Sanborn v. Greenwald

• Decision Date: 27 October 1995
• Docket Number: No. 13372,13372
• Citation: 664 A.2d 803,39 Conn.App. 289
• Court: Connecticut Court of Appeals
• Parties: Suzanne SANBORN v. Charles C. GREENWALD.

Page 803

664 A.2d 803

39 Conn.App. 289

Suzanne SANBORN v. Charles C. GREENWALD.

No. 13372.

Appellate Court of Connecticut.

Argued April 25, 1995.

Decided Sept. 12, 1995.

Certification Denied Oct. 27, 1995.

Gerald S. Sack, with whom was Michael B. Pollack, West Hartford, for appellant (plaintiff).

Robyn L. Sondak, West Hartford, for appellee (defendant).

Before DUPONT, C.J., and LAVERY and FRANCIS X. HENNESSY, JJ.

DUPONT, Chief Judge.

The plaintiff appeals from the judgment that followed the granting of the defendant's motion for summary judgment by the trial court, Hammer, J., in this action for legal malpractice. On appeal, the plaintiff claims that the trial court improperly held that General Statutes § 52-577 (1) was not tolled by an alleged continuing course of conduct on the part of the defendant and (2) was constitutional as applied to her. ¹ We affirm the judgment of the trial court.

Certain background facts are relevant to the issues in this case. In 1982, the plaintiff divorced her husband. The dissolution judgment required, inter alia, that the plaintiff's husband pay support and alimony, convey his interest in the marital home to the plaintiff, and continue to pay the second mortgage on the marital home. The plaintiff was to fund a trust in the amount of $25,000 for the benefit of their minor child upon the happening of certain stated contingencies, such as her cohabitation or remarriage, or the sale of the family residence.

Both parties in the present case filed affidavits, the defendant to show that he was entitled to summary judgment, and the plaintiff to show that he was not. The affidavits provided the following additional facts, which are not disputed by either party. In 1984, the plaintiff retained the defendant as her attorney to pursue contempt proceedings against her former husband on the ground that he had failed to comply with the orders of the dissolution judgment. After the trial court ruled favorably on the plaintiff's motion, the parties began negotiations to modify the terms of the judgment. The defendant advised the plaintiff that it would be in her best interest to assume the second mortgage on the marital home, to accept less money for support payments, and to forgive any arrearages in support and alimony payments, in exchange for the deletion of her obligation to fund the trust. The defendant drafted a proposed stipulation to modify the dissolution judgment in accordance with his advice and the plaintiff signed the stipulation in reliance on the defendant's representation that she would no longer be obligated to fund the trust.

In September, 1985, after the stipulation was approved by the court, the defendant mailed a copy to the plaintiff, as well as a copy of the recorded quitclaim deed of her former husband's interest in the marital home. The cover letter instructed the plaintiff to contact him if she had any questions regarding the documents. The defendant's affidavit claims that his representation of the plaintiff ended at this time.

In 1989, the plaintiff's former husband threatened to file a motion for contempt against the plaintiff for her failure to fund the trust. The plaintiff retained a new attorney, who then spoke to the defendant about the plaintiff's legal obligations under the stipulation. The defendant advised the plaintiff's attorney that pursuant to the stipulated modification of the judgment, the plaintiff was not required to fund the trust. On two other occasions, both in 1990, the defendant represented to the plaintiff's attorney that the plaintiff was not required to fund the trust under the terms of the stipulation he had drafted.

The plaintiff's former husband initiated contempt proceedings against the plaintiff, and on August 3, 1990, the plaintiff was ordered to fund the trust and to pay her husband's attorney's fees of $1060. The plaintiff filed a transcript of those proceedings, along with her affidavit in this action. The transcript indicates that despite the defendant's attempt, he was not allowed to testify that the intent of the stipulation was to absolve the plaintiff of her obligation to fund the trust. The trial court, Jackaway, J., which ordered the trust to be funded, commented that the stipulation was poorly drafted but that it was not ambiguous, and that, therefore, any testimony as to intent was irrelevant. The court further stated that there was no provision at all in the stipulation relating to the funding of the trust. The plaintiff's affidavit provides that on June 25, 1990, the date of the contempt hearing, the defendant not only attempted to testify in her behalf but also advised her that she did not need to fund the trust.

The plaintiff commenced this action against the defendant on July 9, 1992. The plaintiff claims that the defendant negligently drafted the modification and negligently failed to warn and advise her of the legal consequences of the modification, which failure to warn and advise continued until August 3, 1990, the date the court ordered her to fund the trust. The defendant, by way of special defenses, alleged that General Statutes §§ 52-581, 52-576 and 52-577 barred the plaintiff's recovery because his representation of her ceased on August 20, 1984. ² The defendant moved for summary judgment arguing that the plaintiff's claim was time barred by the statute of limitations. The court granted the motion on the basis that there was no genuine issue of material fact in dispute and the defendant was entitled to judgment as a matter of law because her action was barred by § 52-577, the general tort statute of limitations.

The plaintiff later filed a motion to vacate and reargue the summary judgment motion, claiming that § 52-577, as interpreted and applied by the court, was unconstitutional as violative of article first, § 10, of the Connecticut constitution. The court granted the motion to reargue but denied the plaintiff's claim that the statute of limitations was unconstitutional.

"Practice Book § 384 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.... Even though the burden of showing the nonexistence of any material fact is on the party that seeks summary judgment, the party opposing [summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... When called on to decide a motion for summary judgment, the trial court is required to construe the evidence in the light most favorable to the nonmoving party.... The test to be applied by the trial court is whether, on the same facts, a party would be entitled to a directed verdict." (Citations omitted; internal quotation marks omitted.) Starkweather v. Patel, 34 Conn.App. 395, 400-401, 641 A.2d 809, cert. denied, 230 Conn. 905, 644 A.2d 918 (1994). Summary judgment is appropriate where the action is barred by the statute of limitations. Shuster v. Buckley, 5 Conn.App. 473, 477, 500 A.2d 240 (1985).

While this action would ordinarily be barred by the statute of limitations because it was brought approximately seven years after the date of the alleged negligent drafting of the stipulation, the plaintiff asserts that the representations made by the defendant in 1989 and 1990 to her, her attorney, and the trial court, constitute a continuing course of conduct that tolls the statute of limitations.

Neither at oral argument on the defendant's motion for summary judgment nor in her brief did the plaintiff claim that she was seeking damages for any negligent representation in the drafting of the modification of the original dissolution judgment. ³ She did claim, however, that she was seeking damages for the defendant's negligent advice and negligent failure to warn during 1989 and 1990. While the defendant did not claim that the defendant represented her after 1985, her claim is that the defendant had a duty to warn and to advise correctly that extended beyond the time of his representation of her. She argues that the duty exists because of the defendant's later wrongful conduct in dispensing bad advice, consisting of an erroneous interpretation of the stipulation, which related to his prior act of negligent draftsmanship. The plaintiff thus raises the question of whether the statute of limitations was tolled by the continuous course of conduct doctrine as explicated in cases such as Blanchette v. Barrett, 229 Conn. 256, 640 A.2d 74 (1994), and Fichera v. Mine Hill Corp., 207 Conn. 204, 541 A.2d 472 (1988). ⁴

"When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957). "[I]n order [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 a 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.) Blanchette v. Barrett, supra, 229 Conn., at 275, 640 A.2d 74. The continuous course of conduct doctrine is "conspicuously fact-bound." Id., at 276, 640 A.2d 74.

The plaintiff's amended complaint, on which she relies for her cause of action, claims that the defendant "negligently failed to warn and advise the plaintiff concerning the legal consequences of the...