Lucas B. Stone et al. v. Norman Pattis et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 460

INTRODUCTION

The action was originally served on April 30, 2009 by the plaintiffs Lucas B. Stone and Joan L. Zygmunt naming as defendants Norman A. Pattis, the Law Offices of Norman Pattis, LLC, John Radshaw III, Thomas R. Gerarde, and Howd & Ludorf, LLC. The complaint consisted of fifteen counts.   The court granted several motions to strike and the plaintiffs have filed several amended complaints resulting in the operative complaint, the Sixth Amended Complaint, dated August 12, 2011.   This complaint includes counts nine to fourteen which were stricken by the court but plaintiffs contend are included “to preserve the plaintiffs' rights for appellate review.”   This also applies to the Third Count for fraud and the Fourth Count for Conspiracy.   As to this complaint, the court granted a motion to strike Counts Five (CUTPA), Six (CUTPA) and Sixteen (Statutory Theft) of the complaint on January 27, 2012.¹  The plaintiff failed to submit a Revised Complaint and on February 27, 2012 the defendants submitted a Motion for Judgment as to these counts.   The court granted judgment on May 10, 2012 as to counts five, six and sixteen.   The remaining causes of action in the Sixth Amended Complaint related to the claims against the defendants Pattis and Law Offices of Norman Pattis, LLC are breach of contract (First Count), breach of fiduciary duty as to Pattis and Pattis, LLC (Second Count), Negligent Infliction of Emotional Distress (Seventh Count), and Malpractice (Eighth Count).

The plaintiff, Lorraine Zygmunt, filed a motion for summary judgment on December 28, 2012.   This motion addressed the Second, Seventh and Eighth Counts.²  The court filed a Memorandum of Decision denying this motion on May 9, 2012.   The defendants have also filed a motion for summary judgment as to First, Second, Seventh and Eighth Counts of the Sixth Amended Complaint.   The plaintiff filed a memorandum in opposition to the motion for judgment on January 18, 2013.³  The defendants filed a reply to the plaintiff's objection on January 25, 2013.

On January 28, 2013, the court heard argument on the summary judgments submitted by each of the remaining parties.⁴

PROCEDURAL BACKGROUND

The summons and complaint were filed by Lucas Stone and Joan Zygmunt as plaintiffs against Norman Pattis, Esq., and the law offices of Williams and Pattis, LLC. Attorney Pattis left the law firm of Williams and Pattis, LLC effective January 10, 2005 to form the firm of Law Offices of Norman Pattis, LLC. On August 26, 2011, the plaintiffs filed a motion for joinder of the new law firm.   The court granted the motion to add The Pattis Law Firm, LLC as a defendant.

The plaintiff has filed a number of amended complaints.   The operative complaint is the Sixth Amended Complaint dated August 12, 2011 and the operative Answer is the May 29, 2012 Substitute Answer and Special Defenses to Sixth Amended Complaint.⁵

On October 22, 2012, the court dismissed all claims filed by the plaintiff Lucas B. Stone.   The plaintiff filed a motion for reconsideration which was denied on January 4, 2013.

III. FACTUAL BACKGROUND

On or about November 30, 2003 the plaintiff, Joan L. Zygmunt, met with Attorney Norman Pattis of the law offices of Williams and Pattis in New Haven.   The purpose of her meeting was to discuss representation of herself and her son in regards to allegations of misconduct by the Westport Police Department and to engage his legal services.   They entered into a Retainer Agreement on December 28, 2003 for legal services.  (Plaintiff's Motion for Summary Judgment Exhibit 1.) She provided a retainer of $7,500.  (Plaintiff's Motion for Summary Judgment Exhibit G.) Attorney Pattis filed the action in the federal district court naming as defendants four police officers and the Town of Westport.⁶  The action in federal court was based upon allegations of police misconduct.   In particular, the claims included unlawful entry, excessive force, unlawful arrest, wrongful prosecution, and equal protection (municipal liability pursuant to Monell).   During the course of representation in the federal action an associate in the law offices, Attorney Waisonovitz, performed some legal tasks such as preparing responses to interrogatories, preparing for depositions of the plaintiffs by the defendants, and taking depositions of some police officers.  (Affidavit of Waisonovitz and Zygmunt.)

Attorney Pattis notified Ms. Zygmunt of a settlement conference on June 2, 2004 at which time counsel for the defendants conveyed that the settlement value for the case was considered “nuisance value.”  (Plaintiff's Motion for Summary Judgment Exhibit UU.) Thereafter, Attorney Pattis decided not to attend the settlement conferences because of this position by the defendants.   The defendants believed the plaintiffs had conveyed a request for a greater settlement than nuisance.   This decision (among others) became a subject of discontent by the plaintiff.

On or about January 2005 and again in March 2005, counsel for the federal defendants advised Attorney Pattis that the claim of equal protection was frivolous and unsupported by the evidence.  (Plaintiff's Exhibits z, cc, Defendants' Exhibits A–4, A–5, and A–7.) The defendants' counsel indicated that they would seek sanctions if the plaintiffs continued the cause of action for equal protection.  (Plaintiff's Exhibit z and cc.)   After review of the depositions and other materials, counsel for the plaintiffs withdrew the equal protection (Monell claim) and the claims as to officer Parisi.  (Plaintiff's EE, Defendants' Exhibit A–8.) As a result of this withdrawal there was only one count remaining as to the plaintiff Joan Zygmunt, that was, unlawful entry.   This change occurred in March of 2005.  (Defendants' Affidavit.)

On March 18, 2005, the federal court defendants filed a motion for summary judgment addressing the unlawful entry claim.  (Defendants' Exhibit B.) On April 15, 2005, counsel for Ms. Zygmunt notified her of the filing of the motion and provided her with the memorandum.  (Plaintiff's Motion for Summary Judgment Exhibit HH.) It was at this time Zygmunt became aware that the claim for equal protection had been withdrawn.   She exchanged communication with Attorney Pattis who responded by written correspondence on April 26, 2005.   (Plaintiff's Motion for Summary Judgment Exhibit JJ.) This letter was the beginning of extensive correspondence expressing the plaintiff's displeasure with the defendant's representation.  (Defendants' Exhibits A–10 to A–32.) In a letter dated April 29, 2005 the plaintiff describes her opinion as a “betrayal” by counsel.  (Plaintiff's Motion for Summary Judgment Exhibit KK.) ⁷ Thereafter, there was ongoing correspondence in which the plaintiff indicated that counsel (Pattis) was not providing adequate legal services to her, was not communicating with her and was not properly addressing court motions and discovery.   On November 28, 2005 Attorney Pattis acknowledged this belief in correspondence to the plaintiff in which he stated in part:  “[I]f you feel as you apparently do, that I have not behaved professionally in regards to your case, you are free to contact the Statewide Grievance Committee to lodge a complaint ․ I do not understand you to have discharged me from handling of your case, ․” (Defendants' Exhibit A–30.) The displeasure escalated and in January 2006 after the summary judgment argument was held at the court without notifying her to attend, the conflict in the attorney-client relationship appeared to become irreparable.   The federal court granted the motion for summary judgment on the one remaining count as to Ms. Zygmunt on January 13, 2006.   This resulted in an escalation of negative correspondence and accusations from Ms. Zygmunt about improper representation including failure to adequately argue in opposition to the motions and failure to conduct discovery.   Ms. Zygmunt responded to the defendant's representation arguments by filing a complaint with the Federal Grievance Committee naming Attorney Pattis.⁸  This grievance was filed on March 22, 2006.

Immediately after the filing of the grievance, Attorney Pattis and Attorney Waisonovitz filed a motion to withdraw as counsel in the federal action dated March 23, 2006.  (Plaintiff's Exhibit vv, Defendants' Exhibit B and Exhibit E.) Counsel provided a March 24, 2006 letter notifying the plaintiffs of this action and included a copy of the motion to withdraw.  (Plaintiff's Motion for Summary Judgment Exhibit ww.)   On May 30, 2006, the federal court granted the motion to withdraw filed by Attorney Pattis.  (Defendants Exhibit A12 and Exhibit B.)

On May 5, 2006, prior to the court granting the motion to withdraw, Lucas Stone and Joan Zygmunt entered pro se appearances in the federal court action.  (Defendants' Exhibit D.) Prior to the court acting on the motion to withdraw, the court conducted a conference as to the motions and the impending trial.   Neither of the pro se individuals were part of the conference.   There was one remaining count in the federal action.   This was the allegation of excessive force by Lucas Stone.   The court had granted the summary judgment as to the only remaining claim against Joan Lorraine Zygmunt.   The federal claims of Joan Lorraine Zygmunt were dismissed by the federal court.   Lucas Stone continued to represent himself in the federal action until the court dismissed the action as to him.   During the pro se representation in the federal court there were extensive motions and requests to the court.  (Defendants' Exhibit B.) The federal plaintiffs, Lucas Stone and Joan Zygmunt, requested an appointment of counsel for them on May 5, 2006, which was ultimately denied.   (Exhibit B Docket Entry # 68.)   The plaintiffs also filed additional motions to reargue and reconsider the prior rulings including the summary judgment and a disqualification of Judge Arterton and counsel for the defendants.   (Defendants' Exhibit B.) The court granted motions to extend the time for trial and discovery as well as motions in limine.   The court entered the pretrial orders and a date for the jury trial.   On February 26, 2007, the court granted a motion to dismiss the action against Lucas Stone for his failure to attend trial.  (Exhibit B Docket Sheet.)   On April 16, 2007, the plaintiffs Lucas Stone and Joan Zygmunt appealed the federal court dismissal and various court decisions but thereafter withdrew the appeal.  (Defendants' Exhibit B.)

The Federal Grievance Committee held hearings on the grievance complaint by the plaintiffs on September 11, 2006 and November 6, 2006.  (Plaintiff's Motion for Summary Judgment Exhibit W.) The Federal Grievance Committee brought a Presentment on January 24, 2007.  (Plaintiff's Motion for Summary Judgment Exhibit W.) The presentment hearing was before the Honorable Janet Hall on May 14, 2007.   At this hearing, Attorney Pattis through counsel presented testimony of Attorney Ira Grudberg on his behalf.   The federal court entered an Order on Presentment by the Grievance Committee on July 5, 2007 in which the court stated that:  “the court does not adopt the Committee recommendation of public censure of Attorney Pattis.   Having found a violation, it declined to sanction Attorney Pattis.”  (Plaintiff's Motion for Summary Judgment Exhibit x.) As set forth in the complaint, after the finding by the federal Grievance Committee, Lucas Stone and Joan Zygmunt filed grievances against Pattis with the Statewide Grievance Committee on May 30, 2007.   This state grievance was dismissed by letter dated August 23, 2007.  (Plaintiff's Exhibit rr.)   The letter stated:  “․ this panel finds that there is insufficient evidence to establish probable cause for this grievance complaint to proceed further.   Accordingly, this panel dismisses the complaint.”

On April 30, 2009, Lucas Stone and Joan Zygmunt served this action on the defendants.  (Defendants' Exhibit L.) The action was returned to the court by way of writ, summons and complaint dated May 11, 2009.   By application dated June 22, 2010 and filed on June 23, 2010, the plaintiffs requested assignment to the complex litigation docket.   The defendants objected to the assignment.   On June 22, 2010, the application was granted by the Honorable Linda Lager.   The matter has proceeded with a number of motions and has been assigned for trial in June 2013.

There are presently four counts remaining as to the plaintiff, Joan Lorraine Zygmunt.

IV. DISCUSSION

The defendants, Norman Pattis, Law Offices of Norman A. Pattis, LLC and the Pattis Law Firm (collectively “Pattis”) have requested summary judgment as to each of the four remaining counts in the Sixth Amended Complaint.   In particular, the defendants contend that the statute of limitations applies as to the Second, Seventh and Eighth Counts of the complaint and that as to each of the counts that there are no genuine issues of material fact, thus they are entitled to summary judgment on all remaining counts filed by the plaintiff, Zygmunt.   The defendants specifically argue that:  1) the breach of contract count fails because there was no guarantee or specific promise to achieve a specific result;  2) the alleged acts for breach of fiduciary duty occurred prior to April 30, 2006 and are barred by the statute of limitations and alleged acts after are beyond the time of the attorney-client relationship;  3) the negligent infliction of emotional distress is barred by the applicable statute of limitations;  the acts were done by someone other than Pattis after April 2006;  and the elements of the claim cannot be established;  and 4) the legal malpractice claim is time barred and the plaintiff has failed to disclose an legal expert to testify as to the requisite standard of care, causation and damages.

The plaintiff has filed an objection to the motion arguing that as to each claim the action is not barred by the statute of limitations because she contends that there is a continuing course of conduct which precludes the application of the statute of limitations.

The plaintiff also raises in her objection a series of procedural issues such as the failure to deliver a copy of the memorandum to her other than the email which was provided and the defendants' failure to timely file their answer and/or special defenses or to complete discovery which should have resulted in a default and judgment against the defendants.   Lastly, the plaintiff contends that each of the counts satisfies the legal elements necessary to support the cause of action.

The plaintiff refers to C.G.S. § 52–120 for her argument that the court should not permit the defendants to rely upon the statute of limitations defense because the special defenses were untimely filed.   This statute states:  “Whenever any party or parties to a civil action, or his or their attorney, desires to file any pleading or amendment to any pleading which might properly be filed except for the fact that according to the rules of court the time within which the pleading or amendment may be filed has passed, the pleading or amendment may be filed with the clerk of the court, without an order of the court and without penalty, if the party or parties, or his or their attorney, obtains the written consent of the adverse party or parties or his or their attorney to the filing.”   The plaintiffs' use and analysis of this statute in reference to the pleadings in this action is misguided.   The plaintiff fails to recognize the following statute that addresses the validity of the pleading even if filed after expiration of time fixed.   This statute, C.G.S. § 52–121 provides:  “(a) Any pleading in any civil action may be filed after the expiration of the time fixed by statute or by rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of the court in which the action is pending. (b) No judgment of nonsuit or default, in any case in which appearance has been entered by the defendant, may be entered by the clerk of any court for failure to plead within the time fixed by statute, or by any rule of any court, until an order for it has been passed by the court after reasonable notice to the opposing counsel and hearing thereon.”   This statutory authority contradicts the plaintiff's claim and argument that the pleadings are untimely.   It also clearly recognizes some discretion and flexibility of the court to permit the filing of a pleading out of the time rather than maintain an unyielding time constraint.⁹  Additionally, the plaintiff cites to Conn. Pr. Bk § 10–44 regarding a time of fifteen days to file a new pleading after the pleading has been stricken as a basis to argue that the filing of a new answer and special defenses beyond the 15 days is prohibited.   Once again the plaintiff attempts to apply a rule in a vacuum.   The plaintiff ignores § 1–8 of the Conn. Pr. Bk Rules which states:  “The design of these rules being to facilitate the business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”   The very rule cited by the plaintiff contains the following language which plaintiff fails to include, “․ the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, ․” This language provides discretion to permit a filing beyond the fifteen days and not create an unyielding rule that ignores reasonable flexibility if necessary as plaintiff argues.   Additionally, the plaintiff ignores the portions of the Conn. Practice Book which address the time in order to enter a default and thereafter a judgment, Conn. Pr. Bk §§ 17–31 and 17–32 which require a time period to file a written motion and a hearing by the court.   These rules recognize that some flexibility is needed at times in the pleading phase of an action.   In particular, the rules provide “Where a defendant is in default for failure to plead pursuant to Section 10–8, the plaintiff may file a written motion for default which shall be acted on by the clerk not less than seven days from the filing of the motion, without placement on the short calendar.”   This rule clearly indicates that unlike the plaintiffs' position that there is an automatic default and judgment, the court under a liberal interpretation should not be entering defaults without an opportunity to comply.   This is further supported by Sec. 17–32(b) which states:  “If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default ․” The court has already ruled upon the plaintiffs' argument for default or judgment utilizing the rules and the discretion upon review of the facts and circumstances that were present at the time.   Therefore, the argument at this time to reconsider and reverse the previous rulings of this court is in contradiction to the rules and is unsubstantiated based upon the court's prior findings.   This argument is rejected.

A. GENERAL STANDARD

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.”  “ ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “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.)   Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).   “[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.”  (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Accompanying the motion “the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates, No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 786, 796, 653 A.2d 122 (1995).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o 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 ․ 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.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).  “When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue ․” Ramirez v. Health Net of the Northeast, Inc. 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

B. LEGAL MALPRACTICE

1. STATUTE OF LIMITATIONS

The defendants argue that the claims of breach of fiduciary duty and legal malpractice are time barred by the three-year statute of limitations.  Conn. Gen.Stat. § 52–577.   The defendants argue that the claim for negligent infliction of emotional distress is barred by the two-year statute, Conn. Gen.Stat. § 52–584.   The defendants contend that this is a basis to grant their motion for summary judgment.   The plaintiff counters that that there is a continuing course of conduct and as such the claims are not time barred.

The parties disagree as to the applicable date for the claim of legal malpractice.   The defendants have argued that the granting of summary judgment as to unlawful entry claim brought by Ms. Zygmunt is the operative date to apply as to the statute of limitations.   The plaintiff argues that the relationship of attorney-client was effective until at least the granting of the motion to withdraw on May 30, 2006 and as such the claims are timely.

“The purpose of the statute of limitations is well settled in our law.   There are two principal reasons generally given for the enactment of a statute of repose:  (1) it reflects a policy of law as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and further the public policy of allowing people after the lapse of 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 ․ [T]he policy of statutes of limitations includes promoting repose by giving security and stability to human affairs ․ [W]e will not deprive ․ defendants of the finality, repose and avoidance of stale claims and stall evidence for which the statute of limitations was designed.”  Haggerty v. Williams, 84 Conn. 675, 679–80, 855 A.2d 264 (2004).

The first area of inquiry as to the defense of statute of limitations is the claim of legal malpractice.   The determination of dates and application of the statute as to this claim will impact some of the argument and decisions as to the other claims.

The defendants contend that the legal malpractice claim was filed beyond the applicable statute of limitations.   The statute, C.G.S. § 52–577 is a three-year statute of limitations.   It provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”  “[T]he only facts material to the trial court's decision on a motion for summary judgment [on the ground that the claim is barred by the statute of limitations] are the date of the wrongful conduct alleged in the complaint and the date the action was filed.”  (Internal quotation marks omitted.)  Navin v. Essex Savings Bank, 255, 259, 843 A.2d 679, cert. denied, 271 Conn. 902, 859 A.2d 563 (2004).   In order to determine the date for application of the statute, the court must determine the date of the wrongful conduct.   This is the area of disagreement by the parties because the defendants contend that the last date for purposes of a wrongful act is January 13, 2006 when the federal court granted summary judgment as to the claims of Zygmunt, whereas, the plaintiff contends the earliest date is May 30, 2006 upon the court approving the motion to withdraw.   The defendants argue in the alternative that the last dates of representation were the filing of the grievance on March 22, 2006 or the filing of the motion to withdraw, that is, March 23, 2006.   This court does not find that the dates of January 13, 2006 or May 30, 2006 apply.

The court in DeLeo v. Nussbaum, 263 Conn. 588, 821 A.2d 744 (2003), recognized a formal and a de facto termination of the attorney-client relationship.   It stated that:  “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 attorneys motion to withdraw from representation.”  DeLeo v. Nusbaum, supra, 263 Conn. 597–98.   A de facto termination occurs if the client takes a step that unequivocally indicated that he has ceased relying on his attorney's professional judgment in protecting his legal interests, such as hiring a second attorney to bring a legal malpractice claim or filing a grievance.   Id., at 597–98.   In the instant action the alleged termination events occurred at different times.   Of the events noted in the formal termination the defendants and plaintiff have referred to the granting of the motion to withdraw being granted on May 30, 2006.   Although the plaintiff recognizes this date, she contends that there was a continuing course of representation that extended this date.   The court does not agree with this argument which it addresses below.   While it is clear to the court that the granting of the motion to withdraw from representation can be a formal termination of the relationship, this is not the date to consider for the termination of the representation of the defendants in this action in accordance with DeLeo considerations.   There is no doubt that this date would satisfy one of the criteria of DeLeo.   Contrary to the plaintiff's contention, the controlling date of the wrongful act would not be any time beyond the May 30, 2006 granting of the withdrawal.   However, the issue before the court in this motion for summary judgment is whether the attorney client relationship terminated at an earlier date, as argued by the defendants.   The DeLeo court recognizes the termination of the relationship if counsel is formally discharged from their duties.   In this regard, the court refers specifically to the filing of a grievance.   The evidence clearly demonstrates that the plaintiff filed and pursued a grievance against the defendant but this court has determined based upon litany of events that the representation ended not with the filing of the grievance but as a result of communication and actions thereafter that ultimately demonstrated the plaintiff's intent to accept and terminate the relationship.

In the instant action, the plaintiff did not state specifically that the defendants were no longer her counsel but there were a number of events that lead to the conclusion that the defendants were not representing Zygmunt.   It is not necessary to use the terminology that the attorney is discharged, excused, terminated, fired or any other language of finality to determine there is a de facto termination The court has viewed the documents and affidavits to determine if the conduct of the parties was such that it evinced a finding of discharge or termination of the services of Attorney Pattis and, if so, when did it occur.

The documentation conclusively demonstrates the federal action was concluded well after the granting of the motion to withdraw.  (Defendants' Exhibit J Notice of Appeal and Exhibit K Letter withdrawing the Appeal.)   This date is not the controlling event to determine when the wrongful conduct occurred.

The defendants' argument regarding the motion for withdrawal logically follows the intent of DeLeo, but it misses the mark in satisfying the actual release of counsel from required representation.   Although this date is the impetus for further action which amounts to a discharge, the court does not find that the filing of the motion by itself amounted to a discharge of counsel at that time.   Instead, the court views the entirety of the facts and documents presented to arrive at a conclusion that the attorney was in accordance with DeLeo discharged on April 4, 2006.

The court reaches this conclusion based upon the following review.   As the documents demonstrate there were a series of events which led to the final determination that Attorney Pattis was no longer to be counsel for the plaintiff.   The events actually began as early as December 18, 2005, when the plaintiff sent correspondence to her counsel expressing displeasure and the thought that she and her son believed it would be difficult to replace him at that time but he would need to demonstrate that he was on their side.   (Defendants' Exhibit A–31 to Affidavit of Pattis.)   Thereafter, the court granted the summary judgment to which the plaintiff responded negatively and on March 16, 2006 notified counsel she wanted her file.¹⁰  (Zygmunt Deposition at 59–60.)   This action was soon followed with the filing of a grievance with the Federal Grievance Committee on March 22, 2006.   Although this filing did not explicitly relay the discharge of counsel, it is implicit in the filing of the grievance that plaintiff no longer relied upon the advice and guidance of counsel in her legal action.   However, there was no formal acceptance of the dissolution of the attorney client relationship and the events which followed and the action on the part of the plaintiff leads to the conclusion that the relationship terminated in the context of DeLeo shortly thereafter.   Counsel filed the motion to withdraw on March 23, 2006.   The defendants did not communicate that they were taking this action prior to filing the motion but sent a copy of the motion to the plaintiff after the fact.  (Plaintiff's Motion for Summary Judgment Exhibit ww.)   At this juncture there was no indication that the defendants were not counsel for the plaintiffs.   In fact, at a deposition of the defendant, Attorney Pattis admitted that even after filing the motion he still had a fiduciary duty to the plaintiff as his client.  (Pattis Deposition Plaintiff's Exhibit XX page 111, Lines 7–12.)   The actions and documents after the filing of the motion to withdraw lead to the conclusion that the plaintiff created a de facto termination before the formal entry of the federal court order granting the motion to withdraw.   The plaintiff received two letters from counsel that provided information about the jury selection, the trial date and appearances forms to be filed in the federal action.   These acts were all initiated by the defendants and do not identify the time when the plaintiff is no longer represented by the defendants.   However, the plaintiff soon received an order of the federal court that provided direction for the submission of an appearance by plaintiff or other counsel.  (Plaintiff's Exhibit A–10.) This March 28, 2006 federal court order recognized that the defendants were no longer representing the plaintiff and gave two alternatives for representation of the plaintiff.   The order of the court stated:  “Please be advised that the court intends to grant Attorney Pattis and Attorney Waisonvitz Motion to Withdraw Appearance on May 29, 2006.   If you fail to either engage replacement counsel or file your pro se appearance by May 29, 2006, you may be deemed to have failed to appear, plead and/or comply with a court order and default or dismissal may enter against you.”   The order of the federal court on March 28, 2006 was a clear recognition that Pattis was to be relieved as counsel for the plaintiff.   However, this court does not find this a fait accompli.¹¹  The inquiry in response to this order was whether the plaintiff would represent herself or whether she would retain other counsel.   It is not this order that created the de facto or actual termination but the actions thereafter confirm a finding that the relationship was terminated.   The plaintiff had an opportunity to object to the order by motion.   The plaintiff did nothing to voice an objection to what was clear in the court order, that is, plaintiff needed new representation.   For the next few days nothing occurred.   Prior to this, the plaintiff had requested her file from the Pattis Law Offices.   On April 4, 2006, the plaintiff sent a letter to Pattis indicating that she had received a box of materials which were her file.   She then went on to recognize activity in relation to the representation.   The first point she made was that counsel has “withdrawn from our case and broken your contractual obligation with us.”   The second point was that she was in need of missing material in her file and requested that they be sent “as soon as possible, so that we may proceed with our case.”  (Plaintiff's Exhibit A–5(a) and yy.)   This correspondence recognizes that the defendants are not representing Zygmut and she is moving the case forward.   Additionally, Zygmunt stated that she wanted a return of her retainer.¹²  This request and the admission that “we” wanted to proceed with our case severed the relationship.   This was clearly confirmed when each plaintiff filed an appearance in the file and simultaneously submitted a motion to have the court appoint other counsel.  (Defendants' Exhibits B, F, and G.) The appearances and the motion were filed May 6, 2006.   The correspondence prior to this date establishes that the representation was recognized as terminated and the filing of the appearances was a formality.   The plaintiff was actively representing herself well before the granting of the motion to withdraw.   The plaintiff had filed a motion to disqualify the Howd & Ludorf law firm on May 15, 2006 shortly after her appearance.  (Plaintiff's Exhibit A–13.) The plaintiff's actions demonstrated an acceptance of the withdrawal and active pro se representation.   Although DeLeo recognizes a de facto termination upon filing of a grievance, the events in this action do not support a finding on that event alone to determine that the plaintiff understood the implication of her actions until she memorialized the termination in her April 4, 2006 correspondence.  (Plaintiff's Exhibit A–5(a), and yy.)   Until this date, it was possible that the plaintiff would object to the withdrawal or make amends to keep defendants as her counsel.   She had conveyed this message earlier to the defendants when she indicated that she would seek new counsel if Pattis did not contact her regarding a transcript she wanted submitted as a supplement to the opposition to the federal summary judgment of the federal defendant officers.   (Plaintiffs' Motion for Summary Judgment Exhibit QQ and Zygmunt Deposition at 59–69.)   The plaintiff did not provide this alternative to the defendants in response to the motion to withdraw and thus it was apparent at this time she would have no further fruitful discussion that continued Pattis in the role of counsel.

The plaintiff argues in opposition to the statute of limitations argument that the statute is tolled because there is a continuing course of conduct and that it is also tolled pursuant to C.G.S. § 52–595.¹³  The plaintiff has failed to produce evidence that either of these theories would toll the statute.   As to the continuing course of conduct, the plaintiff contends that the defendants' actions thereafter satisfy her claim that there was a continuing course of conduct by the defendants.   The courts have permitted the tolling of the statute of limitations under the continuous conduct doctrine, if there is “evidence of a 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 ․” Neuhaus v. DeCholnoky, 280 Conn. 190, 201–02, 905 A.2d 1135 (2006).   The court in Neuhaus went on to state that “where we have 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 or some later wrongful conduct of a defendant related to the prior act.”  Id., 201–02.   The plaintiff's claim of continuing conduct ignores the facts as established above.   In particular, the plaintiff from a time period of December 2005, was aware of the conduct alleged in her complaint.   As noted above, she had extensive correspondence discussing in detail the action, the proposed arguments and the discovery she believed was important from her perspective.   The actions of the defendants after the filing of the motion to withdraw involved only the responses to the federal and state grievances filed by this plaintiff.   The grievance complaints were similar to the very complaints which are claimed in this action.   All of these facts fail to demonstrate any continuing course of conduct as to the representation by defendants.   Accordingly, there is no genuine issue of a continuing course of conduct by the defendants to preclude the granting of the motion for summary judgment.

The second argument by plaintiff is that the defendants fraudulently concealed the acts from the plaintiff and thus the statute of limitations should be tolled.   For a finding of fraudulent concealment the plaintiff must show:  “(1) that the defendant is actually aware rather than imputed knowledge of the facts necessary to establish the plaintiff's cause of action;  (2) the defendants' intentional concealment of these facts from the plaintiffs;  and (3) the defendants' concealment of the facts for the purpose of obtaining delay on the plaintiffs' part in filing a complaint on their cause of action.”  Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995).   To do so, “it [is] not sufficient for the plaintiffs to prove merely that it was more likely than not that the defendants had concealed the cause of action.   Instead, the plaintiffs [must] prove fraudulent concealment by the more exacting standard of clear, precise, and unequivocal evidence.”  (Internal quotation marks omitted.)  Id. Other than the plaintiff's unsupported claim, she has failed to provide any factual predicate for this contention.   In fact, the evidence introduced by both the plaintiff and the defendants overwhelming demonstrates that for an extended period of time the plaintiff was well aware of the actions taken by the defendants.   These actions or inactions were the source of the abundance of correspondence between the parties.   The plaintiff on many occasions expressed her disagreement and dissatisfaction with the legal representations.   For instance, as early as April 16, 2005 the plaintiff expressed her concern over the legal decision in the action to withdraw the equal protection claim.  (Defendants' Exhibit A–10.) This letter led to a stream of correspondence over the next months including discussion about the withdrawal of claims, the settlement conference, the submission of documents for the summary judgment memorandum and the discovery issues.  (Defendants' Exhibits A–10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30 31, and 32 and Plaintiff's Motion for Summary Judgment Exhibits jj, oo, kk, pp and J.) The correspondence on December 20, 2005 by the defendant recognized that the plaintiff was dissatisfied with his representation and he stated that he was aware that she had grievances against him and he attempted to address them.  (Defendants' Exhibit A–32.) The flow of the correspondence demonstrates a very active open dialogue between Ms. Zygmunt and Attorney Pattis concerning all aspects of the federal action.   The documents contradict a finding that the defendants were attempting to delay the discovery of information and filing of a complaint against them.   In reality, the plaintiff filed the federal grievance in March of 2006 which addressed the very actions which the plaintiff now contends are malpractice.   The filing of the grievance counters this claim.

Neither the documents submitted by the plaintiff nor the law support a finding that there was a fraudulent concealment by the defendants in their representation of the plaintiff.

Therefore, the court determines that the April 4, 2006 letter confirmed the de facto and actual termination of the defendants as counsel for the plaintiff.   There was no continuing course of conduct or fraudulent concealment by the defendants which would toll the statute of limitations.   The plaintiff served the complaint in the instant action upon the defendants on April 30, 2009.   (Defendants' Exhibit L.) Given this date, the defendants' motion for summary judgment based on the three-year statute of limitations is granted as to Count Eight for Legal Malpractice.

2. EXPERT TESTIMONY

In the alternative the defendants argue that the legal malpractice claim must fail because the plaintiff has not disclosed an expert to establish the claim.  “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.”   Grimm v. Fox, 303 Conn. 322, 329–30, 33 A.3d 205 (2012).  “Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services ․” (Internal quotation marks omitted.)  Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984).  “As a general rule, for the plaintiff to prevail in a legal malpractice case in Connecticut, he must present expert testimony to establish the standard of proper professional skill or care ․ The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury ․ to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard.”   (Internal quotation marks omitted.)  Grimm v. Fox, Id., 329–30.  “There is an exception to this rule, however, where there is such an obvious and gross want of care and skill that neglect is clear even to a lay person ․ Nevertheless, [t]he exception to the need for expert testimony is limited to situations in which the defendant attorney essentially has done nothing whatsoever to represent his or her client's interests ․” (Citations omitted;  emphasis added;  internal quotations marks omitted.)  Id., 330.

The plaintiff alleges that there is no need for an expert in this action because the alleged negligence of the defendant is so gross as to be clear to a jury.   She relies upon the action of Mary Alice Cooke v. Williams & Pattis, 3:99 cv2223 (WWE) (August 22, 2002) to support her argument that an expert is not required.   The Mary Alice Cooke is distinguishable from the present complaint.   In Cooke, the allegations were based upon the failure of counsel to respond at all to motions which resulted in a judgment against the plaintiff.   The plaintiff in this action has raised a number of acts or omissions by the defendants that she contends satisfy a cause of action for legal malpractice without the need for expert testimony.   The court disagrees with the plaintiff's position.

The allegations in the instant action are not similar to the facts in Paul v. Gordon, 58 Conn.App. 724, 754 A.2d 851 (2000), in which counsel took absolutely no action and thus judgment was entered against the plaintiff.   This action is more closely aligned to the case of Moore v. Crone, 114 Conn.App. 443, 970 A.2d 757 (2009), where the court determined that the allegations which addressed the attorney's alleged failure to raise legal issues in the court related to the trial and jury as well as the failure to note that there were portions of transcript missing to the Appellate Court were not such gross negligence as to eliminate the need for an expert.   The instant action is not a case where counsel failed to follow basic rules of procedure or incurred a default judgment.   None of the allegations here involve a total disregard of the duty of representation.   Instead, the plaintiff takes issue with the defendants' discovery methods, counsel's decision that a settlement conference (not a settlement) would not be successful because of what he believed was a huge gap between what may be offered and what his clients expressed as the amount of damages;  his failure to notify that a claim he believed was legally insufficient was withdrawn from the complaint;  his failure to contact witnesses and notify the plaintiff about deposition subpoenas;  his failure to discuss the case management plan and reporting that he had done so;  his failure to include facts within the summary judgment motion that the plaintiff believed were important;  and his alleged multiple conspiracies with counsel for the federal defendants.   Not only the breadth of the allegations in and of themselves create an issue which requires expert testimony but the testimony and exhibits provide the rationale for requiring an expert.   For instance, the plaintiff alleges that the defendant admitted a violation before the grievance committee but that argument is not factually correct.   The defendant in his deposition testimony stated:  “I think we admitted facts, I don't think we admitted to charges.   We admitted to facts and thought the conduct was defensible.”  (Plaintiff's Exhibit A4 Deposition of Pattis page 177.)   Additionally, the Connecticut Law Tribune article written by Pattis includes the following:  “It never occurred to me to consult them about the law ․ [I] had not sought permission to withdraw several counts, I thought frivolous.   I honestly believed that was a choice a lawyer made.”  (Plaintiff's Exhibit A–5.) ¹⁴ Viewing the broad array of allegations and the responses by the defendants, the only obvious conclusion is that expert testimony is required as to the standard of care.

Even if the plaintiff did not need an expert as to the standard of care, the plaintiff, however, has not addressed nor provided an expert as to the causation issue.   The plaintiff has a burden to demonstrate that if there was professional negligence that this negligence caused injury to the plaintiff.   In other words, the plaintiff must demonstrate what would have happened in the underlying action had the defendants not been negligent.   The plaintiff has failed to disclose an expert as to the causation issue.   The evidence before the court at this time supports a finding that the plaintiff would not be successful in the federal action based upon the federal court denial of the motion to reargue the summary judgment motion.

The motion for summary judgment as to the claim of legal malpractice is also granted for the plaintiff's failure to disclose an expert.

C. BREACH OF CONTRACT (FIRST COUNT)

The plaintiff has alleged in the First Count of the Sixth Amended Complaint that the defendants breached a contract with the plaintiff.   The plaintiff provides a litany of actions by the defendants during the course of their representation as a factual basis for the claim.   She alleges that:  “The conduct of the defendants Pattis and Pattis, LLC, in this count constitutes a breach of contract in that Pattis never intended to represent us and prosecute our case in our interests.   He took our fee of $7,500 to extend his line of credit and used the money weeks before he gave us a written contract and before he ever did work on the case.   His letter to parajudicial officer Green showed that he had no intention of opposing summary judgment, yet he cancelled two settlement conferences without our knowledge.   He broke the Rules of Professional Conduct:  1.1 Did not provide competent representation;  1.2 Did not abide by our decisions concerning our objectives, 1.3 Didn't act with diligence in representing us;  and 1.4 Didn't consult with us or communicate with us.”  (Sixth Amended Complaint, ¶ 70.)   The plaintiff entered into a Retainer Agreement (Defendants' Exhibit A–1, Plaintiff's Motion for Summary Judgment Exhibit I.) which states:  “We authorize Williams and Pattis, LLC, to undertake any and all efforts on our behalf which they shall consider to be in our best interest in this matter, to compromise or settle disputed claims, to litigate against such parties as they shall deem proper, to determine whether this case should be tried to the court or to a jury, to determine the nature and extent of all pre-trial proceedings to be undertaken by them, to pursue vigorously all remedies and rights to which we are entitled.   However, no settlement shall be agreed upon in this case without our express approval.”   (Exhibit A–1.)

The defendants contend summary judgment should be entered on this claim for a number of reasons.   The defendants contend that the plaintiff has failed to demonstrate a cognizable claim for a breach of contract.   In substance, they argue that the claims are tort claims of negligence and not a contract cause of action.   If the claims are negligence the defendant further contends that the three-year statute of limitations would bar the action.   Additionally, as to the claim itself, the defendants argue that the plaintiff has failed to state a claim of breach of contract because there is no allegation that the defendants failed to obtain a specific result or to perform a specific task in accordance with the retainer agreement.   The defendants rely upon the recent decision in Meyers v. Livingston, Adler, Pulda, Meiklejohn and Kelly, P.C., 134 Conn.App. 785, cert. granted 305 Conn. 920 (2012), for this position.   The plaintiff argues that the breach of contract claim is separate from negligence and that the defendants entered into an agreement for a specific result when it stated that the defendant was “to pursue vigorously all remedies and rights to which we are entitled.”

“Connecticut law recognizes that one may bring against an attorney an action sounding in both negligence and contract ․ At the same time, one cannot bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract ․ [T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims ․ Thus ․ we look beyond the language used in the complaint to determine the true basis of the claim ․ Whether the plaintiff's cause of action is one for malpractice depends upon the definition of the word and the allegations of the complaint ․ Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services ․ The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Citation omitted;  internal quotation marks omitted.)   Meyers v. Livingston, Adler, Pulda, Meiklejohn and Kelly, P.C., id. 79 n.5. In Meyers the court found that the plaintiff failed to state a breach of contract claim, noting “[t]he only task the retainer agreement required the defendant to do was to represent the plaintiff (and) [t]he plaintiff does not claim that defendant failed to represent her at all.”   In determining if a contract or tort action, the interpretation of the pleadings is always a question of law for the court.   Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985).

The retainer agreement in the instant action provides very general tasks.   In fact, the plaintiff's claim of reliance upon the terminology vigorously representing her is very similar to the language rejected by Meyers as not amounting to a specific task.   In the first count of the complaint, the plaintiff alleges that the breach of contract is that the defendant “never intended to represent us and prosecute our case in our interests.”   These allegations are followed by claims related to malpractice and not to a specific contractual duty which is required in accordance with the retainer agreement.   A review of each of the claims in ¶¶ 13–69 of the First Count reveals that they are allegations of a deviation from the standard of care of legal counsel.   The plaintiff includes within ¶ 70 of the First Count the specific allegations as constituting a breach of contract and the claim that, “he broke the following Rules of Professional Conduct.”   The plaintiff in her objection to the motion for summary judgment does not provide a distinction between the claim of the contract versus the professional standard of care.   The plaintiff argues that she has properly alleged a separate claim of breach of contract.   In Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 559 A.2d 712, cert. denied 212 Conn. 807 (1989), the court ruled that a party may plead alternative theories of both negligence and breach of contract.   The court recognizes that there may be separate actions but this cannot be done by simply couching a claim that one has breached a standard of care in the language of contract.  Caffey v. Stillman, 79 Conn.App. 192, 197, 829 A.2d 881 (2003), Weiner v. Clinton, 106 Conn.App. 379, 383, 942 A.2d 469 (2008).   As noted in Caffey v. Stillman, supra, 79 Conn.App. 198, the failure to meet the minimum standard of care as alleged in that action was not a contract breach where there would be a promise that certain action was given.   This case like Caffey is simply a promise to generally represent vigorously but makes no other promises.   A claim that a defendant promised to work diligently or in accordance with Professional Standards is not made a contract claim simply because it is couched in the contract language of promises and breach.  Connecticut Education Assoc. v. Milliman, 105 Conn.App. 446, 457–58, 938 A.2d 1249 (2008).  “A true contract claim is one in which a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result.”  Id. 458.   The instant set of facts demonstrate that the representation of the defendants was “to represent” and “to prosecute the case.”   There could be no promise that the legal action would be successful.   The allegations in the complaint relate to the performance of negligent actions.   The action is a negligence action couched in the contract terminology and thus the court applies the statute of limitations in accordance with a negligence action.   The argument as to the application of the three-year statute of limitations for the legal malpractice count applies and the First Count is barred by § 52–577.

D. BREACH OF FIDUCIARY DUTY (SECOND COUNT)

The defendants argue that summary judgment should enter as to the Second Count because the claims are time barred by C.G.S. § 52–577, the same statute that applies to the legal malpractice count.   In other words the acts or omissions must not have occurred more than three years before the serving of the complaint, April 30, 2009.  (Defendants' Exhibit L.)

“[T]he predicate of the attorney's fiduciary obligations is the existence of an attorney-client relationship.   The status must exist at the time of the alleged transaction or wrong and must be alleged.”   Nacholi v. Paul, Superior Court, complex litigation docket at Stamford–Norwalk, Docket No X05 Cv06 5004726 (December 21, 2007, Adams, J.) [44 Conn. L. Rptr. 687].   The plaintiff has sufficiently alleged the existence of an attorney-client relationship, imposing a fiduciary duty upon the defendants during a period of time.   However, the issue for the court is whether the statute of limitations bars the cause of action and the acts complained of by the plaintiff because they occurred after the representation and/or the acts are barred by the statute as occurring before April 6, 2006.   The statute of limitations argument has been addressed above indicating the representation ended on April 6, 2006.   The allegations in the Second Count of the Sixth Amended Complaint are a repetition of the allegations of legal malpractice.   The plaintiff incorporates the paragraphs in the First Count which allege a conspiracy by the defendants with counsel in the federal action, failure to adequately disclose witness subpoenas and fabricating notices of deposition with counsel for the federal defendants.   Additionally, the plaintiff alleges a number of acts related to the hearings regarding the federal grievance including the 13–member committee, the presentment and the hearing before Judge Hall. All of the acts related to the grievance occurred well after the defendants no longer represented the plaintiff.¹⁵  Therefore, these allegations cannot be sustained because there was no attorney client relationship at the time.   The remaining allegations in the Second Count occurred before April 6, 2006 which would bar the action in accordance with statute of limitations, C.G.S. § 52–577.

Therefore, summary judgment is granted as to the claim of breach of fiduciary duty.

E. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (SEVENTH COUNT)

The defendants argue that judgment should enter on the Seventh Count in their favor because:  1) the plaintiff may not recover damages for emotional distress caused by an attorney's negligence;  2) the claim is time barred by C.G.S. § 52–584;  3) the defendants have a privilege in relation to the grievance proceedings;  4) the defendants cannot be liable for actions or conduct of a third party and;  5) the allegations do not involve an unreasonable risk of causing emotional distress.

The plaintiff contends that summary judgment should be denied as to this Count because there is a continuing course of conduct and a claim infliction of emotional distress can be brought even if there is a claim for legal malpractice.   The plaintiff also argues that:  1) the emotional distress claim was caused by the conduct after “representation and the close of the case;” 2) the defendants cannot claim a privilege because the testimony under oath at the grievance hearing was meant to confuse the plaintiff and interfere with effective self-representation;  3) the Karen Torre argument as to being a third person is factually wrong because she was a member of the Pattis Law Firm;  4) the defendants cannot raise the causation argument because it was not raised as a special defense;  and 5) the plaintiff is not required to provide expert testimony of her physical harm because the plaintiff can testify to the emotional distress and that it was caused by the defendants' actions.

The defendants' first argument is that the plaintiff cannot assert a claim for infliction of emotional distress arising out of a legal malpractice claim.   The defendants rely upon a number of cases outside of Connecticut in support of this position.   However, Watts v. Chittenden, 301 Conn. 575, 22 A.3d 1214 (2011), addressed the issue permitting a claim for intentional infliction of emotional distress.   The court does not agree that a claim for infliction of emotional distress cannot be filed in the appropriate set of circumstances.   This action is not the appropriate factual scenario to permit such an action as noted below.   However, the court rejects the claim of defendants that this cause of action cannot be pled with a legal malpractice claim.

The vast array of arguments by the parties as to this count do not require analysis because a review of the arguments concerning the statute of limitations and the privilege defense resolves the issue.   The applicable statute of limitations, C.G.S. § 52–584 provides in relevant part:  “No action to recover damages for injury to ․ real or personal property, caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․” Before addressing this statutory argument the court has viewed the specific acts or omissions to determine what acts plaintiff contends were the breach of duty.   The plaintiff's claim pursuant to a count for negligent infliction of emotional distress involves the time period in which the plaintiff was represented by the defendants and then she extends it to the grievance process in which the defendants responded to a federal grievance committee.   As noted above, the representation of counsel concluded with the plaintiff's realization and admission that she was no longer represented by the defendants and needed to move forward to represent herself.  (Plaintiff's A–5(a).)   In accordance with the finding of the court in applying the statute the court has found that the attorney client relationship ended on April 4, 2006.   At this time, the plaintiff was well aware of the acts or omissions she contended caused her distress because she had included the very same allegations as part of the federal grievance.   The date of the act or omission complained of is the date when the ․ conduct of the defendant occurs ․ Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 127 A.2d 814 (1956).   For purposes of the statute of limitations the plaintiff has argued that the statements to the grievance committee which she contends were false extend the time for purposes of the statute of limitations.   She contends the acts were a continuous course of conduct.   The defendants counter that the statements and testimony that were part of the grievance hearings and process cannot be utilized because they have absolute privilege for the statements.   The defendants' argument has merit.   As noted by the court in Southern Air, Inc. v. Peter Raymond, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 08 5007577 (February 17, 2009, Adams, J.), the court found:  “The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.”  (Internal quotation marks omitted.)  Peytan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986).   The rationale underlying the privilege is grounded upon the proper and effective administration of justice.   50 Am.Jur.2d, Libel & Slander § 299 (1995).   Participants in a judicial process must be able to testify or otherwise take part without being hampered by fear of defamation suits.  Id. Here it is the fear of an action for infliction of emotional distress.   Therefore, in determining whether a statement made in the course of a judicial proceeding does not have absolute immunity or privilege, “it is important to consider whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides.  Kelley v. Bonney, 221 Conn. 549, 567, 606 A.2d 693 (1992).   The facts of this action and the submission of a grievance by the very plaintiff who is pursuing this action and arguing a continuing course of conduct in a situation created by her satisfies this court that there is an absolute privilege in relation to the events surrounding the testimony of the defendant Pattis before the grievance committee or as part of the presentment.   To allow the plaintiff to now extend the statute of limitations by utilizing a new action that is repetitious of the claims here would open the door to an abuse of the system to allow a grievance based on the very same conduct that is the center of a claim for legal malpractice.   In order to find the continuing course of conduct that may toll the statute of limitation there must be evidence of a breach of duty that remained in existence after the commission of the original wrong related thereto.   That duty must not have terminated prior to the commencement of the period allowed for bringing an action for such a wrong ․” Sinotte v. Waterbury, 121 Conn. 420, 440, 995 A.2d 131, cert. denied, 297 Conn. 921, 496 A.2d 1192 (2010).   The facts in the instant action demonstrate that the attorney client relationship did not exist after the exchange of letters and receipt of a grievance.¹⁶  The special relationship of attorney client was terminated and there was no special relationship to bind the defendants as legal counsel.   This court finds that there is no continuing course of conduct and absolute immunity applies to the claims after the filing of the grievance and related to the April 4, 2006 letter.

As a result of these findings, the claim of negligent infliction of emotional distress cannot survive the motion for summary judgment based on the applicable statute of limitations.

CONCLUSION

Based upon the above the court grants the defendants' motion for summary judgment at to First, Second, Seventh and Eighth Counts.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. Although the plaintiff continues to include the defendants, Radshaw, Gerarde, and Howd & Ludorf, LLC, the action against them has been stricken and judgment entered..  FN1. Although the plaintiff continues to include the defendants, Radshaw, Gerarde, and Howd & Ludorf, LLC, the action against them has been stricken and judgment entered.

FN2. The plaintiff did not specify in her introduction the specific counts to which she was filing the summary judgment but the argument addressed only these causes of action..  FN2. The plaintiff did not specify in her introduction the specific counts to which she was filing the summary judgment but the argument addressed only these causes of action.

FN3. The defendants and plaintiff filed motions to strike the affidavits which required a decision before the court could review and rule upon the motions for summary judgment.   This court entered an order striking portions of the affidavits on January 18, 2013..  FN3. The defendants and plaintiff filed motions to strike the affidavits which required a decision before the court could review and rule upon the motions for summary judgment.   This court entered an order striking portions of the affidavits on January 18, 2013.

FN4. The plaintiff included Lucas Stone as the party filing the plaintiffs' motion for summary judgment.   However, the court granted a motion to dismiss as to him on October 22, 2012.   Thereafter, the court denied the motion to reconsider the ruling after argument by the parties.   The plaintiff, Joan Zygmunt, indicated that she included Stone because at the time of filing the motion the court had not entered orders as to the motion to reconsider..  FN4. The plaintiff included Lucas Stone as the party filing the plaintiffs' motion for summary judgment.   However, the court granted a motion to dismiss as to him on October 22, 2012.   Thereafter, the court denied the motion to reconsider the ruling after argument by the parties.   The plaintiff, Joan Zygmunt, indicated that she included Stone because at the time of filing the motion the court had not entered orders as to the motion to reconsider.

FN5. The court granted a motion to strike certain portions of the Sixth Amended Complaint but the plaintiff did not file a Revised Complaint..  FN5. The court granted a motion to strike certain portions of the Sixth Amended Complaint but the plaintiff did not file a Revised Complaint.

FN6. The federal court action is Stone et al. v. Town of Westport et al., Docket No. 3:04–cv–00018 (JBA)..  FN6. The federal court action is Stone et al. v. Town of Westport et al., Docket No. 3:04–cv–00018 (JBA).

FN7. Although in subsequent correspondence the plaintiff takes issue with the use of the word “betrayal.”.  FN7. Although in subsequent correspondence the plaintiff takes issue with the use of the word “betrayal.”

FN8. Ms. Zygmunt also filed a grievance against Attorney Waisonovitz m relation to her representation as an associate with Attorney Pattis..  FN8. Ms. Zygmunt also filed a grievance against Attorney Waisonovitz m relation to her representation as an associate with Attorney Pattis.

FN9. Plaintiff's position would work an injustice on litigants who would be thrown out of court without the opportunity to have their matters fully litigated.   While the court recognizes the injustice this position could have, it is also cognizant of the need to move the matter forward.   This is obvious in the default and judgment provisions of the Practice Book..  FN9. Plaintiff's position would work an injustice on litigants who would be thrown out of court without the opportunity to have their matters fully litigated.   While the court recognizes the injustice this position could have, it is also cognizant of the need to move the matter forward.   This is obvious in the default and judgment provisions of the Practice Book.

FN10. This request is very close to a determination that the plaintiff is preparing to find other counsel, but Attorney Pattis was still responsible for the file.   The plaintiff followed this with a grievance against counsel..  FN10. This request is very close to a determination that the plaintiff is preparing to find other counsel, but Attorney Pattis was still responsible for the file.   The plaintiff followed this with a grievance against counsel.

FN11. No one can predict what would occur during the two-month interval including the continuance of representation if the areas of disagreement were resolved..  FN11. No one can predict what would occur during the two-month interval including the continuance of representation if the areas of disagreement were resolved.

FN12. The plaintiff included in the Sixth Amended Complaint the following admission that the defendants had withdrawn when she alleges:;  “48.   By letter dated April 4, 2006, we asked Pattis for a return of the fee we paid him, since he had breached our contract and withdrawn from the case ․” (Emphasis added.)   There is no clearer way of saying your services are terminated that to ask for a return of any payments made..  FN12. The plaintiff included in the Sixth Amended Complaint the following admission that the defendants had withdrawn when she alleges:;  “48.   By letter dated April 4, 2006, we asked Pattis for a return of the fee we paid him, since he had breached our contract and withdrawn from the case ․” (Emphasis added.)   There is no clearer way of saying your services are terminated that to ask for a return of any payments made.

FN13. General Statutes § 52–595 provides:  “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefore at the time when the person entitled to sue thereon first discovers its existence.”.  FN13. General Statutes § 52–595 provides:  “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefore at the time when the person entitled to sue thereon first discovers its existence.”

FN14. The plaintiff refers to the article but provides only a partial statement in the article which taken out of context is not a true reflection of the statement recognizing the discretion Pattis believed he had as counsel for the plaintiff..  FN14. The plaintiff refers to the article but provides only a partial statement in the article which taken out of context is not a true reflection of the statement recognizing the discretion Pattis believed he had as counsel for the plaintiff.

FN15. Even if the defendants were representing the plaintiff at the time of the grievance hearings, the claim must fail because there is no evidence other than unsubstantiated allegations of the plaintiff (which even by themselves are not sufficient to deny a summary judgment)..  FN15. Even if the defendants were representing the plaintiff at the time of the grievance hearings, the claim must fail because there is no evidence other than unsubstantiated allegations of the plaintiff (which even by themselves are not sufficient to deny a summary judgment).

FN16. The lack of attorney client relationship would also preclude a finding that the Torre article was written to cause emotional distress because at the time in July 2008 there was no attorney client relationship..  FN16. The lack of attorney client relationship would also preclude a finding that the Torre article was written to cause emotional distress because at the time in July 2008 there was no attorney client relationship.

Brazzel–Massaro, Barbara, J.