Opinion
No. CV-05-4007301 S
February 22, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT ( #110)
This action arises out of alleged monetary damages sustained by the plaintiff, Bailey, Moore, Glazer, Schaefer Proto, LLP, an accounting and consulting firm, as the result of the refusal of the defendant, Lynne Hippeau, to pay for services rendered by the plaintiff to the defendant. On February 8, 2005, the plaintiff commenced this action by service of process on the defendant. (Marshal's return.) The plaintiff filed an amended complaint on August 1, 2005, alleging the following facts: At the request of the defendant and her attorneys, the plaintiff rendered valuable accounting, consulting and expert advice services relating to the defendant's dissolution of marriage. The reasonable value of the services rendered is $70,782.50 minus $5,000 paid by the defendant, leaving a principal unpaid balance of $65,782.50, plus interest. The first count sounds in breach of contract, and the second count, in unjust enrichment.
Pursuant to an order of the court, Corradino, J., the plaintiff filed a " REVISED COMPLAINT" on May 18, 2005. On August 1, 2005, the plaintiff filed a request for leave to amend the complaint, accompanied by a document labeled " REVISED COMPLAINT," dated May 18, 2005. As the defendant did not object to the request, the complaint filed on August 1, 2005 became the operative complaint. Practice Book § 10-60(a)(3). For purposes of clarity, the so-called " REVISED COMPLAINT" filed on August 1, 2005 will be referred to herein as the "amended complaint."
On September 23, 2005, the defendant filed a motion for summary judgment, accompanied by a memorandum in support as required by Practice Book § 11-10. In response to the defendant's motion for summary judgment, the plaintiff submitted a memorandum of law in opposition on October 19, 2005. On November 3, 2005, the defendant filed a reply brief in support of her motion for summary judgment. In response, on November 7, 2005, the plaintiff filed a memorandum of law in opposition to the defendant's reply brief.
"Practice Book [§ 17-49] 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "The courts are in entire agreement that the moving party for 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 courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). "A summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 453, 671 A.2d 1329 (1996).
The defendant moves for summary judgment on the ground that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law because enforcement of the agreement to pay the plaintiff for services rendered is time barred by the six-year statute of limitations set forth in General Statutes § 52-576(a). The defendant argues that the plaintiff commenced the present action more than six years after the right of action accrued, and, therefore, the defendant is entitled to judgment as a matter of law. In support of her motion, the defendant has submitted a copy of the marshal's return in the present action, and her own affidavit with several exhibits, including a copy of an itemized list purportedly prepared by the plaintiff showing the work it did in connection with the defendant's dissolution action, which shows the most recent date for those services as November 1, 1998.
General Statutes § 52-576(a) provides, "No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section."
The plaintiff counters that summary judgment is inappropriate because there is a genuine issue of material fact as to whether the defendant acknowledged the debt, and therefore tolled the statute of limitations. In support of its opposition, the plaintiff submits the following evidence: (1) the signed and sworn affidavit of Michael D'Addio, one of its employees; and (2) copies of three letters that the plaintiff contends demonstrate that the defendant acknowledged the debt, thereby tolling the statute of limitations.
The plaintiff's breach of contract claim in count one is governed by the time limitation set forth in General Statutes § 52-576(a). "General Statutes § 52-576 governs the statute of limitations under simple or implied contract actions . . ." Garofalo v. Squillante, 60 Conn.App. 687, 692, 760 A.2d 1271 (2000). Section 52-576(a) provides, in pertinent part: "No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . ."
As explained in Dunham v. Dunham, 204 Conn. 303, 326, 528 A.2d 1123 (1987), this court may exercise discretion in determining whether the six-year statute of limitations set forth in § 52-576(a) also applies to the plaintiff's unjust enrichment claim in count two: "[A] court, acting under its equitable powers, is [not] bound to apply the statute of limitations that governs the underlying cause of action. In fact, in an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired . . . Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a particular action should be heard, they are by no means obliged to adhere to those time limitations." (Internal quotation marks omitted.) In the present case, the defendant did not perform any actions that prevented the plaintiff from bringing its breach of contract claim within the applicable statute of limitations. Thus, the court, in the exercise of its discretion, should apply the six-year statute of limitations set forth in § 52-576(a) to the plaintiff's unjust enrichment claim.
The unjust enrichment claim in count two must fail even if the court, in the exercise of its equitable powers, applies a different time limitation. "The equitable remedy of unjust enrichment . . . is not available when there is a legal remedy under an enforceable contract." Gianetti v. Greater Bridgeport Individual Practice Assn., Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 02 4001685 (July 21, 2005, Schuman, J.) (39 Conn. L. Rptr 745); see also Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001) ("lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment"). Here, the plaintiff relies on its contract with the defendant, and the defendant does not dispute the contract's existence. The plaintiff, therefore, is not entitled to bring an additional action based on unjust enrichment.
The court must next determine when the applicable statute of limitations began to run. "While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test [in determining when the right of action is regarded as having accrued] is to establish the time when the plaintiff first could have successfully maintained his action." (Internal quotation marks omitted.) Amoco Oil Co. v. Liberty Auto Electric Co., 262 Conn. 142, 153, 810 A.2d 259 (2002). "Applied to a cause of action, the term to accrue means to arrive; to commence; to come into existence; to become a present enforceable demand." Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 608, 767 A.2d 1202 (2001). In the context of a breach of contract action by a plaintiff attorney who sought to recover fees for legal services rendered, the Appellate Court in Mitchell v. Guardian Systems, Inc., 72 Conn.App. 158, 164, 804 A.2d 1004 (2002), held that "[w]hen the claim for attorneys fees is based upon continuous legal representation, the statute of limitations does not begin to run until the legal services are complete." In Mitchell, the court stated "that the statute of limitations began to run on . . . the day after the [attorney] was relieved of his obligation to represent the defendant." Id., 163.
Similarly, in the context of a claim by an accounting firm seeking payment for accounting services rendered, a plaintiff's cause of action generally would accrue at the time the accounting services to the defendant are completed. In Anquillare, Lipnicki, Ruocco Co. v. VCR Realty Associates, 72 Conn.App. 821, 808 A.2d 682 (2002), the trial court had held that the plaintiff accounting firm's claim had accrued at the time when the firm completed its services for the defendant. The Appellate Court reversed, however, because the plaintiff could not have maintained an action for payment against the defendant, who had sought protection pursuant to chapter eleven of the Bankruptcy Code, 11 U.S.C. § 1101 et seq., until the defendant's petition was dismissed. The court explained that "upon the completion of its accounting services, the plaintiff had the right to request payment but no right to require payment. The statute [of limitations set forth in § 52-576(a)] does not begin to run before the time when the plaintiff could have successfully maintained an action . . . The first time that the plaintiff could have maintained an action was the date of the dismissal of the bankruptcy petition." (Citation omitted; internal quotation marks omitted.) Anquillare, Lipnicki, Ruocco Co. v. VCR Realty Associates, supra, 72 Conn.App. 830-31. In the present case, it is undisputed that the accounting services for which the plaintiff seeks payment were completed on November 1, 1998. (Defendant's affidavit submitted in support of motion for summary judgment dated 9/20/2005, docket item no. 111, ¶ 10.) As the plaintiff could have successfully maintained an action immediately upon completion of its accounting services for the defendant, this cause of action accrued on November 2, 1998, the day after the plaintiff's services to the defendant were complete.
The court must next determine whether the action was commenced within the six-year time limitation set forth in § 52-576(a). As the defendant filed the motion for summary judgment, she bears the burden to prove that there is no genuine issue of material fact that the plaintiff's action was not commenced within the applicable statute of limitations period. In Connecticut, "[i]t is well settled that a civil action is [commenced] on the date on which the writ of summons is served on the defendant." Feldmann v. Sebastian, 261 Conn. 721, 729, 805 A.2d 713 (2002). In support of her motion, the defendant has submitted a copy of the marshal's return, which is also attached to the complaint in the court file, indicating that the action was commenced by service of process on the defendant on February 8, 2005. The plaintiff's services to the defendant, therefore, were completed more than six years prior to the commencement of this action. Accordingly, the defendant's motion for summary judgment should be granted unless the plaintiff has produced evidence demonstrating a genuine issue of material fact as to whether the statute of limitations has been tolled.
As our Supreme Court has stated, "The Statute of Limitations creates a defense to an action. It does not erase the debt. Hence, the defense can be lost by an unequivocal acknowledgment of the debt, such as a new promise, an unqualified recognition of the debt, or a payment on account." (Internal quotation marks omitted.) Zapolsky v. Sacks, 191 Conn. 194, 198, 464 A.2d 30 (1983). Further, the Appellate Court has noted that "[a] general acknowledgment of an indebtedness may be sufficient to remove the bar of the statute. The governing principle is this: The determination of whether a sufficient acknowledgment has been made depends upon proof that the defendant has by an express or implied recognition of the debt voluntarily renounced the protection of the statute . . . But an implication of a promise to pay cannot arise if it appears that although the debt was directly acknowledged, this acknowledgment was accompanied by expressions which showed that the defendant did not intend to pay it, and did not intend to deprive himself of the right to rely on the Statute of Limitations . . . [A] general acknowledgment may be inferred from acquiescence as well as from silence, as where the existence of the debt has been asserted in the debtor's presence and he did not contradict the assertion." (Internal quotation marks omitted.) John H. Kolb Sons, Inc. v. GL Excavating, Inc., 76 Conn.App 599, 611, 821 A.2d 774 (2003).
To demonstrate that a material issue of fact exists as to whether the statute of limitations was tolled by the defendant's acknowledgment of the alleged debt, the plaintiff has submitted copies of three letters with its opposition to the defendant's motion, which, it argues, constitute such an acknowledgment. Regardless of whether it is a sufficient acknowledgment of the asserted debt to toll the statute of limitations, the first letter, dated February 2, 1999; (plaintiff's memorandum in opposition filed 10/19/2005, exhibit 1); was written more than six years prior to February 8, 2005, the date that this action was commenced by service of process. Accordingly, the court need not address any issues relating to that document.
The second letter submitted by the plaintiff, dated January 21, 2003, appears to be a communication addressed to the defendant from an attorney, Howard A. Jacobs, who did not represent the defendant as of the date of that letter. In this letter, the attorney states with regard to an itemized bill from the plaintiff, "I have no reason to question the itemized bill." (Plaintiff's memorandum in opposition filed 10/19/2005, exhibit 2.) The plaintiff argues that even though this letter was sent directly to the defendant, and not to the plaintiff, it still serves as a sufficient acknowledgment of the debt to toll the statute of limitations. The plaintiff characterizes this letter as the end of a chain of communication between itself, the defendant and her former attorney because the letter is a response to the invoice, rather than a one-way communication between the defendant and her former attorney.
The parties do not dispute that the attorney-client relationship between the defendant and attorney Jacobs with regard to the defendant's dissolution of marriage action had concluded as of the date of this document. In paragraph seven of the affidavit of attorney Jacobs dated November 3, 2005, submitted with the defendant's reply memorandum of the same date, Jacobs avers that "[a]t the time I wrote the January 21, 2003 letter to [the defendant] . . . I was no longer representing [her] and had not represented her since 1999." Moreover, he avers that the final judgment in that action was entered on November 13, 1998, in paragraph three of that affidavit. "All appearances of counsel shall be deemed to have been withdrawn 180 days after the entry of judgment in any action seeking a dissolution of marriage . . . provided no appeal shall have been taken . . ." (Internal quotation marks omitted.) Pitchell v. Hartford, 247 Conn. 422, 434 n. 17, 722 A.2d 797 (1999), quoting Practice Book § 3-9(c). Although Jacobs has entered an appearance for the defendant in the present action, that appearance was filed on February 9, 2005. The plaintiff has offered no evidence that Jacobs was representing the defendant on January 21, 2003.
The defendant counters that this letter did not toll the statute of limitations because it was not written to the plaintiff, but to the defendant. She argues that to toll the statute of limitations, the acknowledgment of the debt must be made to the creditor, to someone acting for the creditor, or with the intention that it be communicated to the creditor. Noting that the basis for the tolling rule in cases of acknowledgment is a newly implied promise to pay; see Markham v. Smith, 119 Conn. 355, 359, 176 A. 880 (1935) ("[T]he statute of limitations does not destroy the debt but merely bars the remedy . . . This is the basis upon which part payment, acknowledgement of the debt or a new promise will toll the running of the statute, for if the debt were destroyed by it, none of these could avail in the absence of a consideration . . . Hence it is well settled that the debt may be revived and the bar to its recovery removed by a new promise, either express or implied"); she argues that no such promise may be implied where the purported acknowledgment is neither communicated nor intended to be communicated to the creditor. Further, the defendant maintains that the letter cannot be construed as an admission by the attorney on the defendant's behalf because the attorney did not represent the defendant at the time the letter was written.
"A general acknowledgment of an indebtedness may be sufficient to remove the bar of the statute [of limitations]. The governing principle is this: The determination of whether a sufficient acknowledgment has been made depends upon proof that the defendant has by an express or implied recognition of the debt voluntarily renounced the protection of the statute." (Emphasis added; internal quotation marks omitted.) Dwyer v. Harris, 128 Conn. 397, 400, 23 A.2d 147 (1941).
In the present case, the January 21, 2003 letter is not sufficient to toll the statute of limitations. The undisputed evidence offered by the defendant establishes that the letter was written by the defendant's former attorney, not by the debtor, and that the letter was directed to the defendant, not to the plaintiff. Under these circumstances, the court cannot reasonably find, based on this letter, an acknowledgment by the defendant of an existing debt from which a new promise to pay the plaintiff may be implied.
The third letter submitted by the plaintiff dated November 25, 2003, appears to be a communication from the defendant's then attorney, Joseph W. Barnett, to the plaintiff. The defendant argues that this letter is not an "unequivocal acknowledgment" of the debt, but rather it is an offer of compromise. In the letter, the attorney offered the plaintiff $30,000 to completely settle this matter. Nowhere in the letter does the defendant offer to pay the plaintiff the $65,000 that it seeks.
In response, the plaintiff contends that this letter is a sufficient acknowledgment of the debt to toll the statute of limitations. It disputes the defendant's characterization of this letter as an offer of compromise by arguing that the majority of the letter is a detailed history of the agreement between the parties and, when viewed in the light most favorable to the plaintiff, acts as an acknowledgment of the agreement to pay the plaintiff.
"It is true that an unconditional promise to pay will not be implied if the acknowledgment of indebtedness, even though unequivocal, is accompanied by a conditional promise to pay . . . In such a situation the indebtedness remains barred by the statute until the condition has been met." (Citation omitted.) Buckley v. Buckley, 144 Conn. 403, 411, 133 A.2d 604 (1957). In the present case, the defendant did not unequivocally promise to pay the $65,000 the plaintiff claims it is owed, rather she conditioned payment on the plaintiff accepting a counteroffer of $30,000 to settle the case. That condition has not been met. Therefore, this letter did not toll the statute of limitations.
For the foregoing reasons, the defendant has met her burden of establishing that there is no genuine issue of material fact as to whether the action was brought within the applicable statute of limitations period, or whether the statute has been tolled by the defendant's acknowledgment of the debt. The statute of limitations applicable in the present action, pursuant to § 52-576(a), is six years. The plaintiff's service to the defendant ended on November 1, 1998; therefore, the statute of limitations began to run on November 2, 1998, the day after those services were completed. The present action was commenced on February 2, 2005, more than six years after the plaintiff's claims accrued. Further, the plaintiff has not met its burden of establishing a genuine issue of fact as to whether the statute has been tolled by the defendant's acknowledgment of the alleged debt. Accordingly, the defendant's motion for summary judgment is granted.