Opinion
No. FBT CV 085019081
December 14, 2009
MEMORANDUM OF DECISION RE MOTION FORARTICULATION
The plaintiff, Gregory Moran, has moved that the court articulate the basis of its October 19, 2009 decision granting summary judgment in favor of the defendant, Harry Hirsch.
In his revised complaint dated November 9, 2008, the plaintiff alleges the following facts. The defendant is an attorney licensed to practice law in Connecticut. Beginning in 1986 and lasting until at least 2004, the defendant represented Johnny Torres in various legal matters. One of these transactions was the sale of real estate located at 1677 Wolcott Road in Waterbury. The plaintiff and Torres each owned 50 percent of this property. On February 28, 2001, the defendant received a check for $138,869.29 from a third party for the sale of the subject premises. The defendant proceeded to deposit this check into his trustee account and failed to inform the plaintiff that the property had been sold. The plaintiff contends that he is entitled to one-half of the proceeds from this check because he was a 50 percent owner of the Wolcott Road property. Specifically, the plaintiff alleges that "[t]he defendant, in order to benefit his client Johnny Torres, concealed from the plaintiff . . . that the plaintiff was entitled to said funds by not disclosing the receipt of said funds and that said funds were free and clear of any liens except the 50% lien of Johnny Torres although he had a duty to disclose such fact to the plaintiff because he was the plaintiff's attorney at the time and in connection with that specific transaction." The plaintiff alleges that, as a result of the defendant's actions, he did not learn that he was entitled to the funds until March 2008. Accordingly, the plaintiff alleges a cause of action against the defendant for legal malpractice stemming from fraudulent concealment.
Although the revised complaint alleges that the address of the property is 1677 Wolcott Road in Waterbury, all the documents attached to the defendant's motion and the plaintiff's opposition indicate that the address is 1677 Wolcott Road in Wolcott. For this reason, the court assumes that the property is located in Wolcott, not Waterbury.
In response to this revised complaint, the defendant filed an answer with four special defenses on January 13, 2009. The defendant's special defenses are: (1) waiver; (2) release; (3) payment; and (4) the statute of limitations. On May 7, 2009, the defendant filed a motion for summary judgment and a memorandum of law in support. Attached to the defendant's motion are copies of (1) unanswered requests for admission sent to the defendant; (2) a signed release and discharge of liens agreement between Torres and the plaintiff dated February 27, 2001; (3) an owner's affidavit for the 1677 Wolcott Road property dated February 27, 2001; (4) a real estate agreement dated January 15, 2001; (5) a real estate agency disclosure notice dated January 12, 2001; (6) a letter from Attorney Paul G. Gusmano to the defendant dated January 10, 2002; (7) a "release" agreement between the plaintiff and Torres dated January 8, 2007 and (8) an amended complaint dated November 9, 2004 for a lawsuit between the plaintiff and Torres.
The plaintiff filed a memorandum of law in opposition to the motion for summary judgment on May 21, 2009. Attached to that memorandum are: (1) the sworn affidavit of Torres; (2) two uncertified pages from the defendant's deposition; (3) a copy of a letter from the defendant to Attorney Edward J. Duffy dated February 28, 2001; (4) a copy of a $138,869.29 check dated February 28, 2001 made payable to the order of the defendant as trustee; (5) a copy of a letter from the defendant to Attorney David E. Rosenberg dated February 28, 2001; (6) a copy of a letter from the law firm of Hunt Leibert Chester Jacobson, P.C. to the defendant dated February 5, 2001 and (7) a copy of a letter from Edward J. Duffy to the plaintiff dated March 13, 2008. The defendant subsequently filed a reply memorandum on July 15, 2009. The court heard argument on the summary judgment motion at short calendar on October 19, 2009.
With the exception of Torres's affidavit, none of the evidence offered by either party is certified or otherwise authenticated. Under Connecticut law, "before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Because neither party has objected to this uncertified evidence, the court considered it when ruling on the motion for summary judgment. See, e.g., Palmieri v. Lee, Superior Court, judicial district of New Haven, Docket No. 405641 (November 24, 1999, Levin, J.).
"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). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted). Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
The defendant moved for summary judgment on three grounds: (1) res judicata; (2) the statute of limitations and (3) release. In his memorandum of law, the defendant argued that there was no genuine issue of material fact that the plaintiff already brought and settled a prior lawsuit against Torres for the proceeds from the subject real estate transaction. Furthermore, the defendant contended that there was no genuine issue of material fact that the plaintiff commenced this lawsuit more than three years after the defendant's representation of the plaintiff and that the plaintiff signed a release extinguishing the defendant from all claims regarding the proceeds from this real estate transaction. For all of these reasons, the defendant argued that he was entitled to judgment as a matter of law. Because the statute of limitations operated to bar all of the claims in the plaintiff's complaint, this memorandum of decision only discusses the statute of limitations argument.
The defendant argued that the plaintiff failed to commence this action within the applicable three-year tort statute of limitations, General Statutes § 52-577. Since the plaintiff alleges that the defendant committed legal malpractice and fraudulent concealment regarding a real estate transaction in 2001 and this lawsuit was not brought until 2008, the defendant argued that this action is time barred. Furthermore, the defendant contended that neither the continuous representation nor fraudulent concealment doctrines could operate to toll the statute of limitations. The plaintiff responded that there were genuine issues of material fact regarding whether the plaintiff was placed on actual notice of the fraudulent concealment and when the defendant ended his legal representation of the plaintiff. Therefore, according to the plaintiff, summary judgment was inappropriate. In his reply brief, the defendant asserted that the plaintiff's arguments failed to raise a genuine issue of material fact because the plaintiff's unanswered requests for admissions conclusively established that the plaintiff was aware of his alleged property interest in February 2001.
Because the plaintiff's claims are based in tort, the applicable statute of limitations is General Statutes § 52-577 which provides: "No action founded upon a tort shall be brought within three years from the date of the act or omission complained of." Both parties agree that the relevant statute of limitations period is three years; they only disagree as to when the statute of limitations began to run. There is no dispute that the closing for the sale of the 1677 Wolcott Road property occurred on February 28, 2001 and that the plaintiff commenced this action by service of process on September 17, 2008. Therefore, for this action to have been timely filed, the statute of limitations must have been tolled.
The plaintiff argued that there was an issue of fact as to when the defendant ended his legal representation of the plaintiff. The plaintiff contends that a jury could conclude that the defendant continues to represent the plaintiff until the present day because the defendant has failed to disburse the plaintiff's share of the funds from the sale of the property. Under the continuous representation doctrine, one may "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." (Emphasis in original.) DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003). "With regard to the first prong . . . the 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. Once such a step has been taken, representation may not be said to continue for purposes of the continuous representation doctrine." Id., 597-98.
The defendant's motion for summary judgment attaches a letter dated January 10, 2002 from Attorney Paul C. Gusmano to the defendant. In this letter, Gusmano writes: "In that my previous correspondence have [sic] gone unanswered, I am once again writing you to request that you please provide me with any information concerning the transfer of property owned by your client and my client in Wolcott, CT. We have recently discovered that the property was sold. Yet my client indicates that the has received no funds from this sale. Would you please advise me as to what monies you continue to hold in escrow. If in fact you hold no monies in escrow, would you please provide me with this information immediately. If I do not have a response to this correspondence, I will have no option but to assume that the monies had been disbursed, perhaps wrongfully and proceed accordingly." The letter unambiguously indicates that "My Client" is "Gregory Moran" and "Your Client" refers to John Torres. The address for the property is listed as "1677 Wolcott Road, Wolcott, CT 06716."
This letter reflects that by January 10, 2002, the plaintiff had hired a new attorney for the purpose of obtaining the funds that the plaintiff alleges that he is owed from the sale of the property at 1677 Wolcott Road. The letter clearly indicates that the plaintiff is Gusmano's client and that the plaintiff believed that the defendant was either holding money from the sale in escrow or that money had been wrongfully disbursed. Thus, by 2002, the plaintiff had commenced a de facto termination of his attorney-client relationship with the defendant because the plaintiff was no longer depending on the defendant to protect his legal interests. Furthermore, the letter also demonstrates that the plaintiff was aware of the alleged malpractice because, otherwise, the plaintiff would not have procured new counsel to investigate what the defendant had done with the money from the sale of the property. The plaintiff did not provide any evidence to dispute either of these conclusions. Accordingly, the plaintiff cannot avail himself of the continuous representation doctrine in order to toll the statute of limitations.
The plaintiff also argued that the statute of limitations was tolled due to the defendant's fraudulent concealment. General Statutes § 52-595 provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." "[T]o establish that the [defendant] had fraudulently concealed the existence of [his] cause of action and so had tolled the statute of limitations, the [plaintiff] [has] the burden of proving that the [defendant was] aware of the facts necessary to establish this cause of action . . . and that [it] had intentionally concealed those facts from the [plaintiff] . . . The [defendant's] actions must have been directed to the very point of obtaining the delay [in filing the action] of which [it] afterward [seeks] to take advantage by pleading the statute . . . To meet this burden, it was not sufficient for the [plaintiff] to prove merely that it was more likely than not that the [defendant] had concealed the cause of action. Instead, the [plaintiff] had to prove fraudulent concealment by the more exacting standard of clear, precise and unequivocal evidence . . ." (Internal quotation marks omitted.) Byrne v. Burke, 112 Conn.App. 262, 272, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009).
When attempting to rely on § 52-595, "a plaintiff who invokes the tolling statute, even a plaintiff to whom the defendant owes fiduciary duties, carries the burden of proof on the question of the plaintiff's own ignorance of the existence of the cause of action." Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 420 (2d Cir. 1999). If "the means of knowledge existed and the circumstances were such as to put a plaintiff of ordinary prudence on inquiry . . . and the plaintiff learned of information that would lead to the discovery of a cause of action through due diligence . . . the plaintiff cannot successfully establish fraudulent concealment of a cause of action." (Internal quotation marks omitted.) Mountaindale Condominium Ass'n, Inc. v. Zappone, 59 Conn.App. 311, 322, 757 A.2d 608 (2000).
The plaintiff argued that Connecticut law requires actual, as opposed to inquiry notice, in order for a plaintiff to be barred from utilizing the fraudulent concealment doctrine to toll the statute of limitations. Even if the plaintiff were correct in this legal assertion, the evidence attached to the defendant's motion for summary judgment establishes that the plaintiff had actual notice of the facts giving rise to the current action by at least 2002. In the January 10, 2002 letter from Gusmano to the defendant, the plaintiff "recently discovered that the property was sold" and the plaintiff had not received any of the funds from the sale. Furthermore, in 2002, the plaintiff commenced a lawsuit against Torres for his alleged share of the proceeds from the subject real estate transaction. In the amended complaint dated November 9, 2004 in that lawsuit, the plaintiff alleged that "[d]espite repeated demands by the Plaintiff, the Defendant and Attorney Hirsh [sic] refused to release the Plaintiff's portion of the net proceeds of the home." While the plaintiff contended in his revised complaint and memorandum of law in opposition that he did not learn of the facts relevant to this case until approximately March 2008, the plaintiff has offered no evidence to support this remarkable contention. "[T]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or brief." (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn.App. 446, 451, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007). Consequently, the plaintiff failed to raise any genuine issues of fact to dispute the defendant's evidence showing that the plaintiff knew of his rights to the proceeds from the sale of the property in 2002. Moreover, at oral argument, the plaintiff conceded that he could have joined the defendant as a defendant in the 2002 litigation, and had probable cause to do so. Accordingly, the statute of limitations was not tolled.
This remarkable concession was dispositive of the matter and is why the court did not initially issue a memorandum of decision.
Because the plaintiff did not commence this action until 2008, well outside the relevant limitations period for legal malpractice and fraudulent concealment, and because there is no genuine issue of material fact that the statute of limitations was not tolled, the court granted summary judgment in favor of the defendant.