Opinion
No. CV04-4000108S
December 22, 2005
MEMORANDUM OF DECISION ON DEFENDANT RONI STUTMAN'S MOTION FOR SUMMARY JUDGMENT
The plaintiff's revised three-count complaint dated September 20, 2004, asserts claims against the defendants, Rod Stutman, Robert Photos, Robert Berke and Photos Almodovar. In count one, the plaintiff alleges legal malpractice against Stutman arising out of representation of the plaintiff in a multiple motor vehicle accident lawsuit. Count two alleges Connecticut Unfair Trade Practices Act (CUTPA) violations against Stutman arising from the same representation of the plaintiff in the motor vehicle accident. The third count alleges legal malpractice against the defendants Photos, Berke and Photos Almodovar who are not parties to this motion for summary judgment.
The defendant, Roni Stutman, filed a motion for summary judgment on September 15, 2005, accompanied by a memorandum in support and exhibits. On October 15, 2005, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment and an exhibit. The defendant subsequently filed a memorandum of law in reply to the plaintiff's opposition memorandum on December 1, 2005.
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc v. Ryan. 268 Conn. 222, 237, 842 A.2d 1089 (2004). "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.) Id.
"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, 452 272 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 asserts that counts one and two are barred by the applicable statute of limitations, General Statutes § 52-577 and General Statutes § 42-110g(f), respectively.
The lawsuit from which the malpractice and CUTPA claims arise is based on a motor vehicle accident which the plaintiff was involved on December 11, 1993. The motor vehicle accident case involved the plaintiff's claims against seven defendants. She had previously been represented by another attorney and at one time had been representing herself in a pro se capacity. Attorney Stutman entered into a "professional services agreement" contract with the plaintiff on October 29, 1999, with respect to such litigation. In the course of such representation, the plaintiff agreed to and did settle with one of the defendants, Andrew McKay. The release to McKay was executed on August 18, 2000, and a withdrawal of the claim against McKay was filed on October 24, 2000. Attorney Stutman mailed a check to the plaintiff on September 28, 2000, representing the amount to be disbursed to the plaintiff as a result of the McKay settlement. The plaintiff signed a settlement statement acknowledging received the settlement funds on October 31, 2000. Attorney Stutman filed a motion for permission to withdrawal her appearance in the motor vehicle litigation on May 17, 2001, which motion was granted on June 26, 2001. This action was served on Attorney Stutman on June 30, 2004.
The defendant makes alternative arguments with respect to the untimeliness of the legal malpractice count. Initially, she argues that the June 30, 2004 service of the lawsuit was more than three years from her withdrawal of her appearance on June 26, 2001. However, an exception to the rule that a civil action is considered to be commenced on the date that the Summons and Complaint are served upon the defendant exist where process is delivered to a state marshal within the limitations, and the marshal makes service within thirty days. Connecticut General Statute § 52-593a. The plaintiff establishes that is what happened in this case. The Complaint is dated June 25, 2004, and was received by the marshal on June 25, 2004, within three years from the withdrawal. The marshal affected service on June 30, 2004, within the thirty-day period allowed by statute.
The defendant also argues with respect to the untimeliness of the legal malpractice claim that the alleged malpractice relates to the McKay settlement which occurred in 2000. The plaintiff relies on the "continuous representation doctrine." Our Supreme Court in DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003), held that in a legal malpractice action "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 manner; 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."
The statute of limitations issue was raised in the defendant Stutman's special defense. The plaintiff's reply to the special defenses consist of a general denial. The continuous representation doctrine is first raised in the plaintiff's memorandum in opposition to the motion for summary judgment. Practice Book § 10-57 provides: "[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply." In Franco v. Mediplex Construction, Inc., Superior Court, judicial district of New Haven, Docket No. CV 96 0390458 (August 25, 2000, Owens, J.) The court held that "[a] general denial of the defense of limitations is not sufficient . . . The plaintiffs are charged with the knowledge of the rules of practice and should have pleaded more than a simple denial to the defense of the statute of limitations if they wished to plead in avoidance . . . Accordingly, the plaintiffs' claims that the doctrines of continuing course of conduct . . . tolled the statutes of limitations applicable to their causes of action are not properly before the court." (Citations omitted; internal quotation marks omitted.) See also Collum v. Chapin, 40 Conn.App. 449, 671 A.2d 1329 (1996) (where the Appellate Court affirmed the trial court's decision to decline to address the plaintiff's claim of continuous course of conduct because it was first raised in an affidavit in opposition to the defendant's motion for summary judgment). The plaintiff by failing to raise the continuous representation doctrine in her reply to the special defense has not properly raised the issue.
The plaintiff also seeks to assert the continuing representation doctrine with respect to the CUTPA count. Applying CUTPA to the practice of law, the Connecticut Supreme Court has held that "CUTPA's regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law . . . CUTPA applies to the conduct of attorneys." Heslin v. Connecticut Law Clinic of Trantolo Trantolo, 190 Conn. 510, 521, 461 A.2d 938 (1983). "CUTPA covers only the entrepreneurial or commercial aspects of the profession of law. The noncommercial aspects of lawyering — that is, the representation of the client in a legal capacity — is excluded for public policy reasons." (Internal quotation marks omitted.) Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35, 699 A.2d 964 (1997). The Supreme Court expressly held that "professional negligence — that is, malpractice — does not fall under CUTPA." (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz Schatz. Ribicoff Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998). "Our CUTPA cases illustrate that the most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney's professional representation of a client or is part of the entrepreneurial aspect of practicing law." Suffield Development Associates, Ltd. Partnership v. National Loan Investors, LP, 260 Conn. 766, 781, 802 A.2d 44 (2002). The entrepreneurial aspect of practicing law involves "the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the . . . [defendant]." (Internal quotation marks omitted.) Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 35-36.
In DeLeo v. Nusbaum, supra, the Supreme Court dealt with the continuous representation doctrine in a legal malpractice case. The issue of the continuous representation doctrine applying to toll the statute of limitations in a CUTPA action appears to be a case of first impression. In adopting the continuous representation doctrine in DeLeo, the court acknowledged that the doctrine "was developed primarily in response to the harsh consequences of the occurrence rule, under which the period during which an action may be brought begins to run at the time of the allegedly tortious conduct, even though the attorney continues to represent the client, the client may be unaware of the tortiousness of the conduct, and there has not yet and may never be an injury as a result of that conduct . . . Like the trial court in the present case, courts adopting the continuous representation doctrine have frequently held to be analogous to the course of treatment rule." (Citations omitted.) Id., 594. The court limited its holding in DeLeo stating that "[w]hile we anticipate that these standards would be applicable to all attorney malpractice cases, we acknowledge that the implications of tolling for attorney-client relationships in the context of litigation may not be the same as those for other attorney-client relationship. Accordingly, our holding today is limited to cases in which an attorney is alleged to have committed malpractice during the course of litigation." Id., 597 n. 4.
In this case the allegations of the CUTPA count relate to the representations or marketing by the defendant of her experience and abilities and perhaps the accounting with the respect to the McKay settlement. Under such facts, the court would be disinclined to extend the continuous representation doctrine to the CUTPA count.
The plaintiff's allegations against the defendants, Stutman, relate to the handling of the McKay settlement in 2000. The plaintiff having failed to plead the continuous representation doctrine in reply to the limitations special defense is unable to take advantage of it in response to the summary judgment. The summary judgment enters for the defendants, Stutman, on counts one and two as they were not timely under the respective statute of limitations.