Agnes Targonski v. Walter Clebowicz (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 132

I

Procedural History

This attorney malpractice action arises out of a real estate transaction that closed on June 9, 2004.   The plaintiffs, Agnes Targonski and Krzystof Targonski, commenced this action on February 26, 2009.   Their amended complaint, filed June 12, 2009, alleges the following facts.   The defendant, Walter Clebowicz, is an attorney in Connecticut.   The plaintiffs hired him to represent them in connection with a real estate transaction.   The plaintiffs contracted with Karen Delahunty to purchase a lot known as Lot 2 on Indian Hill Road in Higganum and a right of way over Delahunty's land to be used as a driveway.   The defendant conducted the closing on June 9, 2004.   The warranty deed from Delahunty to the plaintiffs did not include the grant of a right of way over Delahunty's property, but the defendant nonetheless assured the plaintiffs that it did.

After the closing, the plaintiffs constructed a home on the lot they purchased and a driveway and stone wall on what they thought was their right of way.   The plaintiffs eventually discovered that they built the home too close to the property line between their lot and Delahunty's lot.   In order to remedy the zoning violation, the plaintiffs purchased an additional 48.61 square feet of property from Delahunty.

On at least two occasions between the June 9, 2004 closing and the August 25, 2005 closing, Delahunty's attorney notified the defendant that the plaintiffs did not own a right of way over Delahunty's land.   The defendant never relayed that information to the plaintiffs.   In fact, he informed them on multiple occasions between the June 9, 2004, closing and his termination as their counsel in 2008 that they did own a right of way over the Delahunty's land and that they could treat that right of way as their own.   He engaged in a continuous course of conduct and representation from the June 9, 2004, closing until the plaintiffs terminated him in 2008.

In September 2008, Delahunty's attorney sent the plaintiffs a letter that informed them that they did not own the right of way and requested that the plaintiffs remove the trespassing driveway and stone wall.   The plaintiffs sought the defendant's counsel on the matter, but at some point thereafter, the plaintiffs terminated their relationship with the defendant and this litigation ensued.

Count one of the plaintiffs' complaint alleges negligence;  count two alleges breach of fiduciary duty;  count three alleges breach of contract;  and count four alleges negligent misrepresentation.   The court, Bear, J., struck the plaintiff's second and third counts, the counts that alleged breach of fiduciary duty and breach of contract, respectively.   The court later granted the defendant's motion for judgment on those counts.

On January 7, 2011, the defendant filed an answer and alleged, as a special defense, that the plaintiffs' claims were barred by the applicable statute of limitations.   On January 31, 2011, the defendant filed a motion for summary judgment on the grounds that the statute of limitations barred the plaintiff's recovery and that the defendant's alleged conduct did not harm the plaintiffs.   The defendant filed a memorandum of law in support of the motion for summary judgment on the same day.

On March 23, 2011, the plaintiff filed an objection to the defendant's motion for summary judgment and a memorandum of law in opposition to summary judgment.   On March 25, 2011, the defendant filed a reply memorandum.   On March 30, 2011, the plaintiff filed a surreply memorandum in opposition to summary judgment.   The court heard argument on the motion for summary judgment at short calendar on April 4, 2011.

II

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.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

“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.   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 ․ 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].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendant argues that the statute of limitations in General Statutes § 52–577 bars the plaintiffs' negligence claim because the plaintiffs did not bring their case within the three-year statute ¹ and that General Statutes § 52–584 bars the plaintiffs' negligent misrepresentation claim because the plaintiffs did not bring their case within the two-year statute.² ,³ The defendant contends that the plaintiffs cannot avail themselves of tolling doctrines for three reasons.   First, the plaintiffs did not plead any tolling doctrines in their reply to the defendant's special defense of the statute of limitations.   Second, the continuing representation doctrine does not apply to nonlitigation matters, and there is no evidence that the defendant's representation of the plaintiffs was continuing.   Third, the continuing course of conduct doctrine similarly does not apply in a legal malpractice case outside of a litigation context.   The defendant also argues that there is no evidence that his negligence, if any, caused the plaintiffs' damages.

The plaintiffs counter that the continuing course of conduct doctrine tolled the statute of limitations.   They further argue that the continuing representation doctrine can be applied outside the litigation context and applies to this case.   The plaintiffs contend that there is an issue of fact as to whether the defendant's conduct caused the plaintiffs' harm.   The plaintiffs also note that they have filed a request for leave to amend their answer to include allegations of a continuing course of conduct and continuing representation.   The plaintiffs argue that the defendant's causation argument is irrelevant because the defendant's negligence caused the defendants to have to defend a trespass suit by Delahunty.

A.

Continuing Representation

The first tolling doctrine the plaintiff relies on is the continuing representation doctrine.  “[A] plaintiff may invoke the [continuous representation] 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 period.”  (Emphasis in original;  internal quotation marks omitted.)  Sin Hang Lee v. Brenner, Saltzman & Wallman, LLP, 128 Conn.App. 250, 255, 15 A.3d 1215 (2011).

The parties disagree about whether the continuing representation doctrine applies to non-litigation matters.⁴  The defendant argues that the plaintiff cannot rely on the doctrine because the defendant's alleged negligent conduct did not occur in the context of a litigation matter.   The plaintiff counters that the Supreme Court has not expressly declined to extend the doctrine to nonlitigation matters and that the doctrine may therefore be properly applied in this case.

The Supreme Court adopted the continuing representation doctrine in DeLeo v. Nausbaum, 263 Conn. 588, 596–97, 821 A.2d 744 (2003).   That case involved litigation, and the Supreme Court expressly noted that it was not considering whether the continuing representation doctrine should be applied outside the context of litigation.   Id., 597, n.4. The court stated, in a footnote:  “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. The court in this case need not attempt to resolve the issue of whether the doctrine applies to nonlitigation matters because even if the doctrine applied in this case, the defendant would be entitled to a judgment as a matter of law because no genuine issues of material fact exist as to whether the plaintiffs commenced this case within the applicable statute of limitations.

In support of his motion for summary judgment, the defendant cites Agnes Targonski's deposition, in which she testified that the defendant represented her and her husband for the closing on her property, but that after the closing, their relationship was over.  (Agnes Targonski Dep., 129:10, Feb. 25, 2010.)   The record is not entirely clear as to whether the defendant represented the plaintiffs between the closing and 2005.  (Agnes Targonski Dep., 131:12, February 25, 2010;  Agnes Targonski Dep., 94:10, Nov. 10, 2010.)   The plaintiffs contacted the defendant shortly before the conversion of the construction loan to a mortgage in September 2005.  (Agnes Targonski Dep, 130:23–25, Feb. 25, 2010.)   The defendant characterizes his work for the plaintiffs as two separate, unrelated transactions.   He argues that his representation was not ongoing between the two transactions.

The plaintiffs counter by citing the defendant's deposition in which he testified that Delahunty's attorney notified him that the plaintiffs did not own the right of way on which they built the driveway and stone wall.   (Def.Dep., 27:10, Jan. 9, 2009.)   The plaintiffs also cite various allegations in their complaint.  “[U]nadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.”  (Internal quotation marks omitted.)  Karwowsky v. Fardy, 118 Conn.App. 480, 485, 984 A.2d 480 (2009).   The court therefore may not consider allegations in the plaintiffs' complaint as evidence at summary judgment.

Whether the defendant's representation of the plaintiffs was ongoing or a series of transactions, there is no genuine issue of material fact as to whether he continued to represent them after 2005.   The defendant has demonstrated the absence of a genuine issue of material fact with respect to the end of the defendant's representation of the plaintiffs.   Even if the continuing representation doctrine applied to non-litigation matters, the defendant is entitled to a judgment as a matter of law because there is no genuine issue of material fact as to whether the defendant continued to represent the plaintiffs after the September 2005 refinancing transaction.

B.

Continuing Course of Conduct

The second tolling doctrine the plaintiff relies on is the continuing course of conduct doctrine.  “[W]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed ․ [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 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 ․ Thus, there must be a determination that a duty existed and then a subsequent determination of whether that duty is continuing ․

“There is no tolling of statutes of limitation in either tort or contract actions for the failure of an attorney to tell a client that a document drafted by the attorney could be inaccurate because, once the representation of the client is complete and the document executed, any warning would be ineffective ․ The doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete, such as medical malpractice, rather than one where the situation cannot change, such as legal malpractice arising from negligent drafting of the written word ․” (Citations omitted;  internal quotation marks omitted.)  Lee v. Brenner, Saltzman, & Wallman, LLP, supra, 128 Conn.App. 257–58.

With respect to the negligence claim, as discussed above, there is no issue of fact as to whether the defendant had a continuing duty.   The negligence alleged by the plaintiffs occurred only in the drafting of the deed and there is no genuine issue of fact as to whether it continued thereafter.   The continuing course of conduct doctrine, therefore, did not toll the plaintiffs' negligence claim.   The claim accrued when the defendant conducted the closing in 2004.

With respect to the negligent misrepresentation claim, the plaintiffs allege in their revised complaint that the defendant advised the plaintiffs that they owned the right of way on multiple occasions between 2004 and 2008.   The defendant, however, cites Agnes Targonski's deposition in which she testified that the defendant told the plaintiffs that he had taken care of the right of way only during the June 2004 closing.  (Agnes Targonski Dep., 118:11, Feb. 25, 2010.)   In their objection to summary judgment, the plaintiffs submit affidavits, but those affidavits only swear that the defendant's misrepresentation regarding the right of way occurred in June 2004, not at any time thereafter.  (Agnes Targonski Aff., ¶ 6;  Krzystof Targonski Aff. ¶ 6.)   There is therefore no issue of fact as to whether the defendant's duty was ongoing with respect to the plaintiff's negligent misrepresentation claim.   Since the misrepresentation occurred in 2004, the plaintiffs' negligent misrepresentation claim accrued in June 2004.

III

Conclusion

The court grants the defendant's motion for summary judgment as to the plaintiffs' first and fourth counts.   The defendant has met his burden of demonstrating the absence of any genuine issue of fact as to the statue of limitations issue.   There is no genuine issue of material fact as to whether the plaintiffs brought their claims beyond the applicable statute of limitation.   The wrong complained of occurred in 2004, and the plaintiffs brought this suit in 2009, five years later.   The plaintiff cannot rely on either the continuing course of conduct doctrine or the continuing representation doctrine in this case to toll the statute of limitations.   The defendant is therefore entitled to a judgment as a matter of law with respect to the plaintiffs' first and fourth counts.   Those claims are barred by the statute of limitations.   The court will not examine the defendant's causation argument because the defendant is already entitled to a judgment as a matter of law on the statute of limitations ground.

SO ORDERED.

BY THE COURT,

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. Section 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.”.  FN1. Section 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.”

FN2. Section 52–584 provides:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, 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, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”.  FN2. Section 52–584 provides:  “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, 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, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

FN3. The plaintiffs do not contest that § 52–584 is the proper statute of limitations on their attorney malpractice claim, and the court has not considered the issue..  FN3. The plaintiffs do not contest that § 52–584 is the proper statute of limitations on their attorney malpractice claim, and the court has not considered the issue.

FN4. The defendant also argues that the plaintiffs may not rely on the doctrine because the plaintiffs did not plead it in their answer to the defendant's special defense.   The plaintiffs have filed a request to amend their answer and the defendant objected.   Even if the plaintiff had properly pleaded the doctrines, for the reasons herein stated, the doctrines are not applicable to this case..  FN4. The defendant also argues that the plaintiffs may not rely on the doctrine because the plaintiffs did not plead it in their answer to the defendant's special defense.   The plaintiffs have filed a request to amend their answer and the defendant objected.   Even if the plaintiff had properly pleaded the doctrines, for the reasons herein stated, the doctrines are not applicable to this case.

Wiese, Peter E., J.