Manzo-Ill v. Schoonmaker , 188 Conn. App. 343 ( 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.
***********************************************
ELLEN M. MANZO-ILL v. SAMUEL V. SCHOONMAKER
III ET AL.
(AC 40447)
DiPentima, C. J., and Keller and Moll, Js.
Syllabus
The plaintiff sought to recover damages from the defendant law firm, S Co.,
for legal malpractice and fraudulent misrepresentation in connection
with its representation of her in a prior marital dissolution action. On
May 20, 2013, the plaintiff delivered a writ of summons and complaint
to a state marshal, who thereafter made service on S Co. on June 10,
2013. In response to the plaintiff’s complaint, S Co. filed an answer and
raised a special defense that the action was barred by the applicable
statute of limitations (§ 52-577), which permits a tort action to be brought
within three years from the date of the act or omission complained of.
Thereafter, the trial court granted S Co.’s motion to bifurcate the trial,
which requested the court to consider S Co.’s statute of limitations
defense before it considered the merits of the plaintiff’s complaint.
Following a trial on the statute of limitations issue, the court rendered
judgment in favor of S Co., concluding that the plaintiff’s claims were
barred by the three year limitation period set forth in § 52-577. In its
memorandum of decision, the court found that after S, the attorney and
partner at S Co. who represented the plaintiff in the dissolution action,
informed the plaintiff that he planned to retire, the plaintiff indicated
to S that she understood his letter to mean that she needed to retain
new counsel, and that on March 11, 2010, she retained new counsel
when another law firm filed an appearance in lieu of S Co., which
withdrew S Co.’s appearance in the dissolution action by law pursuant
to the relevant rule of practice (§ 3-9). The court also found that certain
post-March, 2010 billing records of S Co. that the plaintiff had relied on
failed to support her continuous representation claim and, thus, that
plaintiff had failed to establish that the continuing representation doc-
trine tolled the statute of limitations. The plaintiff subsequently filed a
motion to reargue, claiming that the court had failed to take judicial
notice of S Co.’s automatic appearance in the appeal in the dissolution
action when it considered her continuous representation claim. The
trial court denied the motion to reargue, and the plaintiff appealed to
this court. Held:
1. The trial court properly concluded that the plaintiff’s action was barred
by the statute of limitations set forth in § 52-577, as the evidence estab-
lished that the attorney-client relationship between the plaintiff and S
Co. terminated on March 11, 2010, thereby precluding the tolling of the
statute of limitations through the doctrine of continuous representation
after that date, and the plaintiff failed to commence her action within
three years from that date: the plaintiff’s claim that the trial court misap-
plied the rule in DeLeo v. Nusbaum (263 Conn. 588) regarding the
continuous representation doctrine and the tolling of the statute of
limitations by erroneously expanding the rule with respect to whether
the attorney-client relationship had ended was unavailing, as her asser-
tion that the specific methods listed in DeLeo constitute the only valid
methods to terminate an attorney-client relationship in establishing the
first prong of the doctrine construed the rule in DeLeo too narrowly,
the key issue instead being whether, under either a formal or de facto
termination, the relationship between the attorney and client had ended,
and evidence in the record demonstrated that the attorney-client rela-
tionship between the plaintiff and S Co. ended in March, 2010; moreover,
in applying the continuous representation doctrine, the trial court prop-
erly concluded that the events of this case implicated aspects of both
a formal and a de facto termination of S Co.’s representation in March,
2010, namely, new counsel’s filing of the in lieu of appearance, which
signified the termination of S Co.’s representation of the plaintiff, the
plaintiff’s acknowledgment of the end of the attorney-client relationship,
as evidenced by a letter she sent to S specifically noting that S Co. no
longer represented her, and the plaintiff’s hiring of new counsel, which
indicated that she no longer relied on the professional judgment of S
Co. to protect her legal interests.
2. The trial court did not abuse its discretion in denying the plaintiff’s motion
to reargue, in which she claimed that the court failed to take judicial
notice of S Co.’s automatic appearance in the appeal in the dissolution
action when it considered her continuous representation claim; the
plaintiff failed to raise that issue during the trial and, instead, brought
it to the trial court’s attention for the first time after it had rendered
its decision, and, therefore, she did not identify a principle of law or
fact that the court had been presented with at trial but, rather, sought
a second opportunity to litigate her claim regarding the applicability of
the continuous representation doctrine.
Argued October 18, 2018—officially released March 12, 2019
Procedural History
Action to recover damages for, inter alia, legal mal-
practice, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the court, Povodator, J., granted in part the
defendants’ motion to dismiss; thereafter, the court
granted the motion to bifurcate the trial filed by the
defendant Schoonmaker, George & Blomberg, P.C., and
the matter was tried to the court; judgment for the
defendant Schoonmaker, George & Blomberg, P.C.; sub-
sequently, the court denied the plaintiff’s motion to
reargue, and the plaintiff appealed to this court.
Affirmed.
James H. Lee, for the appellant (plaintiff).
Scott S. Centrella, with whom, on the brief, was Timo-
thy P. Moylan, for the appellee (defendant Schoon-
maker, George & Blomberg, P.C.).
Opinion
DiPENTIMA, C. J. The plaintiff, Ellen M. Manzo-Ill,
appeals from the judgment of the trial court rendered
in favor of the defendant Schoonmaker, George &
Blomberg, P.C.,1 after a trial before the court. The court
concluded that the plaintiff’s claims of legal malpractice
and fraudulent misrepresentation were barred by the
three year statute of limitations set forth in General
Statutes § 52-577.2 On appeal, the plaintiff claims that
the court (1) misapplied our Supreme Court’s holding
in DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744(2003), regarding the continuous representation doc-
trine and the tolling of the statute of limitations and
(2) abused its discretion in denying her motion to rear-
gue. We disagree and, accordingly, affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In May, 2007, the
plaintiff’s then husband, Charles L. Ill III initiated a
dissolution action, and, in June, 2007, the plaintiff hired
the defendant to represent her. The dissolution court
issued a memorandum of decision on August 19, 2008,
dissolving the marriage between the plaintiff and Ill.
See Ill v. Manzo-Ill, Superior Court, judicial district of
Stamford-Norwalk, Docket No. FA-XX-XXXXXXX-S
(August 19, 2008).
On May 20, 2013, the plaintiff delivered the writ of
summons and complaint to a state marshal, who made
service on the defendant on June 10, 2013.3 The opera-
tive complaint, dated August 28, 2014, set forth two
causes of action against the defendant: legal malprac-
tice4 and fraudulent misrepresentation.5 Generally, the
complaint alleged that the attorneys of the defendant
law firm had ‘‘deviated from accepted professional stan-
dards directly causing [the plaintiff] to lose millions of
dollars in what would have been her share of undiscov-
ered marital assets. Worse yet, [the plaintiff] paid the
[defendant] tens of thousands of dollars in legal fees and
expenses for this deficient representation.’’ Specifically,
the complaint alleged that the defendant (1) was negli-
gent in failing to conduct financial discovery as to the
former employers of Ill, (2) was negligent and commit-
ted fraud with respect to Ill’s testamentary interests,
(3) was negligent during the dissolution trial and (4)
was negligent during the posttrial proceedings.
On November 10, 2014, the defendant filed an answer
and raised a statute of limitations defense, pursuant to
§ 52-577, as to both counts of the operative complaint.
Approximately one month later, the defendant moved
for summary judgment on the basis that the plaintiff’s
action was time barred. In its motion, the defendant
argued that it had been replaced as the plaintiff’s coun-
sel on March 11, 2010, when the law firm of Tibbetts,
Keating & Butler, LLC (successor counsel) filed an ‘‘in
lieu of’’ appearance on behalf of the plaintiff. It further
maintained that because the process initiating the pre-
sent action was not delivered to the state marshal until
May 20, 2013, and was not served on the defendant until
June 10, 2013, more than three years after the defendant
had been replaced by successor counsel, it was entitled
to summary judgment. The defendant also argued that
the continuous representation doctrine did not apply
to this matter.
On January 29, 2015, the plaintiff filed a memorandum
of law in opposition to the defendant’s motion for sum-
mary judgment. She argued that the defendant had per-
formed legal services after May 20, 2010, and, therefore,
her action was not barred by the statute of limitations.
In support of her opposition, the plaintiff directed the
court to the defendant’s invoices indicating that legal
work had been done on behalf of the plaintiff on May
20 and September 1, 2010. The plaintiff also argued that
the continuous representation doctrine served to toll6
§ 52-577.
The court, Povodator, J., issued a memorandum of
decision denying the defendant’s motion for summary
judgment on April 28, 2015. Specifically, the court rea-
soned that the post-May 20, 2010 invoice and the parties’
competing explanations thereof could not be resolved
in the context of a motion for summary judgment.
On February 29, 2016, the defendant moved to bifur-
cate the trial pursuant to General Statutes § 52-205 and
Practice Book § 15-1 so that its statute of limitations
defense would be considered before the merits of the
plaintiff’s operative complaint. Over the plaintiff’s
objection, the court granted the motion to bifurcate on
March 7, 2016.
The court conducted a three day trial on the defen-
dant’s statute of limitations defense on March 29, April
15 and July 6, 2016. On the first day, the defendant
presented testimony from Paul Tusch, the attorney who
represented Ill in the dissolution action; John P. Ekberg
III, an attorney with the defendant from November,
1999 until April, 2012; and Aidan Welsh, an attorney
with the defendant since 2006. At the conclusion of
the testimony from the three witnesses, the defendant
rested as to the issue of the statute of limitations. On
April 15, 2016, the plaintiff was the only witness to
testify. On July 6, 2016, the plaintiff presented testimony
from Timothy Butler, an attorney with successor coun-
sel, and recalled herself to testify.
On March 7, 2017, the court issued its memorandum
of decision.7 It found that in January, 2010, Attorney
Samuel V. Schoonmaker III,8 the attorney and partner
at the defendant who had primary responsibility for
representing the plaintiff in the dissolution action,
wrote to her confirming his plan to retire, effective April
1, 2010. ‘‘In that letter, [Schoonmaker] further indicated
that he did not wish to refer the file to someone else
in his office. This was understood by the plaintiff to
reflect the need for retention of new counsel, which
she did obtain in March of 2010.’’ Successor counsel
filed an appearance in lieu of the defendant on March
11, 2010.
The court addressed the evidence of conversations
between Schoonmaker and the plaintiff and successor
counsel in the spring and summer of 2010. The court
found that the thrust of Schoonmaker’s post-May, 2010
conversations with the plaintiff related to her outstand-
ing bill with the defendant. It further observed that
other aspects of the case likely were discussed but were
not the primary reason for the communications. ‘‘With
respect to the testimony of successor counsel relating
to discussion he had with . . . Schoonmaker relating
to the handling of the case, there is no affirmative evi-
dence refuting that testimony. There is a negative infer-
ence available, however—while . . . Schoonmaker
documented (in time records) his bill related conversa-
tions with the plaintiff (for which no charge was ever
imposed), whatever discussions he may have had with
successor counsel did not warrant any time record
entries at all, with or without an associated fee for
services.’’
The court also considered the evidence that the
defendant had billed the plaintiff for services in late
May, 2010, ‘‘including preparation of certain documents
and legal research. The defendant did not dispute that
on or about May 20, 2010, an attorney from the defen-
dant . . . did, in fact, prepare an affidavit for use in
connection [with] the marriage dissolution action (spe-
cifically in connection with a motion to open judgment),
but disputed its value as probative of ongoing represen-
tation, emphasizing that it was purely factual in nature
and intended for use by successor counsel.’’
The court noted the billing entry detailing a conversa-
tion between Schoonmaker and Tusch, Ill’s attorney,
that had occurred on September 1, 2010. ‘‘It reflects a
conversation . . . concerning settlement. The testi-
mony of successor counsel suggests that such a tele-
phone call did occur—he testified that there had been
problems with a payment from [Ill]; Mr. Schoonmaker
said he would call [Tusch]; and payment was made
shortly thereafter.’’ Tusch testified, however, that such
a telephone conversation did not occur. Ultimately, the
court found that Schoonmaker did speak with Tusch
on September 1, 2010, ‘‘but the purpose of the call was
not to discuss anything of a substantive nature but,
rather, was likely to have been an informal call concern-
ing a long overdue payment, sufficiently informal that
. . . Tusch likely saw no need to memorialize the con-
versation in his time and billing records.’’
In November, 2010, the plaintiff sent a letter to
Schoonmaker questioning some of the items contained
in the defendant’s invoice. Specifically, she wrote: ‘‘The
second item in question which makes me suspect that
there exists an error is that the invoice indicates that
you have signed an affidavit on [May 20, 2010] which
was signed and e-mailed to [an attorney employed by
successor counsel]. On [May 20, 2010, the defendant]
was no longer representing me given your January, 2010
letter to me in which you indicated that you would be
retiring from your firm effective [April 1, 2010]. Your
letter also indicated that you couldn’t advise that other
partners in your firm take on my case for the reason
that so much had transpired in the case and the learning
curve was too deep. As you’re aware, I reacted as
quickly as possible to your news and secured and
retained alternate representation . . . to assume my
case. [Successor counsel was] representing me in May,
2010. As a result, I am unclear as to why you would
have signed an affidavit relative to my case in May,
2010 and thus, suspect a slight billing error.’’
The court ultimately found that the statute of limita-
tions had not been tolled by the continuous representa-
tion doctrine. The court determined that the defendant’s
appearance was withdrawn by operation of law pursu-
ant to Practice Book § 3-99 following the appearance
filed by successor counsel on March 11, 2010. It further
concluded that ‘‘the representation by the defendant
was not continuous but, rather, changed materially,
effective no later than March 11, 2010. Effective that
date, the defendant no longer was counsel of record in
the pending litigation; the defendant no longer was ‘the’
legal advisor for the plaintiff. Instead, at most, the defen-
dant as personified by . . . Schoonmaker was
assisting successor counsel, providing advice to the
plaintiff and/or new counsel. Absent an appearance in
the pending litigation, it does not seem he had the ability
to rectify anything, without reliance on successor
counsel.’’
The court then specifically addressed the plaintiff’s
arguments regarding the applicability of the continuing
representation doctrine. First, it set forth fifteen billing
entries, post-March 11, 2010, on which the plaintiff had
relied for the claim of continuous representation.10 It
then determined that most of these entries had ‘‘no
apparent possible ‘substantive’ quality’’ and that, during
the transition from the defendant to successor counsel,
‘‘there would be some level of communication . . . .’’
(Citation omitted.)
The court accepted the defendant’s explanation for
the May, 2010 entries for fees associated with a legal
research database as costs that had been incurred in
the prior months. The court further found that, with
respect to the fees charged to the plaintiff for the prepa-
ration of an affidavit, such charges were made in error
by the defendant.11
With respect to Schoonmaker’s interactions with suc-
cessor counsel, the court determined that such conver-
sations were informal in nature and constituted a blend
of professional courtesy and ensuring an efficient tran-
sition from the defendant to successor counsel. Turning
to the September 1, 2010 billing entry and the plaintiff’s
claim that Schoonmaker had engaged in settlement con-
versations with Tusch, the court found that this interac-
tion ‘‘appears to have been a relatively ministerial issue
of compliance with an existing settlement [specifically,
the payment of money by Ill to the plaintiff] rather than
working toward achieving a new settlement.’’
The court concluded that the defendant had met its
burden of proving that its representation of the plaintiff
ended on March 11, 2010, and, thus, the burden shifted
to the plaintiff to establish that the continuing represen-
tation doctrine tolled the statute of limitations. It further
found that the plaintiff had not proven by a preponder-
ance of the evidence ‘‘that there had been continuous
representation by [the] defendant extending to (or
beyond) May 20, 2010, three years prior to the date on
which a marshal was given process for serving on the
intended defendants, the event which would have
stopped the running of the statute of limitations under
General Statutes § 52-593a. The action was not com-
menced within three years of the last act giving rise to
the claimed legal malpractice and claimed misrepresen-
tation, and the absence of an applicable basis for tolling
requires the court to conclude that this action is barred
by the statute of limitations.’’
On April 17, 2017, the plaintiff filed a motion to rear-
gue pursuant to Practice Book § 11-11. She argued that
the trial court had failed to take judicial notice of the
appearance filed by the defendant in the appeal of the
dissolution action. She claimed that the appellate
appearance for that appeal, which had been filed on
October 23, 2008, and had not been withdrawn until
June 9, 2010, should have been part of the court’s con-
sideration of her continuous representation argument.
The plaintiff also requested that the court consider cer-
tain billing records that had been part of the summary
judgment proceedings. The defendant filed an objection
to the motion to reargue. The court denied the plaintiff’s
motion to reargue on April 27, 2017.12 This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The plaintiff first claims that the court misapplied
the holding of our Supreme Court in DeLeo v. Nusbaum,
supra, 263 Conn. 588, regarding the continuous repre-
sentation doctrine and the tolling of the statute of limita-
tions. Specifically, she argues that the court erroneously
expanded the DeLeo rule with respect to the issue of
whether the attorney-client relationship had ended. The
defendant counters that the court properly interpreted
and applied the principles of DeLeo. We agree with
the defendant.
At the outset, we identify our standard of review. In
Straw Pond Associates, LLC v. Fitzpatrick, Mariano &
Santos, P.C., 167 Conn. App. 691, 715, 145 A.3d 292,
cert. denied, 323 Conn. 930, 150 A.3d 231 (2016), we
stated that the question ‘‘of whether a party engaged
in a continuing course of conduct that tolled the statute
of limitations is a mixed question of law and fact.’’
(Internal quotation marks omitted.) Under that stan-
dard of review, ‘‘we defer to any factual findings and
credibility determinations made by the trial court, but
we review the legal import of those findings de novo.’’
Jones v. State, 328 Conn. 84, 101, 177 A.3d 534 (2018).
Our analysis begins with an examination of our
Supreme Court’s seminal decision in DeLeo in which
the plaintiff filed an action against the defendants, the
attorney and the law firm that previously had repre-
sented him in a dissolution action.13 DeLeo v. Nusbaum,
supra, 263 Conn. 589. He alleged that twelve acts or
omissions by the defendants constituted negligence.
Id., 590. The defendants filed an answer denying the
plaintiff’s allegations and raised a statute of limitations
special defense. Id.At the conclusion of the plaintiff’s case, the defen-
dants moved for a directed verdict, arguing that the
statute of limitations barred the action. Id. With respect
to the plaintiff’s continuous representation doctrine
claim, the trial court, operating without the benefit of
any appellate authority, assumed that this doctrine was
akin to the course of treatment rule in medical malprac-
tice actions. Id., 591. The trial court determined that
the attorney-client relationship had broken down irre-
trievably as a result of a June 22, 1993 letter the defen-
dant sent to his wife stating: ‘‘[I]ncident[al]ly, you[r]
lawyers have not only committed malpractice in han-
dling this case but are guilty of billing fraud and [m]y
lawyer has not done much better.’’ (Emphasis added;
internal quotation marks omitted.) Id., 592. Ultimately,
the trial court concluded that the jury could not have
found that a continuing attorney-client relationship
between the parties existed three years prior to the
commencement of the action sufficient to toll the stat-
ute of limitations and directed a verdict in favor of the
defendants. Id., 593.
On appeal, the Supreme Court first noted that
although the trial court did not have the benefit of any
Connecticut appellate authority adopting the continu-
ous representation doctrine, the doctrine had ‘‘wide-
spread support in other states.’’ Id., 593–94. It further
observed that in the interim between the trial court’s
decision and our Supreme Court’s opinion, this court
had recognized the continuous representation doctrine
in Rosenfield v. Rogin, Nassau, Caplan, Lassman &
Hirtle, LLC, 69 Conn. App. 151, 166, 795 A.2d 572 (2002).
DeLeo v. Nusbaum, supra, 263 Conn. 594. It then
endorsed seven rationales, five of which had been listed
in Rosenfield, for adopting the continuous representa-
tion doctrine.14 Id., 594–96. It remained mindful, how-
ever, of the purposes of statutes of limitations.15 Id.,
596. Ultimately, our Supreme Court joined ‘‘the majority
of states that have adopted the continuous representa-
tion doctrine. . . . Under the rule we adopt today, 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.’’ (Citation omitted; emphasis in origi-
nal; footnotes omitted.) Id., 597.
Our Supreme Court then provided further guidance
with respect to the doctrine. ‘‘With regard to the first
prong, we conclude that the representation continues
for the purposes of the continuous representation doc-
trine until either the formal or the de facto termination
of the attorney-client relationship. The formal termina-
tion of the relationship occurs when the attorney is
discharged by the client, the matter for which the attor-
ney was hired comes to a conclusion, or a court grants
the attorney’s motion to withdraw from the representa-
tion. 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 pro-
tecting his legal interests, such as hiring a second attor-
ney 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.’’ (Emphasis added;
footnotes omitted.) Id., 597–98.
The court emphasized the need for a clear standard
for determining when an attorney-client relationship
ends by way of formal or de facto termination and,
thus, rejected the factor based approach that the trial
court had employed. Id., 598–99. Under the facts of
DeLeo, our Supreme Court concluded that there had not
been a termination of the attorney-client relationship.
Specifically, it determined that the letter from the plain-
tiff to his wife, stating that ‘‘you[r] lawyers have not
only committed malpractice in handling this case but
are guilty of billing fraud, and [m]y lawyer has not done
much better’’ did not rise to the level of an unequivocal
indication that the plaintiff had ceased relying on his
attorney’s professional judgment in protecting his legal
interests. (Internal quotation marks omitted.) Id., 600.
It then reversed the judgment and remanded the case
for consideration of the second prong of the continuous
representation doctrine and whether the plaintiff’s
action was barred by the statute of limitations. Id.,600–601.
DeLeo clearly established that the continuous repre-
sentation doctrine does not apply following the termina-
tion of the attorney-client relationship. Id., 597, 599;
see also Straw Pond Associates, LLC v. Fitzpatrick,
Mariano & Santos, P.C., supra, 167 Conn. App. 719.
The plaintiff argues that the specific methods listed in
DeLeo constitute the only valid methods to terminate
an attorney-client relationship in establishing the first
prong of the continuous representation doctrine. The
plaintiff reads DeLeo too narrowly. As our Supreme
Court established, the first prong of the continuous
representation doctrine is whether the attorney contin-
ued to represent the plaintiff with regard to the same
underlying matter. Id., 597. The court then identified
the two types of termination, formal and de facto. Id.It did not, however, limit the methods to effectuate the
termination of the representation to the few examples
provided. Instead, our Supreme Court instructed that
the key issue is whether, under a formal or de facto
termination, the relationship between the attorney and
client had ended. Id., 600.
In the present case, Schoonmaker, by a January, 2010
letter, notified the plaintiff of his intention to retire
from the practice of law, effective April 1, 2010. On
March 11, 2010, successor counsel filed an in lieu of
appearance on behalf of the plaintiff pursuant to Prac-
tice Book § 3-8.16 Pursuant to our rules of practice, the
appearance of the defendant was deemed to have been
withdrawn. See Practice Book (2010) § 3-9 (a). One
Superior Court judge has concluded that the filing of
an in lieu of appearance by another law firm acts to
terminate the attorney-client relationship for the pur-
poses of the continuous representation doctrine. In
Windels v. Hart Investment Properties, Superior Court,
judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-
S (February 1, 2010) (49 Conn. L. Rptr. 354), the defen-
dant attorney moved for summary judgment on the
basis of the statute of limitations. He argued that the
filing of an in lieu of appearance by another law firm
‘‘operated as a withdrawal’’ of his appearance. The
court, Arnold, J., agreed, concluding that the defen-
dant’s appearance was deemed withdrawn by operation
of Practice Book §§ 3-8 and 3-9. Id. We find Windels per-
suasive.
We find additional support for our conclusion in the
authors’ commentary in the Connecticut Practice
Series: Connecticut Superior Court Civil Rules. Specifi-
cally, the commentary to § 3-9 recognized that ‘‘[i]f new
counsel has appeared in lieu of the initial counsel, a
motion to withdraw is not required.’’ W. Horton et al.,
1 Connecticut Practice Series: Connecticut Superior
Court Civil Rules (2017–2018 Ed.) § 3-9, authors’ com-
ments, p. 369.17
In addition to the precepts of DeLeo, the plain lan-
guage of the relevant rules of practice, the reasoning
in Windels, and the authors’ commentary in the Con-
necticut Practice Series guide our conclusion that the
attorney-client relationship between the plaintiff and
the defendant had ended in March, 2010. This result
is further buttressed by the trial court’s finding that
Schoonmaker had informed the plaintiff of his plan to
retire from the practice of law, effective April 1, 2010.
He confirmed his intention by letter to the plaintiff
dated January 13, 2010. The plaintiff subsequently sent
Schoonmaker a letter in November, 2010, in which she
questioned a May 20, 2010 billing entry. Specifically,
she wrote: ‘‘On [May 20, 2010, the defendant] was no
longer representing me, given your January, 2010 letter
to me . . . . Your letter also indicated that you
couldn’t advise that other partners in your firm take on
my case for the reason that so much had transpired in
the case and the learning curve was too deep. As you’re
aware, I reacted as quickly as possible to your news
and secured and retained alternate representation—
[successor counsel]—to assume my case. [Successor
counsel was] representing me in May 2010.’’ (Empha-
sis added.)
We agree with the conclusion of the trial court that
the events of this case implicate aspects of both a formal
and a de facto termination in applying the continuous
representation doctrine. The filing of the in lieu of
appearance by successor counsel signified the termina-
tion of the defendant’s representation of the plaintiff.
Moreover, the plaintiff acknowledged the end of this
attorney-client relationship, as evidenced by her
November, 2010 letter to Schoonmaker questioning cer-
tain charges on her bill and specifically noting that the
defendant no longer represented her. The letter also
demonstrates that the plaintiff had hired successor
counsel and no longer relied on the professional judg-
ment of the defendant’s attorneys to protect her legal
interests. In short, we agree with the trial court that
the evidence established that the attorney-client rela-
tionship between the plaintiff and the defendant termi-
nated in March, 2010, thereby precluding the tolling
of the statute of limitations through the doctrine of
continuous representation after that date.18 As the plain-
tiff failed to commence her action within three years
from that date, we conclude that the court properly
determined that her action was barred by the statute
of limitations.
II
The plaintiff next claims that the court improperly
denied her motion to reargue, filed pursuant to Practice
Book § 11-11. Specifically, she argues that the court
erred in failing to take judicial notice of the defendant’s
appearance in the appeal in the dissolution action. The
defendant counters that the court properly denied the
motion to reargue, as the plaintiff ‘‘was improperly
using the vehicle of a motion to reargue in an attempt
to reopen the trial record and admit new evidence [that]
the [p]laintiff could have offered during the trial but
did not.’’ We agree with the defendant.
The following additional facts inform the resolution
of this claim. On April 17, 2017, the plaintiff filed a
motion to reargue, claiming that the trial court’s memo-
randum of decision had failed to ‘‘take into account a
crucial piece of factual evidence from the [c]ourt’s own
records, which the [c]ourt could have taken judicial
notice of when making [its] decision.’’ The plaintiff
pointed to the fact that the defendant had an appearance
in the appeal taken by Ill from the dissolution judgment.
She further contended that this evidence established
that the defendant’s representation had not ended in
March, 2010, but, rather, continued until June 9, 2010,
the date the appeal was withdrawn, and, therefore, she
had commenced her action within the three year statute
of limitations.
In its objection, filed April 27, 2017, the defendant
argued that the plaintiff had not requested the trial
court to take judicial notice of the appearance in the
dissolution appeal. It further contended that the plain-
tiff’s efforts amounted to nothing more than ‘‘an attempt
to get a second bite of the apple.’’ In denying the plain-
tiff’s motion, the court, inter alia, agreed with the defen-
dant that a motion to reargue did not afford a party the
opportunity to ‘‘augment the record after receiving an
unfavorable result on the record as presented during
the trial.’’
We begin by setting forth our standard of review and
the relevant legal principles. ‘‘The standard of review
for a court’s denial of a motion to reargue is abuse of
discretion. . . . As with any discretionary action of the
trial court . . . the ultimate [question for appellate
review] is whether the trial court could have reasonably
concluded as it did. . . . The purpose of a reargument
is . . . to demonstrate to the court that there is some
decision or some principle of law which would have a
controlling effect, and which has been overlooked, or
that there has been a misapprehension of facts. . . .
It also may be used to address . . . claims of law that
the [movant] claimed were not addressed by the court.
. . . [A] motion to reargue [however] is not to be used
as an opportunity to have a second bite of the apple
. . . .’’ (Emphasis added; internal quotation marks
omitted.) Seaport Capital Partners, LLC v. Speer, 177
Conn. App. 1, 16–17, 171 A.3d 472 (2017); see also Hud-
son Valley Bank v. Kissel, 303 Conn. 614, 624, 35 A.3d
260 (2012).
Here, the plaintiff claimed that the court erred in
failing to take judicial notice of the defendant’s auto-
matic appearance19 in the dissolution appeal. The plain-
tiff, however, failed to raise this matter during the trial
and, instead, brought it to the court’s attention, for the
first time, after a decision had been rendered. Thus,
she did not identify a principle of law or fact that the
court had been presented with at trial. Instead, she
sought a second opportunity to litigate her claim regard-
ing the applicability of the continuous representation
doctrine. In such circumstances, we decline to conclude
that the court abused its discretion in denying the
motion to reargue. See Mengwall v. Rutkowski, 152
Conn. App. 459, 466, 102 A.3d 710 (2014) (trial court
did not abuse discretion denying motion to reargue
where movant offered only arguments available at time
of original argument on motion to dismiss); Fortin v.
Hartford Underwriters Ins. Co., 139 Conn. App. 826,
843–44, 59 A.3d 247 (court properly denied motion to
reargue where movant had presented numerous exhib-
its to court for first time even though exhibits previously
had been available to the movant at trial and thus were
not newly discovered evidence), cert. granted on other
grounds, 308 Conn. 905, 61 A.3d 1098 (2013) (appeal
withdrawn November 26, 2014); see, e.g., Lynch v.
Lynch, 153 Conn. App. 208, 244–45, 100 A.3d 968 (2014)
(no abuse of discretion in denying motion to reargue
where movant did not ask court to consider overlooked
legal authority or claim or to reconsider misappre-
hended fact but, instead, sought reevaluation of facts),
cert. denied, 315 Conn. 923, 108 A.3d 1124, cert. denied,
U.S. , 136 S. Ct. 68, 193 L. Ed. 2d 66 (2015).
Accordingly, we conclude that the court did not abuse
its discretion in denying the plaintiff’s motion to
reargue.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff initially commenced this action against attorneys Samuel
V. Schoonmaker III and John P. Ekberg III, and the law firm of Schoonmaker,
George & Blomberg, P.C. On March 28, 2014, the court granted in part the
defendants’ motion to dismiss and dismissed the action as to the individual
attorneys for lack of personal jurisdiction due to improper service of process.
The plaintiff has not challenged that ruling in this appeal. Thus, we refer
to the law firm as the defendant in this opinion.
2
Both a legal malpractice action and a fraudulent misrepresentation action
are subject to the three year statute of limitations set forth in § 52-577.
Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167
Conn. App. 691, 714, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d
231 (2016) (legal malpractice); Bridgeport Harbour Place I, LLC v. Ganim,
131 Conn. App. 99, 175 n.85, 30 A.3d 703 (fraudulent misrepresentation),
cert. granted on other grounds, 303 Conn. 904, 31 A.3d 1179 (2011) (appeal
withdrawn January 27, 2012), and cert. granted on other grounds, 303 Conn.
905, 31 A.3d 1180 (2011) (appeal withdrawn January 26, 2012).
‘‘Section 52-577 is a statute of repose in that it sets a fixed limit after
which the tortfeasor will not be held liable and in some cases will serve to
bar an action before it accrues. . . . [Section] 52-577 provides: No action
founded upon a tort shall be brought but within three years from the date
of the act or omission complained of. 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. . . . Moreover, 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, we have concluded that 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.’’ (Internal quota-
tion marks omitted.) Piteo v. Gottier, 112 Conn. App. 441, 445, 963 A.2d 83(2009); see also Farnsworth v. O’Doherty, 85 Conn. App. 145, 148–50, 856
A.2d 518 (2004).
3
See General Statutes § 52-593a (a); Tayco Corp. v. Planning & Zoning
Commission, 294 Conn. 673, 685, 986 A.2d 290 (2010) (service of process
must be delivered to marshal for service prior to expiration of statute
of limitations).
4
‘‘In general, the plaintiff in an attorney malpractice action must establish:
(1) the existence of an attorney-client relationship; (2) the attorney’s wrong-
ful act or omission; (3) causation; and (4) damages.’’ (Internal quotation
marks omitted.) Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle,
LLC, 69 Conn. App. 151, 157, 795 A.2d 572 (2002).
5
‘‘The essential elements of a cause of action in [fraudulent misrepresenta-
tion] are: (1) a false representation was made as a statement of fact; (2) it
was untrue and known to be untrue by the party making it; (3) it was made
to induce the other party to act upon it; and (4) the other party did so
act upon the false representation to his injury.’’ (Internal quotation marks
omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership,
113 Conn. App. 509, 522, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d
103 (2009).
6
‘‘Tolling does not enlarge the period in which to sue that is imposed by
a statute of limitations, but it operates to suspend or interrupt its running
while certain activity takes place.’’ Flannery v. Singer Asset Finance Co.,
LLC, 312 Conn. 286, 311, 94 A.3d 553 (2014); see also Romprey v. Safeco
Ins. Co. of America, 310 Conn. 304, 330, 77 A.3d 726 (2013).
7
At the outset of its memorandum of decision, the court noted that
although the plaintiff had filed a denial in response to the defendant’s
statute of limitations defense, Practice Book § 10-57 ‘‘requires that matter
in avoidance of a defense be affirmatively stated, as opposed to a simple
denial which would put the defendant to its proof of defense.’’ The court
further observed that ‘‘[w]hile the lack of an appropriate pleading cannot
be ignored, neither can it be ignored that there is no element of surprise
to the defendant—at all times, the defendant has been on notice that this
was an issue in the case, even if not properly pleaded . . . .’’ See also Cruz
v. Schoenhorn, 188 Conn. App. 208, 212 n.5, A.3d (2019); cf. Grimes
v. Stutman, Superior Court, judicial district of Middlesex, Docket No. CV-04-
4000108-S (December 22, 2005) (plaintiff failed to properly raise continuous
representation doctrine in reply to statute of limitations defense).
8
The court noted that Schoonmaker had ‘‘passed away during the pen-
dency of these proceeding [and] could not refute the testimony presented
in court . . . .’’
9
Practice Book (2010) § 3-9 (a) provided: ‘‘An attorney or party whose
appearance has been filed shall be deemed to have withdrawn such appear-
ance upon failure to file a written objection within ten days after written
notice has been given or mailed to such attorney or party that a new appear-
ance has been filed in place of the appearance of such attorney or party in
accordance with Section 3-8.’’
The current version of Practice Book § 3-9 (a) does not contain the ten
day time period to file a written objection. We note that one Superior Court
judge has concluded that the automatic withdrawal of an attorney provision
in the prior version of this rule of practice did not become effective until
the expiration of that ten day period. See Windels v. Hart Investment
Properties, Superior Court, judicial district of Fairfield, Docket No. CV-08-
5019114-S (February 1, 2010) (49 Conn. L. Rptr. 354). For the purposes of
this appeal, we need not address or consider the impact of the ten day
provision, as it was not raised by the parties and does not affect our analysis
or the outcome of this appeal.
10
Specifically, the plaintiff had relied on the following fifteen billing items.
‘‘1. March 26, 2010 entry for a telephone conversation with successor
counsel ‘re: transition of file.’
‘‘2. May 20, 2010 entry for telephone call with successor counsel, review
of file, conference with ‘SGY’ re: affidavit and e-mail to successor counsel
‘‘3. May 21, 2010 entry for telephone call with, and letter to, successor
counsel
‘‘4. May 24, 2010 entry for telephone message to and from successor
counsel (indication of ‘no charge’)
‘‘5. without a specific date, the May 31, 2010 invoice contained a billing
for Westlaw research
‘‘6. July 11, 2010 telephone conference with plaintiff ‘re: payment of her bill’
and internal telephone conference and memo relating to status of payment
(indication of ‘no charge’)
‘‘7. September 1, 2010 telephone conference with attorney Tusch (counsel
representing [Ill]) ‘re: status settlement.’ (indication of ‘no charge’)
‘‘8. October 25, 2010 telephone conference with plaintiff concerning her
bill (indication of ‘no charge’)
‘‘9. October 26, 2010 telephone conference with plaintiff concerning her
bill (indication of ‘no charge’)
‘‘10. October 27, 2010 telephone conference with plaintiff concerning her
bill (indication of ‘no charge’)
‘‘11. October 31, 2010 entry: ‘Telephone call from [plaintiff]. She is sending
a check and we are sending her the escrow money.’ (indication of ‘no charge’)
‘‘12. November 18, 2010 call to the plaintiff concerning her bill—‘she said
she would pay right away.’ (indication of ‘no charge’)
‘‘13. November 30, 2010 entry for receipt of payment of $17,908
‘‘14. without a specific date, the January 31, 2011 invoice reflected a charge
for ‘outsourced photocopying’
‘‘15. June 30, 2011 entry indicating ‘write off’ of the then existing balance
of $847.22.’’ (Footnote omitted.)
11
The court explained: ‘‘Activity in May was shortly after there had been
a transition to successor counsel by the plaintiff, and shortly after there
had been the retirement from active participation in the [defendant] by . . .
Schoonmaker. As reflected by the numerous time entries for telephone
conferences with the plaintiff related to billing, the presumptive practice in
the [defendant] was to record time entries whether or not there was an
associated charge for time, so it was not unreasonable for there to have
been erroneous billing (in the sense of charging for time) for the time spent
on the file in May. What makes the claim of mistake persuasive is that this was
not a self-serving change in position after litigation had been commenced;
it was a response to the plaintiff’s own letter challenging the billing, claiming
it must have been a mistake in light of the cessation of representation, prior
to May of 2010. And the defendant agreed, eventually writing off not only
the charges associated with the affidavit itself, but also the charges for [the
legal research database] and also the charges for copying of the file in
January of 2011.’’
12
The court concluded: ‘‘The plaintiff has not identified a principle of law
missed or misapplied; she has not identified a misapprehension of facts;
she has not identified any inconsistencies; and she has not identified any
other basis on which the court should revisit its earlier decision. The motion
therefore must be denied.’’
13
Our Supreme Court limited the holding of DeLeo to ‘‘cases in which an
attorney is alleged to have committed malpractice during the course of
litigation.’’ DeLeo v. Nusbaum, supra, 263 Conn. 597 n.4.
14
Specifically, our Supreme Court noted that (1) the continuing course
of conduct and continuous treatment doctrines, both of which are similar
to the continuing representation doctrine, are permitted in Connecticut, (2)
requiring a client to bring a malpractice action prior to the termination of
the attorney-client relationship would encourage the second-guessing of the
attorney and force the client to obtain other legal opinions regarding the
attorney’s handling of the case, (3) a client could be forced into adopting
inherently different litigation postures by both defending the attorney’s
actions in the appeal while also challenging those actions in a separate
malpractice action, (4) the dangers of an extended time period to bring a
malpractice action are lessened as a result of the memorialization of conduct
in legal pleadings and hearing transcripts, (5) the doctrine prevents an
attorney from postponing the inevitable event of defeat beyond the limitation
period to protect against liability for his actions, (6) a client has the right
to have confidence in his or her attorney’s professional abilities and cannot
be expected to question and assess the attorney’s legal skills and (7) the
doctrine furthers the goal of affording the attorney the opportunity to correct,
avoid or mitigate the consequences of an apparent error. DeLeo v. Nusbaum,
supra, 263 Conn. 594–96.
15
‘‘A statute of limitations or of repose is designed to (1) prevent the
unexpected enforcement of stale and fraudulent claims by allowing persons
after the lapse of a reasonable time, to plan their affairs with a reasonable
degree of certainty, free from the disruptive burden of protracted and
unknown potential liability, and (2) to aid in the search for truth that may
be impaired by the loss of evidence, whether by death or disappearance of
witnesses, fading memories, disappearance of documents or otherwise.’’
(Internal quotation marks omitted.) DeLeo v. Nusbaum, supra, 263 Conn. 596.
16
Practice Book (2010) § 3-8 provided in relevant part: ‘‘Whenever an
attorney files an appearance for a party . . . and there is already an appear-
ance of an attorney . . . on file for that party, the attorney . . . filing the
new appearance shall state thereon whether such an appearance is in place
of or in addition to the appearance or appearances already on file. . . .
Unless a written objection is filed within ten days after the filing of an in-
lieu-of appearance, the appearance or appearances to be replaced by the
new appearance shall be deemed to have been withdrawn . . . .’’
17
This commentary also notes that ‘‘[e]ffective January 1, 2017, a new
appearance that is filed in lieu of an existing appearance is immediate. The
amendment eliminates a prior 10-day delay for the filing of objections.’’ W.
Horton et al., 1 Connecticut Practice Series: Connecticut Superior Court
Civil Rules, (2017–2018 Ed.) § 3-9, authors’ comments, p. 369; see footnote
9 of this opinion.
18
We are mindful of our Supreme Court’s explicit directive for ‘‘clear legal
standards’’ in applying the continuous representation doctrine. DeLeo v.
Nusbaum, supra, 263 Conn. 596. ‘‘Both legislative policy and the interests
of justice are furthered by the elimination of unnecessary uncertainty regard-
ing the date upon which plaintiffs’ claims are barred by the statute of
limitations. In the absence of a clear standard, a plaintiff’s reasonable under-
standing of the facts that determine the tolling period may result in the
expiration of his claim if a fact finder subsequently disagrees and determines
that the tolling period ended earlier than the plaintiff had supposed. A
plaintiff who is uncertain as to whether the doctrine applies likely will feel
compelled to institute an action against his attorney, for fear that a court
or a jury ultimately will conclude that the statute is not tolled. In such a
situation, one of the primary purposes of the doctrine, fostering and preserv-
ing the attorney-client relationship, will be compromised.’’ Id.Although the factual circumstances of the present case were not specifi-
cally mentioned in DeLeo, our analysis and conclusion encompass the crucial
question of whether the defendant’s representation of the plaintiff had ended
in March, 2010.
19
See Practice Book § 62-8 (‘‘[c]ounsel of record for all parties appearing
in the trial court at the time of the appellate filing shall be deemed to have
appeared in the appeal’’).