Opinion
No. CV 03-0476646 S
April 28, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #144
The question presented by this motion for summary judgment is whether, in the absence of disputed material facts, the defendant is entitled to judgment as a matter of law because (1) the court is without subject matter jurisdiction to hear the case on the ground that he enjoys absolute quasi-judicial immunity, (2) the claims and issues presented in this case by the plaintiff are foreclosed by the doctrine of res judicata and collateral estoppel, or (3) the claims asserted by the plaintiff are barred by the statute of limitations. For the reasons set forth below, the court GRANTS the defendant's motion for summary judgment on the basis that the plaintiff's suit is barred by the statute of limitations provided in General Statute § 52-577.
I. FACTS
The pro se inmate plaintiff, Jason M. Day, filed a "civil rights complaint" against the defendant Stanley Trybulski on April 23, 2003 essentially alleging that the defendant's actions resulted in an unfavorable jury verdict for the plaintiff, and thereby deprived the plaintiff of damages to which he believed he was constitutionally entitled. Although the plaintiff characterizes his complaint as a civil rights action, the gravamen of his complaint is that the defendant committed legal malpractice in the course of representing the plaintiff in a federal civil rights action against the Connecticut department of correction and one of its employees. More specifically, the plaintiff alleges that the defendant (1) failed to present documents to the jury that the plaintiff believed to be helpful to his case, (2) failed to object to the court's proposed trifurcation of various legal issues at trial, (3) conspired with opposing counsel to ensure the plaintiff would lose his case, and (4) failed to return trial documents to the plaintiff after the defendant had been terminated as counsel.
To the extent that the plaintiff's complaint can be read as asserting a claim under either 42 U.S.C. § 1983 or 42 U.S.C. § 1985, those claims fail because: (1) they are both barred by the applicable statute of limitations; see part IIC below; (2) the plaintiff has not alleged facts to support his conclusory statement that the defendant conspired with a Connecticut assistant attorney general to impugn his due process rights in the underlying case; see Spear v. West Hartford, 954 F.2d 63, 68, (2d Cir. 1992), cert. denied, 506 U.S. 819, 113 S.Ct. 66, 121 L.Ed.2d 33 (1992) ("conclusory allegation does not suffice to state a section 1983 action"); and (3) the plaintiff did not allege that any such conspiracy was propelled by racial animus. See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (in a section 1985 action "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action"). Moreover, the plaintiff has not made out a constitutional claim under the constitution of Connecticut because he has failed to "provide an independent analysis of the state constitutional issues." State v. Eady, 249 Conn. 431, 435 n. 6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S.Ct. 551, 145 L.Ed.2d 428 (1999). Finally, "[i]t is well settled that essential allegations in a pleading may not be supplied by conjecture or remote implication"; Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985); and this court declines to supplement the plaintiff's petition by further speculating as to the possible constitutional imperatives implicated by his complaint.
Due to both the pro se status of the plaintiff and the tenebrous nature of his complaint, some additional background is helpful. The defendant in this case was appointed as pro bono legal counsel to the plaintiff pursuant to Local Rule 29 of the United States District Court for the District of Connecticut in connection with a civil rights action brought against the Connecticut department of correction (DOC). That case involved allegations of cruel and unusual punishment occasioned by the alleged failure of various DOC officials to properly protect the plaintiff from other violent inmates while he was incarcerated, which led to the plaintiff having been stabbed by other inmates. After a jury trial, judgment was rendered in favor of the DOC, and various post-trial motions were filed. Subsequently, an appeal taken to the United States Court of Appeals for the Second Circuit was dismissed for the plaintiff's failure to submit a copy of the trial transcript. Subsequent to the disposition of the post-trial motions, though prior to a decision from the Second Circuit, the defendant in this case was permitted to withdraw from his representation of the plaintiff. The present action, in addition to several ethical complaints filed with the Connecticut statewide grievance committee and the grievance committee for the United States District Court, followed shortly thereafter.
Where a party appears pro se, the court follows a liberal policy and carefully considers a pro se party's claims as far as they are fairly presented upon the record to ensure that no injustice has been done to him under the law. See Goldstein v. Fischer, 200 Conn. 197, 198, 510 A.2d 184 (1986). Nevertheless, while the plaintiff is afforded this latitude, the court is equally cognizant that "the right of self representation provides no attendant license not to comply with relevant rules of procedure and substantive law." New Haven v. Bonner, 272 Conn. 489, 498, 863 A.2d 680 (2004); see also Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149 n. 8, 448 A.2d 829 (1982) (notwithstanding leniency accorded pro se litigants, "we cannot, and will not, entirely disregard the established rules of procedure").
This background material is further detailed in the court's memorandum of decision regarding a previous motion to dismiss decided in the case. See Day v. Trybulski, Superior Court, judicial district of New Haven, Docket No. CV03-0476646 (November 29, 2007, Cosgrove, J.)
This provision, now Local Rule 83.10, provides for the maintenance of a Civil Pro Bono Panel from which judges may appoint attorneys "to represent parties in civil actions when such parties lack the resources, or are otherwise unable, to retain counsel." Local Rule 83.10, Local Rules of Civil Procedure, United States District Court for the District of Connecticut.
On January 22, 2008, the defendant moved for summary judgment, on the basis that the court did not have subject matter jurisdiction because he was entitled to absolute judicial immunity, and alternatively asserting that the plaintiff's complaint was foreclosed by the doctrine of res judicata and by the relevant statute of limitations. In support of these arguments, the defendant provided an uncertified affidavit, together with copies of documents from the underlying civil rights case and the grievance committee hearings. The plaintiff filed an objection to the motion for summary judgment on December 20, 2007, which was also supported by an uncertified affidavit and copies of the same documents from the underlying civil rights case and the grievance committee hearings.
Although the defendant's motion for summary judgment was stamped by the clerk's office as being received on January 22, 2008, it was also stamped as being "Found Unstamped, Stamped This Date." This helps to explain why the plaintiff's objection is identified as being received before the motion to which it objects.
Neither party has objected to the other's use of uncertified affidavits, and both parties rely on the same court and grievance committee documents to support their factual assertions. Although "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . [which contemplates] that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable"; (internal citation omitted; internal quotation marks omitted) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005); uncertified documents can be "admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists, particularly where . . . both parties submitted uncertified [documents]." Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006); see also Daniels v. Ericson, Superior Court, judicial district of New London, Docket No. CV 06 5001423 (July 17, 2007, Hurley, J.T.R.) (noting the court has discretion to admit evidence that has not been authenticated or certified if the opposing party does not object). Moreover, a court may take judicial notice of administrative hearing records. See West Hartford v. Freedom of Information Commission, 218 Conn. 256, 264, 588 A.2d 1368 (1991) ("[t]he doctrine of judicial notice also applies to administrative agencies"); see also Statewide Grievance Committee v. Ross, Superior Court, judicial district of New Haven, Docket No. CV 95 0370261 (October 18, 1996, Barnett, J.) (judicially noticing grievance committee records). Accordingly, this court will consider the documents submitted by the parties for the limited purpose of determining the existence of a disputed issue of material fact because neither party has objected and because the court may judicially notice the grievance committee records.
II. DISCUSSION
Before reaching the substantive legal issues presented by this motion, this court first observes the familiar standard of review. "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 . . ." (Citation omitted; internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). Moreover, "[t]he 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." Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
Additionally, "[s]ummary 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). Indeed, 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). Finally, "[b]ecause res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
A. Absolute Judicial Immunity
Before the court is able to consider the defendant's arguments concerning the statute of limitations and res judicata, however, it is first obligated to consider the defendant's argument that he enjoys absolute judicial immunity from suit, as that question impacts the court's subject matter jurisdiction. See Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007) ("[t]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case"); see also Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005) (absolute immunity and sovereign immunity both share purpose of "protect[ing] against the threat of suit") (emphasis added); Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 07 4027999 (February 11, 2007, Bellis, J.) (absolute immunity implicates subject matter jurisdiction); Rioux v. Barry, Superior Court, judicial district of New Haven, Docket No. CV 05 4007375 (January 3, 2006, Licari, J.) [40 Conn. L. Rptr. 537], rev'd in part on other grounds, 283 Conn. 338, 927 A.2d 304 (2007); see also Kalman v. Papapietro, Superior Court, judicial district of Middlesex, Docket No. CV 04 4000984 (May 23, 2006, Aurigemma, J.) [41 Conn. L. Rptr. 426]; CT Page 7096 Mattera v. Sienkiewicz, Superior Court, judicial district of Hartford, Docket No. CV 05 4011301 (April 28, 2006, Tanzer, J.). Accordingly, the court now addresses whether an attorney appointed by a federal court to represent on a pro bono basis a claimant alleging civil rights violations falls within the constellation of judicial officers protected by absolute immunity.
It is noteworthy that our Supreme Court has focused on absolute immunity as being a bar to certain suits, rather than as a bar to liability alone, because it is a claimant's right to bring suit that confers jurisdiction upon a court. Kalman v. Carre, 352 F.Sup.2d 205, 207 (D.Conn. 2005) ("where a defendant is immune from suit, this court lacks subject matter jurisdiction"). Indeed, it is the waiver of suit immunity that "establishes a remedy by which a claimant may enforce a valid claim against the state and subjects the state to the jurisdiction of the court." (Internal quotation marks omitted.) Martinez v. Dept. of Public Safety, 263 Conn. 74, 79, 818 A.2d 758 (2003) (additionally noting that "immunity from suit should be construed as implicitly waiving immunity from liability").
Absolute immunity from suit applies "however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Cleavinger v. Saxner, 474 U.S. 193, 199-200, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985). Although "strong medicine," the justification for such robust immunity is "to promote principled and fearless decision-making by removing a judge's fear that unsatisfied litigants may hound him with litigation charging malice or corruption." (Internal quotation marks omitted.) Carrubba v. Moskowitz, 274 Conn. 533, 540, 877 A.2d 773 (2005). Nevertheless, while absolute immunity may be overcome for "actions not taken in the judge's judicial capacity" and for "actions, though judicial in nature, taken in the complete absence of all jurisdiction"; (internal quotation marks omitted) Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); courts continue to heed "the presumption . . . that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., supra, 252 Conn. 631. Accordingly, only officials deemed integral to the judicial process are afforded absolute immunity, reflecting an "[awareness] of the salutary effects that the threat of liability can have . . . as well as the undeniable tension between official immunities and the ideal of the rule of law." (Internal quotation marks omitted.) Id.
In balancing these competing policy imperatives, absolute immunity has been cautiously extended to a variety of judicial and quasi-judicial officers through a "functional approach" that ensures "[i]mmunities are grounded in the nature of the function performed, not the identity of the actor who performed it." (Internal quotation marks omitted.) Id., 631-32. To this end, our Supreme Court has adopted three guideposts that inform a court's evaluation of whether officials sued in connection with alleged civil rights violations should be accorded absolute immunity. This analysis inquires "[1] whether the official in question perform[s] functions sufficiently comparable to those of officials who have traditionally been afforded absolute immunity at common law . . . [2] whether the likelihood of harassment or intimidation by personal liability [is] sufficiently great to interfere with the official's performance of his or her duties . . . [and 3] whether procedural safeguards [exist] in the system that would adequately protect against [improper] conduct by the official." (Internal quotation marks omitted.) Carrubba v. Moskowitz, supra, 274 Conn. 542-43, citing Butz v. Economou, supra, 438 U.S. 513-17.
Although it is a close call, after applying these standards to the present case, the court concludes that the defendant is not shielded by absolute judicial immunity. For sake of clarity, the court first examines the second and third prongs of the test, which actually militate slightly in favor of granting absolute immunity to the defendant. First, while a court-appointed attorney may not be the target of malpractice litigation by disgruntled clients any more frequently than privately retained counsel, their monetary compensation is significantly less and the burden of defending groundless malpractice claims may, therefore, be disproportionately greater. Thus, "it is conceivable that an immunity would be justified by the need to preserve the supply of lawyers available for this important work." (Emphasis added.) Ferri v. Ackerman, 444 U.S. 193, 205, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979). Second, there are sufficient systemic safeguards to protect against improper conduct by a court-appointed attorney. As with an attorney appointed pursuant to General Statute § 46b-54, an attorney appointed by a court to represent indigent civil litigants "is subject to the court's discretion and may be removed by the court at any time." Carrubba v. Moskowitz, supra, 274 Conn. 543. Accordingly, the defendant's claim to absolute immunity is bolstered by the putative need for such protection to forestall an atmosphere of intimidation and by the safeguards already inherent in the system to prevent attorney abuse. Nevertheless, while these considerations are persuasive, they are not dispositive, requiring the court to next consider the functional inquiry set forth in the first prong of the test.
Indeed, while such immunity may well ensure that attorneys continue to provide this type of important representation, the court notes the observations of the United States Supreme Court that "[w]hether a sufficient need can be demonstrated that would justify such a rule, or whether such a problem might be better remedied by adjusting the level of compensation, are questions that can most appropriately be answered by a legislative body acting on the basis of empirical data." Ferri v. Ackerman, supra, 444 U.S. 205.
§ 46b-54 authorizes the court to appoint an attorney to represent minor children in a martial dissolution action.
With respect to this inquiry, whether the official in question performs functions sufficiently comparable to those of officials who have traditionally been afforded absolute immunity, the defendant derives scant support from the case law. Although the defendant is correct that both attorneys appointed by a court pursuant to § 46b-54 and prosecutors each enjoy absolute judicial immunity, these attorneys are distinguished from his role in the underlying case by their crucial obligation to both zealously advocate their client's legal claims and to objectively advance additional interests that do not encumber other attorneys. By way of illustration, an attorney appointed under § 46b-54 is not only an advocate for the child he represents but is also obliged to serve the best interests of the child. See Carrubba v. Moskowitz, supra, 274 Conn. 539 (noting, "[a]s an advocate, the attorney should honor the strongly articulated preference regarding taking an appeal of a child who is old enough to express a reasonable preference; as a guardian, the attorney might decide that, despite such a child's present wishes, the contrary course of action would be in the child's long term best interests, psychologically or financially"). Similarly, a prosecutor has a dual role that compels him to both zealously represent the state and "to see that impartial justice is done the guilty as well as the innocent." State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); accord Carrubba v. Moskowitz, supra, 274 Conn. 541.
On the other hand, an attorney appointed by a federal court to represent on a pro bono basis a litigant bringing a civil suit is more analogous to a public defender, who does not enjoy common-law absolute judicial immunity. See Spring v. Constantino, 168 Conn. 563, 566-67, 362 A.2d 871 (1975) (public defender not shielded by absolute judicial immunity because his role "is that of an adversary and his function does not differ from that of a privately retained attorney"); see also Ferri v. Ackerman, 444 U.S. 193, 199-205, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979) (denying absolute immunity to attorney appointed by judge to represent indigent defendant in federal criminal trial because, unlike obligation of judge or prosecutor to represent interests of society as a whole, court-appointed defense attorney has undivided obligation to represent client's interests). In the present case, the defendant likewise serves only the undivided interests of his client; he is not constrained by broader societal interests and often opposes the government in adversary litigation. Accordingly, the court concludes that the essential responsibilities of the court-appointed counsel in this case are akin to that of a public defender or a privately retained attorney, and not analogous to either an attorney appointed by a court pursuant to § 46b-54 or a prosecutor.
In view of this analysis, the court holds that an attorney appointed by a federal court to represent on a pro bono basis an indigent civil claimant is not absolutely immune from suit for his actions in that role. Although court-appointed attorneys who represent indigent parties are an integral part of the judicial process, the function of an "attorney in representing a [private litigant] does not afford a basis upon which the cloak of judicial immunity may be extended." Spring v. Constantino, supra, 168 Conn. 567. Consequently, because the defendant is without absolute immunity, the court concludes that it has jurisdiction to hear this case.
B. Res Judicata
Having concluded that the court has jurisdiction, it next turns to the defendant's argument that this case is foreclosed by the tenets of res judicata or collateral estoppel. "The principles underlying the doctrine of res judicata, or claim preclusion, are well settled. [A] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand . . . Furthermore, the doctrine of claim preclusion . . . bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action which were actually made or which might have been made. [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Citations omitted; internal quotation marks. omitted.) Sotavento Corp. v. Coastal Pallet Corp., 102 Conn.App. 828, 833-34, 927 A.2d 351 (2007).
Although the defendant mentions both res judicata and collateral estoppel in his motion, he dedicates the majority of his analysis to the issue of res judicata. Accordingly, this court does not fully examine the collateral estoppel issue other than to note that a collateral estoppel argument fails for the same reason that res judicata does: the plaintiff in this case was neither a party to the statewide grievance committee nor the grievance committee for the United States District Court proceedings, which is necessary to preclude the litigation of the same claims or issues in this case. See Wiltzius v. ZBA of New Milford, 106 Conn.App. 1, 16, 940 A.2d 892 (2008) ("[c]ollateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim") (emphasis added).
In this case, the defendant argues that because both the Connecticut statewide grievance committee and the grievance committee for the United States District Court have already investigated the alleged violations of the Rules of Professional Conduct by the defendant, which now serve as the basis for the present suit, and concluded that such allegations were without merit, the present claims are barred by res judicata. In support of this assertion, the defendant correctly observes that the doctrine of res judicata may apply to administrative agency hearings. See Lafayette v. General Dynamics Corp. Elec. Boat Div., 255 Conn. 762, 773, 77 A.2d 1 (2003); see also Kucej v. Statewide Grievance Committee, 239 Conn. 449, 461 n. 22, 686 A.2d 110 (1996), cert. denied, 520 U.S. 1276, 117 S.Ct. 2457, 138 L.Ed.2d 214 (1997). Notwithstanding res judicata's impressive pedigree, it is inapposite here because the plaintiff was not a party to either the state or federal grievance committee proceeding.
As the case law makes clear, "[a] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties, or those in privity with them, upon the same claim or demand . . . [T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding." (Emphasis added; citations omitted; internal quotation marks omitted.) Sotavento Corp. v. Coastal Pallet Corp., supra, 102 Conn.App. 833-34. In this case, however, the plaintiff is not considered a party to the respective grievance committee hearings both because "[t]here are no adversary parties [to grievance proceedings] in the technical legal sense"; (internal quotation marks omitted) In re Application of Pagano, 207 Conn. 336, 340, 541 A.2d 104 (1988); and because, even if there were parties in a grievance committee hearing, the plaintiff in this case was not a party to that proceeding. See Weiss v. Statewide Grievance Committee, 227 Conn. 802, 819, 633 A.2d 282 (1993) (stipulated judgment in civil suit between attorney and former client did not preclude grievance committee hearing of same alleged ethical violations because grievance committee not party to civil suit). In this case, the grievance proceedings were between the defendant and the statewide grievance committee; while the plaintiff may have filed the complaint that initiated those proceedings, he was not a party to them. Accordingly, the doctrines of res judicata and collateral estoppel are inapplicable to the present case.
C. Statute of Limitations
The court next considers the defendant's argument that he is entitled to summary judgment because the plaintiff's allegations of legal malpractice are time-barred by the relevant statute of limitation. Although the specific counts alleged in the plaintiff's complaint are nebulous, he appears to allege that the defendant (1) failed to present documents to the jury that the plaintiff believed to be helpful to his case, (2) failed to object to the court's proposed trifurcation of various legal issues at trial, (3) conspired with opposing counsel to ensure the plaintiff would lose his case, and (4) failed to return trial documents to the plaintiff after he had been terminated as counsel. Notwithstanding this ambiguity, however, it is immaterial whether these claims sound in civil rights law, as the plaintiff appears to maintain, or in tort law, as the court assumes without deciding, because both causes of action are controlled by the statute of limitations encapsulated in General Statute § 52-577. See Orticelli v. Powers, 197 Conn. 9, 16, 495 A.2d 1023 (1985) (three-year statute of limitations contained in § 52-577 is operative statute of limitations in 42 U.S.C. § 1983 claim); see also Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (§ 1983 actions best characterized as personal injury actions for purpose of determining applicable statute of limitations). Accordingly, the court now addresses whether the plaintiff's claims are foreclosed by § 52-577.
General Statute § 52-577 reads: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
The purpose of statutes of limitations is well settled in our law. "There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose." (Internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn.App. 289, 305, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). For these reasons, courts "will not deprive the defendants of the `finality, repose and avoidance of stale claims and stale evidence' for which the statute of limitations was designed." (Internal quotation marks omitted.) Connecticut Bank Trust Co. v. Winters, 225 Conn. 146, 157 n. 20, 622 A.2d 536 (1993); accord McNeil v. Riccio, 45 Conn.App. 466, 473, 696 A.2d 1050 (1997). Consequently, "[w]hen conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed . . . The three year limitation period of § 52-577 begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Internal quotation marks omitted.) Farnsworth v. O'Doherty, 85 Conn.App. 145, 149-50, 856 A.2d 518 (2004).
However, "a plaintiff may invoke the [continuous representation] doctrine, and thus toll the statute of limitations, when the plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter; and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period." DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003); Bagnoly v. Riccio, 102 Conn.App. 792, 797-98, 927 A.2d 950, cert. denied, 284 Conn. 931, 934 A.2d 245 (2007). In such a case, "the limitations period begins to run when the representation in the same underlying matter terminates, notwithstanding a claim of tolling premised on the continuous representation doctrine." Farnsworth v. O'Doherty, 85 Conn.App. 145, 150, 856 A.2d 518 (2004); see also Sanborn v. Greenwald, supra, 39 Conn.App. 297-98. It is, therefore, necessary at the outset to resolve the threshold question as to when the attorney-client relationship between the plaintiff and the defendant was terminated.
In reaching this determination, courts have been guided by considering whether the relationship was terminated formally or impliedly by the factual circumstances. Indeed, "[an attorney's] representation continues for the purposes of the continuous representation doctrine until either the formal or the de facto termination of the attorney-client relationship. The formal termination of the relationship occurs when the attorney is discharged by the client, the matter for which the attorney was hired comes to a conclusion, or a court grants the attorney's motion to withdraw from the representation. A de facto termination occurs if the client takes a step that unequivocally indicates that he has ceased relying on his attorney's professional judgment in protecting his legal interests, such as hiring a second attorney to consider a possible malpractice claim or filing a grievance against the attorney." DeLeo v. Nusbaum, supra, 263 Conn. 597. In either case, "[a] client who has taken such a concrete step may not invoke this doctrine, because such actions clearly indicate that the client no longer is relying on his attorney's professional judgment but instead intentionally has adopted a clearly adversarial relationship toward the attorney." (Emphasis added.) Id.
In this case, the following relevant facts are undisputed. The plaintiff's civil rights case against the DOC, in which the defendant represented the plaintiff, went to trial on February 28, 2000, and the jury rendered a verdict in favor of the DOC on March 2, 2000. With the exception of the plaintiff's allegation that the defendant did not return to him in a timely manner the relevant trial record, all other alleged misdeeds occurred prior to March 2, 2000. The court takes judicial notice of the following records: On March 20, 2000, the plaintiff, acting pro se and without the aid or knowledge of the defendant, filed a motion for "Order for Extension for Filing Record in Appeal." See Day v. Armstrong, United States District Court, Docket No. 3:95CV 1704 (D.Conn.). A few days later, on March 25, 2000, the plaintiff sent a letter to Assistant Attorney General Henri Alexandre, then representing the DOC, in which he explained that he had filed his motion pro se because "Trybulski will not be given another opportunity to do any further damages [sic] to my claim . . . You can address me again as pro se counsel." See Day v. Trybulski, Statewide Grievance Committee, Grievance No. 99-1081 (2000). In a second letter, also dated March 25, 2000, the plaintiff wrote to the defendant, "I don't need you to sale [sic] my appeal down the drain also. Please send me my file. And, find another sucker." Id. Having not received any further correspondence from the plaintiff, the defendant filed for a motion for an extension to file an appeal on April 14, 2000, and filed a motion to be removed as counsel of record on April 25, 2000. See Day v. Armstrong, United States District Court, Docket No. 3:95CV1704 (D.Conn.) The summons and complaint for this case was served on the defendant on April 17, 2003.
Although the plaintiff maintains that his decision to terminate the defendant was predicated on his belief that the defendant did not want to handle the appeal, the record confirms that the defendant offered to represent the plaintiff's appeal in a letter dated April 5, 2000. In any event, the plaintiff did not respond to this offer, and did nothing subsequently to retract his termination letter to the defendant.
In this case, the undisputed facts persuade the court that the attorney-client relationship between the plaintiff and the defendant was both formally and de facto terminated as of April 14, 2000. The plaintiff formally terminated the attorney-client relationship by virtue of his letter to the defendant on March 25, 2000, which clearly discharged him as the plaintiff's counsel. See DeLeo v. Nusbaum, supra, 263 Conn. 597 ("[t]he formal termination of the relationship occurs when the attorney is discharged by the client, the matter for which the attorney was hired comes to a conclusion, or a court grants the attorney's motion to withdraw from the representation") (emphasis added). Moreover, the facts also manifest the plaintiff's de facto termination of the defendant as legal counsel. Not only did the plaintiff begin filing motions on his own behalf and without his attorney's knowledge, but his letter to opposing counsel on March 25, 2000, provided notice that the defendant was not to have any further involvement in the case and that he was again "pro se counsel." Id. ("[a] de facto termination occurs if the client takes a step that unequivocally indicates that he has ceased relying on his attorney's professional judgment") (emphasis added). These were concrete steps taken by the client that evidence his distrust of the defendant's professional judgment. Nevertheless, because the defendant filed the motion for extension of time to file an appeal on behalf of the plaintiff during the time he was waiting to confirm his termination, the court holds that the formal termination was not effective until that filing took place on April 14, 2000.
In addition to these actions, the plaintiff also states in his complaint that he filed a grievance with both the grievance committee for the United States District Court and the Connecticut statewide grievance committee alleging that the defendant had failed to return to the plaintiff all trial records, which were necessary for the plaintiff to effectuate his appeal. Although the defendant was subsequently cleared of these allegations by the respective grievance committees, the filing of a grievance against one's own attorney is a telltale indication of de facto termination. See DeLeo v. Nusbaum, supra, 263 Conn. 597.
In view of this analysis, the court finds that the plaintiff formally and de facto terminated the defendant as legal counsel, and is not, therefore, entitled to invoke the continuing representation doctrine to toll the statute of limitations beyond the date that representation ended. Here, the defendant was served with the complaint and summons for this case on April 17, 2003, which is greater than three years from April 14, 2000, the date on which the attorney-client relationship was terminated. Accordingly, the plaintiff failed to bring suit within the three-year period statutorily permitted under § 52-577.
III CONCLUSION
For the reasons detailed above, the court GRANTS the defendant's motion for summary judgment on the basis that the plaintiff's suit is barred by the statute of limitations provided in General Statute § 52-577.