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

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FLANNERY v. SINGER ASSET FINANCE COMPANY, LLC—DISSENT
NORCOTT, J., with whom EVELEIGH and
ESPINOSA, Js., join, dissenting. I respectfully disagree
with part II of the majority’s opinion,1 which concludes
that the claims of the plaintiff, John D. Flanery,2 alleging
that the defendant, Singer Asset Finance Company,
LLC,3 aided and abetted the plaintiff’s attorney in the
breach of his fiduciary duty and violated the Connecti-
cut Unfair Trade Practices Act (CUTPA), General Stat-
utes § 42-110a et seq., were time barred on the admitted
or undisputed facts of this case. Accordingly, the major-
ity affirms the judgment of the Appellate Court uphold-
ing the trial court’s grant of the defendant’s motion
for summary judgment. See Flannery v. Singer Asset
Finance Co., LLC, 128 Conn. App. 507, 518, 17 A.3d
509 (2011). In my view, the plaintiff adduced sufficient
evidence to raise a genuine issue of material fact that
the continuing course of conduct doctrine was available
to toll the statute of limitations because: (1) that doc-
trine tolled the running of the applicable three year
statute of limitations, General Statutes § 52-577,4 against
Glenn MacGrady, the attorney who had breached his
fiduciary duties while representing the plaintiff during
the sale of his lottery winnings to the defendant in
exchange for a lump sum payment; and (2) the defen-
dant had aided and abetted MacGrady’s breach of that
fiduciary duty, thereby rendering the continuing course
of conduct toll applicable to the aiding and abetting
claims against the defendant. I further agree with the
plaintiff that the Appellate Court improperly relied on
this court’s decision in Fichera v. Mine Hill Corp., 207
Conn. 204, 541 A.2d 472 (1988), to conclude that, as a
matter of law, the continuing course of conduct doc-
trine does not apply to the three year CUTPA statute
of limitations, General Statutes § 42-110g (f).5 Because
the plaintiff is entitled to a trial on these issues, I would
reverse the judgment of the Appellate Court holding to
the contrary. Accordingly, I respectfully dissent.
I
AIDING AND ABETTING CLAIMS
I begin by noting my agreement with the majority’s
statement of the relevant facts and procedural history,
which I need not repeat here. By way of background, the
defendant claims that the continuing course of conduct
doctrine is inapplicable because it individually did not
engage in any subsequent acts with respect to the plain-
tiff after the closing of the lottery winnings sale in
September, 1999, and, further, lacked the requisite ‘‘spe-
cial relationship’’ with him, in contrast to his fiduciary
attorney-client relationship with MacGrady, the attor-
ney who represented the plaintiff during the transac-
tion. Relying heavily on a New York decision, Kaufman
v. Cohen, 307 A.D. 2d 113, 760 N.Y.S.2d 157 (2003),
the defendant contends that the attorney-client fidu-
ciary relationship between MacGrady and the plaintiff
should not be attributed to it for purposes of tolling
the statute of limitations, despite the derivative nature
of the plaintiff’s aiding and abetting claim against the
defendant. Finally, the defendant contends that, even
if the fiduciary relationship between MacGrady and the
plaintiff is attributed to it as an aider and abettor, under
Lee v. Brenner, Saltzman & Wallman, LLP, 128 Conn.
App. 250, 15 A.3d 1215, cert. denied, 301 Conn. 926, 22
A.3d 1277 (2011), and Sanborn v. Greenwald, 39 Conn.
App. 289, 664 A.2d 803, cert. denied, 235 Conn. 925,
666 A.2d 1186 (1995), the attorney-client relationship
between MacGrady and the plaintiff ended after the
closing of the sale in 1999, and MacGrady’s act of refer-
ring the plaintiff to another attorney for defense follow-
ing the issuance of a tax deficiency by the Internal
Revenue Service (IRS) in 2002 did not constitute a con-
tinuing course of conduct for purposes of tolling the
statute of limitations.
In response, the plaintiff relies upon Anderson v. Pine
South Capital, LLC, 177 F. Supp. 2d 591, 604 (W.D. Ky.
2001), for his argument that ‘‘the liability of one who
aids and abets a fiduciary in breaching their fiduciary
duty is not only derivative of the fiduciary’s duty, but
also coextensive with the liability of the fiduciary,
including as to the application of limitations defenses.’’
In his reply brief, the plaintiff then contends that the
New York decision in Kaufman is factually distinguish-
able and, further, stands for the proposition that,
because the plaintiffs’ allegations in that case against
the aiders and abettors ‘‘were insufficient to support
the claim that . . . [they] actively support[ed] [the
fiduciary’s] scheme, the only way that limitations could
be tolled as to those defendants would be if they owed
independent and direct fiduciary duties to the plain-
tiffs,’’ similar to the fiduciary. The plaintiff then cites
evidence in the record to contrast with Kaufman,
including the defendant’s telephone logs and sales notes
documenting the defendant’s attempt to woo the plain-
tiff, which demonstrates the defendant’s active role in
aiding and abetting MacGrady’s breach of his fiduciary
duty, thereby rendering MacGrady’s continuous course
of conduct during and after the legal representation
attributable to the defendant. The plaintiff further cites
the deposition testimony of Stephen Hazard, the manag-
ing partner of Pepe & Hazard, LLP (Pepe & Hazard),
MacGrady’s employer, and rule 1.7 of the Rules of Pro-
fessional Conduct,6 in support of the proposition that
MacGrady’s unsatisfied obligation to disclose his con-
flict of interest continued indefinitely past the conclu-
sion of his retained representation of the plaintiff, which
created a continuing duty under which the statute of
limitations was extended as to MacGrady; that exten-
sion was imputed to the defendant. I agree with the
plaintiff, and conclude that there is sufficient evidence
to create a genuine issue of material fact as to whether
the continuous course of conduct doctrine tolled the
running of the statute of limitations on his claim that
the defendant had aided and abetted the breach of a
fiduciary duty owed to him by MacGrady, his attorney.
A
Background Legal Principles
In the context of the summary judgment motion that
forms the basis for this appeal, the ‘‘question of whether
a party’s claim is barred by the statute of limitations is
a question of law, which this court reviews de novo.’’
(Internal quotation marks omitted.) Watts v. Chitten-
den, 301 Conn. 575, 582, 22 A.3d 1214 (2011). Beyond the
well established general standard for granting summary
judgment; see, e.g., Zielinski v. Kotsoris, 279 Conn.
312, 318–19, 901 A.2d 1207 (2006); as the majority aptly
notes, this court has recently held that, ‘‘in 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 nor-
mally shifts to the plaintiff to establish a disputed issue
of material fact in avoidance of the statute.’’ (Citation
omitted.) Romprey v. Safeco Ins. Co. of America, 310
Conn. 304, 321, 77 A.3d 726 (2013).
The statute of limitations issue in this appeal is
informed by the derivative nature of the plaintiff’s claim
that the defendant aided and abetted MacGrady in the
breach of his fiduciary duty; the viability of the aiding
and abetting claim is intertwined with that of the under-
lying cause of action. See, e.g., Efthimiou v. Smith, 268
Conn. 499, 504–505, 846 A.2d 222 (2004) (concluding in
aiding and abetting case that plaintiffs were collaterally
estopped from relitigating underlying finding in related
case with respect to breach of fiduciary duty). In
Efthimiou, this court quoted Halberstam v. Welch, 705
F.2d 472, 477 (D.C. Cir. 1983), for the elements of the
aiding and abetting tort, namely: ‘‘(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.
Because of the derivative nature of the cause of
action, if the underlying claim for aiding and abetting
the breach of a fiduciary duty is time barred by the
statute of limitations, then the derivative aiding and
abetting claim will be time barred as well. See, e.g.,
Anderson v. Pine South Capital, LLC, supra, 177 F.
Supp. 2d 604 (‘‘we hold that the statute of limitations
for a charge of aiding and abetting should fall under
the section reserved for the underlying cause of action
which, in the present case, has not yet expired’’); Kauf-
man v. Cohen, supra, 307 A.D. 2d 124–25
(reviewing aiding and abetting claims to determine
whether they specifically are time barred because
appellate court’s determination that ‘‘primary breach
of fiduciary duty causes of action . . . are indeed via-
ble . . . vitiates the [trial] court’s holding that the
derivative claims [for aiding and abetting] should be
dismissed’’); cf. Stokes v. Southeast Hotel Properties,
Ltd., 877 F. Supp. 986, 1001 (W.D.N.C. 1994) (concluding
that loss of consortium claim was time barred under
North Carolina law because it was derivative of time
barred wrongful death claim); Hinson v. Owens-Illi-
nois, Inc., 677 F. Supp. 406, 407 n.1 (D.S.C. 1987)
(‘‘because [the husband’s] cause of action is barred by
the statute of limitations . . . [the wife’s] cause of
action [for loss of consortium] must also fail’’ [cita-
tions omitted]).
In this vein, the present appeal presents the question
of whether a claim could be time barred as to the aider
and abettor if not necessarily time barred as to the
principal actor. Thus, I note that the ‘‘parties in the
present case do not dispute that the plaintiff’s claim is
governed by the tort statute of limitations set forth in
. . . § 52-577. 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. In construing our general tort statute of limitations
. . . we have concluded that the history of that legisla-
tive 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 date of the act or omission com-
plained of is the date when the . . . conduct of the
defendant occurs . . . .’’ (Citation omitted; internal
quotation marks omitted.) Watts v. Chittenden, supra,
301 Conn. 582–83.
As the majority recognizes, the harsh effects of the
occurrence nature of § 52-577 may, however, be miti-
gated by the application of certain tolling doctrines,
including the continuing course of conduct doctrine.
‘‘This court has recognized the continuing course of
conduct doctrine in many cases involving claims sound-
ing in negligence. 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 professional negli-
gence 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. . . .
‘‘[A] precondition for the operation of the continuing
course of conduct doctrine is that the defendant 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.) Id., 583–85.
‘‘[C]ontinuing wrongful conduct may include acts of
omission as well as affirmative acts of misconduct
. . . .’’ (Internal quotation marks omitted.) Sherwood
v. Danbury Hospital, 252 Conn. 193, 205, 746 A.2d 730
(2000). The effect of the continuing course of conduct
doctrine is to delay the commencement of the running
of the statute of limitations. See, e.g., Handler v. Rem-
ington Arms Co., 144 Conn. 316, 321, 130 A.2d 793
(1957) (‘‘[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’’).
Given the paucity of case law from Connecticut or
elsewhere discussing the application of tolling doc-
trines to otherwise time barred claims of aiding and
abetting a breach of a fiduciary duty, I begin my analysis
with Kaufman v. Cohen, supra, 307 A.D. 2d 113,
upon which both parties heavily rely. Kaufman con-
cerned, inter alia, whether any of New York’s tolling
doctrines applied to save the plaintiffs’ otherwise time
barred aiding and abetting a breach of a fiduciary duty
claim against the ‘‘Falchi defendants,’’ who had secret
dealings with the defendant, Irwin B. Cohen, the plain-
tiffs’ former business partner, to reacquire a foreclosed
real estate investment property formerly held by the
plaintiffs and Cohen. Id., 125–27. As the defendant
argues, the court in Kaufman held that the continuing
course of conduct doctrine will toll the statute of limita-
tions on an aiding and abetting claim when the aider
and abettor has its own fiduciary relationship with the
plaintiff and the principal actor engages in a continuing
course of conduct, namely because the aider and abet-
tor with a fiduciary duty has an ongoing duty to disclose
material facts. Id., 126–27; accord Falls Church Group,
Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 107,
912 A.2d 1019 (2007) (‘‘although fraudulent conceal-
ment generally requires an affirmative act of conceal-
ment, nondisclosure is sufficient when the defendant
has a fiduciary duty to disclose material facts’’ [internal
quotation marks omitted]). The plaintiff does not dis-
pute the defendant’s contention that no such indepen-
dent fiduciary relationship existed here between it and
the plaintiff, as they were simply buyer and seller. See,
e.g., Fichera v. Mine Hill Corp., supra, 207 Conn. 210
(vendor-vendee ‘‘relationship does not give rise to obli-
gations equivalent to those of a fiduciary’’).
That the plaintiff lacked an independent fiduciary
relationship with the defendant in this case is not, how-
ever, fatal to his attempt to toll the statute of limitations
against the defendant. I agree with the plaintiff that
Kaufman also stands for the proposition that, in the
absence of an independent fiduciary relationship
between the plaintiff and the aider and abettor, as is
the case here, the merits of the aiding and abetting
claims significantly inform whether the statute of limita-
tions should be tolled. See Kaufman v. Cohen, supra,
307 A.D. 2d 125–27; see also Ingham ex rel. Cobalt
Asset Management, L.P. v. Thompson, 88 A.D.
3d 607, 608–609, 931 N.Y.S.2d 306 (2011) (aiding and
abetting breach of fiduciary duty claim barred by statute
of limitations when defendant, who entered into
agreement with plaintiff’s former business partner, did
not make any affirmative representations or have fidu-
ciary duty directly to plaintiff, and no evidence that
defendant had reason to believe it was acting wrongfully
at time of transaction with plaintiff’s former business
partner); Monaghan v. Ford Motor Co., 71 A.D. 3d
848, 850, 897 N.Y.S.2d 482 (2010) (concluding that aiding
and abetting fiduciary duty claim should not have been
dismissed as time barred because underlying claim was
timely, but then considering merits of aiding and abet-
ting claim). Thus, put differently, the court must deter-
mine whether aiding and abetting actually occurred
rather than automatically applying any tolling doctrine
applicable to the principal actor to the alleged aider
and abettor; if that aiding and abetting occurred, then
a tolling doctrine applicable to the principal actor would
apply to the aider and abettor. This rule is consistent
with the derivative nature and elements of the aiding
and abetting tort, specifically, those of knowledge and
substantial assistance.7 See Efthimiou v. Smith, supra,
268 Conn. 505. Thus, I first examine whether the defen-
dant engaged in aiding and abetting, before determining
whether the record supports the application of a tolling
doctrine against the principal actor, in this case,
MacGrady.
B
Whether the Defendant Aided and Abetted
MacGrady’s Breach
Thus, I turn to the record before the trial court in
deciding the summary judgment motion to determine
whether the pleadings and evidence in the present case
demonstrated a genuine issue of material fact as to
whether the defendant aided and abetted MacGrady’s
breach of his fiduciary duty to the plaintiff. As noted
previously, ‘‘[a]iding-abetting includes the following ele-
ments: (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 viola-
tion. . . .’’ (Internal quotation marks omitted.) Id.
Viewing the evidence in the light most favorable to
the plaintiff, as the non-moving party, I conclude first
that the plaintiff has established a genuine issue of
material fact as to whether the defendant engaged in
aiding and abetting. The record in this case reveals a
scheme wherein the defendant furthered its own busi-
ness interests by utilizing the purportedly independent
MacGrady as, in essence, an arm of its sales force,
thereby knowingly and substantially assisting in the
breach of MacGrady’s fiduciary duty to his client, the
plaintiff. Telephone records indicate that, from January,
1999, through September, 1999, Craig Wallace, one of
the defendant’s sales representatives, used the prospect
of long-term capital gains taxation of the plaintiff’s
annuitized lottery winnings to persuade the plaintiff to
sell those winnings to the defendant in exchange for a
lump sum. Wallace referred the plaintiff to MacGrady
for expert advice in treating the proceeds from the sale
as long-term capital gains, which was a tax advantage
that proved pivotal in persuading the plaintiff to sell
his annuitized winnings to the defendant. Having no
idea that there was a simultaneous business relation-
ship between MacGrady and the defendant, wherein
MacGrady ultimately would be retained to write and
speak on the defendant’s behalf to convince lottery
winners to sell their winnings, and be eligible for ‘‘per-
formance bonus[es]’’ for being a ‘‘significant contribut-
ing factor’’ in closing a sale, the plaintiff retained
MacGrady to represent him in the ‘‘matter of selling
[his] lottery winnings.’’ Further, the telephone sales logs
demonstrate that Wallace was in constant communica-
tion with MacGrady until the closing of the sale, direct-
ing him, for example, to speak to the plaintiff’s
accountant on the ‘‘tax angle’’ and updating him on
the status of competing offers from other lottery sales
companies. Finally, the defendant had actual notice of
the tortious nature of the scheme and its attendant
conflicts of interest by Pepe & Hazard’s retainer
agreement signed and furnished by MacGrady, which
provided that the defendant would waive any and all
conflicts of interests created by the Pepe & Hazard’s
representation of the plaintiff.
In sum, the evidence establishes, at least a genuine
issue of material fact, that the defendant was no mere
bystander to MacGrady’s breach of his fiduciary duty,
but actively created and fostered the environment that
was ripe for that breach by, in essence, using MacGrady
as part of its sales force to encourage the plaintiff to
sell his lottery winnings. I conclude, therefore, that a
finder of fact reasonably could find that these actions
by the defendant constituted: (1) an awareness in a
scheme of illegal or tortious activity intended to gain
an advantage over the plaintiff and induce him to sell
his lottery winnings; and (2) knowing and substantial
assistance in MacGrady’s breach of his fiduciary duty.
C
Whether the Continuing Course of Conduct Doctrine
Tolls the Statute of Limitations as to MacGrady
Having established that the defendant engaged in the
requisite aiding and abetting, I now turn to whether
there is a genuine issue of material fact about whether
the continuing course of conduct doctrine tolls the stat-
ute of limitations as to MacGrady. With respect to the
elements of the continuing course of conduct doctrine;
see Watts v. Chittenden, supra, 301 Conn. 583–85; I
first note that it is undisputed that MacGrady, as the
plaintiff’s attorney, owed him a fiduciary duty of loyalty,
which he breached through his conflict of interest occa-
sioned by his simultaneous representation of the defen-
dant. I part company from the majority, though, with
respect to the related continuing wrongful conduct. In
my view, MacGrady extended that breach by represent-
ing to the plaintiff in 1999 that he would be available
in the future to represent him if any problem developed
with the IRS in connection with the tax treatment of
the sale proceeds. In doing so, MacGrady cultivated his
fiduciary relationship with the plaintiff and provided
the assurances necessary to encourage the plaintiff to
move forward with the sale, despite the ongoing con-
cerns of his tax accountant. Thus, MacGrady’s response
to the plaintiff’s call in 2002, after the plaintiff had
received an IRS deficiency notice, in which he referred
the plaintiff to a legal defense group for other lottery
winnings sellers, had the effect of continuing the course
of conduct started in 1999. This is particularly so given
that MacGrady took a referral fee from Eric Granitur,
the attorney coordinating that defense group, thus
allowing MacGrady to profit again from his role in the
scheme that had facilitated the sale of the plaintiff’s
lottery winnings to the defendant. Thus, I would con-
clude that this action was timely because it was filed
less than three years after MacGrady’s referral of the
case to, and acceptance of a fee from, Granitur in 2002.
Citing legal malpractice case law, however, namely,
Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hir-
tle, LLC, 69 Conn. App. 151, 795 A.2d 572 (2002), Lee v.
Brenner, Saltzman & Wallman, LLP, supra, 128 Conn.
App. 250, and Sanborn v. Greenwald, supra, 39 Conn.
App. 289, the defendant contends, and the majority
holds that MacGrady’s breach of his fiduciary duties
concluded in 1999 with the completion of the sale for
which he had been retained, and that the continuing
course of conduct doctrine is inapplicable because the
legal situation was no longer evolving thereafter. In
particular, the defendant quotes Sanborn for the propo-
sition that, ‘‘[t]here is no tolling of statutes of limitations
in either tort or contract actions for the failure of an
attorney to tell a client that a document drafted by the
attorney could be inaccurate because, once the repre-
sentation of the client is complete and the document
executed, any warning would be ineffective. . . . The
doctrine of continuing course of conduct as used to
toll a statute of limitations is better suited to claims
where the situation keeps evolving after the act com-
plained of is complete, such as medical malpractice,
rather than one where the situation cannot change, such
as legal malpractice arising from negligent drafting of
the written word.’’ (Citation omitted.) Sanborn v.
Greenwald, supra, 297–98. Thus, the defendant and the
majority emphasize that, under the retainer agreement,
MacGrady’s representation of the plaintiff ceased in
June, 1999, and argues that MacGrady’s ‘‘brief, fleeting
contact with [the plaintiff] in October, 2002, was not
‘legal or fiduciary representation’ . . . .’’
I disagree with the majority’s application of these
legal malpractice cases in the context of this case, which
raises a distinct claim of breach of fiduciary duty of
loyalty rather than a claim that MacGrady’s representa-
tion was legal malpractice because it fell below the
applicable standard of care. ‘‘[P]rofessional negligence
alone . . . does not give rise automatically to a claim
for breach of fiduciary duty. . . . [Thus] not every
instance of professional negligence results in a breach
of [a] fiduciary duty. . . . Professional negligence
implicates a duty of care, while breach of a fiduciary
duty implicates a duty of loyalty and honesty.’’ (Internal
quotation marks omitted.) Sherwood v. Danbury Hospi-
tal, 278 Conn. 163, 196, 896 A.2d 777 (2006); see also
Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribi-
coff & Kotkin, 247 Conn. 48, 56–57, 717 A.2d 724 (1998)
(concluding that legal malpractice committed by law
firm’s junior associate was not breach of fiduciary duty
because ‘‘it cannot be said that [the associate] repre-
sented that she had superior knowledge, skill or exper-
tise in the field of franchising, nor that she sought the
plaintiff’s special trust’’); Mangiante v. Niemiec, 82
Conn. App. 277, 284, 843 A.2d 656 (2004) (‘‘[t]he fidu-
ciary duty of loyalty is breached when the fiduciary
engages in self-dealing by using the fiduciary relation-
ship to benefit her personal interest’’). Thus, tolling
analyses predicated on legal malpractice in the perfor-
mance of discrete tasks should not dictate this court’s
conclusion vis-a-vis breach of fiduciary duty.
Put differently, and setting aside the substantive
merit of MacGrady’s tax advice, his statement in 1999
that he would assist the plaintiff were he to run into
tax trouble with the IRS in the future operated to culti-
vate the very fiduciary relationship that he ultimately
breached with his conflict of interest; this had the effect
of creating a continuing course of conduct that
extended the statute of limitations in this case. See
Giulietti v. Giulietti, 65 Conn. App. 813, 835–36, 784
A.2d 905 (continuing course of conduct tolled statute
of limitations when defendant attorney prepared deeds
and escrow agreements subject to conditions not speci-
fied by his father/client, and parties had continuing rela-
tionship wherein attorney continued to serve as general
counsel for his family’s business without taking ‘‘steps
necessary to effectuate his father’s wishes regarding
the property distribution,’’ which was omission that
‘‘related directly back to [the] attorney[’s] . . . earlier
wrongs’’), cert. denied, 258 Conn. 946, 947, 788 A.2d 95,
96, 97 (2001); cf. Targonski v. Clebowicz, 142 Conn.
App. 97, 110–11, 63 A.3d 1001 (2013) (following Sanborn
and concluding that ‘‘even after an attorney’s represen-
tation of a client ends, he owes a duty to his client,
which relates back to his original wrong of rendering
negligent services to the client, to correct the results
of such prior negligence if he later learns of the negli-
gence at a time when he has the power to remedy the
problems arising from it,’’ and continuous course of
conduct doctrine tolled statute of limitations when
defendant repeatedly acquired that knowledge and
failed to act during limitations period to correct errors).
The plaintiff returning to MacGrady for assistance in
October, 2002, was, then, a natural consequence of that
1999 statement, coupled with MacGrady’s continuing
failure to disclose his conflict of interest in violation
of rule 1.7 of the Rules of Professional Conduct. See
footnote 9 of this dissenting opinion.
To this end, I disagree with the majority’s reliance
on our recent decision in Watts v. Chittenden, supra,
301 Conn. 575, in support of the proposition that the
continuing course of conduct doctrine is unavailable
because of the more than three year gap between the
closing of the sale in September, 1999, and MacGrady’s
referral of the plaintiff to the tax defense group in Octo-
ber, 2002.8 As the majority accurately observes, in Watts,
this court held that, ‘‘if no conduct has occurred within
the three year limitations period set forth in § 52-577,
the plaintiff will be barred from recovering for the prior
actions of intentional infliction of emotional distress. If,
however, additional actions occur within the limitations
period, the ability to bring an action will be further
extended.’’ Id., 596; see also id., 597–98 (continuing
course of conduct doctrine applied to toll statute of
limitations when defendant made repeated false accusa-
tions of sexual abuse against plaintiff, and ‘‘[a]t no time
. . . was there a gap of three years between the reports
of sexual abuse reported by the defendant against
the plaintiff’’).
In my view, applying the continuous course of con-
duct doctrine to toll the running of § 52-577 in the pre-
sent case is wholly consistent with Watts, which
involved intentional infliction of emotional distress, a
tort of commission; the acts at issue, multiple false
accusations of child sexual abuse, were discrete and
identifiable. In contrast, this case involves an underlying
tort of omission, namely, the breach of a fiduciary duty
predicated on MacGrady’s continued failure to inform
the plaintiff of the conflict of interest created by his
relationship with the defendant. Indeed, MacGrady’s
failure to satisfy this fiduciary duty, which it is undis-
puted, survived the termination of the formal attorney-
client relationship with the closing of the lottery sale
in 1999,9 continued throughout the three year statutory
limitations period. Thus, our holding in Watts, which
by its language applies only to the tort of intentional
infliction of emotional distress, is distinguishable from
the present case. See Haas v. Haas, 137 Conn. App.
424, 427, 433–34, 48 A.3d 713 (2012) (continuing course
of conduct tolled § 52-577, despite plaintiff’s failure to
file action for four years after her discovery that defen-
dant, her accountant son, had failed to file her tax
returns, which occurred five years after last failure,
because of trial court’s ‘‘pivotal . . . finding that the
defendant’s duty to the plaintiff was prolonged by the
defendant’s active concealment and withholding of doc-
uments and information relating to his initial failure to
file the plaintiff’s taxes’’); cf. Lake Road Trust, Ltd. v.
ABB, Inc., Superior Court, judicial district of Hartford,
Docket No. X04-CV-10-6016502-S (May 17, 2012) (con-
tractor’s failure to disclose conflict of interest or earlier
misrepresentation not continuing conduct that would
toll statute of limitations because absent ‘‘fiduciary obli-
gation’’ or ‘‘a special relationship, the defendant had no
duty to disclose its lack of candor with the plaintiffs’’).
Accordingly, I would reject the defendant’s alternate
ground for affirmance, and conclude that there is a
genuine issue of material fact with respect to whether
the continuing course of conduct doctrine operated to
toll the statute of limitations on the plaintiff’s aiding
and abetting claims.
II
CUTPA CLAIMS
Because I conclude that the continuing course of
conduct doctrine operated to toll the statute of limita-
tions on the plaintiff’s aiding and abetting claims, I
must reach the plaintiff’s claim that the Appellate Court
improperly determined that, under this court’s decision
in Fichera v. Mine Hill Corp., supra, 207 Conn. 216–17,
the continuing course of conduct doctrine is inapplica-
ble, as a matter of law, to the statute of limitations
governing CUTPA claims set forth in § 42-110g (f).10 See
Flannery v. Singer Asset Finance Co., LLC, supra, 128
Conn. App. 514. The plaintiff argues that Fichera simply
concluded that the plaintiff therein had not established
entitlement to the continuing course of conduct doc-
trine on the facts of that case—’’not that the doctrine
could not be applied to CUTPA under any facts’’—and
that the broader holding in Fichera was that fraudulent
concealment under General Statutes § 52-595 could not
be applied to ‘‘ ‘self-concealing fraud[s]’ ’’ that are
actionable under CUTPA. The defendant does not
defend the Appellate Court’s reading of Fichera at
length, candidly acknowledging that this court ‘‘never
specifically stated [therein] that the continuing course
of conduct doctrine does not toll the CUTPA statute of
limitations,’’ but calls the Appellate Court’s reasoning
‘‘sound, logical and correct’’ and considers the alleged
conduct in this case to be akin to the fraudulent conceal-
ment that this court held in Fichera did not toll the
statute of limitations. I agree with the plaintiff, and
conclude that the continuing course of conduct doctrine
is available to toll the statute of limitations under
CUTPA, and that the Appellate Court improperly read
Fichera as holding to the contrary.
I begin by noting that the plaintiff’s claim constitutes a
matter of statutory interpretation; see General Statutes
§ 1-2z; in the context of our previous decisions applying
and interpreting § 42-110g (f). See, e.g., New England
Road, Inc. v. Planning & Zoning Commission, 308
Conn. 180, 186, 61 A.3d 505 (2013) (‘‘in interpreting the
language of [General Statutes] § 52-72, we do not write
on a clean slate, but are bound by our previous judicial
interpretations of this language and the purpose of the
statute’’); Hummel v. Marten Transport, Ltd., 282 Conn.
477, 501, 923 A.2d 657 (2007) (‘‘[t]here is nothing in the
legislative history to suggest that the legislature also
intended to overrule every other case in which our
courts, prior to the passage of § 1-2z, had interpreted a
statute in a manner inconsistent with the plain meaning
rule, as that rule is articulated in § 1-2z’’). This is a
question of law over which our review is plenary. See,
e.g., HVT, Inc. v. Law, 300 Conn. 623, 629, 16 A.3d
686 (2011).
I begin with a review of Fichera, wherein this court
concluded that the plaintiffs’ CUTPA claims arising
from the defendants’ failure to construct recreational
facilities promised to purchasers in a residential devel-
opment were time barred under § 42-110g (f), which is
the three year statute of limitations that governs CUTPA
claims. See Fichera v. Mine Hill Corp., supra, 207 Conn.
205–208. In Fichera, this court first concluded that § 42-
110g (f) is an occurrence statute like § 52-577, and that
‘‘[u]nlike the statutes of limitation of some other states
applicable to unfair trade practices legislation analo-
gous to our CUTPA, which expressly allow a certain
period following the discovery of the deceptive practice
for commencing suit . . . § 42-110g (f) provides only
that an action must be brought within three years ‘after
the occurrence of a violation of this chapter.’ ’’ (Cita-
tions omitted.) Id., 212. After determining that, on the
record in that case, the plaintiffs were not entitled to toll
the statute of limitations using the continuing course of
conduct doctrine the court then noted that the plaintiffs,
in avoidance of the defendants’ statute of limitations
defense, had ‘‘pleaded facts purporting to show that
the defendants had fraudulently concealed from them
the existence of their CUTPA cause of action and thus
invoked the benefit of . . . § 52-595.’’ Id., 213. Noting
that this ‘‘court has not yet decided whether affirmative
acts of concealment are always necessary to satisfy
the requirements of § 52-595’’ the court described the
defendants’ false representations, namely, that they
would complete the recreational facilities despite hav-
ing no intention of doing so, as a self-concealing fraud.
Id., 215–16. It then decided that it was not necessary
to determine whether self-concealing frauds satisfied
§ 52-595 in other cases, because permitting self-conceal-
ing frauds to satisfy § 52-595 in the CUTPA context
‘‘would defeat the legislative intention expressed in
§ 42-110g (f) to bar actions for CUTPA violations after
the lapse of more than three years from their occur-
rence.’’ Id.
In my view, the Appellate Court simply misread
Fichera as standing for the proposition that the continu-
ing course of conduct doctrine is unavailable as a matter
of law to toll the statute of limitations as to all CUTPA
claims. There is simply no language to that effect any-
where in Fichera; the continuing course of conduct
doctrine was not an available toll in that particular case
due to pleading and proof deficiencies that were the
subject of extensive record review therein. See id., 212–
13. Indeed, the Superior Court has aptly read § 42-110g
(f) as subject to toll by the continuing course of conduct
doctrine, following our application of that doctrine to
the similarly worded three year repose language of Gen-
eral Statutes § 52-584 in a medical malpractice case in
Witt v. St. Vincent’s Medical Center, 252 Conn. 363,
369–70, 746 A.2d 753 (2000). See Assurance Co. of
America v. Yakemore, 50 Conn. Supp. 28, 37–38, 911
A.2d 777 (2005); see also Levinson v. Westport National
Bank, 900 F. Supp. 2d 143, 180 (D. Conn. 2012) (criticiz-
ing Appellate Court’s decision in this case and deferring
consideration of defendant’s claim that continuing
course of conduct doctrine does not apply to CUTPA
because ‘‘Fichera appears to hold that such a determi-
nation is factual rather than purely legal’’), vacated on
other grounds, Levinson v. Westport National Bank,
United States District Court, Docket No. 3:09CV269
(VLB) (D. Conn. March 28, 2013); Udolf 631, LLC v.
Select Energy Contracting, Inc., Superior Court, judi-
cial district of Hartford, Docket No. CV-09-5032387-S
(January 12, 2012) (relying on Yakemore and criticizing
Appellate Court’s reading of Fichera in present case
as ‘‘overly broad’’ and inconsistent with other cases).
Accordingly, with no statutory language to the contrary,
and no claimed ambiguity that would justify resort to
extratextual sources; see General Statutes § 1-2z; I con-
clude that the CUTPA statute of limitations, § 42-110g
(f), is subject to toll by a properly pleaded and proven
continuing course of conduct claim.
I would, therefore, reverse the judgment of the Appel-
late Court and remand the case to that court with direc-
tion to reverse the judgment of the trial court and to
remand the case to the trial court with direction to deny
the defendant’s motion for summary judgment.
Accordingly, I respectfully dissent.
1
I agree with part I of the majority opinion, which concludes that the
Appellate Court and trial court should have reached the merits of the plaintiff,
John D. Flanery’s, continuing course of conduct arguments, because the
plaintiff did not waive his right to assert that doctrine in avoidance of the
statute of limitations special defense by failing to plead specific entitlement
to it under Practice Book § 10-57.
2
Like the Appellate Court and the majority, I note that the correct spelling
of the plaintiff’s last name is Flanery. See 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, I too maintain the name Flannery in internal cita-
tions in conformity with the pleadings, judgment file and Appellate Court
opinion.
3
As the majority notes, ‘‘Attorney Glenn MacGrady and Pepe & Hazard,
LLP, also were defendants in this case. Partial summary judgment was
rendered in their favor on June 18, 2009, and the plaintiff, thereafter, with-
drew all remaining claims against these defendants. Accordingly, MacGrady
and Pepe & Hazard, LLP, are not parties to this appeal.’’ (Internal quotation
marks omitted.) See footnote 3 of the majority opinion. For the sake of
simplicity, I will refer only to Singer Asset Finance Company, LLC, as the
defendant for purposes of this dissenting opinion.
4
General Statutes § 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.’’
5
General Statutes § 42-110g (f) provides: ‘‘An action under this section
may not be brought more than three years after the occurrence of a violation
of this chapter.’’
6
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.’’
7
I respectfully disagree with the majority’s policy based arguments against
the adoption of this rule, namely: (1) ‘‘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 footnote 23 of the majority opinion; and (2) the ‘‘policy considerations
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.’’ In my view, the derivative nature of the aiding and
abetting claim, and rigorous proof necessary to establish the elements both
of that claim; see, e.g., Efthimiou v. Smith, supra, 268 Conn. 505; and the
continuing course of conduct doctrine; see, e.g., Watts v. Chittenden, supra,
301 Conn. 583–85; renders concerns about claim staleness and impairment
of proof overstated in this context. This is particularly so on the facts of
this case, wherein it was wholly foreseeable to all of the parties involved
that the plaintiff’s tax exposure was likely to extend beyond the three year
occurrence period provided by the statutes of limitation, §§ 52-577 and 42-
110g (f).
8
Specifically, the majority posits that, under Watts, the continuing course
of conduct doctrine does not apply in this case because ‘‘MacGrady’s original
wrongdoing 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 interest due to MacGrady’s simultaneous representation
of the defendant, ended. Accordingly, when MacGrady resumed his presum-
ably 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 statute of limitations had already run.’’
9
This continuing duty under rule 1.7 of the Rules of Professional Conduct
was acknowledged in a deposition by Stephen Hazard, the managing partner
of Pepe & Hazard, the law firm that had employed MacGrady, and is consis-
tent with the proposition of law that ‘‘attorneys have a continuing confiden-
tial relationship of trust and fair dealing which survives the termination of
the attorney-client relationship . . . .’’ Mergler v. Crystal Properties Associ-
ates, Ltd., 179 A.D. 2d 177, 182, 583 N.Y.S.2d 229 (1992).
I recognize that the majority properly does not deem this court bound
by Hazard’s testimony, which it considers a legal opinion. See, e.g., FCM
Group, Inc. v. Miller, 300 Conn. 774, 796, 17 A.3d 40 (2011) (court not bound
by legal opinions of parties, witnesses, or attorney trial referees); Lamont
v. New Hartford, 4 Conn. App. 303, 305, 493 A.2d 298 (1985) (court required
to consider, but ‘‘is not bound by the opinion of expert witnesses’’). Not
one of the parties, however, has provided the court with a citation to any
legal authority or contrary expert testimony that undermines the correctness
of Hazard’s testimony. Thus, I accept it for use in this case to define the
scope of MacGrady’s continuing duty to disclose his conflict of interest.
10
Because of its conclusion that the continuing course of conduct doctrine
does not apply to the facts of this case, the majority appropriately does not
reach this issue.