Donarumo v. Lynch, Traub, Keefe and Errante, PC

Mathew Donarumo et al. v. Lynch, Traub, Keefe and Errante, PC et al.

No. CV186079847S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

January 13, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#149)

Wilson, J.

FACTS

The plaintiffs, Mathew and Marylou Donarumo, commenced this action on April 2, 2018, against Lynch, Traub, Keefe and Errante, P.C. and Jacobs & Rozich, LLC. In counts one and two of their third revised complaint, filed September 28, 2018 the plaintiffs allege legal malpractice sounding in both negligence and breach of contract, as to defendants, Lynch Traub, Keefe and Errante, P.C.^[1] The alleged legal malpractice stems from the defendant’s representation of the plaintiffs in a civil action against Metropolitan Property and Casualty Insurance Company (Metropolitan), for failure to pay for water, property, and mold damage to the plaintiffs’ home, as a result of ice damming. Presently, the plaintiffs allege legal malpractice sounding in both negligence and breach of contract, and state that the defendant, inter alia: (1) knew or should have known to file an appeal of judgment for the umpire; (2) failed to inform the plaintiffs of the option to file an appeal; (3) knew or should have known not to agree to exclude payment for mold damage from the appraisal agreement; and (4) failed to inform the plaintiffs it entered into an appraisal agreement on their behalf, without their consent.

On May 23, 2019, the defendant filed a motion for summary judgment as to both counts one and two of the third revised complaint. In support of its motion, the defendant submits the following evidence: (1) the plaintiffs’ signed retainer agreement dated August 23, 2012; and (2) a copy of Jacobs & Rozich, LLC (successor counsel)’s appearance in the underlying action filed on January 20, 2014, on behalf of the plaintiffs. The plaintiffs submitted a memorandum in opposition to the motion for summary judgment on July 24, 2019, to which the defendant submitted a reply memorandum on August 21, 2019. In support of the plaintiffs’ memorandum in opposition, they submit: (1) an invoice sent to the plaintiffs by the defendant which reads: "For professional services rendered in the above captioned matter from 03/01/2015 through 03/31/2015, including but not limited to the following: Previous Balance," Pl. Ex. A; and (2) the officer’s return of service for the present case, dated April 2, 2018. In support of the defendant’s reply memorandum it submits: (1) the signed and sworn affidavit of Attorney Brendan Keefe, a partner at the defendant firm; (2) the plaintiffs’ signed retainer agreement dated August 23, 2012; (3) the detailed transaction file list dated August 15, 2019, for services rendered to the plaintiffs from November 21, 2012, through October 7, 2013; and (4) the signed and sworn affidavit of Michael Panela, the office manager and accountant at the defendant firm. Oral argument on the motion was heard at short calendar on September 23, 2019.

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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The court may consider not only the facts, affidavits, and exhibits presented, but also the "inferences which could be reasonably and logically drawn from them ..." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

"Summary judgment may be granted where the claim is barred by the statute of limitations ..." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013). "[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." (Citation omitted; internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645-46, 138 A.3d 837 (2016). "In these circumstances, it is incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact [as to the timeliness of the action] exists." (Internal quotation marks omitted.) Doe v. West Hartford, 328 Conn. 172, 192, 177 A.3d 1128 (2018).

The defendant argues that the act or omission complained of necessarily happened during its time representing the plaintiffs, which ended at the latest when successor counsel filed its appearance on January 20, 2014.^[2] The plaintiffs argue in response that there is a genuine issue of material fact regarding the date the defendant last represented the plaintiffs because the defendant invoiced the plaintiffs in April of 2015 for services rendered in March of 2015. See Pl. Ex. A. The defendant replies that the invoice in dispute reflects a previous balance owed and not further professional services rendered.

"Actions for legal malpractice based on negligence are subject to § 52-577, the tort statute of limitations." Sanborn v. Greenwald, 39 Conn.App. 289, 301, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). "Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues ... [Section] 52-577 provides: No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 468, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). "[Section] 52-577 is an occurrence statute, such that the limitations period begins when the act or omission complained of occurs, not when the plaintiff first discovers an injury." Cruz v. Schoenhorn, 188 Conn.App. 208, 220, 204 A.3d 764 (2019). The limitations period may be tolled if a plaintiff can successfully invoke the continuous representation doctrine. See DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003).

"[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 action; 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 omitted; footnotes omitted.) Id. "[This] 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 ... 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 ... Once such a step has been taken, representation may not be said to continue for purposes of the continuous representation doctrine." (Emphasis added; footnotes omitted.) Id., 597-98.

In the present case, the complaint states that successor counsel was hired on December 13, 2013, to replace the defendant. Pl. Rev. Comp. ¶29. Likewise, in the...