Kaminski v. Poirot ( 2019 )

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JOHN S. KAMINSKI v. DAVID POIROT
(AC 41586)
DiPentima, C. J., and Alvord and Conway, Js.
Syllabus
The plaintiff sought to recover damages from the defendant attorney for
legal malpractice in connection with his representation of the plaintiff
in a prior civil action in which the plaintiff, who was an incarcerated
inmate at the time, sought to recover damages for personal injuries he
suffered while being transported in a Department of Correction van.
The plaintiff commenced the present action by service of process on
November 9, 2017, alleging that the defendant had acted unprofessionally
and committed two acts of legal malpractice in the underlying action,
namely, by withdrawing the complaint against three of the defendants
and by withdrawing from representing the plaintiff. The trial court
granted a motion for summary judgment filed by the defendant, conclud-
ing that the plaintiff’s action was barred by the three year statute of
limitations (§ 52-577) applicable to tort claims, and rendered judgment
thereon, from which the plaintiff appealed to this court. Held that the
trial court properly granted the defendant’s motion for summary judg-
ment, there having been no genuine issue as to any material fact that
the legal malpractice action was commenced beyond the applicable
three year statute of limitations; pursuant to § 52-577, the time period
within which a plaintiff must commence an action begins to run at the
moment the act or omission complained of occurs, and the record
reflected that the alleged acts of malpractice—the defendant’s with-
drawal of the complaint against the three defendants in the underlying
action and his withdrawal from representing the plaintiff—occurred
more than three years prior to the plaintiff’s commencement of this
action on November 9, 2017.
Argued March 13–officially released May 21, 2019
Procedural History
Action to recover damages for legal malpractice, and
for other relief, brought to the Superior Court in the
judicial district of Hartford, where the court, Hon.
Joseph H. Pellegrino, judge trial referee, granted the
defendant’s motion for summary judgment and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
John S. Kaminski, self-represented, the appellant
(plaintiff).
David Poirot, self-represented, the appellee
(defendant).
Opinion
ALVORD, J. The self-represented plaintiff, John S.
Kaminski, appeals from the summary judgment ren-
dered by the trial court in favor of the defendant, Attor-
ney David Poirot. On appeal, the plaintiff claims that the
court erroneously concluded that his legal malpractice
action against the defendant was time barred pursuant
to General Statutes § 52-577, the statute of limitations
applicable to tort actions.1 We affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to our resolution of the plaintiff’s appeal. On June
8, 2012, the plaintiff was a passenger in a Department
of Correction van driven by a correction officer. He was
being transported to a medical facility for a magnetic
resonance imaging (MRI) scan because of a lower back
problem. At some point during the trip, the van’s left
rear tire blew out, and the van moved to the left hand
side of the highway and struck a guardrail. The plaintiff,
alleging that he suffered back and neck injuries as a
result of the incident, commenced a negligence action
as a self-represented party against three individual
defendants employed by the Department of Correction
(underlying action) on June 18, 2013. On January 28,
2014, the defendant attorney filed an appearance on
the plaintiff’s behalf.
On April 3, 2014, the defendant filed a motion to
cite in the state of Connecticut as a defendant in the
underlying action. On April 21, 2014, the court granted
the motion, and the defendant summoned the state to
appear and filed an amended complaint on May 7, 2014.
On May 8, 2014, the defendant withdrew the complaint
against all of the individual defendants, leaving the state
as the sole defendant in the underlying action. On June
25, 2014, the defendant filed a motion for permission
to withdraw his appearance, claiming that the attorney-
client relationship had broken down. On July 1, 2014,
the plaintiff filed an appearance in the underlying action
as a self-represented party in lieu of the appearance of
the defendant.
The plaintiff continued to represent himself in the
underlying action. The case was tried to the court,
Swienton, J. On November 29, 2016, the court issued
a memorandum of decision in which it concluded that
the record was ‘‘bereft of any evidence’’ demonstrating
that the state breached any duty owed to the plaintiff.
The court rendered judgment in favor of the state.
On November 9, 2017, the self-represented plaintiff
commenced this action against the defendant claiming
legal malpractice. From a very broad and liberal reading
of his complaint, it appears that the plaintiff is alleging
that the defendant was ‘‘unprofessional’’ when he with-
drew as counsel for the plaintiff in the underlying action
and that the defendant left the plaintiff with a very
complex matter to litigate by changing the underlying
action from a simple negligence action against individ-
ual state employees to a General Statutes § 52-556
action against the state. On December 8, 2017, the defen-
dant filed an answer and special defense, alleging that
the plaintiff’s claim was barred by the statute of limita-
tions, § 52-577. The plaintiff filed a reply to the special
defense on December 21, 2017.
On February 5, 2018, the defendant filed a motion for
summary judgment, accompanied by a memorandum
of law in support of his motion. The defendant argued
that the plaintiff was alleging that the defendant’s act
of malpractice was withdrawing the underlying action
as to the three individual defendants, which occurred
on May 8, 2014. Because § 52-577 is a three year statute
of limitations, the defendant claimed that the present
action was required to be commenced by May 8, 2017.
The defendant was served with the plaintiff’s legal mal-
practice action on November 9, 2017, which is more
than three years from the date of the alleged malprac-
tice. Accordingly, the defendant claimed that the plain-
tiff’s action was time barred and that he was entitled
to judgment as a matter of law.
The plaintiff filed his objection to the defendant’s
motion for summary judgment on February 15, 2018.
In the plaintiff’s response, he claimed that the three
year period did not commence until Judge Swienton had
rendered judgment in favor of the state on November
29, 2016. Accordingly, the plaintiff’s position was that
he had until November 29, 2019, to file the legal malprac-
tice claim against the defendant. Because the defendant
was served on November 9, 2017, the plaintiff argued
that he had commenced the action well within the requi-
site three year period and that the defendant’s motion
for summary judgment should be denied.
On March 26, 2018, the court heard argument on the
defendant’s motion for summary judgment. On April 5,
2018, the court issued its memorandum of decision. In
granting the defendant’s motion, the court determined
that the plaintiff claimed that the defendant committed
malpractice in withdrawing the complaint in the under-
lying action as to the individual state employees, which
occurred on May 8, 2014. The court also noted that the
defendant had filed a request to withdraw his appear-
ance in the underlying case on June 25, 2014, and that
the court had not acted on that request. Nevertheless,
the court indicated that the plaintiff obviously had
agreed to the defendant’s withdrawal because he had
filed a pleading as a self-represented party on July 14,
2014, and continued thereafter to represent himself in
the underlying action.2 The court concluded that
because it was undisputed that service of process in
this action was not made until November 9, 2017, the
action had been commenced ‘‘well beyond the three
year statute of limitations [and] [t]he plaintiff has not
filed any affidavit setting forth circumstances which
would impede the normal application of § 52-577.’’ This
appeal followed.
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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 seek-
ing 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. . . . Our review of the decision
to grant a motion for summary judgment is plenary.
. . . We therefore must decide whether the court’s con-
clusions were legally and logically correct and find sup-
port in the record. . . .
‘‘Summary judgment may be granted where the claim
is barred by the statute of limitations. . . . Actions for
legal malpractice based on negligence are subject to
§ 52-577, the tort statute of limitations. . . . This court
has determined that [§] 52-577 is an occurrence statute,
meaning that the time period within which a plaintiff
must commence an action begins to run at the moment
the act or omission complained of occurs. . . . More-
over, our Supreme Court has stated that [i]n construing
our general tort statute of limitations . . . § 52-577,
which allows an action to be brought within three years
from the date of the act or omission complained of
. . . the history of that legislative choice of language
precludes any construction thereof delaying the start
of the limitation period until the cause of action has
accrued or the injury has occurred. . . . The three year
limitation period of § 52-577, therefore, begins with the
date of the act or omission complained of, not the date
when the plaintiff first discovers an injury.’’ (Citations
omitted; internal quotation marks omitted.) Cruz v.
Schoenhorn, 188 Conn. App. 208, 214–16, A.3d
(2019).
Accordingly, ‘‘[w]hen conducting an analysis under
§ 52-577, the only facts material to the trial court’s deci-
sion on a motion for summary judgment are the date
of the wrongful conduct alleged in the complaint and
the date the action was filed.’’ (Internal quotation marks
omitted.) Pagan v. Gonzalez, 113 Conn. App. 135, 139,
965 A.2d 582 (2009). ‘‘Legal actions in Connecticut are
commenced by service of process. . . . There is a pre-
sumption of truth in matters asserted in the officer’s
return.’’ (Citation omitted; internal quotation marks
omitted.) Id.
Although the plaintiff’s complaint is somewhat
unclear, and the plaintiff’s argument before the trial
court at the hearing on the defendant’s motion for sum-
mary judgment similarly was somewhat confusing, we
will assume from the plaintiff’s oral argument before
this court that the acts of alleged malpractice are the
defendant’s decision to withdraw his representation of
the plaintiff in the underlying action and the defendant’s
withdrawal of the complaint in the underlying action
as to the three individual state employees. The court
file in the underlying action reflects that the defendant
filed his motion to withdraw his appearance on June
25, 2014. Although there was no court ruling on that
motion, the plaintiff filed his appearance as a self-repre-
sented party, in lieu of the appearance filed by the
defendant, on July 1, 2014. At that point, the defendant
no longer represented the plaintiff in the underlying
action. Accordingly, July 1, 2014, is the start date for
the first alleged act of malpractice. The court file
reflects that the defendant withdrew the complaint in
the underlying action as to the individual defendants
on May 8, 2014. Accordingly, May 8, 2014, is the start
date for the second alleged act of malpractice.
The marshal’s return of service provides that the
defendant was served with process on November 9,
2017, which is more than three years from the date of
either the first or the second alleged act of malpractice.
We therefore conclude, as a matter of law, that the
plaintiff’s legal malpractice action against the defendant
is time barred pursuant to § 52-577,3 and, thus, the court
properly rendered summary judgment in favor of the
defendant.
The judgment is affirmed.
In this judgment the other judges concurred.
1
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.’’
2
Significantly, the plaintiff filed an appearance as a self-represented party
in the underlying action on July 1, 2014, and that appearance was filed in
lieu of the appearance filed by the defendant.
3
Because we conclude that the court properly rendered summary judg-
ment in favor of the defendant on the ground that the plaintiff’s legal malprac-
tice claims against him were time barred pursuant to § 52-577, we need not
reach the alternative grounds for affirmance raised by the defendant in his
appellate brief.