the complaint sets forth all the facts pertinent to the question of whether the action is barred by the statute of limitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by an answer ․” (Citations omitted.   Internal quotation marks omitted.)  Forbes v. Ballaro, 31 Conn.App. 235 (1993).

Pilicy argues that all of the facts pertinent to the question of whether Signore's action is barred by the statute of limitations are contained in the third-party complaint.   Signore's argues that it intends to raise the continuing course of conduct doctrine to avoid the statute of limitations bar.   But, Signore's fails to argue that all the facts pertinent to that question are not set forth in the third-party complaint.   The court takes this failure as an acknowledgment that all pertinent facts are set forth in the third-party complaint.   For that reason, the court will consider Pilicy's statute of limitations defense.

The four counts directed against Pilicy 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, and that Pilicy agreed to obtain the five-year lease extension.   It is further alleged that Pilicy 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 Pilicy.   Finally, on August 16, 2007, Signore's was sued in this case for breach of the extended lease.

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.   Pilicy argues that the 3-year statute of limitations provided by C.G.S. § 52-577 had expired before the third-party complaint was filed.   I agree with Pilicy and find that counts two, three and four were brought beyond the three-year statute of limitations.

In response, Signore's relies upon the continuous course of conduct doctrine to toll the limitations period of § 52-577.   In DeLeo v. Nusbaum, 263 Conn. 588, 597 (2003) the Supreme Court 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 alleged that Pilicy continued to represent Signore's with respect to the lease extension after Signore's vacated the property on or before January 31, 2006.   This is not surprising because, once Signore's vacated the property on or about January 31, 2006, there was nothing else for Pilicy to do.   The matter for which Pilicy had been hired had come to a conclusion.   Signore's has not alleged that Pilicy's representation of Signore's continued after the property was vacated and has not cited the court to any case law which would be helpful to its argument.   For this reason, the motion to strike must be granted as to the second, third and fourth counts.

As to the first count, Pilicy argues that it should be treated as a tort claim subject to the same statute of limitations.   Count one is labeled as a claim for breach of contract on the ground that Pilicy failed to ensure that the lease was extended for five years as he had agreed to do.   Pilicy argues that this is merely a tort claim disguised as a breach of contract.   Pilicy cites a long line of cases which have overlooked the contract label on a claim if the allegations are rooted in negligence.   Pilicy cites Weiner v. Clinton, 106 Conn.App. 379, 383, cert. denied, 282 Conn. 928 (2008) for the proposition that:  “Tort claims cloaked in contractual language are, as a matter of law, not breach of contract claims.”   In this case, the failure to obtain an extension of the lease clearly sounds in legal malpractice rather than breach of contract.   The allegations of this count are virtually the same as those in the tort counts.   The only difference is that count one contains an allegation that Pilicy “agreed to ensure that the Lease was extended for an additional five year term as per the Lease Extension.”   This is an obvious attempt to cloak this tort claim in contract language.   For that reason, the first count is considered to be a tort claim subject to the three-year tort statute of limitations.   Therefore, the motion to strike must be granted as to the first count as well as to the other claims directed against Pilicy.

BY ORDER OF THE COURT,

John W. Pickard

Pickard, John W., J.