Deleo v. Nusbaum

• Decision Date: 22 June 2004
• Docket Number: No. CV 96-0153309 S.,CV 96-0153309 S.
• Citation: 888 A.2d 189,49 Conn.Sup. 366
• Court: Connecticut Supreme Court
• Parties: David DeLEO v. Edward NUSBAUM et al.<SMALL><SUP>*</SUP></SMALL>

Page 189

888 A.2d 189

49 Conn.Sup. 366

David DeLEO v.Edward NUSBAUM et al.^*

No. CV 96-0153309 S.

Superior Court of Connecticut, Judicial District of Stamford-Norwalk.

June 22, 2004.

Edward N. Lerner, Stamford, for the plaintiff.

Paul E. Pollock, Shelton, for the defendants.

TIERNEY, J.

This memorandum is the trial court's decision from the remand of the Supreme Court: "The judgment is reversed and the case is remanded to the trial court for further proceedings according to law."DeLeo v. Nusbaum,263 Conn. 588, 601, 821 A.2d 744(2003).

IFACTS

The court finds the following facts.The plaintiff, David DeLeo, brought this action against the defendants, Edward Nusbaum, an attorney, and the law firm of Nusbaum and Parrino, P.C., in which Nusbaum is a principal.The plaintiff claimed that the defendants had failed to represent him adequately in a dissolution action brought by his wife.The plaintiff commenced this action against the defendants by service of process on June 27, 1996.In his complaint, he alleged that twelve acts or omissions by the defendants constituted negligence.Specifically, the plaintiff claimed that the defendants negligently had entered into a stipulated agreement on behalf of the plaintiff in which the plaintiff was permitted only supervised visitation with his children.In answering the plaintiff's complaint, the defendants denied those allegations and asserted as a special defense that the plaintiff's claims were time barred by General Statutes § 52-577, which provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."Following the close of the plaintiff's case, the defendants moved for a directed verdict, again asserting that the action was barred by the statute of limitations.

With regard to the defendants' statute of limitations claim, the trial court noted that all of the allegedly negligent acts and omissions were alleged to have occurred in 1992, outside the three year period required by § 52-577.The court then considered the plaintiff's claim that the statute of limitations was tolled in the present case under the continuing course of conduct doctrine or the continuous representation doctrine.After concluding that the continuing course of conduct doctrine was inapplicable factually, the trial court considered the potential applicability of the continuous representation doctrine, under which the statute of limitations in legal malpractice cases may be tolled while the legal representation continues.

Apparently aware that, at the time at which it rendered its decision, there was no appellate case law in this state recognizing the continuous representation doctrine, the court assumed that the doctrine was equivalent to the course of treatment rule.Under the course of treatment rule, which we have recognized in the context of medical malpractice, the statute of limitations may be tolled during the course of treatment.

The trial court, thus, concluded that the statute of limitations could be tolled in the present case only insofar as the present case met requirements that the court believed were analogous to those imposed by the course of treatment rule.The court concluded that the jury could not reasonably have found that there was a continuing attorney-client relationship between the plaintiff and the defendants within three years of commencement of the action sufficient to toll the statute of limitations in this case.Accordingly, the court granted the defendants' motion for a directed verdict on the ground that the action was barred by the statute of limitations.Thereafter, the plaintiff appealed to the Appellate Court from the judgment of the trial court, and the Supreme Court transferred the appeal to itself pursuant to General Statutes § 51-199(c)andPractice Book§ 65-1.The Supreme Court reversed the judgment of the trial court.DeLeo v. Nusbaum,supra, 263 Conn. at 589-93, 821 A.2d 744.

In the decision released on May 20, 2003, in this case, the Supreme Court adopted for the first time the continuous representation doctrine."Thus, today we join the majority of states that have adopted the continuous representation doctrine. . . .Under the rule we adopt today, a plaintiff may invoke the doctrine, and thus toll the statute of limitations, when the plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter; and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period."(Citation omitted.)Id., at 597, 821 A.2d 744.

In reviewing the facts of the underlying case, the Supreme Court stated that the first prong of the continuous representation doctrine, as stated previously, had been found as a matter of law.On remand, this court will not discuss the first prong, which is "that the defendant continued to represent [the plaintiff] with regard to the same underlying matter. . . ."Id.

The Supreme Court found there were two alternative methods of proving the second prong, either knowledge or mitigation.The Supreme Court adopted the trial court's finding that "the plaintiff had admitted that the defendants could not have mitigated the damage allegedly caused by their negligence in 1992."Id., at 600, 821 A.2d 744.On remand, this court will not discuss that portion of the second prong concerning mitigation.

The only remaining issue on remand relates to the alternative portion of the second prong of the continuous representation doctrine, which is "that the plaintiff did not know of the alleged malpractice. . . ."Id., at 597, 821 A.2d 744."Thus, because of the inability to establish mitigation, the plaintiff is required to show that he had no knowledge of the defendants' negligence."Id., at 600, 821 A.2d 744.

The Supreme Court gave the trial court the following guidance: "The plaintiff has not presented any evidence on this issue, nor was it considered by the trial court, because the plaintiff and the trial court reasonably did not understand the rule to require such evidence.Under these circumstances, we conclude that it is proper to reverse the judgment of the trial court and remand the case to that court with direction to consider, in light of the continuous representation doctrine we adopt today, whether the plaintiff's claim is barred by the statute of limitations."Id., at 600-601, 821 A.2d 744.

IIPROCEDURAL HISTORY ON REMAND

In accordance with the remand, this court ordered the parties to file a status report as to the nature of the remand proceedings, the length of the proceedings, and the type of the evidence and documents to be submitted on remand.A joint submission of the parties dated August 28, 2003, was filed.That joint submission, signed by both parties, revealed that they had a difference of opinion on a number of remand issues.In the joint submission, the plaintiff contended "that based upon the Supreme Court opinion an evidentiary hearing would be necessary."The defendants contended that "there should be no evidentiary hearing and that the record is complete on the issue."

On September 22, 2003, the court issued written orders and scheduled a status conference on the remand issues for October 7, 2003.The September 22, 2003 order stated that the trial court may have to determine the answers to eight questions.The parties did agree that neither the trial court nor the parties should seek an articulation or guidance from the Supreme Court on the nature, form or extent of the remand hearing.The remaining seven questions on the September 22, 2003 order were to be resolved by the court.No briefs were required for the October 7, 2003 status conference, nor was any testimony or evidence to be presented.The parties appeared at the October 7, 2003 status conference.The trial court restructured the remaining seven questions into a scheduling order.

The trial court issued a scheduling order on December 18, 2003, and assigned the matter for a remand hearing to be conducted in accordance with the remand of the Supreme Court.The scheduling order stated: "This will be an evidentiary hearing and all counsel must be prepared to present witnesses, documents and transcripts relating to the following issues: (1) What evidence was presented at trial, either documentary, stipulation, admission and/or testimony, on the issue, of plaintiff's knowledge of the defendants' professional negligence?(2)The parties will make a proper showing thereof at the evidentiary hearing, (3)The Court will apply directed verdict standards to that showing, (4)The Court will then decide, (a) if a directed verdict should be entered in favor of the defendants on the issue of the plaintiff's knowledge of the defendants' professional negligence and/or, (b) the matter should be submitted to a new evidentiary hearing and/or, (c) whether that new evidentiary hearing should be conducted before a jury, trial judge and/or, (d) who should be the presiding judge at the new evidentiary hearing."

The remand hearing was continued, and a formal remand hearing on the record was held on February 27, 2004, in accordance with the December 18, 2003 scheduling order.The parties were represented by counsel.The trial court presided.Neither party offered any witnesses.One document was marked for identification and is therefore not considered by this court.Five of the exhibits were transcripts of trial testimony of the parties, Nusbaum and the plaintiff.Exhibit one in the remand hearing was an exhibit offered at trial.It is a letter handwritten by the plaintiff to his then wife dated June 22, 1993.That letter was discussed in the Supreme Court decision.SeeDeLeo v. Nusbaum,supra, 263 Conn. at 600, 821 A.2d 744.After oral argument from counsel, the hearing closed on February 27, 2004.The parties waived...