Cruz v. Schoenhorn

188 Conn.App. 208

204 A.3d 764

Eloy CRUZ

v.Jon L. SCHOENHORN et al.

AC 40510

Appellate Court of Connecticut.

Argued November 29, 2018

Officially released March 5, 2019

Kenneth A. Votre, New Haven, for the appellant (plaintiff).

Elizabeth M. Cristofaro, with whom, on the brief, was Kelvin L. Thomas, for the appellee (defendant Jon L. Schoenhorn).

Louis B. Blumenfeld, Hartford, with whom, on the brief, was Lorinda S. Coon, Hartford, for the appellee (defendant Arnaldo J. Sierra).

DiPentima, C.J., and Moll and Bear, Js.

MOLL, J.

The plaintiff, Eloy Cruz, appeals from the summary judgments rendered by the trial court in favor of the defendants, Jon L. Schoenhorn and Arnaldo J. Sierra, respectively.¹ On appeal, the plaintiff asserts that the trial court erroneously concluded that his legal malpractice claims against the defendants were time barred pursuant to General Statutes § 52-577,² the statute of limitations applicable to tort actions, because genuine issues of material fact exist as to whether the continuous representation doctrine applies so as to toll § 52-577. We disagree and, accordingly, affirm the summary judgments of the trial court.³

The following facts and procedural history are relevant to our resolution of the plaintiff's claims. The defendants represented the plaintiff in a civil action commenced in 2003 in which the plaintiff alleged that he had sustained severe injuries after being attacked by several individuals at a rap music concert in 2001. See Cruz v. Continental Corp. , Superior Court, judicial district of Hartford, Docket No. CV-03-0824221-S (Continental action). Two of the defendants in the Continental action, Jayson Phillips and David Styles, were nonresident individuals upon whom service of process purportedly had been made in April, 2004, pursuant to General Statutes § 52-59b. Phillips and Styles subsequently were defaulted for failure to appear. On November 2, 2005, following a hearing in damages, the trial court rendered judgment against Phillips and Styles in the amount of $ 779,378.22.⁴ In 2006, Schoenhorn made unsuccessful attempts to collect upon the judgment. Dissatisfied with the postjudgment collection efforts, the plaintiff filed grievance complaints against Schoenhorn in 2006 and in 2008, both of which were dismissed. In addition, in 2006 and in 2010, the plaintiff filed grievance complaints against Sierra, both of which were dismissed.

On August 26, 2009, the plaintiff filed an appearance as a self-represented party in the Continental action. The plaintiff's appearance form did not signify whether he was appearing in lieu of or in addition to the defendants. On October 20, 2009, the plaintiff, representing himself, filed an application for a waiver of fees and a motion to "reopen case and force execution of existing judgment" against Phillips and Styles. On November 5, 2009, the court denied the plaintiff's motion as untimely.

There was no additional activity in the Continental action until September 17, 2012, when the law firm of Minnella, Tramuta, and Edwards, LLC, appeared on behalf of the plaintiff, according to the appearance form, in lieu of the plaintiff and the defendants. On October 16, 2012, the plaintiff filed a motion seeking postjudgment interest in the amount of $ 733,735.29, which the court granted on November 13, 2012. On November 27, 2012, Phillips filed a motion to open and set aside the judgment, asserting that the court lacked personal jurisdiction over him as a result of insufficient service of process. On December 18, 2012, the court granted Phillips' motion.

On January 18, 2013, Phillips filed a motion to dismiss for lack of personal jurisdiction as a result of insufficient service of process. On February 7, 2013, Styles filed a motion to dismiss on the same ground. On May 14, 2013, absent objection, the court granted the respective motions to dismiss filed by Phillips and Styles.

On July 11, 2013, the plaintiff filed an appearance as a self-represented party in lieu of Minnella, Tramuta, and Edwards, LLC, in the Continental action and filed a motion to open the judgment, to which Phillips and Styles filed a joint objection. On July 29, 2013, the court denied the plaintiff's motion to open. After July, 2013, there was no activity in the Continental action.

On December 15, 2014, the plaintiff, representing himself, commenced the present action against the defendants. In his operative one count complaint filed on August 24, 2015, the plaintiff asserted a legal malpractice claim against the defendants, alleging that the defendants had failed to effectuate proper service of process on Phillips and Styles in the Continental action. The defendants filed separate answers and special defenses, including statute of limitations defenses pursuant to § 52-577. The plaintiff moved to strike, inter alia, the defendants' statute of limitations defenses, which the trial court denied. Thereafter, the plaintiff did not file a reply pleading to each of the defendants' special defenses.⁵

On July 12, 2016, Schoenhorn filed a motion for summary judgment, accompanied by a memorandum of law and exhibits, asserting that he was entitled to judgment as a matter of law because, among other things, the plaintiff's claim against him was time barred pursuant to § 52-577. On August 31, 2016, the plaintiff filed an objection to Schoenhorn's motion for summary judgment, accompanied by a memorandum of law, relying solely on the allegations of the plaintiff's operative complaint.⁶ The plaintiff did not submit an affidavit or other documentary evidence in support of his objection to Schoenhorn's motion for summary judgment. On September 14, 2016, Schoenhorn filed a reply memorandum of law. On September 19, 2016, the court heard argument on Schoenhorn's motion for summary judgment.

On September 9, 2016, Sierra filed a motion for summary judgment, accompanied by a memorandum of law and exhibits, arguing that he was entitled to judgment as a matter of law because, among other things, the plaintiff's claim against him was time barred pursuant to § 52-577. On November 9, 2016, the plaintiff filed a memorandum of law in opposition to Sierra's motion for summary judgment, as well as an affidavit signed by the plaintiff (November 9, 2016 affidavit).⁷ On November 23, 2016, Sierra filed a reply memorandum of law accompanied by exhibits. On December 5, 2016, the court heard argument on Sierra's motion for summary judgment.

On April 24, 2017, the court issued a memorandum of decision granting Schoenhorn's motion for summary judgment, concluding that the plaintiff's claim against Schoenhorn was time barred pursuant to § 52-577.⁸ On May 23, 2017, the court issued a separate memorandum of decision granting Sierra's motion for summary judgment, concluding that the plaintiff's claim against Sierra also was time barred pursuant to § 52-577.⁹ This appeal followed.

Additional facts and procedural history will be set forth as necessary.

We begin by setting forth the relevant standard of review and legal principles that govern our review of the plaintiff's claims. "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.... 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.... [I]ssue-finding, rather than issue-determination, is the key to the procedure.... [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment.... [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.... Our review of the decision to grant a motion for summary judgment is plenary.... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Internal quotation marks omitted.) Perez v. Metropolitan District Commission , 186 Conn. App. 466, 471–72, 200 A.3d 202 (2018).

"Summary judgment may be granted where the claim is barred by the statute of limitations." (Internal quotation marks omitted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C. , 134 Conn. App. 785, 789, 41 A.3d 674 (2012), aff'd, 311 Conn. 282, 87 A.3d 534 (2014). "Actions for legal malpractice based on negligence are subject to § 52-577, the tort statute of limitations." (Internal quotation marks omitted.) Weiner v. Clinton , 106 Conn. App. 379, 386, 942 A.2d 469 (2008). "This court has determined that [§] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.... Moreover, our Supreme Court has stated that [i]n construing our general tort statute of limitations ... § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the injury has occurred.... The three year limitation period of § 52-577, therefore, 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.) Chamerda v. Opie , 185 Conn. App. 627, 652, 197 A.3d 982, cert. denied, 330 Conn. 953, 197 A.3d 893 (2018).

"To alleviate the harsh...