Flannery v. Singer Asset Finance Co., LLC ( 2014 )

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JOHN D. FLANNERY v. SINGER ASSET FINANCE
COMPANY, LLC, ET AL.
(SC 18821)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, Espinosa and
Lavine, Js.*
Argued January 11, 2013—officially released June 24, 2014
Thomas P. Willcutts, for the appellant (plaintiff).
Eliot B. Gersten, with whom was Richard C. Rob-
inson, for the appellee (named defendant).
Opinion
ROGERS, C. J. This case concerns the availability of
the continuing course of conduct doctrine to toll the
statute of limitations on a claim of aiding and abetting
a principal accused of breach of a fiduciary duty when
the alleged aider and abettor has no special relationship
with the injured party and engages in no subsequent
wrongful behavior related to the original wrong. The
plaintiff, John D. Flanery,1 appeals, upon our grant of
his petition for certification,2 from the judgment of the
Appellate Court affirming the trial court’s rendering of
summary judgment in favor of the defendant Singer
Asset Finance Company, LLC.3 Flannery v. Singer Asset
Finance Co., LLC, 128 Conn. App. 507, 508–509, 17 A.3d
509 (2011). The plaintiff alleged that the defendant had
aided and abetted the plaintiff’s former attorneys in
breaching their fiduciary duties to the plaintiff, and
further, that the defendant’s actions in this regard con-
stituted a violation of the Connecticut Unfair Trade
Practices Act (CUTPA), General Statutes § 42-110a et
seq. In response to the defendant’s invocation of the
applicable three year statutes of limitations,4 the plain-
tiff argued that, because the aiding and abetting claim
alleged against the defendant was derivative of the
breach of the fiduciary duty claims he had alleged
against the attorneys, the limitations period should be
tolled as to the defendant on the basis of a continuing
course of conduct by the attorneys, even though the
defendant itself owed no fiduciary duty to the plaintiff
and did not engage in any further activities that would
trigger tolling. After concluding for various reasons that
tolling was inapplicable and, therefore, that the plain-
tiff’s action was time barred, the trial court rendered
summary judgment in favor of the defendant. The
Appellate Court subsequently affirmed that judgment.
On appeal, the plaintiff contends that the Appellate
Court improperly determined that: (1) his causes of
action against the defendant were time barred because
he failed to allege sufficient facts in his pleadings before
the trial court to invoke the continuing course of con-
duct doctrine; and (2) under Fichera v. Mine Hill Corp.,
207 Conn. 204, 541 A.2d 472 (1988), the continuing
course of conduct doctrine does not apply to toll the
statute of limitations set forth in CUTPA. The defendant
contends otherwise and posits, as an alternative ground
for affirming the judgment of the Appellate Court, that
the undisputed facts in this case preclude the operation
of the continuing course of conduct doctrine as a matter
of law. We agree with the plaintiff that he sufficiently
invoked the continuing course of conduct before the
trial court. We agree with the defendant, however, that
equitable tolling pursuant to that doctrine is not avail-
able on the undisputed facts of this case and, accord-
ingly, we affirm the judgment of the Appellate Court.5
For purposes of the summary judgment proceedings
and the subsequent appeal only, the following relevant
facts and procedural history were not disputed by the
parties.6 In 1988, the plaintiff won $3 million in the Iowa
state lottery, to be paid in twenty annual installments
of $150,000. The defendant then was engaged in the
business of, inter alia, purchasing the installment pay-
ments of lottery winners by providing those winners
with discounted lump sum payments. Prior to March,
1999, the defendant had contacted the plaintiff numer-
ous times in unsuccessful attempts to convince him to
sell his installment payments. At some point before
March 23, 1999, the defendant formed a business rela-
tionship with Attorney Glenn MacGrady for the purpose
of having MacGrady provide what was purported to be
independent professional advice to lottery winners. The
purportedly independent advice, however, was tainted
by a conflict of interest. Specifically, MacGrady was
acting at the behest of the defendant to induce lottery
winners to sell their installment payments to it by falsely
advising them that they could gain significant tax advan-
tages.7 Consistent with this strategy, the defendant
arranged for MacGrady to communicate with the plain-
tiff, deliver the misleading advice and attempt to induce
him to sell his installment payments to the defendant.8
On March 23, 1999, the plaintiff entered into a retainer
agreement with MacGrady’s law firm, Pepe & Hazard,
LLP (Pepe & Hazard), pursuant to which MacGrady
and Pepe & Hazard agreed to represent the plaintiff
in connection with the sale of his lottery installment
payments. The retainer agreement executed by the
plaintiff provided that the agreed upon scope of repre-
sentation was limited to the sale transaction, and that
the parties’ attorney-client relationship would terminate
upon completion of the services associated with the
transaction and final billing for that work.9 In May,
1999, MacGrady and Pepe & Hazard signed an additional
retainer agreement with the defendant, agreeing to pro-
vide it legal services in connection with its lottery pur-
chase endeavors.10 On June 24, 1999, on the advice of
MacGrady, the plaintiff executed a sale agreement
whereby he agreed to sell his eight remaining install-
ment payments, which would have totaled $1.2 million,
to the defendant for a discounted lump sum payment
of $868,500.
Following the June, 1999 lottery sale, the defendant
had no further contact with the plaintiff. It no longer
engaged in the lottery purchase business sometime in
2000 or 2001.11
On September 15, 1999, Pepe & Hazard sent the plain-
tiff a final bill for the services it had rendered, thereby
terminating the attorney-client relationship. Thereafter,
the plaintiff filed a 1999 tax return listing the full amount
of the lump sum payment as the proceeds of a sale of
a capital asset, paying only the capital gains tax rate
on the amount received. In October, 2002, the Internal
Revenue Service (IRS) notified the plaintiff that it did
not agree with his treatment of the lump sum payment,
and it concluded that the plaintiff owed a tax deficiency
of $163,523.
At that time, the plaintiff contacted MacGrady, who
no longer was employed by Pepe & Hazard. MacGrady
continued to maintain the correctness of the tax advice,
and encouraged the plaintiff to join a group of similarly
situated lottery winners who also were challenging the
IRS’ treatment of their lump sum payments. MacGrady
provided assistance to, and received a referral fee from,
a Florida attorney who ran the tax appeal group. The
plaintiff joined this group, which ultimately was unsuc-
cessful with its appeal.
Throughout the entire time over which the foregoing
events occurred, from 1999 through 2002, MacGrady
never disclosed to the plaintiff his business relationship
with the defendant. Moreover, the defendant did not
disclose to the plaintiff its relationship with MacGrady.
On July 22, 2005, the plaintiff brought the present
action, claiming, in relevant part, that the defendant’s
conduct amounted to (1) aiding and abetting in the
breach of a fiduciary duty12 by MacGrady,13 and (2) a
violation of CUTPA.14 In its answer to the complaint,
the defendant set forth two special defenses, namely,
statutes of limitations and waiver. The plaintiff denied
the special defenses and pleaded, by way of avoidance
as to the statutes of limitations defenses, estoppel and
fraudulent concealment.15 After considerable discovery,
the defendant filed a motion for summary judgment,
which the plaintiff opposed. On June 30, 2009, the trial
court granted the defendant’s motion for summary judg-
ment on the basis that the action was time barred.
Specifically, the trial court reasoned, the breach of
the fiduciary duty alleged consisted of a conflict of
interest, namely, MacGrady’s dual representation of the
plaintiff and the defendant. That dual representation
ceased to exist, however, when Pepe & Hazard sent the
plaintiff its final bill on September 15, 1999, more than
three years prior to the plaintiff filing this action in
2005. According to the trial court, ‘‘[o]nce the [dual]
representation ended any breach of fiduciary duty
ended,’’ and, therefore, the statute of limitations, as
to both MacGrady and the defendant, as an aider and
abettor, began to run on September 15, 1999. The court
reasoned additionally that, although MacGrady, as a
fiduciary, had an obligation to disclose the dual repre-
sentation to the plaintiff, the defendant, as a mere pur-
chaser of the lottery payments, owed no such duty to
the plaintiff. On the basis of similar reasoning, the trial
court also found the plaintiff’s claim of fraudulent con-
cealment unavailing.
The trial court further found that the continuing
course of conduct doctrine was inapplicable to toll the
running of the statutes of limitations. According to the
court, the plaintiff had failed to plead a continuing
course of conduct in reply to the defendant’s special
defenses, and ‘‘[c]ontinuing course of conduct is a prin-
ciple that is required to be specially pleaded.’’ Finally,
the court held, the statute of limitations on the plaintiff’s
CUTPA claim was not subject to tolling pursuant to
this court’s decision in Fichera v. Mine Hill Corp.,
supra, 207 Conn. 204.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court claiming, inter alia, that
the trial court improperly determined that the three
year statutes of limitations for his aiding and abetting
the breach of a fiduciary duty and CUTPA claims; see
footnote 4 of this opinion; were not tolled by the contin-
uing course of conduct doctrine.16 Flannery v. Singer
Asset Finance Co., LLC, supra, 128 Conn. App. 513.
The Appellate Court rejected this claim, relying on its
decision in Beckenstein Enterprises-Prestige Park,
LLC v. Keller, 115 Conn. App. 680, 974 A.2d 764, cert.
denied, 293 Conn. 916, 979 A.2d 488 (2009), and conclud-
ing that the trial court had properly determined that
the plaintiff had not invoked this doctrine either in
his complaint or pleading in avoidance as required by
Practice Book § 10-57.17 Flannery v. Singer Asset
Finance Co., LLC, supra, 514–15. The Appellate Court
further agreed with the trial court that, pursuant to
Fichera v. Mine Hill Corp., supra, 207 Conn. 216–17,
the continuing course of conduct doctrine was inappli-
cable to the plaintiff’s CUTPA claim. Flannery v. Singer
Asset Finance Co., LLC, supra, 514. Accordingly, the
Appellate Court affirmed the judgment of the trial court,
concluding that the trial court properly granted the
defendant’s motion for summary judgment because ‘‘the
applicable statutes of limitations had not been tolled
by the actions of the defendant.’’ Id., 518. This certified
appeal followed. See footnote 2 of this opinion.
On appeal, the plaintiff claims that the Appellate
Court improperly: (1) concluded that the allegations
contained within his pleadings were insufficient to
invoke the continuing course of conduct doctrine; and
(2) relied on Fichera v. Mine Hill Corp., supra, 207
Conn. 216–17, in concluding that the continuing course
of conduct doctrine is inapplicable to the statute of
limitations governing CUTPA claims. In response, the
defendant contends otherwise and posits, as an alterna-
tive ground for affirming the judgment of the Appellate
Court, that the undisputed facts of this case preclude
the operation of the continuing course of conduct doc-
trine as a matter of law. We disagree with the Appellate
Court that the plaintiff did not adequately invoke the
continuing course of conduct doctrine but agree, never-
theless, with the defendant that that doctrine is inappli-
cable on the undisputed facts of this case. Because the
plaintiff’s tolling claim is entirely nonviable, we need
not address his second claim regarding the applicability
of tolling to save an untimely CUTPA action.
I
We begin with the plaintiff’s claim that the Appellate
Court improperly determined that he had not ade-
quately pleaded the continuing course of conduct doc-
trine in avoidance of the defendant’s statute of
limitations defense in accordance with Practice Book
§ 10-57. Specifically, the plaintiff contends that his reply
to the defendant’s special defense, coupled with the
allegations set forth in his complaint, adequately
invoked the continuing course of conduct doctrine.
Contending that there is an absence of any ‘‘legal author-
ity to support . . . a pleading requirement that the con-
tinuing course of conduct doctrine be specifically
labeled as such,’’ the plaintiff emphasizes that pleadings
should be read ‘‘broadly and realistically, rather than
narrowly and technically’’; (internal quotation marks
omitted) Collins v. Anthem Health Plans, Inc., 266
Conn. 12, 24, 836 A.2d 1124 (2003); and that ‘‘he included
the essential elements of the continuing course of con-
duct doctrine within his pleading of avoidance of limita-
tions,’’ which should be read in context with the specific
factual allegations in the complaint. The plaintiff further
notes that the continuing course of conduct doctrine
was briefed and argued before the trial court, and was
supported by the parties’ evidentiary submissions in
connection with the defendant’s summary judgment
motion.
In response, the defendant contends that the plain-
tiff’s invocation of the continuing course of conduct
doctrine was inadequate because his pleadings refer-
enced only ‘‘concealment doctrines,’’ ‘‘[did] not even
use the word ‘continuing’ ’’ and lacked necessary allega-
tions as to either MacGrady or the defendant that would
implicate the doctrine. Citing Beckenstein Enterprises-
Prestige Park, LLC v. Keller, supra, 115 Conn. App.
680, the defendant emphasizes that the plaintiff did not
comply with Practice Book § 10-57. See footnote 17 of
this opinion. We agree with the plaintiff and conclude
that, on this record, the Appellate Court should have
reached the merits of the plaintiff’s claims because the
trial court and the defendant were sufficiently apprised
of the continuing course of conduct issue by his plead-
ings and memoranda of law.
The applicable standard of review is undisputed and
well established. ‘‘The interpretation of pleadings is
always a question of law for the court . . . . Our
review of the trial court’s interpretation of the pleadings
therefore is plenary. . . . Furthermore, we long have
eschewed the notion that pleadings should be read in
a hypertechnical manner. Rather, [t]he modern trend,
which is followed in Connecticut, is to construe plead-
ings broadly and realistically, rather than narrowly and
technically. . . . [T]he complaint must be read in its
entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded, and do substantial justice between the parties.
. . . Our reading of pleadings in a manner that
advances substantial justice means that a pleading must
be construed reasonably, to contain all that it fairly
means, but carries with it the related proposition that
it must not be contorted in such a way so as to strain the
bounds of rational comprehension.’’ (Citation omitted;
internal quotation marks omitted.) Grenier v. Commis-
sioner of Transportation, 306 Conn. 523, 536, 51 A.3d
367 (2012). ‘‘[T]he practice of reading pleadings broadly
applies to special defenses as well.’’ Travelers Ins. Co.
v. Namerow, 261 Conn. 784, 796, 807 A.2d 467 (2002).
‘‘As long as the pleadings provide sufficient notice of
the facts claimed and the issues to be tried and do not
surprise or prejudice the opposing party, we will not
conclude that the complaint is insufficient to allow
recovery.’’ (Internal quotation marks omitted.) Id., 795.
Practice Book § 10-57 provides in relevant part that
‘‘[m]atter in avoidance of affirmative allegations in an
answer or counterclaim shall be specially pleaded in
the reply. . . .’’ Under § 10-57, ‘‘the continuing course
of conduct doctrine is a matter that must be pleaded
in avoidance of a statute of limitations special defense.’’
Beckenstein Enterprises-Prestige Park, LLC v. Keller,
supra, 115 Conn. App. 688, citing Bellemare v. Wachovia
Mortgage Corp., 94 Conn. App. 593, 607 n.7, 894 A.2d
335 (2006), aff’d, 284 Conn. 193, 931 A.2d 916 (2007);
accord Beckenstein v. Potter & Carrier, Inc., 191 Conn.
150, 163, 464 A.2d 18 (1983) (‘‘[i]n order to raise a claim
of fraudulent concealment, the party challenging a stat-
ute of limitations defense must affirmatively plead it’’).
Thus, in Beckenstein Enterprises-Prestige Park,
LLC, the case on which the Appellate Court relied in
rejecting the plaintiff’s claim in the present case; see
Flannery v. Singer Asset Finance Co., LLC, supra, 128
Conn. App. 514; the Appellate Court concluded that the
trial court properly declined to charge a jury on the
continuing course of conduct doctrine, noting that ‘‘the
plaintiffs had not pleaded the existence of a continuing
course of conduct in avoidance of the statute of limita-
tions defense’’; Beckenstein Enterprises-Prestige Park,
LLC v. Keller, supra, 115 Conn. App. 688; but rather,
had replied only with a general denial. The Appellate
Court rejected the plaintiffs’ claim that ‘‘they were not
required to plead the continuing course of conduct doc-
trine in response to the defendants’ special defense
because the factual allegations supporting the applica-
tion of the doctrine were contained in the com-
plaint.’’ Id.
Beckenstein Enterprises-Prestige Park, LLC, does
not, however, stand for the proposition that the pleading
requirements are so rigid as to require that potentially
meritorious claims in avoidance of the statute of limita-
tions be categorically barred in all cases because of
pleading lapses. Beyond the trial courts’ discretion to
overlook violations of the rules of practice in the
absence of a timely objection from the opposing party;
see, e.g., Schilberg Integrated Metals Corp. v. Continen-
tal Casualty Co., 263 Conn. 245, 273, 819 A.2d 773
(2003); it may be just to reach the merits of a plaintiff’s
claim to a toll of the statute of limitations, even when
not properly pleaded pursuant to Practice Book § 10-
57, if the issue is otherwise put before the trial court
and no party is prejudiced by the lapse in pleading. For
example, in Bellemare v. Wachovia Mortgage Corp.,
supra, 94 Conn. App. 607, the Appellate Court deemed
it ‘‘just’’ to reach the merits of a plaintiff’s claim that
the statute of limitations was tolled by the continuing
course of conduct doctrine, despite the plaintiff’s failure
to plead the doctrine properly pursuant to Practice
Book § 10-57, when the plaintiff asserted the doctrine’s
applicability ‘‘for the first time in a pleading filed in
opposition to the defendant’s motion for summary judg-
ment,’’ observing that ‘‘however imperfectly, the plain-
tiff placed the issue before the court . . . .’’ See also
Mollica v. Toohey, 134 Conn. App. 607, 611 n.3, 39 A.3d
1202 (2012) (reviewing plaintiffs’ continuing course of
conduct claim because, although they failed to plead
that issue in avoidance of special defense, defendant
did not object in trial court when plaintiffs raised doc-
trine in their objection to his summary judgment
motion).
In determining whether a party’s failure to ‘‘specially
plead’’ entitlement to a particular toll of the statute of
limitations pursuant to Practice Book § 10-57 is prejudi-
cial to its adversary, we find instructive case law
applying, in the context of statute of limitations
defenses, Practice Book § 10-3 (a),18 which requires par-
ties to ‘‘specifically [identify] by its number’’ in their
pleadings the statutory provisions that form the bases
for their claims. In that analogous context, our courts
have held the pleading requirement to be ‘‘directory
rather than mandatory. . . . As long as the defendant
is sufficiently apprised of the nature of the action . . .
the failure to comply with the directive of . . . § 10-3
(a) will not bar recovery.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Spears v.
Garcia, 66 Conn. App. 669, 675–76, 785 A.2d 1181 (2001),
aff’d, 263 Conn. 22, 818 A.2d 37 (2003); see also, e.g.,
Rocco v. Garrison, 268 Conn. 541, 556–57, 848 A.2d 352
(2004) (permitting plaintiff’s resort to improperly cited
accidental failure of suit statute because ‘‘there is no
indication that the defendant was misled by the plain-
tiffs’ incorrect citation’’). In the statute of limitations
context in particular, the Appellate Court has deemed
nonjurisdictional statute of limitations defenses to be
waived only when the record demonstrates that a party
has been prejudicially confused by its adversary’s fail-
ure to comply with the direction of Practice Book § 10-
3 (a). Compare, e.g., Cue Associates, LLC v. Cast Iron
Associates, LLC, 111 Conn. App. 107, 116–17, 958 A.2d
772 (2008) (limitations defense waived where, as to
particular claim, plaintiff unaware that defendant was
asserting it), and Ramondetta v. Amenta, 97 Conn. App.
151, 163–64, 903 A.2d 232 (2006) (defense to counter-
claim waived when ‘‘[a]t no point from the filing of the
defendant’s counterclaim to the rendering of judgment
by the court did the plaintiffs identify the applicable
statute on which they relied’’), with Altfeter v. Nauga-
tuck, 53 Conn. App. 791, 802, 732 A.2d 207 (1999) (per-
mitting defendant’s reliance on statute not raised as
special defense or identified in summary judgment
motion, but cited in accompanying memorandum).
Thus, we conclude that the plaintiff’s failure to plead
specifically his entitlement to a particular tolling doc-
trine pursuant to Practice Book § 10-57, while not a
good practice, does not operate as a bar or waiver
of that doctrine if the record demonstrates that the
defendant, nevertheless, was sufficiently apprised of
the plaintiff’s intention to rely on that doctrine and that
the defendant has not been prejudiced by the plaintiff’s
lapse in pleading.
Having thoroughly reviewed the record in this case,
we conclude that the Appellate Court improperly
upheld the trial court’s determination that the plaintiff
waived his right to assert the continuing course of con-
duct doctrine in avoidance of the defendant’s statute
of limitations special defense by failing to plead specific
entitlement to that doctrine pursuant to Practice Book
§ 10-57. Although it would have been a far better prac-
tice for the plaintiff to use the words ‘‘continuing course
of conduct’’ in his pleading in avoidance, the record
demonstrates that the defendant was sufficiently
apprised of the plaintiff’s intent to rely on that doctrine
and suffered no prejudice as a result of the plaintiff’s
lapse in pleading.19 Specifically, the plaintiff’s analysis in
his memorandum of law in opposition to the defendant’s
summary judgment motion sufficiently evokes the con-
tinuing course of conduct doctrine by arguing that, ‘‘[i]n
aiding and abetting MacGrady in the breach of his fidu-
ciary duties, [the defendant’s] liability is also vicarious,
derivative and coextensive with that of MacGrady . . .
including with respect to applying the statute of limita-
tions. In each case, the nature of the fiduciary miscon-
duct gives rise to a tolling of limitations by application
of the continuous course of conduct doctrine.’’ After
discussing the various factual allegations in the case in
detail, the plaintiff then emphasized the ‘‘vicarious and
derivative’’ nature of the aiding and abetting cause of
action, thus contending that ‘‘limitations is tolled as to
[the defendant] for the same reasons as it is tolled for
[MacGrady and Pepe & Hazard].’’20
The defendant’s reply memorandum of law in support
of its motion for summary judgment contains a lengthy
responsive discussion of the continuing course of con-
duct doctrine and its inapplicability to this case. More-
over, the applicability of the continuing course of
conduct doctrine was argued in detail orally twice
before the trial court—once in connection with the
summary judgment motion filed by the MacGrady and
Pepe & Hazard; see footnote 3 of this opinion; and
several weeks later in connection with the defendant’s
motion, focusing in particular on whether MacGrady’s
action of referring the plaintiff to the tax appeal group
for people with similar tax issues continued his previous
course of conduct. The record indicates, therefore, that
the defendant was not prejudiced by the plaintiff’s
apparent lapse in pleading, notwithstanding its objec-
tion before the trial court, which was renewed in the
Appellate Court.21 Thus, we conclude that both the
Appellate Court and the trial court should have reached
the merits of the plaintiff’s continuing course of conduct
claims in avoidance of the defendant’s statute of limita-
tions defenses.
II
We turn to the defendant’s alternative ground for
affirmance, namely, that the admitted or undisputed
facts of this case preclude the application of the contin-
uing course of conduct doctrine to toll the governing
three year statutes of limitations as a matter of law.
The defendant claims that the continuing course of
conduct doctrine is inapplicable because, indisputably,
it had no special relationship with the plaintiff and,
therefore, had no duty to disclose anything to the plain-
tiff, and it did not engage in any additional wrongdoing
toward, or have any further contact with, the plaintiff
following the close of the lottery transaction in 1999.
Moreover, according to the defendant, the fiduciary
status and/or conduct of MacGrady should not, as a
matter of law, be attributed to the defendant, an alleged
aider and abettor, for purposes of applying the continu-
ing course of conduct doctrine. Finally, the defendant
contends, even if a principal actor’s status and conduct
properly are attributed to an aider and abettor for pur-
poses of tolling a statute of limitations, there is no
genuine issue of material fact regarding whether Mac-
Grady, in the three years following the close of the
lottery transaction, breached any continuing duty to the
plaintiff by engaging in subsequent wrongful conduct
related to his earlier wrongful acts. Specifically, the
defendant argues, MacGrady’s October, 2002 act of
referring the plaintiff to the tax appeal group occurred
after the three year statutes of limitations already had
expired,22 and furthermore, because the attorney-client
relationship between MacGrady and the plaintiff ceased
to exist in September, 1999, once the lottery transaction
was complete, the statutes were not tolled in the years
subsequent to that transaction by MacGrady’s continu-
ing failure to disclose his prior conflict of interest.
The plaintiff disagrees with the defendant, arguing
that MacGrady’s fiduciary status and conduct properly
are attributable to the defendant for tolling purposes,
and that MacGrady engaged in a continuing course of
conduct by committing a fraud in connection with the
lottery transaction, by promising, contemporaneously
with that transaction, to represent the plaintiff anew if
he had trouble with the IRS, by continually failing to
disclose his conflict of interest subsequent to the close
of the transaction, and by referring the plaintiff to the
tax appeal group in October, 2002. According to the
plaintiff, despite the lack of an ongoing fiduciary rela-
tionship, MacGrady’s duty to disclose the conflict of
interest to the plaintiff continued indefinitely, until such
disclosure was made, and, therefore, his ongoing failure
to disclose constituted a continuing breach of that duty
that tolled the statutes of limitations. Moreover, the
plaintiff contends, the October, 2002 referral was a fur-
ther extension of the breach.
Even if we were to assume, without deciding, that
the status and/or subsequent wrongful conduct of a
principal tortfeasor should be attributed to an alleged
aider and abettor for purposes of tolling a statute of
limitations, we agree with the defendant that that
assumption could not aid the plaintiff on the undisputed
facts of this case.23 Specifically, MacGrady’s initial
breach of his fiduciary duty, which was based on a
conflict of interest, concluded at the latest in Septem-
ber, 1999, after the lottery transaction closed and he
ceased to represent the plaintiff, and his subsequent
act of referring the plaintiff to the tax appeal group
occurred in October, 2002. The subsequent act, there-
fore, occurred after the three year statutes of limitations
already had expired, and it was of no consequence for
tolling purposes. Additionally, because the attorney-
client relationship between MacGrady and the plaintiff
clearly ended in September, 1999, MacGrady no longer
had a duty, in the years that followed, to disclose his
prior conflict of interest that no longer existed. Thus,
his ongoing nondisclosure was not a continuing breach
of such a duty that could toll the statute of limitations
indefinitely. For these reasons, we conclude that the
trial court properly held that the plaintiff’s action
against the defendant is time barred.
We begin with the standard of review. ‘‘The standards
governing [an appellate tribunal’s] review of a trial
court’s decision to grant a motion for summary judg-
ment are well established. Practice Book [§ 17-49] pro-
vides 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. . . . A
material fact . . . [is] a fact which will make a differ-
ence in the result of the case. . . . Finally, the scope
of our review of the trial court’s decision to grant the
[defendant’s] motion for summary judgment is plenary.
. . . Summary judgment may be granted where the
claim[s] [are] barred by the statute of limitations. . . .
Summary judgment is appropriate on statute of limita-
tions grounds when the material facts concerning the
statute of limitations [are] not in dispute . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Rom-
prey v. Safeco Ins. Co. of America, 310 Conn. 304,
312–13, 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 dem-
onstrating 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 stat-
ute. See, e.g., Zielinski v. Kotsoris, 279 Conn. 312, 330,
901 A.2d 1207 (2006) (no genuine issue of material fact
as to whether statute of limitations was tolled under
continuing course of treatment or continuing course of
conduct doctrine); Witt v. St. Vincent’s Medical Center,
252 Conn. 363, 369–70, 746 A.2d 753 (2000) (genuine
issue of material fact as to whether continuous course
of conduct doctrine tolled statute of limitations in medi-
cal malpractice claim) . . . .’’ (Citations omitted.)
Romprey v. Safeco Ins. Co. of America, supra, 310
Conn. 321–22.24
The statutes of limitations applicable in the present
case are occurrence statutes. See footnote 4 of this
opinion. With such statutes, the limitations period typi-
cally begins to run as of the date the complained of
conduct occurs, and not the date when the plaintiff first
discovers his injury. Watts v. Chittenden, 301 Conn.
575, 583, 22 A.3d 1214 (2011). In certain circumstances,
however, we have recognized the applicability of the
continuing course of conduct doctrine to toll a statute
of limitations. Tolling does not enlarge the period in
which to sue that is imposed by a statute of limitations,
but it operates to suspend or interrupt its running while
certain activity takes place. Romprey v. Safeco Ins.
Co. of America, supra, 310 Conn. 330 (McDonald, J.,
dissenting). Consistent with that notion, ‘‘[w]hen the
wrong sued upon consists of a continuing course of
conduct, the statute does not begin to run until that
course of conduct is completed.’’ Handler v. Remington
Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957).
The test for determining whether the continuing
course of conduct doctrine should apply has developed
primarily in negligence cases. ‘‘For instance, we have
recognized the continuing course of conduct doctrine
in claims of medical malpractice. . . . In doing so, we
noted that [t]he continuing course of conduct doctrine
reflects the policy that, during an ongoing relationship,
lawsuits are premature because specific tortious acts
or omissions may be difficult to identify and may yet
be remedied. . . . The continuing course of conduct
doctrine has also been applied to other claims of profes-
sional negligence in this state. . . .
‘‘In these negligence actions, this court has held that
in order [t]o support a finding of a continuing course
of conduct that may toll the statute of limitations there
must be evidence of the breach of a duty that remained
in existence after commission of the original wrong
related thereto. That duty must not have terminated
prior to commencement of the period allowed for bring-
ing an action for such a wrong. . . . Where we have
upheld a finding that a duty continued to exist after the
cessation of the act or omission relied upon, there has
been evidence of either a special relationship between
the parties giving rise to such a continuing duty or some
later wrongful conduct of a defendant related to the
prior act. . . .
‘‘Therefore, a precondition for the operation of the
continuing course of conduct doctrine is that the defen-
dant must have committed an initial wrong upon the
plaintiff. . . .
‘‘A second requirement for the operation of the con-
tinuing course of conduct doctrine is that there must
be evidence of the breach of a duty that remained in
existence after commission of the original wrong
related thereto. . . . This court has held this require-
ment to be satisfied when there was wrongful conduct
of a defendant related to the prior act.’’ (Citations omit-
ted; internal quotation marks omitted.) Watts v. Chit-
tenden, supra, 301 Conn. 583–85. Such later ‘‘wrongful
conduct may include acts of omission as well as affirma-
tive acts of misconduct . . . .’’ Blanchette v. Barrett,
229 Conn. 256, 264, 640 A.2d 74 (1994).
In sum, ‘‘[i]n deciding whether the trial court properly
granted the defendant’s motion for summary judgment,
we must determine if there is a genuine issue of material
fact with respect to whether the defendant: (1) commit-
ted an initial wrong upon the plaintiff; (2) owed a contin-
uing duty to the plaintiff that was related to the alleged
original wrong; and (3) continually breached that duty.’’
Witt v. St. Vincent’s Medical Center, supra, 252
Conn. 370.
It is clear that in the present matter, the foregoing
test cannot be satisfied by looking to the actions of
the defendant. The plaintiff claimed that the defendant
aided and abetted MacGrady in committing an initial
wrong, namely, MacGrady’s breach of his fiduciary duty
contemporaneous with the sale of the plaintiff’s lottery
winnings in mid-1999. The plaintiff, however, has not
alleged or pointed to any evidence of any duty owed
by, or further misconduct on the part of, the defendant
following that sale. In regard to the lottery transaction,
the defendant and the plaintiff stood in relation of buyer
and seller and, as such, there was no special relationship
between them that imposed upon the defendant a duty
to disclose to the plaintiff any deception attendant to
the transaction. See Fichera v. Mine Hill Corp., supra,
207 Conn. 210. Moreover, there is no evidence that
suggests that the defendant had any further contact
with the plaintiff following that transaction, let alone
that it engaged in any additional related wrongdoing
toward the plaintiff.
The plaintiff argues, however, that because the defen-
dant aided and abetted MacGrady’s commission of an
initial wrong upon him, and because thereafter, Mac-
Grady continually breached a related continuing duty,
the statutes of limitations are tolled as to both his claims
against MacGrady and his claims against the defen-
dant. Even if we were to assume that the plaintiff’s view
of the law is correct, we disagree that tolling applies to
save the claims alleged against the defendant in this
case, because the undisputed facts show no continuing
course of conduct by either the defendant or MacGrady.
There is no dispute that in mid-1999, MacGrady com-
mitted an initial wrong upon the plaintiff. By represent-
ing the plaintiff in connection with the sale of his lottery
winnings to the defendant, while simultaneously
engaged professionally with the defendant and failing
to disclose that circumstance to the plaintiff, MacGrady
acted pursuant to an obvious conflict of interest25 and,
consequently, breached the fiduciary duty he owed to
the plaintiff which arose from the attorney-client rela-
tionship. Nevertheless, subsequent to that initial
breach, MacGrady no longer owed a continuing duty
to the plaintiff that he continued to breach, either by
committing later misconduct that was related to his
initial wrongful act or because there was an ongoing
special relationship between him and the plaintiff.
As we have explained, the lottery transaction closed
in June, 1999, and, by the clear terms of the retainer
agreement, MacGrady ceased to represent the plaintiff
entirely in September, 1999. See footnote 9 of this opin-
ion. As evidence of later wrongful misconduct, the plain-
tiff cites MacGrady’s act, in October, 2002, of referring
the plaintiff to the tax appeal group. We disagree that
that act, even if wrongful,26 could toll or, more accu-
rately, revive, the three year statutes of limitations
because by that time, those statutes already had run.
In Watts v. Chittenden, supra, 301 Conn. 595–98, a
case in which we determined that the continuing course
of conduct doctrine was available to toll the statute
of limitations for a claim of intentional infliction of
emotional distress, we emphasized that portions of such
claims would be disallowed, as with any continuing
tort, when the instances of wrongdoing comprising the
course of conduct are separated by a gap that exceeds
the length of the applicable statute of limitations. In
such cases, although the course of conduct postdating
such a gap may remain actionable (so long as the action
is timely commenced from the last instance of miscon-
duct), recovery is barred for the instances of miscon-
duct predating the gap. See also id., 612 (McLachlan,
J., dissenting) (‘‘[o]ther jurisdictions have recognized
that a course of conduct ceases when followed by a
significant gap before the misconduct resumes’’); id.,
613 (McLachlan, J., dissenting) (‘‘[o]rdinarily, when a
course of conduct ceases and is followed by a gap, the
statute of limitations is tolled if the tortfeasor engages
in the [subsequent] misconduct before the limitations
period has run’’ [emphasis added]). In other words, in
a tort action, following an initial wrong, the subsequent
activity triggering tolling ‘‘itself must occur before the
three-year statute of limitations has run, to effectively
toll it.’’ Greene v. Morgan, Theeler, Cogley & Petersen,
575 N.W.2d 457, 460 (S.D. 1998).
In the present matter, MacGrady’s original wrongdo-
ing ceased in September, 1999, after the plaintiff sold
his lottery winnings to the defendant and MacGrady’s
representation of the plaintiff, and any conflict of inter-
est due to MacGrady’s simultaneous representation of
the defendant, ended. Accordingly, when MacGrady
resumed his presumably wrongful course of conduct
in October, 2002, more than three years later, when he
advised the plaintiff to join a tax appeal group, the three
year statutes of limitations already had run. Because
the gap between instances of alleged wrongful conduct
exceeds the length of the three year statutes of limita-
tions for breach of a fiduciary duty and CUTPA claims,
no tolling is available under the rule stated in Watts v.
Chittenden, supra, 301 Conn. 583–85. Accordingly, the
plaintiff’s 2005 breach of a fiduciary duty claim against
MacGrady based on his conduct in 1999 was untimely.
By extension, the plaintiff’s aiding and abetting claim
against the defendant, as to its actions in 1999, also is
untimely, even if the plaintiff is correct that MacGrady’s
conduct properly is imputed to the defendant for toll-
ing purposes.
The plaintiff attempts to bridge this fatal gap between
instances of wrongful activity by citing the special rela-
tionship between himself and MacGrady, which, in the
plaintiff’s view, gave rise to MacGrady’s ongoing duty to
disclose to the plaintiff his dealings with the defendant.
According to the plaintiff, MacGrady’s duty to disclose
those dealings continued indefinitely, until it was satis-
fied, and as long as that duty remained unsatisfied,
MacGrady was in breach of it such that the statutes of
limitations were tolled. We are not persuaded.27
As to the existence of a special relationship, there is
no question that MacGrady, during the period of time
he acted as the plaintiff’s attorney, had fiduciary respon-
sibilities and an associated duty of loyalty toward the
plaintiff; see Beverly Hills Concepts, Inc. v. Schatz &
Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56, 717 A.2d
724 (1998) (‘‘an attorney-client relationship imposes a
fiduciary duty on the attorney’’); Matza v. Matza, 226
Conn. 166, 184, 627 A.2d 414 (1993) (‘‘[t]he relationship
between an attorney and his client is highly fiduciary
in its nature and of a very delicate, exacting, and confi-
dential character, requiring a high degree of fidelity and
good faith’’ [internal quotation marks omitted]); and
that MacGrady should not have represented the plaintiff
without disclosing his concurrent relationship with the
defendant. See Rules of Professional Conduct 1.7; see
also footnote 25 of this opinion. Pursuant to the clear
terms of the retainer agreement governing the relation-
ship, however, MacGrady’s brief representation of the
plaintiff was of very limited scope, and it quickly came
to a close when the lottery transaction was completed
and the plaintiff received his final bill for services ren-
dered, in September, 1999. See footnote 9 of this opin-
ion; see also DeLeo v. Nusbaum, 263 Conn. 588, 597, 821
A.2d 744 (2003) (‘‘formal termination of the [attorney-
client] relationship occurs when . . . the matter for
which the attorney was hired comes to a conclusion’’).
Once that representation ceased, any remaining duties
MacGrady owed to the plaintiff as a former client were
limited and did not include, as the plaintiff contends,
an indefinite duty to inform him of the prior conflict
of interest that no longer existed.28
Consistent with the foregoing, Connecticut’s appel-
late jurisprudence addressing the continuing course of
conduct doctrine in the attorney-client context largely
has held it to be inapplicable when the legal representa-
tion at issue has come to a close and there is no further
contact between the parties. These cases generally
reject the notion that the attorney has a continuing duty
to the client to correct or report an earlier wrong that,
if left unsatisfied, would toll the statute of limitations.29
They recognize that imposing a continuing duty in such
circumstances is futile because, once representation
ceases, the initial wrong typically is complete, and in
the usual situation, it no longer can be undone by the
attorney. See, e.g., Robbins v. McGuiness, 178 Conn.
258, 261–62, 423 A.2d 897 (1979) (no continuing duty
to warn former client about results of title search per-
formed in connection with completed land transaction);
Lee v. Brenner, Saltzman & Wallman, LLP, 128 Conn.
App. 250, 251, 258–59, 15 A.3d 1215 (no continuing duty
to warn plaintiff of alleged breach of fiduciary duty
in connection with concluded representation, which
involved drafting of corporation’s employment and
stockholder agreements), cert. denied, 301 Conn. 926,
22 A.3d 1277 (2011); Sanborn v. Greenwald, 39 Conn.
App. 289, 297, 664 A.2d 803, cert. denied, 235 Conn. 925,
666 A.2d 1186 (1995) (no continuing duty to warn former
client of consequences of negligently drafted stipula-
tion); but see Targonski v. Clebowicz, 142 Conn. App.
97, 110–11, 63 A.3d 1001 (2013) (defendant attorney had
ongoing duty to notify former clients of his failure to
secure right-of-way in connection with land purchase,
where, subsequent to closing, sellers’ attorney repeat-
edly contacted defendant offering to execute ease-
ment agreement).30
In the present case, as in Robbins, Sanborn, and Lee,
the attorney, MacGrady, represented the plaintiff client
for a discrete matter only, after which the attorney-
client relationship clearly was terminated. After the
attorney-client relationship between the plaintiff and
MacGrady came to a close, any conflict of interest
ceased to exist and, moreover, no further dealings
between the plaintiff and MacGrady were contem-
plated. Once the plaintiff sold his lottery winnings to
the defendant, the transaction that was the subject of
the representation was complete, and it could be neither
undone nor recompleted with MacGrady’s conflict of
interest properly disclosed and waived. See Rules of
Professional Conduct 1.7; see also footnote 25 of this
opinion. Accordingly, nothing would change were Mac-
Grady to disclose to the plaintiff, retroactively, the pre-
existing conflict. We conclude, therefore, that under
the circumstances of this case, MacGrady did not have
a continuing duty to disclose his prior conflict of inter-
est that he continually breached by failing to disclose
it.31
‘‘The gravamen of the continuing course of conduct
doctrine is that a duty continues after the original wrong
is committed.’’ Golden v. Johnson Memorial Hospital,
Inc., 66 Conn. App. 518, 525, 785 A.2d 234, cert. denied,
259 Conn. 902, 789 A.2d 990 (2001). ‘‘[I]n the absence
of a continuing special relationship, there must be a
subsequent wrongful act that is related to the prior
negligence.’’ (Internal quotation marks omitted.) Witt
v. St. Vincent’s Medical Center, supra, 252 Conn. 371.
In the present matter, in which no continuing special
relationship exists, the plaintiff essentially requests that
the three year statutes of limitations be tolled, indefi-
nitely, on the basis of his former attorney’s ongoing
failure to confess his earlier tortious act. To accept
this argument, however, would render the three year
statutes of limitations meaningless. Cf. Fitzgerald v.
Seamans, 553 F.2d 220, 230 (D.C. Cir. 1977) (explaining,
in rejecting plaintiff’s claim that statute of limitations
was tolled in wrongful retaliatory discharge action on
ground of continuing conspiracy to deny him rightful
employment, when plaintiff did not specify any retalia-
tory actions taken by defendants within limitations
period, that ‘‘the mere failure to right a wrong and
make [the] plaintiff whole cannot be a continuing wrong
which tolls the statute of limitations, for that is the
purpose of any lawsuit and the exception would obliter-
ate the rule’’).32
For the foregoing reasons, we conclude that the
undisputed evidence does not show a continuing course
of conduct on the part of MacGrady subsequent to the
lottery transaction in 1999. Accordingly, even if MacGra-
dy’s continuing course of conduct properly is attribut-
able to the defendant for tolling purposes, the plaintiff’s
claims against the defendant remain untimely.
‘‘The purposes of statutes of limitation include final-
ity, repose and avoidance of stale claims and stale evi-
dence.’’ Connecticut Bank & Trust Co. v. Winters, 225
Conn. 146, 157 n.20, 622 A.2d 536 (1993). These statutes
‘‘represent a legislative judgment about the balance of
equities in a situation involving the tardy assertion of
otherwise valid rights: [t]he theory is that even if one
has a just claim it is unjust not to put the adversary on
notice to defend within the period of limitation and that
the right to be free of stale claims in time comes to
prevail over the right to prosecute them.’’ (Internal quo-
tation marks omitted.) State v. Skakel, 276 Conn. 633,
682, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.
Ct. 578, 166 L. Ed. 2d 428 (2006).
Although the conduct alleged by the plaintiff in his
complaint undeniably is reprehensible, the policy con-
siderations underlying statutes of limitations clearly are
implicated by the substantial amount of time that has
elapsed between the acts complained of and the filing
of this action. Although this alone would not bar the
plaintiff’s claims were the statutes of limitations amena-
ble to tolling under the continuous course of conduct
doctrine, for the reasons we have explained herein, on
the undisputed facts of this case, they are not.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ZARELLA and LAVINE,
Js., concurred.
* This case originally was argued before a panel of this court consisting
of Chief Justice Rogers and Justices Norcott, Palmer, Zarella and Eveleigh.
Thereafter, the court, pursuant to Practice Book § 70-7 (b), sua sponte,
ordered that the case be considered en banc. Accordingly, Judges Espinosa
and Lavine were added to the panel, and they have read the record and
briefs and listened to a recording of the oral argument prior to participating
in this decision.
The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
Like the Appellate Court, we note that the correct spelling of the plaintiff’s
last name is Flanery. Flannery v. Singer Asset Finance Co., LLC, 128 Conn.
App. 507, 508 n.1, 17 A.3d 509 (2011). For the purpose of consistency,
however, we maintain the name Flannery in both the caption of this case
and internal citations in conformity with the pleadings, judgment file and
Appellate Court opinion.
2
We granted the plaintiff’s petition for certification limited to the following
issues: ‘‘1. Did the Appellate Court properly determine, in a case alleging
that the defendant [Singer Asset Finance Company, LLC] aided and abetted
[Attorney Glenn MacGrady and Pepe & Hazard, LLP] in a breach of their
fiduciary duty, that the allegations contained in both the plaintiff’s complaint
and in avoidance of a statute of limitations defense were insufficient to
invoke the continuous course of conduct doctrine as a means of tolling the
statute of limitations?
‘‘2. Did the Appellate Court properly determine that the three year statute
of limitations period for actions brought under the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq., cannot be tolled?’’ Flannery
v. Singer Asset Finance Co., LLC, 302 Conn. 902, 902–903, 23 A.3d 1242
(2011).
3
‘‘Attorney Glenn MacGrady and Pepe & Hazard, LLP, also were defen-
dants in this case. Partial summary judgment was rendered in their favor
on June 18, 2009, and the plaintiff, thereafter, withdrew all remaining claims
against these defendants. Accordingly, MacGrady and Pepe & Hazard, LLP,
are not parties to this appeal. We will refer only to Singer Asset Finance
Company, LLC, as the defendant for purposes of this opinion.’’ Flannery
v. Singer Asset Finance Co., LLC, 128 Conn. App. 507, 509 n.2, 17 A.3d
509 (2011).
4
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,’’ and is applicable to claims of breach of a fiduciary duty.
Ahern v. Kappalumakkel, 97 Conn. App. 189, 192 n.3, 903 A.2d 266 (2006).
General Statutes § 42-110g (f), which governs CUTPA claims, provides:
‘‘An action under this section may not be brought more than three years
after the occurrence of a violation of this chapter.’’
5
Because we conclude that the undisputed facts preclude tolling as to
both of the plaintiff’s claims, we need not decide whether Fichera v. Mine
Hill Corp., supra, 207 Conn. 204, also precludes tolling of the CUTPA claim.
6
The recited facts largely reflect the allegations of the plaintiff’s complaint.
The defendant denied all of the plaintiff’s allegations of its wrongdoing, but
its summary judgment motion assumed, for argument’s sake, that those
allegations were true.
7
In 1998, the defendant’s general counsel had provided MacGrady with
a confidential legal memorandum on the capital gains treatment of lottery
winnings that the accounting firm of Deloitte & Touche, LLP, had authored
for the defendant. Moreover, the defendant’s telephone records from early
1999 disclose that it communicated with MacGrady regarding a potential
transaction with the plaintiff.
8
‘‘The plaintiff points out: ‘It is worth repeating in this public document
that the evidence supports the conclusion that the law firm of Pepe & Hazard,
[LLP] at the time inexperienced in the tax matters, was not specifically aware
of what [A]ttorney MacGrady was up to with [the defendant]. That when
[Pepe & Hazard, LLP] became aware of what its employee was doing with
[the defendant] that it put a stop to it and soon after discharged MacGrady.’ ’’
Flannery v. Singer Asset Finance Co., LLC, supra, 128 Conn. App. 510 n.3.
9
The retainer agreement was comprised of a March 25, 1999 letter from
MacGrady to the plaintiff and an appended document outlining Pepe &
Hazard’s standard terms of engagement. The letter provided in relevant part:
‘‘The purpose of this letter is to outline the scope of the legal engagement,
to disclose to you our relationship with lottery purchase companies, and
to state our fees. The scope of the legal engagement is to represent you in
negotiating a lottery sale contract, to help you evaluate the tax and other
legal consequences of such a transaction, and to draft or review all the
legal and court documents needed to execute such a transaction.
‘‘Pepe & Hazard does not represent any lottery purchase company or
broker. Our only involvement with such organizations is that I have repre-
sented several other lottery winners in complex negotiations with them. In
that process, I have become very familiar with lottery purchase procedures
and contracts. I believe my name was suggested to you solely because
certain lottery purchase companies respect my professional ability as well
as my contract and tax knowledge. Our firm has no other relationship with
them. If you retain us, my firm will aggressively represent you to the best
of our abilities. . . .
‘‘A detailed description of our firm policies is contained in the enclosed
Standard Terms of Engagement for Legal Services. . . .
‘‘To confirm this engagement, please sign below on the enclosed copy of
this letter to indicate your understanding of and agreement to the terms.’’
(Emphasis added.) The plaintiff signed the letter agreement on March 26,
1999.
The appended document, entitled ‘‘Standard Terms of Engagement for
Legal Services,’’ stated in its introductory paragraph that the document
‘‘contains the standard terms of our engagement as your lawyers. Unless
modified in writing by mutual agreement, these terms will be an integral
part of our agreement with you.’’ Under the heading of ‘‘Scope of Pepe &
Hazard’s Representation,’’ the document provided further that ‘‘[t]he scope
of legal services we will provide is described in the accompanying engage-
ment letter,’’ and that ‘‘[i]t is also our policy that the attorney-client relation-
ship will be considered terminated upon our completion of any services
that you have retained us to perform. If you later retain us to perform
additional services, our attorney-client relationship will be revived subject
to these terms of engagement, as they may be supplemented at that time.’’
(Emphasis added.) Finally, under the heading ‘‘Ending Your Relationship
with Us,’’ the document provided that ‘‘[u]nless previously terminated, our
representation of you with respect to the agreed upon scope of representa-
tion will terminate upon sending you our final statement for services
rendered,’’ and that ‘‘[y]ou are engaging us to provide legal services in
connection with an agreed upon scope of representation. After completion
of the representation, changes may occur in the applicable laws or regula-
tions that could have an impact upon your future rights and liabilities. Unless
you actually engage us after the closing to provide additional advice on
issues arising from this representation, we have no continuing obligation
to advise you with respect to future legal developments.’’ (Emphasis added.)
10
Specifically, MacGrady agreed that he would, when requested by the
defendant, ‘‘communicate [his] current independent legal opinion on the
taxation of lottery assignments to persons and audiences selected by’’ the
defendant, including lottery winners and their professional advisers. He
further agreed to write a scholarly article setting forth his current legal
opinion on the taxation of lottery assignments. The retainer agreement stated
that MacGrady’s opinion would be ‘‘balanced, neutral and unbiased,’’ and
would neither favor nor disfavor the defendant’s economic interests. At the
same time, however, the agreement provided that the defendant would
compensate MacGrady at his hourly rate for the services performed and,
in its discretion, would pay a ‘‘performance bonus for any lottery assignment
transaction closed by [the defendant] in which the services provided hereun-
der by [Pepe & Hazard] is a significant contributing factor.’’
11
Billing records produced by Pepe & Hazard indicate that MacGrady
continued to provide professional services to the defendant, unrelated to
the lottery sale to the plaintiff, until September, 2000.
12
The Appellate Court assumed, without deciding, ‘‘that Connecticut rec-
ognizes an action for aiding and abetting in the breach of a fiduciary duty. See
Efthimiou v. Smith, 268 Conn. 499, 504–507, 846 A.2d 222 (2004) (discussing
claim of aiding and abetting in breach of fiduciary duty).’’ Flannery v. Singer
Asset Finance Co., LLC, supra, 128 Conn. App. 511 n.4. In Efthimiou,
although recognition of such a cause of action was unnecessary for the
disposition of the appeal, this court quoted Halberstam v. Welch, 705 F.2d
472, 477 (D.C. Cir. 1983), for the proposition that, ‘‘[a]iding-abetting includes
the following elements: (1) the party whom the defendant aids must perform
a wrongful act that causes an injury; (2) the defendant must be generally
aware of his role as part of an overall illegal or tortious activity at the time
that he provides the assistance; [and] (3) the defendant must knowingly
and substantially assist the principal violation . . . .’’ (Internal quotation
marks omitted.) Efthimiou v. Smith, supra, 505. Similar to Efthimiou, the
present case does not require us to decide whether aiding and abetting a
breach of a fiduciary duty is a viable cause of action in Connecticut, and
we decline to do so in dicta.
13
Specifically, the plaintiff alleged that MacGrady breached his fiduciary
duty by giving the plaintiff erroneous tax advice, advising him to sell his
lottery installment payments to the defendant, encouraging him to join the
tax appeal group, and continually failing to disclose his business relationship
with the defendant.
14
The plaintiff also raised several claims against MacGrady and Pepe &
Hazard, including, as to each, breach of a fiduciary duty and a CUTPA
violation. Those claims are not at issue in this appeal. See footnote 3 of
this opinion.
15
Specifically, the plaintiff’s pleading in avoidance provided: ‘‘The defen-
dant aided and abetted a fiduciary in concealing from the plaintiff and/or
failing to make proper disclosures to the plaintiff of the wrongdoing set
forth in the plaintiff’s complaint that gives rise to the plaintiff’s causes of
action and as a result is barred and estopped from asserting statute of
limitations defenses. The defendant fraudulently concealed from the plaintiff
its wrongdoing set forth in the plaintiff’s complaint that gives rise to the
plaintiff’s causes of action in violation of [General Statutes] § 52-595 and as
a result is barred from asserting statute of limitations defenses.’’
16
On appeal to the Appellate Court, the plaintiff also pursued his claim
of fraudulent concealment. Flannery v. Singer Asset Finance Co., LLC,
supra, 128 Conn. App. 515. The Appellate Court rejected this claim; id.,
515–17; and the plaintiff did not seek certification to appeal with respect
to it. Accordingly, we need not discuss the claim further.
17
Practice Book § 10-57 provides: ‘‘Matter in avoidance of affirmative
allegations in an answer or counterclaim shall be specially pleaded in the
reply. Such a reply may contain two or more distinct avoidances of the
same defense or counterclaim, but they must be separately stated.’’
18
Practice Book § 10-3 (a) provides: ‘‘When any claim made in a complaint,
cross complaint, special defense, or other pleading is grounded on a statute,
the statute shall be specifically identified by its number.’’
19
In regard to this pleading issue, the plaintiff contends that the allegations
set forth in his complaint are factually sufficient to support the invocation
of the continuing course of conduct doctrine as articulated in, for example,
Watts v. Chittenden, 301 Conn. 575, 585, 22 A.3d 1214 (2011). The defendant
argues to the contrary, positing that the absence of certain allegations in
the complaint, such as the existence of a ‘‘special relationship’’ between it
and the plaintiff or any conduct between them after the closing of the sale,
indicates that it could not have been expected to anticipate as a pleading
matter the plaintiff’s reliance on the continuing course of conduct doctrine,
which also fails on its merits. We decline to intertwine our consideration
of the merits of the plaintiff’s continuing course of conduct claims with a
determination of whether those claims are properly before the court. Put
differently, that the factual allegations in the complaint conceivably could
support application of this legal doctrine is not, by itself, sufficient to comply
with the rules of practice, which are intended to avoid unfair surprise to
the opposing parties and the court. Rather, what renders the merits of the
plaintiff’s claims reviewable at trial and on appeal is the fact that this record
reveals that the plaintiff’s pleading deficiencies plainly did not prejudice the
defendant’s statute of limitations defense.
20
In contrast, we note, however, that the plaintiff’s memoranda of law in
opposition to Pepe & Hazard and MacGrady’s motions for summary judgment
discussed the continuing course of conduct doctrine in detail.
21
Indeed, the record demonstrates that neither the plaintiff nor the defen-
dant scrupulously adhered to the rules of practice by clearly indicating
which statutes of limitation and doctrines in avoidance applied in this case.
As the plaintiff noted before the trial court, however, he did not claim
prejudice as a result of the defendant’s failure to follow Practice Book § 10-
3 (a) and to cite the applicable statute of limitations in its broadly worded
special defense.
22
On October 27, 2013, following oral argument in this court, we ordered
the parties to submit supplemental briefs addressing the following question:
‘‘Was the plaintiff’s underlying claim against . . . MacGrady and [Pepe &
Hazard] time barred because more than three years had elapsed between
the time of the claimed breach of the fiduciary duty in 1999 and MacGrady’s
subsequent referral of the plaintiff to the tax [appeal] group in October,
2002?’’ The rules for reviewing unpreserved claims of error articulated in
Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 144–64, 84 A.3d 840 (2014), are not implicated because
the issue on which briefing was ordered is but a facet of the preserved issue
that the parties have raised and briefed, namely, whether the continuing
course of conduct applies to render the plaintiff’s action timely. Moreover,
the supplemental briefing order predated the decision in Blumberg Associ-
ates Worldwide, Inc., by several months.
23
Even if the plaintiff’s claim were not foreclosed by factual deficiencies,
he has provided no legal authority, and little argument, in support of the
questionable notion that a principal tortfeasor’s conduct should be attributed
to an alleged aider and abettor for purposes of tolling a statute of limitations,
and the scant jurisprudence of which we are aware, which speaks only
indirectly to the issue, does not favor the plaintiff’s position. We agree with
the plaintiff that, because ‘‘the limitations period on a cause of action for
aiding and abetting a tort is the same as [that for] the underlying tort’’;
Wizard Gaming, Inc. v. Joshi, Docket No. B248174, 2014 WL 1047379, *5
(Cal. App. March 19, 2014); a claim of aiding and abetting the breach of a
fiduciary duty is subject to the same statute of limitations as the claim of
breach of a fiduciary duty against the principal tortfeasor, here, § 52-577.
Id.; see also Anderson v. Pine South Capital, LLC, 177 F. Supp. 2d 591, 604
(W.D. Ky. 2001). Moreover, because the aiding and abetting claim is deriva-
tive of the primary breach of a fiduciary duty claim, if the primary claim is
time barred, so is the aiding and abetting claim. See Kaufman v. Cohen,
307 A.D. 2d 113, 124–25, 760 N.Y.S.2d 157 (2003); see also Marshak v.
Marshak, 226 Conn. 652, 667–68, 628 A.2d 964 (1993) (viability of aiding
and abetting claim dependent on viability of underlying cause of action),
overruled on other grounds as stated in State v. Vakilzaden, 251 Conn. 656,
664, 742 A.2d 767 (1999).
The plaintiff has not established, however, that the inverse also is true,
i.e., that if the claim against the primary tortfeasor is timely due to tolling,
so, necessarily, is the claim against the alleged aider and abettor. Extrajuris-
dictional authority, concededly sparse, suggests otherwise. See, e.g., Kauf-
man v. Cohen, supra, 307 A.D. 2d 121–26 (holding that fraud discovery
accrual rule could operate to toll claims against principal tortfeasor, then
concluding, by analyzing alleged aiders and abettors’ own status and acts,
that same tolling doctrine did not apply to toll claims against them); see
also Wultz v. Bank of China, Ltd., United States District Court, Docket No.
11-Civ.-266 (SAS), F.R.D. (2013), 2013 WL 1641179, *2–3 (S.D.N.Y. April
16, 2013) (analyzing applicability of equitable tolling to aiding and abetting
claim by evaluating only actions of alleged aider and abettor); Ingham v.
Thompson, 88 A.D. 3d 607, 608, 931 N.Y.S.2d 306 (2011) (same); cf.
Lesti v. Wells Fargo Bank, N.A., 960 F. Supp. 2d 1311, 1321 (M.D. Fla. 2013)
(looking only to behavior of alleged aider and abettor when determining
whether statute of limitations on aiding and abetting claim has run).
According to the dissenting opinion, Kaufman v. Cohen, supra, 307 Ohio App.
Div. 2d 125–27, Ingham ex rel. Cobalt Asset Management, L.P. v. Thompson,
supra, 88 A.D. 3d 608–609, and Monaghan v. Ford Motor Co., 71 Ohio App.
Div. 3d 848, 850, 897 N.Y.S.2d 482 (2010), provide support for the proposition
that, if an aiding and abetting claim appears to have merit, the statute of
limitations on that claim may be tolled on the basis of the principal tortfea-
sor’s continuing course of conduct. None of those cases so hold, however,
either directly or indirectly. In both Kaufman v. Cohen, supra, 125–27, and
Ingham ex rel. Cobalt Asset Management, L.P. v. Thompson, supra, 608–609,
the Appellate Division of the Supreme Court, in evaluating claims of aiding
and abetting the breach of a fiduciary duty, simply concluded that those
claims both: (1) lacked substantive merit; and (2) were untimely because
certain tolling doctrines are inapplicable, after applying those doctrines with
reference to the alleged aiders’ and abettors’ own status and actions. In
neither case did the court indicate in any way that, had the aiding and
abetting claims been meritorious, they would have been timely because a
tolling doctrine applied to save the associated claim against the principal
actor. In fact, in Ingham ex rel. Cobalt Asset Management, L.P., the claims
against the principal actor are not even discussed. In Monaghan v. Ford
Motor Co., supra, 850, the Appellate Division held that: (1) because the
plaintiff’s claims of aiding and abetting a breach of a fiduciary duty contained
essential allegations of fraud, they were governed by a six year statute of
limitations, rather than a three year statute of limitations; and (2) those
claims were adequately pleaded in the plaintiff’s complaint. Again, the court
in Monaghan did not discuss the claims raised against the principal actor
and, moreover, no tolling doctrines are mentioned.
Putting aside the foregoing authority, it is doubtful that tolling a statute
of limitations against an alleged aider and abettor on the basis of the principal
tortfeasor’s conduct alone is consistent with the policies underlying statutes
of limitations, namely, to prevent the unexpected enforcement of stale claims
and the impairment of proof wrought by lost witnesses and/or evidence.
See Neuhaus v. DeCholnoky, 280 Conn. 190, 206–207, 905 A.2d 1135 (2006).
From the perspective of an alleged aider and abettor who has no ongoing
relationship with a plaintiff, and engages in no further misconduct toward
that plaintiff, these concerns clearly are implicated.
24
We reject the plaintiff’s contention that it was the defendant’s burden, as
the party moving for summary judgment, to negate the plaintiff’s allegations
regarding the applicability of the continuing course of conduct doctrine.
The case on which the plaintiff relies, Allstate Ins. Co. v. Barron, 269 Conn.
394, 848 A.2d 1165 (2004), did not involve an equitable tolling doctrine and,
therefore, is inapposite.
25
Rule 1.7 of the Rules of Professional Conduct provides: ‘‘(a) Except as
provided in subsection (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent con-
flict of interest exists if:
‘‘(1) the representation of one client will be directly adverse to another
client; or
‘‘(2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer’s responsibilities to another
client, a former client or a third person or by a personal interest of the lawyer.
‘‘(b) Notwithstanding the existence of a concurrent conflict of interest
under subsection (a), a lawyer may represent a client if:
‘‘(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
‘‘(2) the representation is not prohibited by law;
‘‘(3) the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same litigation
or the same proceeding before any tribunal; and
‘‘(4) each affected client gives informed consent, confirmed in writing.’’
26
Unlike MacGrady’s conduct in 1999, it is unclear that the 2002 referral
was tainted by a conflict of interest and, therefore, constituted an additional
breach of a fiduciary duty.
27
In support of his claim that MacGrady’s duty to disclose his prior conflict
of interest continued indefinitely, until it was disclosed, the plaintiff cites
deposition testimony of the managing partner of Pepe & Hazard agreeing
with the plaintiff’s counsel when counsel queried the partner on this point.
The managing partner’s legal opinion, however, is not binding on this court.
The dissent inaccurately characterizes the partner’s deposition testimony
as expert testimony, accepts that testimony unquestioningly as an accurate
statement of the law, and contends, on the basis of the testimony, that it
is ‘‘undisputed’’ that MacGrady’s fiduciary duty survived the termination of
the attorney-client relationship with the plaintiff. We disagree with each of
these points. The partner testified as a fact witness, his answer regarding
the indefinite duty to disclose is not supported by our research, as we
discuss herein, and the defendant in the present matter clearly contests
whether that answer is correct.
28
The duties owed to a former client by his attorney ‘‘are significantly
lessened as compared to the corresponding duties owed to clients before
the client-lawyer relationship has terminated.’’ 1 G. Hazard & W. Hodes,
The Law of Lawyering (3d Ed. Supp. 2005) § 13.3, p. 13–7. Generally speaking,
an attorney must refrain from representing an adverse party in the same
matter in which he previously has represented the former client, or in a
substantially related matter, without the former client’s written consent,
and further, the attorney must not use or disclose confidential information
learned about the former client during the representation. See id., § 13.2,
p. 13–6; see also Rules of Professional Conduct 1.9. Additionally, an attorney
should return property and/or documents belonging to a former client, take
reasonable steps to convey to the client material communications received
that relate to the concluded representation and refrain from further represen-
tation absent new authorization from the client. See 1 Restatement (Third),
The Law Governing Lawyers § 33 (2000).
The dissent, quoting without context from Mergler v. Crystal Properties
Associates, Ltd., 179 A.D. 2d 177, 182, 583 N.Y.S.2d 229 (1992), observes
that ‘‘ ‘attorneys have a continuing confidential relationship of trust and fair
dealing [that] survives the termination of the attorney-client relationship
. . . .’ ’’ See footnote 9 of the dissenting opinion. In Mergler, however, the
court upheld the viability of a general release executed by a law firm and
its former client after the attorney-client relationship had been terminated.
Mergler v. Crystal Properties Associates, Ltd., supra, 183–84. The court
reasoned, in part, that the law firm was not required to establish that execu-
tion of the release was free from fraud because, at the time of execution,
there no longer was a fiduciary relationship between the parties. Id., 181.
Similarly, in the present case, after the completion of the lottery transaction,
there no longer was a fiduciary relationship between the plaintiff and
MacGrady.
The dissent contends additionally that MacGrady ‘‘extended’’ his 1999
breach of a fiduciary duty by assuring the plaintiff, at the time of the lottery
sale, that he would be available to represent him again in the future were
he to have trouble with the IRS, and that that assurance ‘‘cultivated [MacGra-
dy’s] fiduciary relationship with the plaintiff . . . .’’ The dissent, however,
provides no support for the proposition that a fiduciary duty extends beyond
the termination of an attorney-client relationship because the attorney offers
to represent the client again in the future should the need happen to arise,
and we are not aware of any such authority.
29
In contrast, the doctrine has been found applicable in the case of an
ongoing, intra-family attorney-client relationship. See Giulietti v. Giulietti,
65 Conn. App. 813, 835–36, 784 A.2d 905 (defendant attorney, who provided
regular legal services to his elderly father over period of years, had continuing
duty to effectuate father’s directives regarding transfers of his property to
plaintiff and his siblings), cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96,
97 (2001).
30
In the medical malpractice context, we have held that a physician’s duty
to warn a patient of a known dangerous medical condition or risk may
extend beyond the close of treatment, even when there no longer is a
physician-patient relationship, and that the physician may breach that duty
by his or her continual failure to warn, thereby triggering the continuing
course of conduct doctrine. See, e.g., Witt v. St. Vincent’s Medical Center,
supra, 252 Conn. 371–72 (pathologist had continuing duty to warn plaintiff
of his admitted concern that plaintiff may have been developing lymphoma,
which pathologist had failed to communicate at time he evaluated biopsy);
Sherwood v. Danbury Hospital, 252 Conn. 193, 207–208, 746 A.2d 730 (2000)
(hospital had continuing duty to inform patient of risk of HIV infection from
transfusion of untested blood). Public policy supports the imposition of a
continuing duty in this context because, even posttreatment, there is an
ongoing threat to the patient’s physical health that might be lessened or
alleviated by the receipt of a warning, even if it is belatedly delivered. In
other words, in such cases, a warning would not be a futility. See also
Handler v. Remington Arms Co., supra, 144 Conn. 321 (tolling statute of
limitation in negligence action for defendant manufacturer’s continuing fail-
ure to warn of danger from ammunition known to be defective).
31
The plaintiff directs us to allegations or evidence showing that Mac-
Grady, by commission of his original wrong, committed fraud and, contempo-
raneously with that wrong, promised to do something additional in the
future, namely, to represent the plaintiff in related subsequent dealings with
the IRS. The plaintiff then contends that the statutes of limitations were
tolled under the continuing course of conduct doctrine on the basis of these
circumstances. In support of that argument, the plaintiff quotes language
from the Appellate Court’s opinion in Rosenfield v. Rogin, Nassau, Caplan,
Lassman & Hirtle, LLC, 69 Conn. App. 151, 161–62, 795 A.2d 572 (2002),
indicating that a defendant’s ‘‘affirmative conduct after the initial wrong’’
that could result in tolling includes ‘‘making promises after the initial wrong
or promises to do anything in the future,’’ or ‘‘commit[ing] fraud.’’ (Emphasis
added.) See also Sanborn v. Greenwald, supra, 39 Conn. App. 296–97 (stating
similarly). By its terms, this statement of law does not apply to the evidence
cited by the plaintiff because that evidence relates to MacGrady’s initial
misconduct, at the time of the lottery transaction, and not to any subse-
quently occurring misconduct.
The plaintiff also observes, repeatedly, that MacGrady and Pepe & Hazard
did not pursue, in their summary judgment motion, statutes of limitations
defenses on the malpractice and breach of a fiduciary duty claims that he
alleged against them, and contends that this, necessarily, is because those
defenses were not viable due to the availability of tolling. This argument
ignores the reality that, for various reasons, parties often choose to settle,
rather than litigate, claims for which there are potentially meritorious
defenses.
32
The dissent relies on the Appellate Court’s decision in Haas v. Haas,
137 Conn. App. 424, 48 A.3d 713 (2012), as support for the notion that
MacGrady’s ongoing failure to disclose his earlier breach of a fiduciary duty
constituted a continuing course of wrongful conduct. That case is readily
distinguishable from the present matter, however, in that it involved a defen-
dant accountant’s repeated, active and deliberate concealment of documents
and information that would have illuminated his earlier wrongdoing. See
id., 434–35. Specifically, the defendant, both prior to and during litigation,
refused to provide those documents and information in response to numer-
ous requests of the plaintiff, who was the defendant’s elderly mother, the
plaintiff’s attorney, and a court-ordered forensic accountant. See id., 428–30.
In contrast, in the present matter, MacGrady’s failure to disclose was
entirely passive.