Weiner v. Clinton, No. 28317.

• Decision Date: 18 March 2008
• Docket Number: No. 28317.
• Citation: 106 Conn.App. 379,942 A.2d 469
• Court: Connecticut Court of Appeals
• Parties: Marc WEINER et al. v. Michael H. CLINTON et al.

942 A.2d 469

106 Conn.App. 379

Marc WEINER et al. v. Michael H. CLINTON et al.

No. 28317.

Appellate Court of Connecticut.

Argued January 15, 2008.

Decided March 18, 2008.

Thomas P. Willcutts, Hartford, for the appellants (plaintiffs).

Marcy Tench Stovall, New Haven, with whom, on the brief, was David P. Friedman, Bridgeport, for the appellee (named defendant).

DiPENTIMA, GRUENDEL and ROBINSON, Js.

GRUENDEL, J.

In this legal malpractice action, the plaintiffs, Marc Weiner and TMG Marketing, Inc., appeal from the summary judgment rendered by the trial court in favor of the defendant Michael H. Clinton.¹ They claim that the court improperly (1) applied General Statutes § 52-577² to the second count of their complaint and (2) concluded that no genuine issue of material fact existed as to their pleading in avoidance of the defendant's statute of limitations defense. We affirm the judgment of the trial court.

In June, 1998, the plaintiffs retained the defendant to represent them in an action brought against the plaintiffs by Michael Lawton. See Lawton v. Weiner, 91 Conn. App. 698, 882 A.2d 151 (2005). Months after Lawton filed suit, he filed a motion for sanctions against the plaintiffs for their failure to comply fully with his discovery requests. On May 21, 1999, the court ordered the plaintiffs to provide substantive responses to all discovery requests within fourteen days. On June 15, 1999, Lawton filed a motion for default for the plaintiffs' failure to comply with the May 21, 1999 discovery order. On June 25, 1999, attorney Steven W. Varney filed an appearance in lieu of the defendant on behalf of the plaintiffs. At that time, the defendant's representation of the plaintiffs ceased.

On June 29, 1999, the court granted Lawton's motion for default for failure to comply with the discovery order. Varney subsequently asked the defendant to prepare an affidavit describing his conduct in connection with the discovery order, and the defendant complied. In that affidavit, the defendant averred that "as counsel for [the plaintiffs], the undersigned understood the [discovery] order to require [them] to provide a response or production in the event the requested item of information existed. As [the plaintiffs] did not have in [their] possession the requested production items or the requested item did not exist, the undersigned did not interpret the order to require further pleading. . . . [H]ad the undersigned understood the order to require further pleading, [he] would have simply filed a supplemental response indicating, again, that the [plaintiffs] did not have possession of the information requested. . . . [M]y understanding at the time was that the only problem that [Lawton's] counsel had with the responses was his disbelief that the information was not in my client's possession. Therefore, I did not respond to the motion for default as I assumed the court would simply prohibit the [plaintiffs] from attempting to introduce any evidence which would be relevant to the discovery requests. . . ." On September 3, 1999, the plaintiffs filed with the court a motion for reargument of their July 26, 1999 motion to set aside the default judgment, to which was appended the aforementioned affidavit. The court denied that motion, and a hearing in damages followed, at the conclusion of which the court found in favor of Lawton on multiple counts of his complaint. The court awarded Lawton compensatory and punitive damages, as well as attorney's fees, and rendered judgment accordingly.³

On November 22, 2004, the plaintiffs commenced the present action by way of a four count complaint. Count one alleged negligence on the part of the defendant, and count two alleged breach of contract on the part of the defendant.⁴ In his answer, the defendant denied the allegations of negligence and breach of contract. He further pleaded, as a special defense, that the plaintiffs' action was time barred. In avoidance of that special defense, the plaintiffs alleged fraudulent concealment on the part of the defendant. The defendant thereafter filed a motion for summary judgment on the ground that both counts against him were barred by § 52-577. The court heard argument on the motion on July 31, 2006, and permitted the plaintiffs to supplement the evidentiary record after that date. In its thorough October 19, 2006 memorandum of decision, the court granted the motion for summary judgment in favor of the defendant on counts one and two of the complaint and rendered judgment accordingly. This appeal followed.

Before considering the plaintiffs' claims on appeal, we first note the well established standard of review. "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 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. See Practice Book § [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Citations omitted; internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn.App. 363, 370, 743 A.2d 653 (2000). Our review of the trial court's decision to grant a motion for summary judgment is plenary. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

I

In rendering summary judgment in favor of the defendant on the breach of contract count of the plaintiffs' complaint, the court concluded that that count was "only a legal malpractice claim cloaked in contract terms" and, thus, was time barred by § 52-577. The plaintiffs contend that the court's determination was improper. We disagree.

Not all claims against attorneys must necessarily be construed as tort claims. Mac's Car City, Inc. v. DeNigris, 18 Conn.App. 525, 530, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). Connecticut law recognizes that "one may bring against an attorney an action sounding in both negligence and contract." Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881(2003). At the same time, one cannot "bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract." Id.; see also Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001); Shuster v. Buckley, 5 Conn.App. 473, 478, 500 A.2d 240 (1985). As we recently observed, "tort claims cloaked in contractual language are, as a matter of law, not breach of contract claims." Pelletier v. Galske, 105 Conn.App. 77, 81, 936 A.2d 689 (2007). The question, then, is whether the second count of the plaintiffs' complaint was essentially a claim of legal malpractice.

"Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services. . . ." (Internal quotation marks omitted.) Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984). Whether the plaintiff's claim is one for malpractice depends on the allegations of the complaint. Id. Interpretation of the pleadings is a question of law over which our review is plenary. See Mac's Car City, Inc. v. DeNigris, supra, 18 Conn.App. at 529, 559 A.2d 712.

The first and second counts of the plaintiffs' complaint largely are identical. Both allege that the defendant failed to use reasonable care, skill and diligence in providing legal services to the plaintiffs.⁵ "Where the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services." Shuster v. Buckley, supra, 5 Conn.App. at 478, 500 A.2d 240. The only difference between the two counts is that the second alleges that the defendant's use of reasonable care, skill and diligence in providing legal services was an "express and/or implied" term of the contract between the parties.⁶ That is a distinction without a difference. The second count of the complaint contains no allegations that refer to specific actions required by the defendant; contra Connecticut Education Assn., Inc. v. Milliman USA, Inc., 105 Conn.App. 446, 459, 938 A.2d 1249 (2008); nor does it contain allegations of the defendant's refusal to take certain actions. See Hill v. Williams, 74 Conn.App. 654, 659, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). The second count does not assert that "a defendant who is a professional breached an agreement to obtain a specific result." Caffery v. Stillman, supra, 79 Conn.App. at 197, 829 A.2d 881. Rather, it simply repeats the allegation that the defendant breached the standard of care applicable to legal professionals. Accordingly, the court properly pierced the pleading veil and concluded that the plaintiffs' claim was one sounding in malpractice masked in contract garb.

"Actions for legal malpractice based on negligence are subject to §...