Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC

• Decision Date: 16 April 2002
• Docket Number: (AC 20758)
• Citation: 69 Conn. App. 151,795 A.2d 572
• Court: Connecticut Court of Appeals
• Parties: EDWARD ROSENFIELD v. ROGIN, NASSAU, CAPLAN, LASSMAN AND HIRTLE, LLC

69 Conn. App. 151

795 A.2d 572

EDWARD ROSENFIELD v. ROGIN, NASSAU, CAPLAN, LASSMAN AND HIRTLE, LLC

(AC 20758)

Appellate Court of Connecticut.

Argued May 9, 2001.

Officially released April 16, 2002.

Schaller, Spear and Daly, JS.

A. Alan Sheffy, for the appellant (plaintiff).

Jeffrey L. Ment, for the appellee (defendant).

Opinion

SPEAR, J.

In this legal malpractice action, the plaintiff, Edward Rosenfield, claims that the defendant law firm, Rogin, Nassau, Caplan, Lassman & Hirtle, LLC (defendant), failed to file in a timely manner a legal malpractice action on his behalf against his former attorney. The trial court rendered a summary judgment in favor of the defendant, and the plaintiff appealed, claiming that the court improperly concluded that (1) the collateral estoppel doctrine did not apply and (2) the continuing course of conduct and continuous representation doctrines tolled the statute of limitations in the underlying legal malpractice action. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The initial legal malpractice action arose out of a foreclosure matter in which Levy & Droney, P.C. (Levy), represented the plaintiff. See Rosenfield v. Cymbala, Superior Court, judicial district of Middlesex, Docket No. 060180 (December 18, 1992). In that foreclosure action, the court, Higgins, J., orally rendered a judgment of dismissal on December 1, 1992, and issued a written memorandum of decision on December 18, 1992. Levy appealed from the judgment of dismissal on behalf of the plaintiff, and we affirmed the judgment in a per curiam opinion. Rosenfield v. Cymbala, 33 Conn. App. 931, 636 A.2d 881 (1994).

Following our decision, Levy brought a second foreclosure action on the plaintiffs behalf, which resulted in a summary judgment in favor of the foreclosure defendant based on the doctrine of res judicata. Rosenfield v. Cymbala, Superior Court, judicial district of Middlesex, Docket No. CV XXXXXXXXX (August 23, 1995). Levy again filed an appeal, but before we decided the case, the plaintiff retained the defendant to bring a malpractice action against Levy for negligence in handling the foreclosure action. We subsequently affirmed the court's judgment. Rosenfield v. Cymbala, 43 Conn. App. 83, 681 A.2d 999 (1996).

The defendant served a complaint on Levy on December 15, 1995. In September, 1996, the law firm Marder & Kallet filed an appearance on the plaintiffs behalf in lieu of the defendant in this action. Levy subsequently filed a motion for summary judgment, alleging that the action was barred by the statute of limitations set forth in General Statutes § 52-577.¹ Levy claimed that the complaint served on December 15, 1995, was untimely because the three year statute of limitations had begun to run on the date of the court's oral decision on December 1, 1992. Marder & Kallet argued that the filing was timely because the statute of limitations had begun to run when the memorandum of decision was issued on December 18, 1992. The court, Wagner, J., agreed with Levy and rendered a summary judgment in its favor. Rosenfield v. Levy & Droney, P. C., Superior Court, judicial district of Hartford, Docket No. CV XXXXXXXXXS (April 16, 1997). No appeal was taken from Judge Wagner's decision.²

The present legal malpractice action arose from the defendant's alleged failure to file the action against Levy in a timely manner. The defendant filed a motion for summary judgment, claiming that, notwithstanding Judge Wagner's ruling, it had filed the complaint in a timely manner. The defendant argued that the legal representation of the plaintiff continued through the first appeal, which tolled the statute of limitations until at least February 1, 1994, the date we affirmed the first judgment of dismissal of the foreclosure action. Rosenfield v. Cymbala, supra, 33 Conn. App. 931-32. The defendant argued that the complaint served on December 15, 1995, therefore, was timely. The court, Peck, J., agreed and rendered a summary judgment in the defendant's favor. This appeal followed.

I

The plaintiff claims that the court improperly concluded that the collateral estoppel doctrine did not preclude the defendant from relitigating the issue of the tolling of the statute of limitations. Specifically, the plaintiff argues that Judge Peck was barred from reconsidering Judge Wagner's ruling that the defendant's filing of the complaint was untimely because the three year statute of limitations contained in § 52-577 had begun to run from the date of Judge Higgins' oral decision on December 1, 1992. The plaintiff argues that the court improperly considered the tolling issue and cited case law regarding the continuous course of conduct doctrine. We are unpersuaded.

"Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action.... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.... Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.....

"An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined.... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." (Citations omitted; internal quotation marks omitted.) Pitchell v. Williams, 55 Conn. App. 571, 577-78, 739 A.2d 726 (1999), cert. denied, 252 Conn. 925, 746 A.2d 789 (2000).

We conclude that the court properly ruled that the tolling claim was not barred by the collateral estoppel doctrine. The defendant here was neither a party nor in privity with a party to the cause of action determined by Judge Wagner and, therefore, Judge Peck was not precluded from addressing the tolling issue. See Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 814, 695 A.2d 1010 (1997) (collateral estoppel to be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights). Moreover, the plaintiff failed to present any evidence that the continuing course of conduct and continuous representation doctrines or any other tolling issue was in the pleadings or otherwise litigated before Judge Wagner. Furthermore, Judge Wagner did not cite cases involving the continuing course of conduct doctrine for the proposition that the doctrine did not apply, but rather for the definition of "act or omission" under § 52-577. Judge Peck, therefore, was not precluded from considering whether there was a genuine issue of material fact as to whether the continuing course of conduct or continuous representation doctrine applied to toll the statute of limitations.

The plaintiff argues that permitting the consideration of the tolling issue would "directly fly against the underlying judicial policy that favors judicial economy, the stability of former judgments and finality, and would prejudice the plaintiff by preventing [him] from seeking a remedy altogether." We disagree.

Our conclusion is consistent with the collateral estoppel doctrine and the underlying policy of the doctrine. Furthermore, the plaintiff is not prejudiced. He failed to meet his burden of proving that the defendant failed to file the cause of action against Levy in a timely manner.

II

The plaintiff next claims that the court improperly concluded that there was no genuine issue of material fact that the continuing course of conduct and continuous representation doctrines tolled the statute of limitations in the underlying legal malpractice action. Specifically, the plaintiff argues that the continuing course of conduct and continuous representation doctrines never have been recognized or applied in Connecticut in the legal malpractice context. After outlining our standard of review and the law of the underlying claim, we shall discuss the applicability of each doctrine separately.

"[T]he scope of our review of the granting of a motion for summary judgment is plenary.... In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.... Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Richter v. Danbury Hospital, 60 Conn. App. 280, 286, 759 A.2d 106 (2000).

"Practice Book § 17-49 ... requires that 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. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings.... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... In deciding a motion for summary...