Sin Hang Lee v. LLP

Reset A A Font size: Print

Superior Court of Connecticut.

Sin Hang Lee v. Brenner, Saltzman & Wallman, LLP

CV065000728S

Decided: January 12, 2010

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 157

FACTS

By service of the writ, summons and complaint, the plaintiff, Sin Hang Lee, commenced this action against the defendants, the law firm of Brenner, Saltzman & Wallman, LLP 1 and attorneys Alice Mick, Stephen Saltzman and David Schaefer, on March 23, 2006.   The plaintiff alleges the following in his June 7, 2007 three-count fourth revised complaint.   The plaintiff, a physician, was a member of Pathology Associates and Consultants, PC (the corporation).   On or about January 1, 1997, the members of the corporation retained the defendants to revise the existing employment and stockholder agreements between the members “on behalf of both the [corporation] and the individual members thereof.”   The prior employment agreement provided that members of the corporation could only be discharged for cause, as defined therein.   The defendants drafted a new employment agreement, which provided that a member could be discharged without cause.   The defendants delivered a copy of the new employment agreement to the plaintiff in June 1997, with the promise that they would tailor it more to his specific situation.   In March 1998, the defendant delivered another copy of the new agreement to the plaintiff without providing him any explanation of the material changes they had made to the termination provisions.   The defendants asked the plaintiff to review the new employment agreement before finalizing execution copies.   The fourth revised complaint alleges that the defendants never tailored the new agreement to the needs of the plaintiff.2

In count one, in which the plaintiff alleges claims against the defendants for legal malpractice, the plaintiff alleges the following additional facts.   He received legal advice from the defendants in that they provided him with a completed draft of the agreement and a letter in which they indicated that they would provide him with further advice regarding the new agreement.   The defendants continued to represent members of the corporation, including the plaintiff, regarding corporate and employment matters related to the new employment agreement through May 5, 2003, when the plaintiff received written notice that the defendants would not be representing him.   The defendants committed legal malpractice by, inter alia, leading him to believe that they represented him regarding the formation of the contract, failing to inform him that they did not represent him, drafting an employment agreement that materially changed his termination rights without informing him of the change or advising him to obtain independent counsel, and failing to advise him that a conflict existed between him “and the corporation [that the defendants] also represented.”   On May 15, 2003, the corporation discharged the plaintiff from his employment without cause, which caused him economic losses, damages and emotional distress.

In count two, in which the plaintiff alleges claims for breach of fiduciary duty, the plaintiff alleges the following additional facts.   The defendants, in undertaking to prepare the new employment agreement on his behalf, created a fiduciary relationship between the parties.   The defendants held themselves out to the plaintiff as having superior knowledge, skill and expertise in drafting legal documents, including the new employment agreement.   The plaintiff reasonably relied on the defendants' knowledge, skill and expertise to represent his interest in drafting that agreement.   The defendants failed to fully and honestly inform him of material elements regarding the termination provisions of the new agreement, failed to disclose that they could not represent him, failed to inform him that he should seek other, independent legal counsel, met with members of the corporation to discuss material alterations to the agreement without notifying or disclosing these meetings to the plaintiff, and failed to inform him of potential and actual conflicts of interest.

In count three, in which the plaintiff alleges claims for negligent misrepresentation, the plaintiff alleges further that he justifiabty relied on the defendants' representations concerning the employment agreement, and the defendants failed to exercise reasonable care in communicating information to him regarding material elements of that agreement.

In their answer, which they filed on April 22, 2008, the defendants essentially deny the material allegations of the complaint, and raise several special defenses, including the defense that each action is time barred by the applicable two- and three-year statutes of limitation because the employment agreement at issue was executed on May 6, 1998, and the plaintiff did not commence this action until almost eight years after that date.   In his amended reply to the special defenses, which he filed on October 5, 2009, the plaintiff pleads, inter alia, that the defendants continued to represent members of the corporation, including the plaintiff, regarding corporate and employment matters until May 5, 2003.

On April 30, 2009, the defendants moved for summary judgment on the ground that all three counts of the complaint are barred by the applicable statutes of limitation.   The defendants submitted a memorandum of law in support of their motion as well as evidence including Mick's sworn affidavit and a copy of the marshal's return.   On June 29, 2009, the plaintiff filed a memorandum in opposition to the defendants' motion and submitted evidence including deposition testimony excerpts and other documents.3  The defendants replied thereto on October 2, 2009.   The court beard oral argument at the short calendar on October 19, 2009.

DISCUSSION

“Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.   Practice Book [§ 17-46].”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 119, 971 A.2d 17 (2009).  “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, 319, 901 A.2d 1207 (2006).  “Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.”  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).

“Summary judgment may be granted where the claim is barred by the statute of limitations”;  Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996);  and is appropriate when “material facts concerning the statute of limitations [are] not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

I

Statute of Limitations

The defendants argue that all of the alleged acts and omissions that give rise to the plaintiff's causes of action concern the defendants' work on the new employment agreement and that there is no dispute that the plaintiff and the other members of the corporation executed that agreement on May 6, 1998.   The defendants posit that as this action was commenced in 2006, it is untimely under the relevant statutes of limitation.   The plaintiff counters that genuine issues of material fact exist as to each of' his claims, and that the continuous representation doctrine and/or the continuing course of conduct doctrine serve to toll the statute of limitations.

General Statutes § 52-577 provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”   The parties do not dispute that this statute applies to the plaintiff's claims of legal malpractice;  see Farnsworth v. O'Doherty, 85 Conn.App. 145, 148-49, 856 A.2d 518 (2004);  and his breach of fiduciary duty claims.  Ahern v. Kappalumakkel, 97 Conn.App. 189, 192 n.3, 903 A.2d 266 (2006).   They disagree as to whether the plaintiff's negligent misrepresentation claims are governed by § 52-577 or General Statutes § 52-584.

Section 52-584 provides in relevant part:  “No action to recover damages for injury to the person, or 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 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 ․” In Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 299, 830 A.2d 346 (2003), the Appellate Court noted that “our Supreme Court has held that the three year statute of limitations of § 52-577 is applicable to all tort actions other than those excepted therefrom by § 52-584 or other sections ․”(Internal quotation marks omitted.)   In Lombard, the court decided that the plaintiff's claims for negligent misrepresentation, which were “predicated on injury to their personal property caused by negligence,” were governed by § 52-584.   In contrast, in Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 157 n.15, 976 A.2d 723 2009), the court explained that the plaintiff's tort claims, including its claims for economic losses due to the defendants' negligent misrepresentation, were governed by § 52-577.   It appears then, that, “[i]f read narrowly, Lombard 's holding [that § 52-584 is the correct limitation statute] is limited to claims of negligent mispresentation resulting in damages to property.   The language of the statute, however, lists injury to person and property together.   Thus, Lombard should be interpreted as applying [§ 52-584] to claims of negligent misrepresentation that allege injuries to either the person or property.”   Evans v. Province, Superior Court, judicial district of New Haven, Docket No. CV 07 600855 (August 4, 2008, Zoarski, J.).   Because the plaintiff in this action does not seek to recover damages for injury to his person or to his real or personal property, his negligent misrepresentation claims do not fall within § 52-584 and are governed by § 52-577.

“Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues ․ General Statutes § 52-577 provides:  No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of ․ [Section] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs ․ The three year limitation period of § 52-577 ․ begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury ․ The relevant date of the act or omission complained of, as that phrase is used in § 52-577, is the date when the negligent conduct of the defendant occurs and not the date when the plaintiffs first sustain damage.   When conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summery judgment are the date of the wrongful conduct alleged in the complaint and the date the action was [commenced] ․ Ignorance of his rights on the part of the person against whom the statute has begun to run, will not suspend its operation.   He may discover his injury too late to take advantage of the appropriate remedy.   Such is one of the occasional hardships necessarily incident to a law arbitrarily making legal remedies contingent on mere lapse of time.”  (Citation omitted;  internal quotation marks omitted.)  Piteo v. Gottier, 112 Conn.App. 441, 445-46, 963 A.2d 83 (2009).

“Although allowing a statute of limitations defense may result in meritorious claims being foreclosed, that must be so.   A statute of limitations promotes two important interests:  (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability ․ and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.”  (Internal quotation marks omitted.)   Id., 450.

Here, the harm to the plaintiff that forms the basis for this action was that the corporation was allowed to terminate his employment without cause on May 15, 2003.   The acts and omissions that the defendants alleged in each count arise out of the revisions that they made to the employment agreement, which, according to the plaintiff, materially altered the plaintiff's rights under that agreement and allowed the corporation to terminate his employment without cause.   The only evidence submitted indicates that the new employment agreement was executed by the members of the corporation on May 6, 1998;  all of the acts and omissions that the defendants allegedly engaged in occurred on or before that date.   The plaintiff did not commence this action until March 23, 2006, which is well beyond the three-year limitations period set forth in § 52-577.

II

Tolling the statute of limitationsAContinuous Representation Doctrine

The plaintiff argues that the continuous representation doctrine tolls the statute of limitations for all three counts, although he cites no authority for applying this tolling provision to the breach of fiduciary duty and negligent misrepresentation claims.   He argues that the defendants continued to represent him in the same manner that they had before, “that is, advising him regarding his personal interests related to the corporation.” 4  In his complaint, the plaintiff alleges that defendants continued to represent “members of the Group, including the Plaintiff, regarding corporate and employment matters related to the New Employment Agreement through May 5, 2003, when the Plaintiff received written notification that the Defendants would not be representing him.”

With regard to the legal malpractice claim, the plaintiff argues that he “reasonably believed” that the defendants represented him personally “by giving him advice on personal matters related to the shareholder agreements and employment agreements.”   Citing considerable authority, the plaintiff argues that “summary judgment is inappropriate because the ․ acts of the [defendants] create a factual dispute as to whether [the plaintiff's] belief that he was represented by [the defendants] is reasonable.”   The defendants respond that the plaintiff has not introduced any evidence to demonstrate that a genuine issue of material fact exists as to whether the continuous representation doctrine applies to toll the statute of limitations, that an attorney-client relationship did not exist between the plaintiff individually and the defendants, and that, regardless of the forgoing, the “underlying matter” ended, at the ‘very latest, when the new employment agreement was executed on May 6, 1998.5

The plaintiff's argument that the continuous representation doctrine tolls the statute of limitations rests on several premises, including that the defendants:  had an attorney-client relationship with the plaintiff, and that his “reasonable belief” that the defendants represented him personally is sufficient to sustain that claim.   The plaintiff argues that the existence of an attorney-client relationship between the parties is a material fact in dispute and that summary judgment should be denied on that ground.   Assuming, without deciding, that the plaintiff and the defendants had an attorney-client relationship up through and until the execution of the employment agreement in May 1998, the plaintiff's argument rests on the additional premise that the statute is tolled beyond the date of the execution of that agreement because that the defendants confirmed to represent him with regard to the same underlying matter.

The Connecticut Supreme Court recognized that the continuous representation doctrine could toll the limitations period of § 52-577 in a legal malpractice claim in DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003).   The court examined several competing interests, including “the need to eliminate unnecessary uncertainty regarding the date upon which a plaintiff's claims are barred by the statute of limitations” and the need to foster and preserve the attorney-client relationship by removing the uncertainty as to when the doctrine applies so as to avoid compelling a plaintiff to institute an action against his attorney even while the relationship is ongoing.  Id., 596.   The court adopted a “continuous representation doctrine, suitably modified to reflect these competing interests”;  Id., 596-97;  and held that “a plaintiff may invoke the [continuous representation] doctrine, and thus toll the statute of limitations [in a legal malpractice action], 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.)  Id., 597.

The court specifically noted, however, “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.”  DeLeo v. Nusbaum, supra, 263 Conn. 597 n.4. The Appellate Court has noted repeatedly that the holding of DeLeo is so limited.   See Rosato v. Mascardo, 82 Conn.App. 396, 407, 844 A.2d 893 (2004) (“the holding of DeLeo is quite limited ․ Because the breadth of the holding was limited even within the context of legal malpractice, this court declines to read that holding expansively and to apply it to cases involving medical malpractice.” citation omitted] );  Piteo v. Gottier, supra, 112 Conn.App. 448-49 (“[the holding of DeLeo was] limited to cases in which an attorney is alleged to have committed malpractice during the course of litigation ” [emphasis in original] ).

Neither the Supreme Court nor the Appellate Court has had occasion to discuss whether or how the continuous representation doctrine, as adopted in DeLeo, applies to attorney-client relationships that:  do not involve underlying litigation, but rather involve the drafting and execution of employment agreements or other similar transactions.6  Prior to DeLeo, the Appellate Court first considered and rejected the continuous representation doctrine in a case in which the underlying matter was a business transaction in S.M.S Textile Mills v. Brown, Jacobson, Tillinghast, Lahan & King, P.C., 32 Conn.App. 786, 792, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993).   In that case, the plaintiff, a textile mill, brought a legal malpractice claim against, inter alia, the law firm that the two individuals who bought the mill retained to review the documents pertaining to that transaction.   The plaintiff urged the court to adopt a continuous representation rule that “tolls the statute of limitations or defers accrual of the cause of action while the attorney continues to represent the client and the representation relates to the same transaction or subject matter as the allegedly negligent acts.”  (Internal quotation marks omitted.)  Id., 791.   The Appellate Court declined to do so, in part because all the acts and omissions that the defendant allegedly engaged in occurred more than three years before the plaintiff commenced the action, and the plaintiff failed to provide evidence of continuous representation.   As the court explained, “the trial court properly determined that no material issues remained in dispute, and properly granted summary judgment.   The record clearly indicates that [the law firm's] latest actions complained of by the plaintiff took place in late 1986.   As we have stated, our statute of limitations [§ 52-577] is an occurrence statute.   The last acts complained of took place in the fall of 1986, while the complaint in this action was filed in July 1990.   More than three years had passed since the occurrence of the acts complained of;  therefore, the trial court correctly concluded that the action was time barred.”  Id., 792.   Specifically, the court noted, that “[t]he plaintiff has not demonstrated, either here or in the trial court, that, through a continuing course of conduct, [the] defendant breached a duty owed to the plaintiff after the commission of or in relation to the alleged torts.”   Id., 793.

In the present case, the defendants presented evidence in the form of an affidavit from Mick, in which she attests that the law firm represented the corporation, and did not represent the plaintiff.   To support his assertion that the defendants continued to represent him by advising him regarding his personal interests related to the corporation, the plaintiff produces two pieces of evidence.   The first is a memorandum by the defendants that they addressed to the corporation dated August 18, 2000, regarding proposed revisions to the corporate documents.   As the plaintiff did not commence this action until 2006, this memorandum, if it serves to raise an issue of fact as to tolling at all, would not toll the three-year statute for a sufficient amount of time.   The other evidence is a letter that the plaintiff received on May 5, 2003, which was sent by and signed by the president of the corporation-not by any of the defendants-advising the plaintiff that a special meeting of the corporation's shareholders would be held on May 15, 2003.   This was the meeting at which the plaintiff was terminated.   In that letter, the corporation advised the plaintiff that he should “feel free to bring legal counsel to that meeting” as the defendants would represent the corporation, and that the meeting would be held at the defendants' office.   The plaintiff refers to this letter in his complaint as the “written notification that the defendants would not be representing” him any further.   This letter does not raise a triable issue of fact as to whether the defendants, if they ever personally represented the plaintiff in the drafting and execution of the employment contract that was executed in May 1998, continued to do so through May 2003, with regard to the same underlying matter, i.e., that agreement.

In his complaint, the plaintiff lists several ways in which the defendants allegedly failed to mitigate the harm he suffered, including failure to readdress the new employment agreement with the corporation, advise the plaintiff regarding his termination rights, advise the plaintiff regarding how to avoid termination under the new agreement, and advise the plaintiff how to cause the termination of other employees under the agreement.   The Appellate Court rejected a similar arguments in Piteo v. Gottier, supra, 112 Conn.App. 441, in which the court considered. whether the continuous representation doctrine adopted in DeLeo could be expanded to apply to the fiduciary relationship between a plaintiff and a defendant securities broker.   The court, referring to both the doctrines of continuous representation and continuing treatment, noted:  “To toll the statute of limitations indefinitely so long as the plaintiff chooses to keep his investments in the hands of the defendants, maintaining the defendants' theoretical capability of restoring the plaintiff to the position he was in before the alleged breach of fiduciary duty (in this case by reimbursing him for market losses), would reach far more broadly than those accepted doctrines, which apply to discrete medical or legal matters.”   Id., 448-49.

To toll the statute of limitations in this case based on the defendants' theoretical ability to, for example, readdress the new employment agreement with the corporation at any point after its May 1998 execution, up to the plaintiff's termination, would similarly reach too broadly.   Moreover, the plaintiff's arguments regarding the defendants' failure to mitigate harm that they caused him, if they further the continuous representation doctrine at all, go to the second prong of the analysis.   See DeLeo v. Nusbaum, supra, 263 Conn. 597;  Pagan v. Gonzalez, Superior Court, judicial district of New Haven, Docket No. CV 04 4000688 (April 17, 2007, Holden, J.) (“[b]ecause the plaintiff has not produced any evidence of the existence of a continued representation period, this court declines to analyze the second prong of [DeLeo ]”), aff'd, 113 Conn.App. 135, 140, 965 A.2d 582 (2009).

Each of the plaintiff's allegations regarding the defendant's conduct, excluding their theoretical failure to mitigate addressed above but including their alleged failure to advise, failure to disclose alleged conflicts and failure to “tailor” the agreement in a manner that best protected the plaintiff's interest, all arise out of their alleged action is in drafting the employment agreement in 1998.   Although it is unclear as to whether the continuous representation doctrine as articulated in DeLeo can be applied to toll the statute of limitations in legal malpractice that does not arise out of litigation, it is clear the plaintiff has not deduced sufficient evidence to raise a triable issue that applies under these facts.

As such, the plaintiff has failed to produce evidence that raises an issue of fact as to whether the continuous representation doctrine tolls the statute of limitations as to the legal malpractice count.   The same analysis applies to the plaintiff's argument that the doctrine tolls the statute of limitations for the plaintiff's breach of fiduciary duty and negligent misrepresentation counts as well.

B

Continuous Course of Conduct Doctrine

The plaintiff also argues that the defendant's motion for summary judgment should be denied because the statute of limitations is tolled by the continuous course of conduct doctrine.   According to the plaintiff, the fiduciary and/or attorney-client relationship between the parties continued “in the same way it existed at the time of the execution of the new agreements” and the defendants' “wongful conduct”-the failure to inform the plaintiff of the fact that they did not represent him, of the conflicts inherent in such representation, and of the material changes to the agreements-continued as well.   The plaintiff argues that because the defendants' course of conduct continued, the statute of limitations did not commence until the relationship ended.   The defendants respond that the doctrine does not apply because they never represented the plaintiff's personal interests, and, even if a question of fact exists as to whether they did so, the plaintiff has not produced any evidence that they had such a relationship with him after May 1998, or that they engaged in any subsequent “wrongful” conduct that was related to the May 1998 employment agreement.

“[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.”  (Internal quotation marks omitted.)  Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 170, 947 A.2d 291 (2008).

“[T]he doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury ․” (Internal quotation marks omitted.)  Rosenfeld v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.App. 151, 160-61, 795 A.2d 572 (2002).

“[A] plaintiff can establish that an attorney owed a continuing duty to the plaintiff that was related to the attorney's initial wrongful act by one of three ways.   By establishing that:  (1) the attorney continued to represent the plaintiff in the same or an unrelated matter;  see Rosenfeld v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, [supra, 69 Conn.App. 161];  (2) the attorney initiated contact with the plaintiff thereafter and promised to do something in the future that was related to the initial matter;  or (3) the attorney was aware that his or her initial conduct was negligent.  Sanborn v. Greenwald, 39 Conn.App. 289, 297, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).”   KGM Corp. v. Parillo, Superior Court, Docket No. CV 04 4001596 (November 3, 2005, Thompson, J.) (40 Conn. L. Rptr. 1305, 306).  “[T]he 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 ․” (Internal quotation marks omitted.)  Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 608, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007).

In contrast, it is not suited to cases, such as the present one, which are premised solely on allegations that an attorney negligently drafted a document and then failed to warn the client that he or she had done so.   See Sanborn v. Greenwald, supra, 39 Conn.App. 289.   In Sanborn, the plaintiff alleged that the defendant attorney negligently drafted a modification to a document, and then negligently failed to warn and advise her of the legal consequences of the modification, which failure to warn and advise continued until a date within the three-year statute of limitations.  Id., 293.   The court noted:  “The defendant here had no continuing duty to notify the plaintiff of the alleged mistake in the [document] in the absence of proof that he subsequently learned that the drafting was negligent ․ 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 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.)  Id., 297-98.7

The continuous course of conduct doctrine is, as the plaintiff notes, “conspicuously fact-bound.”  (Internal quotation marks omitted.)  Id., 295.   Nonetheless, the legal malpractice, breach of fiduciary duty and negligent misrepresentation claims at issue here arise from the defendants' drafting of a contract that was executed some eight years before the plaintiff commenced this action.   The plaintiff's assertion that the defendants were theoretically capable, through the intervening years, of warning or advising him or restoring him to the position he was in before the alleged breach notwithstanding, the plaintiff has not produced any evidence of an evolving situation of the kind that the continuing course of conduct doctrine is meant to address.   The plaintiff has failed to meet his burden to show that question of fact exists as to whether the continuing course of conduct doctrine tolls the statute of limitations for any of the counts of his complaint.

CONCLUSION

For the forgoing reasons, the defendants' motion for summary judgment on all three counts of plaintiff's fourth revised complaint is granted.

BELLIS, J.

FOOTNOTES

FN1. In the complaint and numerous other documents, the defendant law firm is identified as Brenner, Saltzman and Wallman, LLP. In the summons, however, it is identified as Benner, Saltzman and Wallman, LLP..  FN1. In the complaint and numerous other documents, the defendant law firm is identified as Brenner, Saltzman and Wallman, LLP. In the summons, however, it is identified as Benner, Saltzman and Wallman, LLP.

FN2. In Mick's affidavit, which the defendants submitted in support of their motion, Mick avers that the new stockholder and employment agreements were executed on May 6, 1998.   The plaintiff does not dispute this fact..  FN2. In Mick's affidavit, which the defendants submitted in support of their motion, Mick avers that the new stockholder and employment agreements were executed on May 6, 1998.   The plaintiff does not dispute this fact.

FN3. The plaintiff's evidence includes excerpts from his deposition testimony, excerpts from Mick's deposition testimony, a copy of a 2000 memorandum to the corporation from the defendants regarding proposed changes to the “organizational documents” (the shareholder and employment agreements), a copy of a 1997 letter from the defendant addressed to the plaintiff, and a copy of a letter from the corporation to the plaintiff regarding a special meeting of shareholders dated May 3, 2003..  FN3. The plaintiff's evidence includes excerpts from his deposition testimony, excerpts from Mick's deposition testimony, a copy of a 2000 memorandum to the corporation from the defendants regarding proposed changes to the “organizational documents” (the shareholder and employment agreements), a copy of a 1997 letter from the defendant addressed to the plaintiff, and a copy of a letter from the corporation to the plaintiff regarding a special meeting of shareholders dated May 3, 2003.

FN4. The plaintiff's additional arguments that the plaintiff “did not know that he was not being represented, that conflicts of interest existed or that material changes to the documents were made that affected his interest”-all arise out of conduct that occurred prior to the May 6, 1998 execution of the contract and, thus, do not further his reliance on the continuous representation doctrine..  FN4. The plaintiff's additional arguments that the plaintiff “did not know that he was not being represented, that conflicts of interest existed or that material changes to the documents were made that affected his interest”-all arise out of conduct that occurred prior to the May 6, 1998 execution of the contract and, thus, do not further his reliance on the continuous representation doctrine.

FN5. The defendants also argue that the plaintiff's reliance on the continuous representation and continuing course of conduct doctrines in avoidance of the statute of limitation special defense is not properly before the court because the plaintiff did not plead those doctrines in his initial reply to their special defenses.   Pursuant to Practice Book § 10-60, the plaintiff requested leave to amend and filed an amended reply to the defendants' special defenses on October 5, 2009.   Therein, the plaintiff added the allegations referenced above.   Pursuant to § 10-60(a)(3), “[i]f no objection [to a request for leave to amend] has been filed by any party within fifteen days from the date of filing of said request, the amendment shall be deemed to have been by consent of the adverse party.”   Although the defendants filed a timely objection to the plaintiff's request, they then withdrew it on October 19, 2009.   Therefore, the defendants are deemed to have consented to the plaintiff's amended reply and this argument is therefore moot..  FN5. The defendants also argue that the plaintiff's reliance on the continuous representation and continuing course of conduct doctrines in avoidance of the statute of limitation special defense is not properly before the court because the plaintiff did not plead those doctrines in his initial reply to their special defenses.   Pursuant to Practice Book § 10-60, the plaintiff requested leave to amend and filed an amended reply to the defendants' special defenses on October 5, 2009.   Therein, the plaintiff added the allegations referenced above.   Pursuant to § 10-60(a)(3), “[i]f no objection [to a request for leave to amend] has been filed by any party within fifteen days from the date of filing of said request, the amendment shall be deemed to have been by consent of the adverse party.”   Although the defendants filed a timely objection to the plaintiff's request, they then withdrew it on October 19, 2009.   Therefore, the defendants are deemed to have consented to the plaintiff's amended reply and this argument is therefore moot.

FN6. In Bagoly v. Riccio, 102 Conn.App. 792, 798, 927 A.2d 950, cert. denied, 284 Conn. 931, 934 A.2d 245 (2007), the Appellate Court considered and rejected the argument that the doctrine was applicable in a case in which the defendant attorneys allegedly committed legal malpractice in 1997 while they were representing the plaintiff with regard to a marital separation agreement by failing to include a change negotiated by the parties.   The plaintiff, through new counsel, attempted and failed to have the modification altered in 2001 and then brought the legal malpractice action against the defendants in 2002.   The Appellate Court upheld the trial court's decision to grant the defendants' motion for summary judgment is to the legal malpractice count finding it would be “unfathomable that the defendants continued to represent the plaintiff simply because [in 2001] [one of the defendants] submitted an affidavit and testified during the hearing on the modification of the separation agreement.”  Id..  FN6. In Bagoly v. Riccio, 102 Conn.App. 792, 798, 927 A.2d 950, cert. denied, 284 Conn. 931, 934 A.2d 245 (2007), the Appellate Court considered and rejected the argument that the doctrine was applicable in a case in which the defendant attorneys allegedly committed legal malpractice in 1997 while they were representing the plaintiff with regard to a marital separation agreement by failing to include a change negotiated by the parties.   The plaintiff, through new counsel, attempted and failed to have the modification altered in 2001 and then brought the legal malpractice action against the defendants in 2002.   The Appellate Court upheld the trial court's decision to grant the defendants' motion for summary judgment is to the legal malpractice count finding it would be “unfathomable that the defendants continued to represent the plaintiff simply because [in 2001] [one of the defendants] submitted an affidavit and testified during the hearing on the modification of the separation agreement.”  Id.

FN7. Compare Giulietti v. Giulietti, 65 Conn.App. 813, 835, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001) (“The facts of this case fit neatly within the contours of the continuing course of conduct doctrine such that the statute of limitations was tolled.  [The defendant] Attorney Giulietti committed an initial wrong against his father [Mr. Giulietti] when he prepared the first deed transferring interests in [the property] to the siblings and had the deeds placed in escrow subject to conditions not requested by Mr. Giulietti.   He committed further transgressions in drafting the subsequent deeds and escrow agreements that added further unrequested conditions.   Although those actions all occurred more than three years before Mr. Giulietti and [the defendant's mother] filed the fraud and malpractice action against their son, there exists both a special relationship between the parties [other than the parent child relationship] and later wrongful omissions relating back to the prior wrongful acts alleged by the plaintiffs so as to trigger the doctrine”)..  FN7. Compare Giulietti v. Giulietti, 65 Conn.App. 813, 835, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001) (“The facts of this case fit neatly within the contours of the continuing course of conduct doctrine such that the statute of limitations was tolled.  [The defendant] Attorney Giulietti committed an initial wrong against his father [Mr. Giulietti] when he prepared the first deed transferring interests in [the property] to the siblings and had the deeds placed in escrow subject to conditions not requested by Mr. Giulietti.   He committed further transgressions in drafting the subsequent deeds and escrow agreements that added further unrequested conditions.   Although those actions all occurred more than three years before Mr. Giulietti and [the defendant's mother] filed the fraud and malpractice action against their son, there exists both a special relationship between the parties [other than the parent child relationship] and later wrongful omissions relating back to the prior wrongful acts alleged by the plaintiffs so as to trigger the doctrine”).

Bellis, Barbara N., J.