Cruz v. Schoenhorn , 188 Conn. App. 208 ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ELOY CRUZ v. JON L. SCHOENHORN ET AL.
(AC 40510)
DiPentima, C. J., and Moll and Bear, Js.
Syllabus
The plaintiff sought to recover damages for legal malpractice from the
defendant attorneys, J and A, who represented him in a prior civil action
in which he alleged that he had sustained severe injuries after being
attacked at a rap music concert. The plaintiff claimed the defendants
failed to effectuate proper service of process on two of the defendants
in the prior civil action. The trial court granted the defendants’ motions
for summary judgment, concluding that the plaintiff’s action was not
brought within the applicable statute of limitations (§ 52-577), and ren-
dered judgments thereon, from which the plaintiff appealed to this
court. Held:
1. The trial court properly rendered summary judgment in favor of J: the
plaintiff did not submit any affidavits or documentary evidence in sup-
port of his objection to J’s motion, and there was no merit to the
plaintiff’s claim that the trial court, in adjudicating J’s motion for sum-
mary judgment, improperly failed to consider the plaintiff’s affidavit,
which had been filed in support of the plaintiff’s opposition to A’s motion
for summary judgment, as that affidavit was not properly before the
court with respect to J’s motion for summary judgment, on which the
court heard argument nearly two months before the plaintiff filed the
affidavit, and, thus, the court could not have considered the affidavit
in adjudicating J’s motion for summary judgment; moreover, the court
did not misconstrue the plaintiff’s argument in opposing J’s motion for
summary judgment, as the plaintiff at no time argued to the trial court
that his attorney-client relationship with J ended in 2012, the plaintiff
did not submit any evidence to support his assertion of the applicability
of the continuous representation doctrine, and, therefore, the court
properly concluded that a de facto termination of the plaintiff’s attorney-
client relationship with J occurred on August 26, 2009, when the plaintiff
filed an appearance as a self-represented party in the civil action, that the
limitations period ran on August 26, 2012, and that this legal malpractice
action, commenced in December, 2014, was therefore filed outside of
the limitations period.
2. The trial court properly granted A’s motion for summary judgment: the
plaintiff’s affidavit in opposition to A’s motion for summary judgment
did not set forth any specific facts or evidence to support his conclusory
statement that his attorney-client relationship with A ended in Septem-
ber, 2012, nor did the affidavit contradict A’s documentary evidence
demonstrating, inter alia, that the plaintiff had filed grievance complaints
against him in 2006 and 2010 and had filed an appearance on his own
behalf in the prior civil action on August 26, 2009, by which point the
plaintiff had lost confidence in A and was no longer seeking his legal
advice; moreover, the court did not misconstrue the plaintiff’s argument
in opposition to A’s motion for summary judgment, because contrary
to the plaintiff’s assertion, the court did not make any statement identi-
fying the date on which the plaintiff argued that his attorney-client
relationship with A ended, and the court having determined that there
was no issue of fact that the latest possible date on which a de facto
termination of the plaintiff’s attorney-client relationship with A occurred
on August 26, 2009, this legal malpractice action, commenced in Decem-
ber, 2014, was time barred pursuant to § 52-577.
Argued November 29, 2018—officially released March 5, 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, Elgo, J.,
granted the defendants’ motions for summary judgment
and rendered judgments thereon, from which the plain-
tiff appealed to this court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
Elizabeth M. Cristofaro, with whom, on the brief,
was Kelvin L. Thomas, for the appellee (defendant Jon
L. Schoenhorn).
Louis B. Blumenfeld, with whom, on the brief, was
Lorinda S. Coon, for the appellee (defendant Arnaldo
J. Sierra).
Opinion
MOLL, J. The plaintiff, Eloy Cruz, appeals from the
summary judgments rendered by the trial court in favor
of the defendants, Jon L. Schoenhorn and Arnaldo J.
Sierra, respectively.1 On appeal, the plaintiff asserts that
the trial court erroneously concluded that his legal mal-
practice claims against the defendants were time barred
pursuant to General Statutes § 52-577,2 the statute of
limitations applicable to tort actions, because genuine
issues of material fact exist as to whether the continu-
ous representation doctrine applies so as to toll § 52-
577. We disagree and, accordingly, affirm the summary
judgments of the trial court.3
The following facts and procedural history are rele-
vant to our resolution of the plaintiff’s claims. The
defendants represented the plaintiff in a civil action
commenced in 2003 in which the plaintiff alleged that
he had sustained severe injuries after being attacked
by several individuals at a rap music concert in 2001.
See Cruz v. Continental Corp., Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX-S (Conti-
nental action). Two of the defendants in the Continental
action, Jayson Phillips and David Styles, were nonresi-
dent individuals upon whom service of process purport-
edly had been made in April, 2004, pursuant to General
Statutes § 52-59b. Phillips and Styles subsequently were
defaulted for failure to appear. On November 2, 2005,
following a hearing in damages, the trial court rendered
judgment against Phillips and Styles in the amount of
$779,378.22.4 In 2006, Schoenhorn made unsuccessful
attempts to collect upon the judgment. Dissatisfied with
the postjudgment collection efforts, the plaintiff filed
grievance complaints against Schoenhorn in 2006 and
in 2008, both of which were dismissed. In addition, in
2006 and in 2010, the plaintiff filed grievance complaints
against Sierra, both of which were dismissed.
On August 26, 2009, the plaintiff filed an appearance
as a self-represented party in the Continental action.
The plaintiff’s appearance form did not signify whether
he was appearing in lieu of or in addition to the defen-
dants. On October 20, 2009, the plaintiff, representing
himself, filed an application for a waiver of fees and a
motion to ‘‘reopen case and force execution of existing
judgment’’ against Phillips and Styles. On November 5,
2009, the court denied the plaintiff’s motion as
untimely.
There was no additional activity in the Continental
action until September 17, 2012, when the law firm
of Minnella, Tramuta, and Edwards, LLC, appeared on
behalf of the plaintiff, according to the appearance
form, in lieu of the plaintiff and the defendants. On
October 16, 2012, the plaintiff filed a motion seeking
postjudgment interest in the amount of $733,735.29,
which the court granted on November 13, 2012. On
November 27, 2012, Phillips filed a motion to open and
set aside the judgment, asserting that the court lacked
personal jurisdiction over him as a result of insufficient
service of process. On December 18, 2012, the court
granted Phillips’ motion.
On January 18, 2013, Phillips filed a motion to dismiss
for lack of personal jurisdiction as a result of insuffi-
cient service of process. On February 7, 2013, Styles
filed a motion to dismiss on the same ground. On May
14, 2013, absent objection, the court granted the respec-
tive motions to dismiss filed by Phillips and Styles.
On July 11, 2013, the plaintiff filed an appearance as
a self-represented party in lieu of Minnella, Tramuta,
and Edwards, LLC, in the Continental action and filed
a motion to open the judgment, to which Phillips and
Styles filed a joint objection. On July 29, 2013, the court
denied the plaintiff’s motion to open. After July, 2013,
there was no activity in the Continental action.
On December 15, 2014, the plaintiff, representing him-
self, commenced the present action against the defen-
dants. In his operative one count complaint filed on
August 24, 2015, the plaintiff asserted a legal malprac-
tice claim against the defendants, alleging that the
defendants had failed to effectuate proper service of
process on Phillips and Styles in the Continental action.
The defendants filed separate answers and special
defenses, including statute of limitations defenses pur-
suant to § 52-577. The plaintiff moved to strike, inter
alia, the defendants’ statute of limitations defenses,
which the trial court denied. Thereafter, the plaintiff
did not file a reply pleading to each of the defendants’
special defenses.5
On July 12, 2016, Schoenhorn filed a motion for sum-
mary judgment, accompanied by a memorandum of law
and exhibits, asserting that he was entitled to judgment
as a matter of law because, among other things, the
plaintiff’s claim against him was time barred pursuant
to § 52-577. On August 31, 2016, the plaintiff filed an
objection to Schoenhorn’s motion for summary judg-
ment, accompanied by a memorandum of law, relying
solely on the allegations of the plaintiff’s operative com-
plaint.6 The plaintiff did not submit an affidavit or other
documentary evidence in support of his objection to
Schoenhorn’s motion for summary judgment. On Sep-
tember 14, 2016, Schoenhorn filed a reply memorandum
of law. On September 19, 2016, the court heard argu-
ment on Schoenhorn’s motion for summary judgment.
On September 9, 2016, Sierra filed a motion for sum-
mary judgment, accompanied by a memorandum of law
and exhibits, arguing that he was entitled to judgment
as a matter of law because, among other things, the
plaintiff’s claim against him was time barred pursuant
to § 52-577. On November 9, 2016, the plaintiff filed a
memorandum of law in opposition to Sierra’s motion
for summary judgment, as well as an affidavit signed
by the plaintiff (November 9, 2016 affidavit).7 On
November 23, 2016, Sierra filed a reply memorandum
of law accompanied by exhibits. On December 5, 2016,
the court heard argument on Sierra’s motion for sum-
mary judgment.
On April 24, 2017, the court issued a memorandum
of decision granting Schoenhorn’s motion for summary
judgment, concluding that the plaintiff’s claim against
Schoenhorn was time barred pursuant to § 52-577.8 On
May 23, 2017, the court issued a separate memorandum
of decision granting Sierra’s motion for summary judg-
ment, concluding that the plaintiff’s claim against Sierra
also was time barred pursuant to § 52-577.9 This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
We begin by setting forth the relevant standard of
review and legal principles that govern our review of
the plaintiff’s claims. ‘‘Practice Book § [17-49] provides
that summary judgment shall be rendered forthwith if
the pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as
a matter of law. . . . In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under applicable principles of substantive
law, entitle him to a judgment as a matter of law . . .
and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . . [I]ssue-finding,
rather than issue-determination, is the key to the proce-
dure. . . . [T]he trial court does not sit as the trier of
fact when ruling on a motion for summary judgment.
. . . [Its] function is not to decide issues of material
fact, but rather to determine whether any such issues
exist. . . . Our review of the decision to grant a motion
for summary judgment is plenary. . . . We therefore
must decide whether the court’s conclusions were
legally and logically correct and find support in the
record.’’ (Internal quotation marks omitted.) Perez v.
Metropolitan District Commission, 186 Conn. App.
466, 471–72, A.3d (2018).
‘‘Summary judgment may be granted where the claim
is barred by the statute of limitations.’’ (Internal quota-
tion marks omitted.) Meyers v. Livingston, Adler,
Pulda, Meiklejohn & Kelly, P.C., 134 Conn. App. 785,
789, 41 A.3d 674 (2012), aff’d, 311 Conn. 282, 87 A.3d
534 (2014). ‘‘Actions for legal malpractice based on neg-
ligence are subject to § 52-577, the tort statute of limita-
tions.’’ (Internal quotation marks omitted.) Weiner v.
Clinton, 106 Conn. App. 379, 386, 942 A.2d 469 (2008).
‘‘This court has determined that [§] 52-577 is an occur-
rence statute, meaning that the time period within
which a plaintiff must commence an action begins to
run at the moment the act or omission complained of
occurs. . . . Moreover, our Supreme Court has stated
that [i]n construing our general tort statute of limita-
tions . . . § 52-577, which allows an action to be
brought within three years from the date of the act or
omission complained of, we have concluded that the
history of that legislative choice of language precludes
any construction thereof delaying the start of the limita-
tion period until the cause of action has accrued or the
injury has occurred. . . . The three year limitation
period of § 52-577, therefore, begins with the date of
the act or omission complained of, not the date when
the plaintiff first discovers an injury.’’ (Internal quota-
tion marks omitted.) Chamerda v. Opie, 185 Conn. App.
627, 652, 197 A.3d 982, cert. denied, 330 Conn. 953, 197
A.3d 893 (2018).
‘‘To alleviate the harsh consequences of the occur-
rence rule, our Supreme Court . . . adopted the con-
tinuous representation doctrine in DeLeo v. Nusbaum,
263 Conn. 588, 821 A.2d 744 (2003). Under that rule, a
plaintiff may invoke the doctrine, and thus toll the stat-
ute of limitations, when the plaintiff can show: (1) that
the defendant continued to represent him with regard
to the same underlying matter; and (2) either that the
plaintiff did not know of the alleged malpractice or
that the attorney could still mitigate the harm allegedly
caused by that malpractice during the continued repre-
sentation period.’’ (Emphasis in original; internal quota-
tion marks omitted.) Farnsworth v. O’Doherty, 85 Conn.
App. 145, 150, 856 A.2d 518 (2004). ‘‘With regard to the
first prong . . . the representation continues for the
purposes of the continuous representation doctrine
until either the formal or the de facto termination of
the attorney-client relationship. The formal termination
of the relationship occurs when the attorney is dis-
charged by the client, the matter for which the attorney
was hired comes to a conclusion, or a court grants the
attorney’s motion to withdraw from the representation.
A de facto termination occurs if the client takes a step
that unequivocally indicates that he has ceased relying
on his attorney’s professional judgment in protecting
his legal interests, such as hiring a second attorney
to consider a possible malpractice claim or filing a
grievance against the attorney. Once such a step has
been taken, representation may not be said to continue
for purposes of the continuous representation doctrine.
A client who has taken such a concrete step may not
invoke this doctrine, because such actions clearly indi-
cate that the client no longer is relying on his attorney’s
professional judgment but instead intentionally has
adopted a clearly adversarial relationship toward the
attorney. Thus, once such a step has been taken, repre-
sentation does not continue for purposes of the continu-
ous representation doctrine.’’ (Footnotes omitted.)
DeLeo v. Nusbaum, supra, 597–98.
‘‘[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.’’ (Internal quotation marks omitted.) Chamerda v.
Opie, supra, 185 Conn. App. 653.
On appeal, the plaintiff asserts that because there
are genuine issues of material fact as to whether the
continuous representation doctrine applies so as to toll
§ 52-577, the court erred in rendering summary judg-
ments in favor of the defendants on the ground that his
claims were time barred. More specifically, the plaintiff
contends that there are genuine issues of material fact
with respect to the date upon which his attorney-client
relationships with the defendants terminated and that
the court (1) failed to consider the November 9, 2016
affidavit or, alternatively, improperly weighed the evi-
dence submitted by the parties, and (2) misconstrued
the arguments that he presented in opposition to the
defendants’ motions for summary judgment.10 We
disagree.
I
We first turn to the plaintiff’s claims relating to the
summary judgment rendered in favor of Schoenhorn.11
For the reasons that follow, we reject these claims.
The following additional facts and procedural history
are relevant to our resolution of these claims. In moving
for summary judgment on the ground that the plaintiff’s
claim against him was time barred pursuant to § 52-
577, Schoenhorn asserted that any available tolling of
the statute of limitations pursuant to the continuous
representation doctrine ended on August 26, 2009, when
there was a de facto termination of his attorney-client
relationship with the plaintiff. In support of his motion
for summary judgment, Schoenhorn submitted, inter
alia, an affidavit based on his own personal knowledge
and a copy of the transcript of the plaintiff’s deposition
taken in the present case, which demonstrated that the
plaintiff filed a self-represented party appearance in the
Continental action on August 26, 2009, and that, by
that time, the plaintiff was no longer speaking with
Schoenhorn and no longer had confidence in him.
Schoenhorn contended that the plaintiff commenced
the present case on December 15, 2014, over two years
after the three year statute of limitations had expired
on August 26, 2012.
The plaintiff argued, through counsel, in opposition
to Schoenhorn’s motion for summary judgment, that
there was a genuine issue of material fact as to the
date upon which his attorney-client relationship with
Schoenhorn ended. Specifically, he argued, without
citation to any evidence in the record, that Schoenhorn
‘‘continued to represent [him] after the filing of the
grievances in both 2006 and 2008 and continued to
represent [him] for some time after 2008 and into 2009’’
and that he had commenced the present case within
two years after he had ‘‘learned of [Schoenhorn’s] negli-
gence on December 18, 2012,’’ when the trial court
granted Phillips’ motion to open and set aside the judg-
ment in the Continental action. The plaintiff did not
submit any affidavits or other documentary evidence
in support of his objection to Schoenhorn’s motion.
In its memorandum of decision granting Schoenh-
orn’s motion for summary judgment, the trial court sum-
marized the plaintiff’s argument to be that the
continuous representation doctrine served to toll the
statute of limitations ‘‘because [the plaintiff] did not
know of the defendant’s wrongful conduct until Decem-
ber 18, 2012, and because Schoenhorn continued to
represent the plaintiff until sometime into 2009.’’ The
court found that the plaintiff’s reasoning was ‘‘unclear
and, in any event, unpersuasive.’’ The court observed
that § 52-577 is an occurrence statute, such that the
limitations period begins when the act or omission com-
plained of occurs, not when the plaintiff first discovers
an injury. Thus, the court concluded, the limitations
period expired in April, 2007, three years following
Schoenhorn’s alleged negligent conduct in April, 2004.
The court additionally concluded: ‘‘Even if, however,
the plaintiff could argue that the defendant still repre-
sented him through August 26, 2009, thereby tolling
[§ 52-577] until that date, the plaintiff would have been
required to file this action by August 26, 2012. Instead,
the plaintiff here commenced the action on December
15, 2014 . . . . Because the plaintiff failed to timely
file his action, this court concludes that the action is
barred by § 52-577 . . . .’’
The plaintiff claims that the court, in granting
Schoenhorn’s motion for summary judgment, failed to
consider the November 9, 2016 affidavit, in which he
averred that the defendants continued to represent him
until September 17, 2012. This claim is without merit.
The November 9, 2016 affidavit was not properly before
the court with respect to Schoenhorn’s motion for sum-
mary judgment. Practice Book (2016) § 17-45 provides
in relevant part: ‘‘A motion for summary judgment shall
be supported by such documents as may be appropriate,
including but not limited to affidavits . . . . The
motion shall be placed on the short calendar to be held
not less than fifteen days following the filing of the
motion and the supporting materials, unless the judicial
authority otherwise directs. . . . Any adverse party
shall at least five days before the date the motion is
to be considered on the short calendar file opposing
affidavits and other available documentary evidence.’’
(Emphasis added.) The court heard argument on
Schoenhorn’s motion for summary judgment on Sep-
tember 19, 2016, nearly two months before the plaintiff
had filed the November 9, 2016 affidavit. In fact, during
such argument, the plaintiff’s counsel expressed to the
court his intention to rely on the plaintiff’s brief and
contended that Schoenhorn had not satisfied his initial
burden of proof. Moreover, the November 9, 2016 affida-
vit was filed on the same day the plaintiff filed his
memorandum in opposition to Sierra’s motion for sum-
mary judgment. Simply put, the plaintiff’s suggestion
that the November 9, 2016 affidavit was filed in opposi-
tion to Schoenhorn’s motion for summary judgment
was first made on appeal. Under these circumstances,
the court could not have considered the November 9,
2016 affidavit in adjudicating Schoenhorn’s motion for
summary judgment. See, e.g., Magee Avenue, LLC v.
Lima Ceramic Tile, LLC, 183 Conn. App. 575, 583–85,
193 A.3d 700 (2018) (concluding that trial court errone-
ously rendered summary judgment where, among other
things, court improperly considered untimely affidavit
filed by movant in support of motion for summary judg-
ment). Thus, the plaintiff’s claim fails.12
The plaintiff also claims that the court misconstrued
the argument that he presented in opposing Schoenh-
orn’s motion for summary judgment. Specifically, he
contends that he argued to the trial court that his attor-
ney-client relationship with Schoenhorn ended on Sep-
tember 17, 2012, whereas the court interpreted his
argument to be that his attorney-client relationship with
Schoenhorn ended sometime in 2009. We disagree. In
his memorandum of law opposing Schoenhorn’s motion
for summary judgment, the plaintiff explicitly asserted
that Schoenhorn ‘‘continued to represent [him] after
the filing of the grievances in both 2006 and 2008 and
continued to represent [him] for some time after 2008
and into 2009.’’ Nowhere in his objection or accompa-
nying memorandum of law did the plaintiff contend
that his attorney-client relationship with Schoenhorn
ended on September 17, 2012. In addition, during argu-
ment on Schoenhorn’s motion for summary judgment,
the plaintiff did not argue that the representation ended
on September 17, 2012, or on any other specific date.13
In any event, the plaintiff did not submit any evidence
at all to support his assertion of the continuous repre-
sentation doctrine. See Chamerda v. Opie, supra, 185
Conn. App. 653 (‘‘[w]hen the plaintiff asserts that the
limitations period has been tolled by an equitable excep-
tion to the statute of limitations, the burden normally
shifts to the plaintiff to establish a disputed issue of
material fact in avoidance of the statute’’ [internal quo-
tation marks omitted]). Accordingly, the plaintiff’s
claim fails.14
In light of the foregoing, with respect to Schoenhorn’s
motion for summary judgment, we conclude that no
genuine issue of material fact exists that a de facto
termination of the plaintiff’s attorney-client relationship
with Schoenhorn occurred on August 26, 2009, thereby
tolling § 52-577 to that date pursuant to the continuous
representation doctrine.15 Thus, the limitations period
ran on August 26, 2012. The plaintiff commenced the
present action on December 15, 2014, outside of the
limitations period. Accordingly, as a matter of law, the
plaintiff’s legal malpractice claim against Schoenhorn
is time barred pursuant to § 52-577, and, thus, the court
properly rendered summary judgment in favor of
Schoenhorn.
II
We next address the plaintiff’s claims relating to the
summary judgment rendered in favor of Sierra. For
the reasons that follow, we conclude that these claims
are unavailing.
The following additional facts and procedural history
are relevant to our resolution of these claims. In moving
for summary judgment on the ground that the plaintiff’s
claim against him was time barred pursuant to § 52-
577, Sierra asserted that, pursuant to the continuous
representation doctrine, there were three possible dates
upon which a de facto termination of his attorney-client
relationship with the plaintiff occurred: (1) September
19, 2006, when the plaintiff filed his first grievance com-
plaint against Sierra, thereby causing the limitations
period to expire on September 19, 2009; (2) August 26,
2009, when the plaintiff filed his first appearance as a
self-represented party in the Continental action, thereby
causing the limitations period to expire on August 26,
2012; and (3) July 10, 2010, when the plaintiff filed
his second grievance complaint against Sierra, thereby
causing the limitations period to expire on July 10, 2013.
In support of his motion for summary judgment, Sierra
submitted, inter alia, an affidavit based on his own
personal knowledge and excerpts of the transcript of
the plaintiff’s deposition, upon which he relied to dem-
onstrate that the plaintiff’s grievance complaints against
him had been filed and dismissed and that the plaintiff,
having lost confidence in him, appeared as a self-repre-
sented party in the Continental action on August 26,
2009, after which the plaintiff sought no additional legal
services from him. Sierra contended that because the
plaintiff commenced the present action on December
15, 2014, beyond all three of the possible expiration
dates of the limitations period set forth in § 52-577, the
plaintiff’s claim was time barred.
The plaintiff argued in opposition to Sierra’s motion
for summary judgment that there was a genuine issue
of material fact as to the date upon which his attorney-
client relationship with Sierra ended. Specifically, he
argued that Sierra’s representation of him terminated
on September 17, 2012, when the law firm of Minnella,
Tramuta, and Edwards, LLC, appeared on his behalf in
the Continental action, and that he had been unaware
of Sierra’s alleged negligent conduct until the trial court
granted Phillips’ motion to open and set aside the judg-
ment in the Continental action on December 18, 2012.
In the November 9, 2016 affidavit, filed in opposition
to Sierra’s motion for summary judgment, the plaintiff
averred in relevant part that ‘‘[Sierra] and [Schoenhorn]
continued to represent [him] until [he] retained new
counsel on September 17, 2012.’’
In its memorandum of decision granting Sierra’s
motion for summary judgment, the trial court summa-
rized the plaintiff’s argument as follows: ‘‘The plaintiff
asserts that . . . Sierra served the wrong defendants
[in the Continental action] which would mean that [Sier-
ra’s] allegedly negligent conduct occurred in April, 2004.
. . . [T]he plaintiff does not dispute that he filed his
own appearance in August 26, 2009, no longer had con-
tact with counsel, had filed grievances against Sierra
. . . and testified that he had lost confidence in [the
defendants]. Instead, the plaintiff argues that the contin-
uous representation doctrine tolls [§ 52-577] because
he did not know of [Sierra’s] wrongful conduct until
December 18, 2012.’’ The court found that the plaintiff’s
reasoning was ‘‘unclear and, in any event, unpersua-
sive.’’ The court concluded that § 52-577 is an occur-
rence statute such that the limitations period begins
when the act or omission complained of occurs, not
when the plaintiff first discovers the injury, and, thus,
the statute of limitations expired in April, 2007, three
years following Sierra’s alleged improper service of pro-
cess on Phillips and Styles in April, 2004. The court
further concluded: ‘‘Even if, however, the plaintiff could
argue that [Sierra] still represented him through August
26, 2009, thereby tolling [§ 52-577] until that date, the
plaintiff would have been required to file this action by
August 26, 2012. Given the grievances filed, the undis-
puted evidence that he lost confidence in Sierra and
did not have contact with Sierra after August 26, 2009,
the court cannot find that the doctrine of continuous
representation applies to toll the statute. The plaintiff
here commenced the action on December 15, 2014
. . . . Because the plaintiff failed to timely file his
action, this court concludes that the action is barred
by § 52-577 . . . .’’
The plaintiff claims that the court, in rendering sum-
mary judgment in favor of Sierra, failed to consider
the November 9, 2016 affidavit or, alternatively, if it
considered the November 9, 2016 affidavit, the court
erroneously weighed the evidence submitted by the
parties. We are not persuaded. The November 9, 2016
affidavit did not set forth any specific facts or evidence
to support the plaintiff’s conclusory statement that his
attorney-client relationship with Sierra terminated on
September 17, 2012, after he had retained new counsel,
nor did the November 9, 2016 affidavit contradict Sier-
ra’s documentary evidence demonstrating, inter alia,
that the plaintiff had filed grievance complaints against
him in 2006 and 2010 and had filed an appearance on
his own behalf in the Continental action on August 26,
2009, by which point he had lost confidence in Sierra
and was no longer seeking legal advice from Sierra. See
Horvath v. Hartford, 178 Conn. App. 504, 509, 176 A.3d
592 (2017) (‘‘[a] conclusory assertion . . . does not
constitute evidence sufficient to establish the existence
of a disputed material fact for purposes of a motion for
summary judgment’’ [internal quotation marks omit-
ted]). The November 9, 2016 affidavit was inadequate
to create a genuine issue of material fact regarding
the termination date of the plaintiff’s attorney-client
relationship with Sierra and, therefore, we reject the
plaintiff’s claims. Cf. Busque v. Oakwood Farms Sports
Center, Inc., 80 Conn. App. 603, 606–608, 836 A.2d 463
(2003) (reversing summary judgment where plaintiff’s
affidavit filed in opposition to defendant’s motion for
summary judgment, which plaintiff claimed trial court
had failed to consider in rendering summary judgment
in favor of defendant, created genuine issues of material
fact), cert. denied, 267 Conn. 919, 841 A.2d 1190 (2004).
The plaintiff also claims that the court misconstrued
the argument that he presented in opposing Sierra’s
motion for summary judgment. Specifically, he con-
tends that he argued to the trial court that his attorney-
client relationship with Sierra ended on September 17,
2012, whereas the court interpreted his argument to be
that his attorney-client relationship with Sierra ended
in August, 2009. Contrary to the plaintiff’s assertion,
however, the court did not make any statement identi-
fying the date upon which the plaintiff argued that his
attorney-client relationship with Sierra ended.16 Rather,
the court determined that, in light of the grievance com-
plaints filed by the plaintiff against Sierra and the undis-
puted evidence demonstrating that the plaintiff had filed
an appearance on his own behalf in the Continental
action on August 26, 2009, by which point he had lost
confidence in Sierra and was no longer in contact with
Sierra, there was no genuine issue of material fact that
the latest possible date upon which a de facto termina-
tion of the plaintiff’s attorney-client relationship with
Sierra occurred, and thus the latest possible date to
which § 52-577 could have been tolled, was August 26,
2009. Therefore, the plaintiff’s claim fails.
Accordingly, with respect to Sierra’s motion for sum-
mary judgment, we conclude that no genuine issue of
material fact exists that a de facto termination of the
plaintiff’s attorney-client relationship with Sierra
occurred no later than August 26, 2009, thereby tolling
the limitations period set forth in § 52-577 to that date,
at the latest, pursuant to the continuous representation
doctrine.17 Thus, the limitations period ran no later than
August 26, 2012. The plaintiff commenced the present
action on December 15, 2014, outside of the limitations
period. As a matter of law, the plaintiff’s legal malprac-
tice claim against Sierra is time barred pursuant to § 52-
577, and, thus, the court properly rendered summary
judgment in favor of Sierra.
The judgments are affirmed.
In this opinion the other judges concurred.
1
For purposes of clarity, we refer to Jon L. Schoenhorn and Arnaldo J.
Sierra collectively as the defendants, and individually by last name.
2
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.’’
3
Because we conclude that the court properly rendered summary judg-
ments in favor of the defendants on the ground that the plaintiff’s legal
malpractice claims against them were time barred pursuant to § 52-577, we
need not reach the alternative grounds for affirmance raised by the defen-
dants in their appellate briefs.
4
The plaintiff settled with the other defendants in the Continental action
prior to trial.
5
The defendants do not raise any claim on appeal predicated on the
plaintiff’s failure to reply to their special defenses and, therefore, we do not
address this pleading deficiency. See Practice Book §§ 10-56 and 10-57; see
also Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167
Conn. App. 691, 700 n.7, 145 A.3d 292 (observing that, although continuous
representation doctrine, like continuing course of conduct doctrine, is matter
that must be pleaded in avoidance of statute of limitations special defense
pursuant to Practice Book § 10-57, defendants did not claim prejudice
resulting from plaintiffs’ lapse in pleading), cert. denied, 323 Conn. 930, 150
A.3d 231 (2016).
6
On August 5, 2016, the law firm of Votre & Associates, P.C., filed an
appearance on behalf of the plaintiff, in addition to the plaintiff’s self-
represented party appearance. The plaintiff acted solely via counsel through-
out the remainder of the trial court proceedings.
7
The November 9, 2016 affidavit did not identify the memorandum in
opposition that it was supporting.
8
In his motion for summary judgment, Schoenhorn also argued that his
alleged negligent conduct did not cause the damages claimed by the plaintiff.
After concluding that the plaintiff’s legal malpractice claim against Schoenh-
orn was time barred pursuant to § 52-577, the court, in a footnote, stated
that ‘‘it is not clear how the plaintiff can causally link [Schoenhorn’s] alleged
misconduct with the ultimate dismissal of [the] plaintiff’s attempt to enforce
the judgment. Because the statute of limitations bar definitively decides the
outcome, however, this court does not elaborate further as to this claim.’’
9
In his motion for summary judgment, Sierra also argued that his alleged
negligent conduct did not cause the damages claimed by the plaintiff and
that he had no duty to effectuate service on Phillips and Styles in the
Continental action. After concluding that the plaintiff’s legal malpractice
claim against Sierra was time barred pursuant to § 52-577, the court, in a
footnote, stated that ‘‘it is not clear how the plaintiff can causally link
[Sierra’s] alleged misconduct with the ultimate dismissal of [the] plaintiff’s
attempt to enforce the judgment. Because the statute of limitations bar
definitively decides the outcome, however, this court does not elaborate
further as to this claim.’’ The court also did not address the merits of Sierra’s
claim that he had no duty to effectuate service on Phillips and Styles in the
Continental action.
10
The plaintiff also claims that, as a matter of public policy, the Rules of
Professional Conduct provide that an attorney should clarify any doubt
regarding the existence of an attorney-client relationship with a client and
should confirm the termination of an attorney-client relationship by way of
a written statement sent to the client. See Rules of Professional Conduct
1.3, commentary (‘‘Unless the relationship is terminated as provided in Rule
1.16, a lawyer should carry through to conclusion all matters undertaken
for a client. . . . Doubt about whether a client-lawyer relationship still
exists should be clarified by the lawyer, preferably in writing, so that the
client will not mistakenly suppose the lawyer is looking after the client’s
affairs when the lawyer has ceased to do so.’’); Rules of Professional Conduct
1.16, commentary (‘‘A written statement to the client confirming the termina-
tion of the relationship and the basis of the termination reduces the possibil-
ity of misunderstanding the status of the relationship. The written statement
should be sent to the client before or within a reasonable time after the
termination of the relationship.’’).
The plaintiff asserts that the Rules of Professional Conduct support his
contention that his attorney-client relationships with the defendants termi-
nated on September 17, 2012, and, thus, that genuine issues of material fact
exist as to the date of the termination of the attorney-client relationships.
The plaintiff’s reliance on the Rules of Professional Conduct, to which he
refers for the first time on appeal, is misplaced. Our Supreme Court explained
in DeLeo that ‘‘the representation continues for the purposes of the continu-
ous representation doctrine until either the formal or the de facto termination
of the attorney-client relationship.’’ (Emphasis added.) DeLeo v. Nusbaum,
supra, 263 Conn. 597. As we conclude subsequently in this opinion, there
are no genuine issues of material fact that de facto terminations of the
plaintiff’s attorney-client relationships with the defendants occurred on or
by August 26, 2009. Whether the defendants failed to clarify their attorney-
client relationships with the plaintiff or to confirm the termination of their
attorney-client relationships with the plaintiff in writing does not alter
our analysis.
11
In his appellate brief, the plaintiff does not segregate his claims directed
to the summary judgment rendered in favor of Schoenhorn from his claims
directed to the summary judgment rendered in favor of Sierra. For ease of
discussion, we address the plaintiff’s claims challenging each judgment sepa-
rately.
12
As a result of our conclusion that the November 9, 2016 affidavit was not
properly before the court with regard to Schoenhorn’s motion for summary
judgment, we need not reach the plaintiff’s alternative claim that the court
erroneously weighed the evidence submitted by the parties in adjudicating
Schoenhorn’s motion for summary judgment.
13
In his appellate brief, to support his contention that the court miscon-
strued his argument with respect to Schoenhorn’s motion for summary
judgment, the plaintiff cites to his memorandum of law in opposition to
Sierra’s motion for summary judgment and the transcript of the argument
on that motion. In his opposition to Sierra’s motion for summary judgment
and during argument on that motion, the plaintiff expressly argued that his
attorney-client relationship with Sierra ended on September 17, 2012. Before
this court the plaintiff conflates the defendants’ distinct motions for sum-
mary judgment, which, although involving similar claims, were briefed,
argued, and decided separately.
14
The plaintiff also refers to the November 9, 2016 affidavit in an effort
to demonstrate that he had argued to the court that his attorney-client
relationship with Schoenhorn terminated on September 17, 2012. As we
concluded previously in this opinion, however, the November 9, 2016 affida-
vit was not properly before the court with respect to Schoenhorn’s motion
for summary judgment.
15
In moving for summary judgment, Schoenhorn did not argue that the
plaintiff’s filing of the first grievance complaint against him in 2006 consti-
tuted a de facto termination of the plaintiff’s attorney-client relationship
with him. See DeLeo v. Nusbaum, supra, 263 Conn. 597–98 (client’s filing
of grievance complaint against attorney constitutes de facto termination of
attorney-client relationship). Accordingly, we do not address whether the
plaintiff’s filing of the first grievance complaint against Schoenhorn in 2006
was a de facto termination of their attorney-client relationship.
16
The plaintiff again conflates the court’s decision granting Sierra’s motion
for summary judgment with the court’s separate decision granting Schoenh-
orn’s motion for summary judgment.
17
Unlike Schoenhorn, Sierra argued in moving for summary judgment that
the plaintiff’s filing of the first grievance complaint against him on September
19, 2006, constituted a de facto termination of the plaintiff’s attorney-client
relationship with him. Pursuant to DeLeo, a de facto termination of Sierra’s
attorney-client relationship with the plaintiff occurred when the plaintiff
filed the first grievance complaint against Sierra. See DeLeo v. Nusbaum,
supra, 263 Conn. 597–98. Thus, with respect to the plaintiff’s claim against
Sierra, the limitations period set forth in § 52-577 was tolled only until
September 19, 2006, and thereafter expired on September 19, 2009. Regard-
less of whether we rely on the de facto termination that occurred upon the
filing of the plaintiff’s first grievance complaint against Sierra on September
19, 2006, or on the de facto termination that occurred upon the plaintiff
filing his first appearance as a self-represented party in the Continental
action on August 26, 2009, which is the date upon which the court focused
in its memorandum of decision, the plaintiff’s claim against Sierra is time
barred pursuant to § 52-577.