DeLeo v. Nusbaum

• Decision Date: 20 May 2003
• Docket Number: (SC 16750).
• Citation: 263 Conn. 588,821 A.2d 744
• Court: Connecticut Supreme Court
• Parties: DAVID DELEO v. EDWARD NUSBAUM ET AL.

263 Conn. 588

821 A.2d 744

DAVID DELEO v. EDWARD NUSBAUM ET AL.

(SC 16750).

Supreme Court of Connecticut.

Argued October 25, 2002.

Officially released May 20, 2003.

Sullivan, C. J., and Norcott, Katz, Palmer and Vertefeuille, Js. John R. Williams, for the appellant (plaintiff).

Paul E. Pollock, for the appellees (defendants).

Opinion

SULLIVAN, C. J.

The primary issue in this appeal is whether the trial court properly concluded that the continuous representation rule did not apply in the plaintiff's legal malpractice action so as to toll General Statutes § 52-577, the statute of limitations applicable to tort actions. We conclude that the trial court improperly concluded that the action is barred by § 52-577. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are necessary to our disposition of this appeal. 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 his 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.¹ 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 these allegations and asserted as a special defense that the plaintiff's claims were time barred by § 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, inter alia, that the action was barred by the statute of limitations. The defendants also maintained in their motion that the plaintiff did not provide sufficient evidence that the defendants' alleged negligence proximately caused any harm to the plaintiff, and that, therefore, any jury finding that such harm was caused would be purely speculative.

The trial court rejected the latter grounds for a directed verdict, concluding that the jury reasonably could find that negligence by the defendants had harmed the plaintiff. With regard to the defendants' statute of limitations claim, the 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 factually inapplicable, 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 trial court assumed that this 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. See Blanchette v. Barrett, 229 Conn. 256, 278, 640 A.2d 74 (1994); Giambozi v. Peters, 127 Conn. 380, 16 A.2d 833 (1940), overruled on other grounds, Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638 (1966).

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 it believed were analogous to those imposed by the course of treatment rule. Although the court found that the requirement that the defendants had continued to represent the plaintiff within three years of the commencement of the action had been met, it also found that several other elements it believed to be required had not been satisfied. Specifically, the court concluded that the statute could be tolled under the continuous representation doctrine only if the defendants had continued to represent the plaintiff with regard to the particular acts alleged to be negligent, as well as with regard to the same underlying subject matter. The court concluded that this requirement was not met in the present case, because those acts all occurred more than three years before the commencement of the plaintiff's action. The court also presumed that the application of the continuous representation doctrine required that it must have been possible, during the time of the defendants' continued representation of the plaintiff, for the defendants to have "cure[d]" or corrected the harms allegedly caused by their negligence. The court concluded that this requirement was not met in the present case because there was no allegation that the defendants could have alleviated those alleged harms during this continued representation.

In addition, the court considered whether there was a continuing relationship between the parties within three years of the commencement of the action. The court concluded that, in the present case, the attorney-client relationship "had broken down irretrievably" more than three years before the plaintiff commenced his action against the defendants and that the jury could not reasonably have found otherwise. The court based this determination on a letter, dated June 22, 1993, that the plaintiff had sent to his wife, in which he stated, "[i]ncident[al]ly, you[r] lawyers have not only committed malpractice in handling this case but are guilty of billing fraud," and "[m]y lawyer has not done much better." The court fixed the date of the breakdown of the relationship as the date of the letter, although the court also found that the defendants had represented the plaintiff at a deposition regarding the same underlying action on June 28, 1993, that the defendants had filed a motion to withdraw from the case on June 30, 1993, and that the motion had been granted on July 6, 1993.

The court also noted that, under Blanchette v. Barrett, supra, 229 Conn. 278, the point at which a course of treatment ends for purposes of the continuous treatment doctrine "depends upon several factors." The court considered how several of these factors would apply by analogy to determine the point at which an attorney-client relationship ends, including whether the patient was relying upon the advice of the physician with regard to the medical condition at issue, whether the parties had considered terminating their relationship, and whether there was a lack of trust in the physician. Using the analogy, the court concluded by that, in the present case, all of those factors weighed against the application of the tolling doctrine.

Thus, 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 from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. We reverse the judgment of the trial court.

I

A motion for a directed verdict is warranted only if, considering the evidence presented, the jury could not reasonably have found in favor of the nonmoving party. Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001). In the present case, the trial court based its decision to grant the defendants' motion for a directed verdict on its interpretation of the continuous representation doctrine. Because this presents a pure question of law, our review is plenary. State v. Luurtsema, 262 Conn. 179, 185, 811 A.2d 223 (2002).

As noted previously, at the time the trial court directed judgment in this case, there was no appellate case law in this state addressing whether this state recognized the continuous representation doctrine. The doctrine, however, enjoys widespread support in other states. Indeed, a majority of states that have considered this doctrine have adopted it in some form. 3 R. Mallen & J. Smith, Legal Malpractice (5th Ed. 2000) § 22.13, p. 437.

The continuous representation doctrine was developed primarily in response to the harsh consequences of the occurrence rule, under which the period during which an action may be brought begins to run at the time of the allegedly tortious conduct, even though the attorney continues to represent the client, the client may be unaware of the tortiousness of the conduct, and there has not yet and may never be an injury as a result of that conduct. Id., § 22.13, p. 430. Like the trial court in the present case, courts adopting the continuous representation doctrine have frequently held it to be analogous to the course of treatment rule. See, e.g., Siegel v. Kranis, 29 App. Div. 2d 477, 480, 288 N.Y.S.2d 831 (1968); Omni-Food & Fashion, Inc. v. Smith, 38 Ohio St. 3d 385, 387, 528 N.E.2d 941 (1988).

After the filing of this appeal, the Appellate Court recognized the continuous representation doctrine, concluding that, in legal malpractice cases, the statute of limitations is tolled during that period for which the plaintiff "must show that (1) the attorney continued to represent...