Opinion
No. FST CV 05 4006556
November 2, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #197
Procedural History
The present matter comes before the court on the defendant's motion for summary judgment whereby the defendant asserts that no genuine issue of material fact exists as to the element of causation in this legal malpractice claim. This action commenced by service of process on August 31, 2005, at which time the plaintiff, Bonnie MacDonald (MacDonald), filed a two-count complaint against the defendant, Richard Stewart (Stewart), asserting claims of negligent representation and breach of agreement by Stewart of MacDonald in a previous unrelated action.
The plaintiff alleges the following facts. The defendant provided legal representation to the plaintiff in a previous action in which the plaintiff was sued for breach of fiduciary duty, statutory theft and undue influence. Following a jury trial the plaintiff was found liable as to all counts and was awarded treble damages. The trial court, however, set aside the treble damage award. This ruling was later reversed by the Supreme Court resulting in the reinstatement of the treble damage award of the jury against the plaintiff. Howard v. MacDonald, 270 Conn. 111, 851 A.2d 1142 (2004). Thereafter, the plaintiff commenced the current action. The plaintiff alleges that during the course of this representation the defendant failed to exercise care, skill and diligence in his representation of the plaintiff, including a failure to timely disclose an expert witness.
Pursuant to an application for prejudgment remedy, the court, (Downey, J.), held an evidentiary hearing. The court denied the plaintiff's prejudgment application. See MacDonald v. Stewart, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4006556 (October 28, 2008, Downey, J.). The plaintiff appealed this decision and such appeal is currently pending before the Appellate Court.
The defendant's motion for summary judgment is two-fold. First, he claims that there is no genuine issue of material fact as to a lack of "casual connection between any act or conduct of the defendant and the verdict entered by the jury" in the underlying action. The defendant additionally asserts that allegations of negligence pertaining to the disclosure of an expert witness are barred by the statute of limitations. The plaintiff raises two objections to the motion for summary judgment. First, the plaintiff contends that there is a stay of proceedings in the present case as a result of the appeal which precludes consideration of the present motion. Second, the plaintiff argues that there is a genuine question of material fact as to the element of causation.
Legal Discussion
"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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . ." Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The plaintiff initially asserts that the motion for summary judgment may not be addressed during the pendency of the appeal regarding Judge Downey's denial of the prejudgment remedy application. Specifically, the plaintiff asserts that the filing of full appeal automatically stays the current matter and prevents review of the instant motion. The plaintiff previously filed an "Objection to the Motion for Summary Judgment" which this court overruled, determining that a stay was not in effect in the current matter. See MacDonald v. Stewart, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4006556 (March 18, 2009, Pavia, J.). A motion to reargue was similarly denied. See MacDonald v. Stewart, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No CV05 4006556 (April 29, 2009, Pavia, J.). On November 4, 2008, the plaintiff filed a motion seeking a stay of all the proceedings related to the present matter. This motion was denied. See MacDonald v. Stewart, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4006556 (April 29, 2009, Adams, J.). On June 25, 2009, yet another objection to the motion for summary judgment pending disposition of the appeal was denied. See MacDonald v. Stewart, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4006556 (June 25, 2009, Tierney, J.). Nonetheless, the plaintiff continues to maintain that a stay exists which prevents consideration of this motion.
General Statute § 52-278l provides in relevant part that "(c) No such [prejudgment] order shall be stayed by the taking of an appeal except upon the order of the judge who made such order, and any such stay shall be granted only if the party taking the appeal posts a bond . . ." No such order was granted in this case. Section 52-278l "reverses the ordinary rules regarding automatic stays on appeal by mandating" that a prejudgment remedy order is specifically not stayed by an appeal absent the statutory prerequisites. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766, 628 A.2d 1303 (1993). Accordingly, the court will address the claims incorporated in the motion for summary judgment.
The defendant initially argues that summary judgment is warranted as there is no genuine issue of material fact as to the element of causation in that "the plaintiff cannot establish a causal connection between any act or conduct by the defendant and the verdict entered by the jury." The defendant relies on the court's reasoning in Viola v. O'Dell, 108 Conn.App. 760, 950 A.2d 539 (2008), in support of this argument.
"The basic elements of a claim of legal malpractice are (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages . . ." (Internal citation omitted; internal quotation marks omitted.) Grey v. Weinstein, 110 Conn.App. 763, 773, 955 A.2d 1246 (2008). As to causation: "[i]n legal malpractice actions, the plaintiff typically proves that the defendant attorney's professional negligence caused injury to the plaintiff by presenting evidence of what would have happened in the underlying action had the defendant not been negligent. This traditional method of presenting the merits of the underlying action is often called the `case-within-a-case.'" Lee v. Harlow, Adams and Friedman, P.C., 116 Conn.App. 289, 297, 975 A.2d 715 (2009).
The defendant's reliance on Viola v. O'Dell, supra, 108 Conn.App. 760, to support his argument that the plaintiff is subject to a "double burden of proof" is misplaced. Viola v. O'Dell involved a claim of legal malpractice based on a failure to file a timely appeal. The court held that "[a] issue of causation [in a legal malpractice action] is whether the [claim] could have been pursued . . . If the underlying [claim] was never tried, the client essentially has a double burden of proof. First, the client must show that the attorney was negligent. Second, the client must establish that the underlying claim was recoverable and collectible . . ." (Citations omitted; internal quotation marks omitted). Id., 764. This double burden of proof, as described in Viola, involves a scenario where the alleged malpractice prevented a trial, or appeal, from taking place. In the present case, the underlying allegations of negligence encompass conduct relating to previous litigation and a finding of liability against the plaintiff.
The defendant argues that summary judgment is warranted in this instance, based on the court's (Downey, J.), denial of the application for prejudgment remedy. The court's ruling, however, on the application is irrelevant to the question of whether any genuine issues of material fact exist. The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff's claim. JK Scanlan Co. v. Construction Group, Inc., 80 Conn.App. 345, 349-50, 835 A.2d 79 (2003).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). Moreover, the issue "of causation is generally considered to be a question of fact." See Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 692 A.2d 709 (1997); Demoraes v. Nakian, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 06 5002049 (Aug. 19, 2008, Tobin, J.), (the scope of an attorney's duty is a question of fact to be determined by the trier of fact). The defendant has failed to show a lack of genuine issue regarding the element of causation.
The defendant's final argument invokes his first special defense, that the plaintiff's malpractice claim regarding a failure to disclose Dr. Spivak as an expert witness is time barred by the statute of limitations. General Statutes § 52-577 provides that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." This three-year statute of limitations is applicable to the present malpractice action. 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).
The defendant claims that since the expert disclosure of Dr. Spivak occurred on August 21, 2002, while the pending action was commenced on August 25, 2005, the matter is barred by the statute of limitations. Our Supreme Court has adopted a modified continuous representation doctrine for cases of alleged legal malpractice during the course of litigation. DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003). "[A] plaintiff may invoke the 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." Id. The defendant neither addresses the implications of this doctrine nor provides sufficient evidence to document his assertion as to the date of the alleged malpractice. "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).
Accordingly the defendant has failed to meet his burden, as the movant, to show the absence of genuine issues of material fact. As such, the defendant's motion for summary judgment is denied.