Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C.

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STRAW POND ASSOCIATES, LLC, ET AL.
v. FITZPATRICK, MARIANO &
SANTOS, P.C., ET AL.
(AC 37589)
Lavine, Beach and Prescott, Js.
Argued February 3—officially released August 23, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. David R. Tobin, judge trial
referee.)
Brenden P. Leydon, for the appellants (plaintiffs).
Raymond J. Plouffe, Jr., for the appellees
(defendants).
Opinion
LAVINE, J. In this legal malpractice action, the plain-
tiffs, Straw Pond Associates, LLC, Straw Pond Real
Estate, LLC, Straw Pond Holdings, LLC, and CUDA
Associates, LLC, appeal from the summary judgment
rendered by the trial court in favor of the defendants,
Fitzpatrick, Mariano & Santos, P.C. (firm), and Edward
G. Fitzpatrick, an attorney in the firm. On appeal, the
plaintiffs claim that the court erred in granting the
defendants’ motion for summary judgment by (1) adju-
dicating, rather than identifying, issues of fact, (2) con-
cluding that their claims were barred by the statute of
limitations, and (3) deciding that there were no issues
of fact as to the defendants’ alleged breach of fiduciary
duty. We agree with the plaintiffs’ first two claims and,
therefore, reverse, in part, the judgment of the trial
court.
The plaintiffs commenced the present action by ser-
vice of process on June 14, 2011. The complaint sounded
in three counts: professional negligence, breach of fidu-
ciary duty, and breach of contract.1 In count one, the
plaintiffs alleged that, in March, 2005, they retained the
defendants to obtain approvals from various land use
boards in the town of Middlebury, including the Water
Pollution Control Authority (sewer authority), the Plan-
ning and Zoning Commission, and the Board of Select-
men, to enable them to develop a senior housing project
(project). In August, 2005, the sewer authority condi-
tionally approved the flow capacity for the project, and
in September, 2005, sent a letter (2005 letter) to Straw
Pond Real Estate, LLC, in care of Fitzpatrick. In the
2005 letter, the sewer authority set forth its conditional
capacity approval and the conditions to which the plain-
tiffs were required to agree.2 The sewer authority
instructed the plaintiffs to sign the letter and return it.
The complaint further alleged that on certain dates
in 2006 and 2007, Kenneth J. Pocius, an attorney for
the sewer authority, communicated with Fitzpatrick
about the status of the 2005 letter. According to the
plaintiffs, Fitzpatrick failed to respond to Pocius or to
inform them of his inquiries. In October, 2007, the sewer
authority invited Fitzpatrick to attend its November,
2007 meeting, but Fitzpatrick was unable to attend the
meeting.3 The plaintiffs alleged that Fitzpatrick did not
tell them that they should attend the meeting. At the
November, 2007 meeting, the sewer authority rescinded
its conditional capacity approval for the project and
thereafter so informed Fitzpatrick.
The plaintiffs alleged that the sewer authority
rescinded its conditional capacity approval for the proj-
ect and refused to reinstate it due to Fitzpatrick’s inat-
tention to the 2005 letter and Pocius’ inquiries about
the status of the 2005 letter. Moreover, the plaintiffs
alleged that the defendants failed to inform them of the
2005 letter until December, 2007, after the conditional
capacity approval had been rescinded. They also alleged
that Fitzpatrick had failed to inform them of the action
that they needed to take with respect to the 2005 letter
or of the consequences of their failing to respond to it.
The plaintiffs appealed from the sewer authority’s
rescission of its approval to the Superior Court (sewer
appeal), but the appeal was dismissed on March 8, 2011.4
The sewer authority has denied the plaintiffs’ efforts
and subsequent application to regain capacity approval.
The plaintiffs further alleged that, in addition to
obtaining initial approval from the sewer authority, the
defendants acted on their behalf to secure other approv-
als needed for the project to move forward. Some of
the plaintiffs’ applications for those other approvals
resulted in administrative appeals. The plaintiffs alleged
that, from the time they retained the defendants until
the time they commenced the present action, they had
relied on the defendants, who were their lead counsel
charged with getting all of the approvals needed for the
project. On August 26, 2009, Fitzpatrick represented the
plaintiffs at a global settlement conference to resolve
all outstanding project related issues. According to the
plaintiffs, the settlement conference failed to meet its
objective due to the sewer authority’s refusal to rein-
state its capacity approval.
The plaintiffs alleged that the defendants continu-
ously represented them on all permitting efforts related
to the project up to, and including, the dismissal of the
sewer appeal in March, 2011.5 The plaintiffs alleged
that they relied to their detriment on the defendants’
expertise in obtaining the necessary approvals for simi-
lar projects. Moreover, the plaintiffs alleged that the
defendants caused them to believe that the harm caused
by the defendants’ acts and omissions with respect to
the sewer authority rescission could be mitigated and
a viable final approval for the project obtained.
The plaintiffs further alleged that the defendants
failed to exercise diligence and competence, and failed
to communicate properly. The plaintiffs claimed that
the defendants ‘‘put their own and other interests ahead
of the plaintiffs’ [interests] and failed to keep loyalty
and fidelity to the plaintiffs’ project as paramount.’’ In
addition, the plaintiffs alleged that the defendants’ acts
and/or omissions were in violation of the Rules of Pro-
fessional Conduct, including rules 1.1 (competence),
1.3 (diligence), and 1.4 (communication). As a result of
the defendants’ claimed acts or omissions, the plaintiffs
alleged that they have sustained and will sustain sub-
stantial damages.
The defendants filed an amended answer and five
special defenses on October 8, 2013. They admitted that
the plaintiffs ‘‘authorized’’ them to acquire approvals
for the project from land use boards and the Middlebury
Board of Selectmen, and to negotiate pending zoning
and Conservation Commission appeals. The defen-
dants, however, denied that they filed sewer capacity
applications on behalf of the plaintiffs.6 The defendants
admitted that the plaintiffs received capacity approval
from the sewer authority ‘‘ ‘subject to technical
approval, assessment and payment discussions and
decisions,’ ’’ and that the 2005 letter ‘‘required a signa-
ture on the part of Straw Pond Real Estate, LLC, veri-
fying its agreement, amongst other things, to the
assessment of hookup fees and expenses to which it
did not agree . . . .’’ The defendants also admitted that
Fitzpatrick received e-mail correspondence from
Pocius.
The defendants, however, denied that they failed to
tell the plaintiffs about the 2005 letter until December,
2007, failed to inform them of the action they needed
to take in response to the letter or the consequences
of failing to respond to the letter, and that they ‘‘contin-
ued to represent the plaintiffs during ‘this entire time.’ ’’
The defendants alleged that the plaintiffs had retained
other counsel to represent them with respect to ‘‘spe-
cific performance, breach of contract, and zoning
appeal matters,’’ and to prosecute certain appeals. In
addition, although Fitzpatrick attended the August, 2009
settlement conference, the defendants denied that he
was the plaintiffs’ lead counsel. They denied that they
had violated the Rules of Professional Conduct and that
they failed to exercise diligence and competence, and
failed to communicate properly. The defendants also
denied that the plaintiffs sustained damages as a result
of their alleged acts or omissions. Moreover, the defen-
dants denied that they breached their fiduciary duties
and breached their contract with the plaintiffs.
In their special defenses, the defendants alleged that
all three counts of the complaint were barred by General
Statutes § 52-577 in that the action was commenced
more than three years after the act or omission com-
plained of. The defendants also alleged that, if the plain-
tiffs sustained any damages, those damages were
proximately caused by the plaintiffs’ own carelessness
and negligence in that they failed to agree to the sewer
authority’s hookup costs and failed to authorize Fitzpa-
trick to accept the conditions stated in the 2005 letter.
The defendants further pleaded that the plaintiffs failed
to mitigate their damages. The plaintiffs replied to the
defendants’ special defenses in a one sentence gen-
eral denial.7
On April 9, 2014, the defendants filed a motion for
summary judgment as to all counts of the complaint
on the ground that each was barred by § 52-577.8 In the
alternative, the defendants asserted that all counts of
the plaintiffs’ complaint fail, as a matter of law, in that
the plaintiffs cannot establish a breach of the standard
of care, a breach of fiduciary duty, breach of the parties’
fee agreement, or that the plaintiffs’ alleged damages
were caused by the defendants. In their accompanying
memorandum of law, the defendants represented that
the plaintiffs fully were aware of the 2005 letter and
that they declined to sign the letter because they dis-
agreed with the $2.057 million hookup fees and the time
constraints the sewer authority had imposed on them
with respect to obtaining other board and agency
approvals. The defendants also argued that there was
no evidentiary support for the plaintiffs’ claims.
The defendants appended numerous documents,
including Fitzpatrick’s affidavit, to their memorandum
of law. In his affidavit, Fitzpatrick attested, in part:
‘‘I personally met with and spoke to Ben Morris, the
principal member of Straw Pond with whom I dealt, on
multiple occasions concerning the project, including
many discussions from September, 2005 through 2007,
concerning Straw Pond’s refusal to sign the . . . 2005
letter of conditional capacity approval. . . . Ben Mor-
ris communicated to me personally that Straw Pond
and its affiliates refused to sign the . . . letter because
it did not agree to the conditions specified, especially
the assessment of over [$2 million] in hook-up fees
and the two year deadline for obtaining all government
agency approvals.’’ They also appended copies of the
plaintiffs’ briefs filed in the sewer appeal in which the
plaintiffs admitted that they were aware of the condi-
tions contained in the 2005 letter and that they intention-
ally refused to sign off on those conditions because
they were inconsistent with the sewer authority’s
August, 2005 authorization.
As to count two, which alleged breach of fiduciary
duty, the defendants asserted that it failed to state a
claim upon which relief can be granted. They argued
that a proper cause of action for breach of fiduciary
duty requires factual allegations impugning an attor-
ney’s honesty, morality, or loyalty. The plaintiffs’ com-
plaint, they continued, solely alleged conduct that
objectively pertains to the alleged breach of the stan-
dard of care. They asserted that the plaintiffs’ allega-
tions of disloyalty were merely conclusory.
On September 17, 2014, the plaintiffs filed an objec-
tion to the motion for summary judgment, contending
that there were genuine issues of material fact as to
whether the defendants had been retained to obtain
project approval from the sewer authority. They
appended numerous documents, including the tran-
script of Fitzpatrick’s deposition testimony, and an affi-
davit of John Nelson, one of the plaintiffs’ principals.9
The plaintiffs argued that the defendants had repre-
sented them at least through the global settlement con-
ference held on August 26, 2009, and that the continuous
representation doctrine tolled the running of the statute
of limitations. Therefore, they concluded, the action
was timely ‘‘filed’’ in June, 2011.10
The plaintiffs also argued in their memorandum of
law that Fitzpatrick had a conflict of interest in that,
while he was representing the plaintiffs before the
sewer authority, he represented other applicants seek-
ing an allocation of the limited sewer capacity that was
available, and at times he served as counsel for the
Naugatuck Regional Water Authority, which provided
sewer services for Middlebury. The plaintiffs argued
that Fitzpatrick failed to disclose the alleged conflicts
of interest.
The defendants submitted a supplemental memoran-
dum of law and presented evidence that in December,
2007, the plaintiffs retained Robert Fuller, an attorney,
to pursue the sewer appeal, and Robin M. Pearson, an
attorney, to file a new sewer capacity application.11 The
defendants argued that by retaining Fuller and Pearson,
the plaintiffs de facto terminated Fitzpatrick’s represen-
tation for the purpose of obtaining sewer capacity
approval for the project.
The trial court issued a memorandum of decision on
December 5, 2014, in which it granted the defendants’
motion for summary judgment. On the basis of the evi-
dence presented, the court concluded with respect to
the count of professional negligence that the defendants
were not the cause of the plaintiffs’ alleged damages.
With respect to the count of breach of fiduciary duty, the
court stated that the plaintiffs submitted no evidence to
raise an issue of fact as to the defendants’ loyalty or
honesty, but merely alleged a ‘‘bald assertion of disloy-
alty.’’ The court also found that the plaintiffs’ claims
were barred by the statute of limitations, § 52-577, and
that the continuous representation doctrine did not toll
the running of the statute.
The plaintiffs filed a motion to reargue in which they
claimed that the court had misapprehended or over-
looked significant issues of material fact and that this
court’s decision in Cefaratti v. Aranow, 154 Conn. App.
1, 19–20, 105 A.3d 265 (2014) (genuine issue of material
fact whether continuing course of treatment doctrine
tolled statute of limitations in medical malpractice
action), aff’d, 321 Conn. 637, 645, A.3d (2016)
(same), cast doubt on the trial court’s reasoning. The
plaintiffs argued that their legal malpractice claim pri-
marily was focused on the defendants’ failure to advise
them of the sewer authority’s inquiries in 2006 and of
the November, 2007 sewer authority meeting. The court
denied the motion to reargue in a memorandum of
decision issued on December 30, 2014, stating that it had
considered the plaintiffs’ argument, which they made in
their objection to the motion for summary judgment,
when it granted the motion for summary judgment. The
court found, on the basis of the evidence presented, that
the plaintiffs knew of the defendants’ alleged negligence
more than three years prior to commencing the present
action and that the continuous representation doctrine
did not toll the statute of limitations because, in late
2007 or early 2008, the plaintiffs hired other attorneys
to deal with the sewer authority. The plaintiffs appealed
from the granting of the defendants’ motion for sum-
mary judgment. Additional facts will be set forth as
needed.
‘‘Summary judgment is a method of resolving litiga-
tion when 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. . . . [S]ummary judgment
is designed to eliminate the delay and expense of litigat-
ing an issue when there is no real issue to be tried. . . .
However, since litigants ordinarily have a constitutional
right to have issues of fact decided by a jury . . . the
moving party for summary judgment is held to a strict
standard . . . of demonstrating his entitlement to sum-
mary judgment.’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) Grenier v. Commis-
sioner of Transportation, 306 Conn. 523, 534–35, 51
A.3d 367 (2012).
‘‘This court’s review of a trial court’s granting of a
motion for summary judgment is plenary in nature. . . .
Our task is to determine whether [the trial court’s]
conclusions are legally and logically correct and find
support in the facts that appear in the record. . . .
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 moving for summary
judgment has the burden of showing . . . that the party
is . . . entitled to judgment as a matter of law.’’ (Inter-
nal quotation marks omitted.) Targonski v. Clebowicz,
142 Conn. App. 97, 105–106, 63 A.3d 1001 (2013).
I
The plaintiffs claim that the court improperly ren-
dered summary judgment by resolving issues of fact,
rather than by determining whether any genuine issues
of material fact exist as to the element of causation.
We agree.
‘‘The party moving for summary judgment bears the
burden of proving the absence of a dispute as to any
material fact. . . . The court must view the evidence
in the light most favorable to the nonmovant. . . . In
ruling on a motion for summary judgment, the court’s
function is not to decide issues of material fact, but
rather to determine whether any such issues exist.’’
(Citations omitted; internal quotation marks omitted.)
Lomangino v. LaChance Farms, Inc., 17 Conn. App.
436, 438, 553 A.2d 197 (1989).
In its memorandum of decision, the court set forth
the elements of a cause of action for professional negli-
gence. ‘‘In general, the plaintiff in an attorney malprac-
tice action must establish: (1) the existence of an
attorney-client relationship; (2) the attorney’s wrongful
act or omission; (3) causation; and (4) damages.’’ (Inter-
nal quotation marks omitted.) Lee v. Harlow, Adams &
Friedman, P.C., 116 Conn. App. 289, 297, 975 A.2d 715
(2009). As to causation in legal malpractice actions,
‘‘[a] causal relation between the defendant’s wrongful
conduct and the plaintiff’s injuries is a fundamental
element without which a plaintiff has no case . . . .
Thus, if the plaintiff’s injury would not have occurred
but for the defendant’s conduct, then the defendant’s
conduct is a cause in fact of the plaintiff’s injury.’’ (Cita-
tions omitted; internal quotation marks omitted.) Bar-
uno v. Slane, 151 Conn. App. 386, 399, 94 A.3d 1230,
cert. denied, 314 Conn. 920, 100 A.3d 851 (2014).
In granting the motion for summary judgment, the
court concluded that the plaintiffs had failed to raise
an issue of fact as to whether the defendants were the
cause of their alleged loss. In coming to that conclusion,
the court drew inferences from the affidavits before it
and chose to credit Fitzpatrick, rather than Nelson, as
to whether Fitzpatrick had informed the plaintiffs of
the 2005 letter and that it was to be signed and returned.
The court also was influenced by the language in the
briefs the plaintiffs submitted in their sewer appeal,12
which, according to the court, established that the plain-
tiffs would not in any event have accepted the condi-
tions that the sewer authority sought to impose on
them. For these reasons, the court concluded that the
defendants had demonstrated the absence of a genuine
issue of material fact as to whether Fitzpatrick commit-
ted an act or omission that might constitute professional
negligence because he did not inform the plaintiffs of
the conditions in the 2005 letter, or that the plaintiffs
were damaged by his alleged negligence.
On appeal, the plaintiffs claim that the court decided
issues of fact and too narrowly defined their claims of
professional negligence. They argue that their malprac-
tice claim is founded not only on Fitzpatrick’s failure
to inform them of the 2005 letter, but also on his failure
to inform them of the sewer authority’s ongoing inquir-
ies and concerns in 2006 and 2007, his failure to respond
to the sewer authority’s inquiries, his failure to advise
them as to how they should deal with the sewer author-
ity, and, particularly, his failure to inform them that
the sewer authority would discuss the project at its
November, 2007 meeting, which Fitzpatrick did not
attend. Nelson averred that the plaintiffs would have
attended that meeting had they known about it. As to
the court’s findings that the plaintiffs’ admitted in their
sewer appeal that they did not agree with the conditions
the sewer authority imposed in the 2005 letter, the plain-
tiffs argue in their reply brief to this court, for the
first time on appeal, that arguments made in another
proceeding are not judicial admissions.13 We agree that
the court improperly made credibility determinations
when ruling on the defendants’ motion for summary
judgment, but disagree that the court improperly con-
sidered the plaintiffs’ briefs in the sewer appeal. See
Nationwide Mutual Ins. Co. v. Allen, 83 Conn. App.
526, 541–42, 850 A.2d 1047 (pleadings from another case
not judicial admissions but admissible as evidentiary
admissions for trier of fact to consider), cert. denied,
271 Conn. 907, 859 A.2d 562 (2004).
A
We first address the plaintiffs’ assertion that the court
improperly relied on statements made in their sewer
appeal briefs when concluding that there were no genu-
ine issues of material fact as to causation. See footnote
12 of this opinion. We do not agree.
The case of Nationwide Mutual Ins. Co. v. Allen,
supra, 83 Conn. App. 527, a declaratory judgment action,
guides our consideration of the plaintiffs’ claim. In
Nationwide Mutual Ins. Co., the trial court concluded
that the plaintiff insurance company was not obligated
to defend or indemnify the defendant employer, Allen,
in an underlying negligence action brought by the defen-
dant employee, William Shaw, who also had filed a
workers’ compensation claim against Allen. Id., 528.
The issue in that case that is relevant to the present
appeal is whether the court in the declaratory judgment
action ‘‘improperly determined that statements made
by Shaw contained in his workers’ compensation claim
constituted an admission.’’ Id., 541.
‘‘Factual allegations contained in pleadings upon
which the cause is tried are considered judicial admis-
sions and hence irrefutable as long as they remain in the
case. . . . The admission of the truth of an allegation in
a pleading is a judicial admission conclusive on the
pleader.’’ (Citation omitted; internal quotation marks
omitted.) Id., 541–42.
‘‘In contrast with a judicial admission, which prohib-
its any further dispute of a party’s factual allegation
contained in its pleadings on which the case is tried,
[a]n evidential admission is subject to explanation by
the party making it so that the trier may properly evalu-
ate it. . . . Thus, an evidential admission, while rele-
vant as proof of the matter stated . . . [is] not
conclusive.’’ (Citation omitted; internal quotation marks
omitted.) Id., 542. On appeal, this court concluded that
Shaw’s statement in his workers’ compensation applica-
tion that he was Allen’s employee was an evidential
admission and was subject to evaluation by the trier
of fact when it made findings from which it drew its
conclusions. Id., 542.
In the present case, the defendants submitted state-
ments from the sewer appeal briefs in support of their
motion for summary judgment. We agree with the plain-
tiffs that the statements in the briefs of their sewer
appeal were not judicial admissions. However, as
explained in Nationwide Mutual Ins. Co., the state-
ments properly were before the court as evidence of
the plaintiffs’ refusal to sign the 2005 letter because
they did not agree with the conditions contained in it.
Given that the role of the court in deciding a motion
for summary judgment is to determine whether there
were genuine issues of material fact, in the face of the
evidence in the sewer appeal briefs, the plaintiffs should
have presented evidence to put in question whether
they objected to the hookup fees and time limitations
imposed by the sewer authority.
‘‘Any adverse party shall at least five days before the
date the motion is to be considered on the short calen-
dar file opposing affidavits and other available docu-
mentary evidence. . . .’’ Practice Book § 17-45. The
record before us does not disclose any evidence submit-
ted by the plaintiffs regarding their acceptance of or
objection to the sewer authority’s conditions or to
explain the statements made in the briefs in the sewer
appeal on their behalf. Moreover, the plaintiffs did not
object to the court’s considering the sewer appeal briefs
in the trial court. We therefore disagree that the court
improperly considered the sewer appeal briefs when
deciding the motion for summary judgment.
B
The plaintiffs claim that the court decided issues of
fact and focused its examination of their malpractice
claim too narrowly by limiting it to Fitzpatrick’s alleged
failure to inform them of the 2005 letter. We agree.
In addressing the evidence before it, the court
focused on the affidavits of Nelson and Fitzpatrick. The
court credited Fitzpatrick’s attestations that he dis-
cussed the 2005 letter with Morris, and found that Nel-
son’s affidavit invited the court to infer that because
Morris did not tell him of his conversations with Fitzpa-
trick they did not occur. ‘‘Issue[s] of fact [encompass]
not only evidentiary facts in issue but also questions
as to how the trier would characterize such evidentiary
facts and what inferences and conclusions it would
draw from them.’’ (Internal quotation marks omitted.)
United Oil Co. v. Urban Redevelopment Commission,
158 Conn. 364, 379, 260 A.2d 596 (1969). In summary
judgment, the court’s role is not to weigh the credibility
of the parties, which falls within the province of the
finder of fact. See Suarez v. Dickmont Plastics Corp.,
229 Conn. 99, 107, 639 A.2d 507 (1994). When a court, in
ruling on a motion for summary judgment, is confronted
with conflicting facts, resolution and interpretation of
which would require determinations of credibility, sum-
mary judgment is not appropriate.
We agree with the plaintiffs that their claims of pro-
fessional negligence encompassed more than Fitzpa-
trick’s alleged failure to inform them of the 2005 letter.
Nelson attested that the plaintiffs did not know of the
sewer authority’s invitation for them to attend the
November, 2007 meeting. He attested, in relevant part,
that ‘‘[i]f we had known that there was going to be a
[sewer authority] meeting in November, 2007, where
the subject of our sewer capacity allocation was going
to be discussed, and if we had known that [Fitzpatrick]
couldn’t be at that meeting representing our interests,
we would have taken steps to ensure that someone
from our group was there to explain our position to
the [sewer authority] and to represent our interests.’’
In their motion to reargue, the plaintiffs contended that
the November, 2007 meeting was the ‘‘ ‘last clear
chance’ ’’ for them to negotiate with the sewer authority
about the conditions of approval and to reach an accord
or not.
For his part, Fitzpatrick testified at his deposition
that he had no recollection as to whether he informed
the plaintiffs of the November, 2007 meeting. We con-
clude, on the basis of our review of the evidence submit-
ted in support of, and in objection to, the defendants’
motion for summary judgment, that there are genuine
issues of material fact concerning the November, 2007
meeting. It is unclear whether Fitzpatrick informed the
plaintiffs of the meeting and what might have transpired
if the plaintiffs had attended. We, therefore, agree with
the plaintiffs that the court too narrowly focused the
plaintiffs’ claim of professional negligence solely on the
alleged failure of Fitzpatrick to inform the plaintiffs of
the 2005 letter. Because there are genuine issues of
material fact related to the allegations of professional
negligence, we conclude that the court improperly
granted the motion for summary judgment on that
ground.
II
The plaintiffs second claim is that the court improp-
erly granted the defendants’ motion for summary judg-
ment on the ground that their claims were barred by
the statute of limitations, § 52-577. They argue that the
statute of limitations was tolled by the continuous rep-
resentation doctrine in that the defendants continu-
ously represented them through at least the settlement
conference held in August, 2009. We conclude that there
are genuine issues of material fact as to whether the
defendants were professionally negligent, and if so,
whether the plaintiffs’ claims are barred by the statute
of limitations.
‘‘Summary judgment may be granted where the claim
is barred by the statute of limitations. . . . Summary
judgment is appropriate on statute of limitations
grounds when the material facts concerning the statute
of limitations [are] not in dispute . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Romprey v.
Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d
726 (2013). ‘‘The question of whether a party’s claim is
barred by the statute of limitations is a question of law,
which this court reviews de novo.’’ (Internal quotation
marks omitted.) Targonski v. Clebowicz, supra, 142
Conn. App. 106.
The essence of the plaintiffs’ claim is that they
retained the defendants in 2005 to represent them
before all relevant boards and agencies to obtain the
approvals needed to move the project forward, includ-
ing the sewer authority, and that they never limited
the scope and nature of the defendants’ representation
through the time of the global settlement conference
held in August, 2009. Despite the fact that they retained
Fuller and Pearson in December, 2007, the plaintiffs
insist that they did not terminate their attorney-client
relationship with the defendants with respect to the
sewer authority representation. The defendants have
taken the position that by retaining Fuller and Pearson,
the plaintiffs de facto terminated their relationship with
them with respect to the sewer authority represen-
tation.
In granting the defendants’ motion for summary judg-
ment, the trial court stated, among other things,14 that
the uncontradicted evidence demonstrated that the
plaintiffs knew of the defendants’ alleged negligence
more than three years prior to their commencing the
present action and that the continuous representation
doctrine did not toll the statute of limitations because
the plaintiffs had retained two other attorneys to repre-
sent them in their dealings with the sewer authority.
In their motion to reargue, the plaintiffs stated that
Cefaratti v. Aranow, supra, 154 Conn. App. 1, cast doubt
on the trial court’s reasoning with respect to the statute
of limitations.
The court reviewed Cefaratti, and determined that
the facts and legal theories in that case were distinguish-
able.15 The court then turned to DeLeo v. Nusbaum, 263
Conn. 588, 597, 821 A.2d 744 (2003), for guidance. The
court noted that our Supreme Court has stated that the
application of any doctrine that may toll a statute of
limitations or a statute of repose is ‘‘conspicuously fact
bound.’’ Martinelli v. Fusi, 290 Conn. 347, 356, 963 A.2d
640 (2009).
The trial court found that the defendants submitted
undisputed evidence that immediately after the sewer
authority rescinded its approval, the plaintiffs retained
new counsel to deal with the sewer authority. The court
also found it to be undisputed that the plaintiffs did
not commence the present action until June, 2011. To
support their position that the defendants continuously
had represented them, the plaintiffs relied exclusively
on Fitzpatrick’s participation in the August, 2009 global
settlement conference, where the sewer authority was
discussed along with land use agencies that needed to
approve the project. The court concluded that there
were no genuine issues of material fact to support the
plaintiffs’ claim that the continuous representation doc-
trine was applicable.
An action alleging legal malpractice or negligence is
a tort claim subject to the three year statute of limita-
tions set forth in § 52-577. See footnote 8 of this opinion.
‘‘Although allowing a statute of limitations defense may
result in meritorious claims being foreclosed, that must
be so. A statute of limitations promotes two important
interests: (1) it reflects a policy of law, as declared
by the legislature, that after a given length of time a
[defendant] should be sheltered from liability and fur-
thers the public policy of allowing people, after the
lapse of a reasonable time, to plan their affairs with a
degree of certainty, free from the disruptive burden of
protracted and unknown potential liability . . . and (2)
to avoid the difficulty in proof and record keeping which
suits involving older [claims] impose.’’ (Internal quota-
tion marks omitted.) Targonski v. Clebowicz, supra,
142 Conn. App. 106.
‘‘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.) Id., 106–107.
In the present case, the plaintiffs claim that Fitzpa-
trick failed to advise them of the 2005 letter, his ongoing
communications with Pocius, and the November, 2007
meeting. There appears to be no dispute that the plain-
tiffs learned that the sewer authority rescinded its con-
ditional capacity approval in December, 2007, and that
they did not commence the present action until June,
2011—more than three years later. The defendants
claim that the plaintiffs’ action is barred by § 52-577;
the plaintiffs claim that the statute was tolled by the
continuous representation doctrine.
Although the question of whether a party’s claim is
barred by the statute of limitations is a question of law,
the issue ‘‘of whether a party engaged in a continuing
course of conduct that tolled the running of the statute
of limitations is a mixed question of law and fact.’’
(Internal quotation marks omitted.) Vanliner Ins. Co.
v. Fay, 98 Conn. App. 125, 139, 907 A.2d 1220 (2006).
In Cefaratti v. Aranow, 321 Conn. 637, A.3d
(2016), our Supreme Court concluded that in medical
malpractice cases where there is no dispute that the
plaintiff filed his or her complaint after the statute of
limitations period had expired, ‘‘the burden is on the
plaintiff to establish that there is a genuine issue of
material fact as to whether the statute of limitations
was tolled by the continuing course of treatment doc-
trine.’’ Id., 646. We believe, therefore, that in similar time
barred situations involving legal malpractice claims, the
burden is on the plaintiff to establish that there is a
genuine issue of material fact as to whether the statute
of limitations was tolled by the continuous representa-
tion doctrine.
Our Supreme Court has recognized the continuing
course of conduct doctrine in a variety of cases sound-
ing in tort, including professional malpractice. Watts v.
Chittenden, 301 Conn. 575, 583–84, 22 A.3d 1214 (2011).
‘‘Therefore, a precondition for the operation of the con-
tinuing course of conduct doctrine is that the defendant
must have committed an initial wrong upon the plain-
tiff. . . .
‘‘A second requirement for the operation of the con-
tinuing course of conduct doctrine is that there must
be evidence of the breach of a duty that remained in
existence after commission of the original wrong
related thereto. . . . [Our Supreme Court] has held this
requirement to be satisfied when there was wrongful
conduct of a defendant related to the prior act.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id., 585.
‘‘Where [our Supreme Court has] upheld a finding
that a duty continued to exist after the cessation of the
act or omission relied upon, there has been evidence
of either a special relationship between the parties giv-
ing rise to such a continuing duty or some later wrongful
conduct of a defendant related to the prior act.’’ (Inter-
nal quotation marks omitted.) Vanliner Ins. Co. v. Fay,
supra, 98 Conn. App. 140.
Both this court and our Supreme Court have had
occasion to address the continuing course of conduct
doctrine in the context of a claim of legal malpractice.
Both parties here cite the case of DeLeo v. Nusbaum,
supra, 263 Conn. 588, in their appellate briefs. DeLeo
concerned a legal malpractice action that arose out of
the defendant lawyer’s representation of the plaintiff
husband in a dissolution of marriage action. Id., 589.
Following the close of evidence in the malpractice
action, the defendant lawyer moved for a directed ver-
dict on the ground that the malpractice action was
barred by § 52-577. The plaintiff husband opposed the
motion for a directed verdict under the continuous
course of conduct doctrine or the continuous represen-
tation doctrine. Id., 590–91. The trial court knew of
no appellate case in Connecticut that recognized the
continuous representation doctrine but assumed that
the doctrine was the equivalent of the continuous
course of treatment doctrine, which our Supreme Court
had recognized in medical malpractice actions. Id., 591.
After applying the facts to the continuous course of
treatment doctrine, it concluded that a jury could not
reasonably have found that there was a continuing attor-
ney-client relationship between the parties and granted
the motion for a directed verdict. Id., 593. The plaintiff
husband appealed, and our Supreme Court transferred
the case to itself. Id.
In DeLeo, our Supreme Court discussed this court’s
decision in Rosenfield v. Rogin, Nassau, Caplan, Lass-
man & Hirtle, LLC, 69 Conn. App. 151, 166, 795 A.2d
572 (2002), in which this court adopted the continuous
representation doctrine for several reasons. This court
previously had recognized the continuous representa-
tion doctrine, in part, because our jurisprudence per-
mits the tolling of the statute of limitations under the
continuing course of conduct and continuous treatment
doctrines, which are very similar in policy and applica-
tion to the continuous representation doctrine.16 DeLeo
v. Nusbaum, supra, 263 Conn. 594. Rosenfield and
DeLeo, however, are factually distinguishable from the
present case because in those cases the alleged mal-
practice occurred during the course of litigation and
was memorialized in court pleadings or in hearing tran-
scripts. See footnote 17 of this opinion. The alleged
malpractice in the present case did not occur during
the course of litigation and there are no pleadings or
transcripts in which the alleged malpractice is memori-
alized for our review.
Although our Supreme Court identified many reasons
it considered adoption of the continuous representation
doctrine to be advisable, it was mindful that ‘‘any tolling
of the statute of limitations may compromise the goals
of the statute itself.’’ Id., 596. ‘‘A statute of limitation
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 memo-
ries, disappearance of documents or otherwise.’’
(Emphasis added; internal quotation marks omitted.)
Id.
With the foregoing considerations in mind, our
Supreme Court concluded that the ‘‘continuous repre-
sentation doctrine, suitably modified to reflect these
competing interests, should be adopted.’’ Id., 596–97.
Under the rule it then adopted, ‘‘a plaintiff may invoke
the [continuous representation] doctrine, and thus toll
the statute 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
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; footnote omit-
ted.) Id., 597. Our Supreme Court, however, specifically
limited the DeLeo continuous representation doctrine
to legal malpractice that allegedly occurred during the
course of litigation.17
Despite this limitation, DeLeo is instructive in that it
defines what is meant by legal representation. The test
is two-pronged. Id. ‘‘[R]epresentation 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 attorney-client relationship occurs when the
attorney is discharged 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 profes-
sional judgment in protecting his legal interests, such
as hiring a second attorney to consider a possible mal-
practice 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.’’ (Emphasis added; footnotes
omitted.) Id., 597–98. Whether the attorney-client rela-
tionship has been terminated, either formally or de
facto, the continuous representation doctrine tolls the
statute of limitations only for as long as either the plain-
tiff does not know of the alleged malpractice or the
attorney may still be able to mitigate the harm allegedly
caused. Id., 599.
In Targonski v. Clebowicz, supra, 142 Conn. App.
97, this court applied the continuous representation
doctrine in the context of a real estate transaction; id.,
99; which notably is not litigation, but the statute of
limitations was tolled by the continuous representation
doctrine because the plaintiff buyers were unaware of
the defendant attorney’s negligence for several years.
Id., 110–11. The defendant attorney was retained by the
buyers of a building lot ‘‘together with a right-of-way
over an adjacent lot retained by the seller . . . .’’ Id.,
99. The defendant attorney knew of the buyers’ and
seller’s agreement with respect to the right-of-way at
the time he conducted the closing on behalf of the
buyers in June, 2004, but the warranty deed he obtained
on behalf of the buyers did not mention the right-of-
way. Id., 99–100. When the buyers asked whether the
right-of-way was included in the deed, the defendant
attorney assured them that there was nothing to worry
about. Id., 100. Subsequently, the seller’s attorney
informed the defendant attorney that the right-of-way
was not incorporated in the deed and proposed steps
to cure the defect. Id. The seller withdrew the offer to
cure in December, 2004, due to the lack of response
from the defendant attorney. Id., 101. In September,
2005, the defendant attorney represented the buyers
when they converted a construction loan to a mortgage
and acquired a small additional piece of land from the
seller. Id.
On August 1, 2008, the seller’s attorney informed the
defendant attorney that the buyers had built a stone wall
on the seller’s land. Id., 102. At that time, the defendant
attorney informed the buyers that they did not have a
right-of-way over the seller’s land. The seller initiated
an injunction against the buyers, who retained another
attorney to represent their interests. Id. The buyers
commenced an action against the defendant attorney
in March, 2009, alleging negligence for failing to include
the right-of-way in the deed and engaging in a continu-
ous course of conduct ‘‘to prolong the harm flowing
from his drafting error by failing to respond to the . . .
letters [from the seller’s attorney] proposing to cure
the defective deed . . . .’’ Id., 102–103. The defendant
attorney alleged that the buyers’ claims were barred by
§ 52-577 because his representation ended in July, 2004.
Id., 103. The defendant attorney filed a motion for sum-
mary judgment in which he claimed that the buyers
could not invoke the continuous representation doc-
trine to toll the statute of limitations because the doc-
trine was limited in application to litigation matters,
and the buyers had failed to present evidence creating
a genuine issue of material fact that he continued to
represent them in the same matter in which he allegedly
was negligent. Id., 104. The trial court granted the
motion for summary judgment, and the buyers
appealed. Id., 104–105.
After citing the continuing course of conduct doctrine
adopted in Watts v. Chittenden, supra, 301 Conn. 584–
85, this court stated that the buyers’ appeal turned on
the resolution of ‘‘the second element of the continuing
course of conduct doctrine, to wit: whether the defen-
dant [attorney], by his conduct after the alleged mal-
practice, breached a continuing duty to the plaintiffs
that was related to his initial wrong.’’ Targonski v. Cleb-
owicz, supra, 142 Conn. App. 109. In as much as Targon-
ski concerned the negligent drafting of a deed that the
buyers had signed, ‘‘[t]here is no tolling of statutes of
limitation in either tort or contract actions for the failure
of an attorney to tell a client that a document drafted
by the attorney could be inaccurate because, once the
representation of the client is complete and the docu-
ment executed, any warning would be ineffective.’’
(Internal quotation marks omitted.) Id., 109–10. Where
an attorney subsequently learns that the document was
negligently drafted even after the representation has
ended, the attorney ‘‘owes a duty to his client, which
relates back to his original wrong of rendering negligent
services to the client, to correct the results of such
prior negligence if he later learns of the negligence at
a time when he has the power to remedy the problems
arising from it.’’ Id., 110. By force of logic, ‘‘this duty
continues until such time as he takes action to cure his
prior negligence or the opportunity to cure such prior
negligence ceases to exist.’’ Id. This court concluded
that the defendant lawyer could have corrected his
drafting error pursuant to the means suggested by the
seller’s attorney up until the offer to cure was with-
drawn in December, 2008. Id., 111. This court, thus,
reversed the summary judgment rendered in favor of
the defendant lawyer. Id., 113.
The facts of the present action are dissimilar to those
of Targonski, in which the defendant attorney’s negli-
gence and its resulting harm were not discovered by
the buyers until years later. Importantly, in the present
case, both the plaintiffs and the defendants learned that
the sewer authority withdrew its conditional capacity
approval at approximately the same time in December,
2007, which was the consequence of the defendants’
alleged failure to inform the plaintiffs of the 2005 letter
and the November, 2007 meeting. Within one month,
the plaintiffs retained Fuller to pursue the sewer appeal
and Pearson to file another sewer capacity application.
The defendants claim, therefore, that the plaintiffs
ceased to rely on their professional judgment with
respect to the sewer authority at this time. The defen-
dants, however, continued to represent the plaintiffs
before land use agencies and the Middlebury Board
of Selectmen to obtain approvals for the project. The
plaintiffs contend that because Fitzpatrick was present
at the global settlement conference held in August, 2009,
where the sewer authority was discussed, Fitzpatrick
continued to represent them with regard to the
sewer authority.
‘‘[A] plaintiff may invoke the [continuous representa-
tion] doctrine, and thus toll the statute 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 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 representation
period.’’ (Emphasis in original; footnote omitted.)
DeLeo v. Nusbaum, supra, 263 Conn. 597. Before the
finder of fact considers the continuous representation
doctrine in the present case, the plaintiffs must prove
that the defendants committed an initial wrong upon
them. See Watts v. Chittenden, supra, 301 Conn. 585.
This will require the trier of fact to weigh the credibility
of Fitzpatrick, who claims to have discussed the 2005
letter with the now deceased Morris, and Nelson, who
claims that Morris never told him of his discussions
with Fitzpatrick about the 2005 letter. The trier of fact
also will have to determine whether the attendance by
the plaintiffs or one of their agents at the November,
2007 meeting would have prevented the sewer authority
from withdrawing its conditional capacity approval.
If the trier of fact determines that the defendants
breached the standard of care, it must then consider
whether the continuous representation doctrine tolled
the running of the statute of limitations. The trier of
fact will have to determine whether the defendants
continued to represent the plaintiffs after they retained
Fuller and Pearson. See DeLeo v. Nusbaum, supra, 263
Conn. 597–98. If the trier of fact finds that the defen-
dants continued to represent the plaintiffs after the
plaintiffs retained Fuller and Pearson, it will then have
to determine whether Fitzpatrick was able to or would
have been able to mitigate his professional negligence.18
After reviewing the record and considering the law
regarding professional negligence, the statute of limita-
tions, and the continuous representation doctrine, we
conclude that there are many genuine issues of material
fact and that the court improperly granted the defen-
dants’ motion for summary judgment on the ground
that the plaintiffs’ claims were barred by the statute of
limitations.19 In reaching this conclusion, we are mindful
of the legislative policy underlying statutes of limitation:
‘‘to prevent the unexpected enforcement of stale claims
concerning which the persons interested have been
thrown off their guard by want of prosecution’’; Vilcin-
skas v. Sears, Roebuck & Co., 144 Conn. 170, 174–75, 127
A.2d 814 (1956); and ‘‘to promote justice by preventing
surprise through the revival of claims that have been
allowed to slumber until evidence has been lost, memo-
ries have faded, and witnesses have disappeared.’’
(Internal quotation marks omitted.) Grimes v. Housing
Authority, 42 Conn. App. 324, 328, 679 A.2d 397 (1996),
rev’d on other grounds, 242 Conn. 236, 898 A.2d 302
(1998). In this matter, the resolution of the plaintiffs’
claims is complicated by the death of Morris.
Because the court improperly concluded that the
plaintiffs’ claims were barred by the statute of limita-
tions, it improperly granted the motion for summary
judgment as to the plaintiffs’ claim of professional negli-
gence. The matter must, therefore, be remanded for
further proceedings.
III
The plaintiffs’ third claim is that the court improperly
granted summary judgment regarding count two of the
complaint, which alleged that the defendants breached
their fiduciary duty. We disagree.
In count two, the plaintiffs realleged all of the allega-
tions contained in count one plus that the ‘‘actions or
omissions of the defendants described above, were in
breach of the fiduciary duties they owed to the plain-
tiffs.’’ In their motion for summary judgment, the defen-
dants asserted that summary judgment should be
granted as to all three counts of the plaintiffs’ complaint
because the factual allegations in count one relate to
the violation of duties owed by attorneys in general. In
their memorandum of law in support of the motion
for summary judgment, the defendants argued that the
plaintiffs’ breach of fiduciary duty count failed to state
a claim upon which relief can be granted. Relying on
Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribi-
coff & Kotkin, 247 Conn. 48, 56–57, 717 A.2d 724 (1998),
the defendants argued that under Connecticut law
where the allegations of a complaint sound in breach of
the standard of care pertaining to attorneys, a plaintiff
cannot maintain a separate and independent count for
breach of fiduciary duty for the identical conduct. A
viable cause of action for breach of fiduciary duty
requires factual allegations impugning the attorney’s
honesty, morality, or loyalty. The defendants contended
that the plaintiffs’ complaint alleged no facts and there
is no evidence that the defendants failed to maintain
loyalty to the plaintiffs. Although count two alleges
‘‘actions or omissions of the defendants described
above were in breach of the fiduciary duties they owed
to the plaintiffs,’’ the defendants argued that the allega-
tion is a legal conclusion lacking factual support. In
their supplemental memorandum of law in support of
their motion for summary judgment, the defendants
stated that the plaintiffs’ complaint contains no allega-
tion from which to find a breach of duty after the alleged
initial wrong, i.e., ‘‘the alleged failure to advise the plain-
tiffs of the September, 2005 conditional capacity autho-
rization.’’ Moreover, the complaint contains no
allegation that Fitzpatrick ‘‘engaged in any new affirma-
tive acts or omissions following the initial alleged failure
to advise.’’ An attorney’s breach of duty is actionable
only when supported by adequate factual allegations.
In their objection to the defendants’ motion for sum-
mary judgment, the plaintiffs summarized a portion of
Fitzpatrick’s deposition testimony and represented that
Middlebury does not have its own sewage treatment
facility. Middlebury therefore purchases sewer capacity
from the town of Naugatuck. Moreover, at various
times, while he was representing the plaintiffs, Fitzpa-
trick also either represented other applicants seeking
an allocation of Naugatuck sewer capacity or that he
served as legal counsel to the Naugatuck sewer author-
ity. The plaintiffs argued that seeking the allocation
of sewer capacity for other projects was a conflict of
interest, but their complaint alleges no factual basis for
that assertion.
In granting the defendants’ motion for summary judg-
ment as to count two, the court cited Beverly Hills
Concepts, Inc. v. Schatz & Schatz, Ribikoff & Kotkin,
supra, 247 Conn. 48, for the controlling rule of law.
‘‘Professional negligence alone . . . does not give rise
automatically to a claim for breach of fiduciary duty.
Although an attorney-client relationship imposes a fidu-
ciary duty on the attorney . . . not every instance of
professional negligence results in a breach of that fidu-
ciary duty. [A] fiduciary or confidential relationship is
characterized by a unique degree of trust and confi-
dence between the parties, one of whom has superior
knowledge, skill or expertise and is under a duty to
represent the interests of the other. . . . Professional
negligence implicates a duty of care, while breach of
fiduciary duty implicates a duty of loyalty and honesty.’’
(Citations omitted; internal quotation marks omitted.)
Id., 56–57. Although the court granted summary judg-
ment in favor of the defendants on the evidentiary basis
of Fitzpatrick’s affidavit and the firm’s retainer
agreement, it concluded that the plaintiffs ‘‘merely [had]
alleged a bald assertion of disloyalty.’’ We agree with
the court’s construction of the complaint.
On appeal, the plaintiffs have presented a convoluted
argument that the court improperly granted summary
judgment as to the breach of fiduciary duty count
because the defendants failed to disclose certain docu-
ments regarding the disclosure of or waiver of the defen-
dants’ conflicts of interest and, therefore, there are
genuine issues of material fact regarding conflicts of
interest.20 In their brief, the defendants argue that the
trial court properly granted summary judgment in their
favor because the complaint fails to contain factual
allegations impugning their honesty, morality, or loy-
alty. We agree with the defendants.
It is again worth noting the principles underlying
summary judgment. ‘‘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. A material fact is a fact that will
make a difference in the result of the case.’’ (Emphasis
added; internal quotation marks omitted.) Stevens v.
Carlton Helming, 163 Conn. App. 241, 245, 135 A.3d
728 (2016).
‘‘A genuine issue of material fact must be one which
the party opposing the motion is entitled to litigate
under his pleadings and the mere existence of a factual
dispute apart from the pleadings is not enough to pre-
clude summary judgment. . . . The facts at issue [in
the context of summary judgment] are those alleged
in the pleadings. . . . The purpose of the complaint
is to limit the issues to be decided at the trial of a case
and is calculated to prevent surprise.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
Id. Summary judgment, however, may be used to chal-
lenge the legal sufficiency of a complaint when the
complaint fails to set forth a cause of action and the
defect cannot be cured by repleading. See Larobina v.
McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).
‘‘[T]he interpretation of pleadings is always a question
of law for the court. . . . We have pointed out that
[t]he burden [is] upon the pleaders to make sure aver-
ments that the material facts should appear with reason-
able certainty; and for that purpose [the pleaders] were
allowed to use their own language. Whenever that lan-
guage fails to define clearly the issues in dispute, the
court will put such reasonable construction as will give
effect to the pleadings in conformity with the general
theory which it was intended to follow, and do substan-
tial justice between the parties.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Cahill v. Board of Education, 198 Conn. 229, 236, 502
A.2d 410 (1985).
We agree with the court that the plaintiffs’ allegation
that the defendants ‘‘put their own or other interests
ahead of the plaintiffs’ [interests] and failed to keep
loyalty and fidelity to the plaintiffs’ project as para-
mount’’ is insufficient to constitute an alleged breach
of fiduciary duty. This allegation is a conclusion that
is insufficient to advise the defendants or the court of
the facts on which the plaintiffs intended to rely in
proving that the defendants breached their fiduciary
duty. On the basis of our plenary review of the com-
plaint, we conclude that the plaintiffs’ allegations that
the defendants were negligent in failing to apprise them
of the 2005 letter and other communications from the
sewer authority fail to state a cause of action for breach
of fiduciary duty. Moreover, the complaint alleges that
the defendants violated the Rules of Professional Con-
duct concerning competency, diligence, and communi-
cation. It does not allege that the defendants had a
conflict of interest or that they violated rule 1.7 of the
Rules of Professional Conduct, which concerns con-
flicts of interest. The plaintiffs’ factual representations
and arguments in opposing the defendants’ motion for
summary judgment, and here on appeal, therefore, are
unavailing because they do not concern material facts
alleged in the complaint.
In conclusion, we agree with the defendants that
count two of the complaint fails to state a cause of
action for breach of fiduciary duty. The court, therefore,
properly granted summary judgment with respect to
the breach of fiduciary duty count in favor of the
defendant.21
The judgment is reversed as to count one, and the
case is remanded for further proceedings on that count;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The plaintiffs did not oppose summary judgment with respect to their
breach of contract claim. We therefore affirm the judgment with respect to
that count of the plaintiffs’ complaint.
2
The 2005 letter was addressed to Straw Pond Real Estate, LLC, care of
Fitzpatrick. It stated in relevant part: ‘‘This letter will serve to confirm that
at its regular meeting of August 16, 2005, the [sewer authority] authorized
a maximum capacity of 48,400 gallons per day to service the above captioned
project consisting of no more than 242 residential age restricted units with
a maximum of 484 bedrooms . . . on property consisting of approximately
[fifty-seven] acres . . . subject to the terms of this letter. Straw Pond Real
Estate, LLC, represents that it is the holder of option(s) from the current
owners to acquire the Project Property. Straw Pond Real Estate, LLC, intends
to acquire the Project Property, and to construct the Project, subject to
obtaining all appropriate governmental approvals for the Project.
‘‘The capacity approval is subject to the following conditions . . . .
‘‘6. The total assessment for the Project shall be based on $8,500 for each
residential unit, as finally approved. For example, if the total Project for
the above 242 residential units was approved, the total assessment would
be $2,057,000. . . . A unit payment in the amount of $8,500 shall be made
upon application and as a condition to the issuance of a building permit
for each residential unit . . . .
‘‘7. A building service connection application, with all required engineering
plans and specifications, for review and approval of connection(s) of the
Project Property to the Middlebury public sewer system shall be submitted
to the [sewer authority] no later than three . . . months following the date
of obtaining the last of governmental approvals for the Project (without the
ability of any further appeals).
‘‘8. Each unit connection in the Middlebury public sewer system will
require a separate service application with a $250.00 fee and the submission
of plans for each such connection. . . .
‘‘The owner of the Project Property shall execute and deliver a ‘Sewer
Use Agreement’ with respect to all of the conditions recited above, on terms
and conditions reasonably satisfactory to the [sewer authority], no later
than three . . . months from the date of this letter. If the parties have not
so executed and delivered the ‘Sewer Use Agreement,’ the [sewer authority]
may, in its sole discretion, withdraw its approval of the sewer capacity
allocation for the Project Property. If the entire Project has not been
approved by all required governmental agencies within two . . . year[s]
from the date of this letter (without the ability of further appeals), the [sewer
authority] may, in its sole discretion, withdraw its approval of the sewer
capacity allocation for the Project Property. The owner of the Project
Property may request a further extension of the two-year period if appeals
from any governmental approvals have not then been resolved, which may
be denied in the sole discretion of the [sewer authority].’’ (Emphasis added.)
3
Fitzpatrick testified at his deposition that he was unable to attend the
November, 2007 meeting due to a family commitment and that he had
asked Pocius to put the project discussion over until the sewer authority’s
next meeting.
4
In its memorandum of decision concerning the sewer appeal, the trial
court, Gallagher, J., stated: ‘‘Although the plaintiffs claim throughout their
brief that they are appealing the revocation of approval of a sewer connec-
tion, [the sewer authority] correctly points out that the application was for
a determination of sewer capacity and not for a sewer connection.’’ Straw
Pond Associates, LLC v. Water Pollution Control Authority, Superior Court,
judicial district of Waterbury, Docket No. CV-08-4015126-S (March 8, 2011).
5
In count two of their complaint, the plaintiffs incorporated all of the
allegations of count one and alleged that the defendants’ acts or omissions
were a breach of the fiduciary duty they owed the plaintiffs.
6
In support of their motion for summary judgment, the defendants
attached a copy of the plaintiffs’ application for determination of capacity,
which was printed on the stationery of SEA Consultants, Inc., and received
by the sewer authority on May 13, 2005. The application identifies the
applicant as ‘‘Straw Pond Real Estate, LLC, c/o Paragon Realty Group, 276
Post Road West, Suite 201, Westport, CT 0688 [and] co-applicant: CUDA
Associates, LLC & Straw Pond Associates, LLC, 1100 Ridge Road, North
Haven, CT 06473.’’
7
Practice Book § 10-57 provides: ‘‘Matter in avoidance of affirmative alle-
gations in an answer or counterclaim shall be specially pleaded in the reply.
Such a reply may contain two or more distinct avoidances of the same
defense or counterclaim, but they must be separately stated.’’
As will be discussed in part II of this opinion, the plaintiffs argue that the
statute of limitations was tolled by the continuous representation doctrine,
which is applied similar to the continuous course of conduct doctrine. Under
§ 10-57, ‘‘the continuing course of conduct doctrine is a matter that must be
pleaded in avoidance of a statute of limitations special defense.’’ Beckenstein
Enterprises-Prestige Park, LLC v. Keller, 115 Conn. App. 680, 688, 974 A.2d
764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009).
Our Supreme Court, however, has concluded ‘‘that the plaintiff’s failure
to plead specifically his entitlement to a particular tolling doctrine pursuant
to Practice Book § 10-57, while not a good practice, does not operate as a
bar or waiver of that doctrine if the record demonstrates that the defendant,
nevertheless, was sufficiently apprised of the plaintiff’s intention to rely on
that doctrine and that the defendant has not been prejudiced by the plaintiff’s
lapse in pleading.’’ Flannery v. Singer Asset Finance Co., LLC, 312 Conn.
286, 303, 94 A.3d 553 (2014). The defendants in the present case have not
claimed that they were prejudiced by the plaintiffs’ lapse in pleading. See
also Macellaio v. Newington Police Dept., 145 Conn. App. 426, 430–31, 75
A.3d 78 (2013).
8
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.’’
9
In his September 17, 2014 affidavit, Nelson, manager of Straw Pond Real
Estate, LLC, and Straw Pond Holdings, LLC, attested in part: ‘‘Ben Morris
died in 2012. However, Ben and I were partners in this project and talked
regularly. It was our regular course of dealing to inform each other promptly
of any discussions either of us had on any subject that was at all germane
to the Straw Pond Project. Ben would not have engaged in any discussions
with Attorney Fitzpatrick on a substantive matter without promptly
informing me about those discussions.’’
10
Throughout the record and in their brief on appeal, the plaintiffs have
utilized the word filed with respect to the date they commenced this action
and, at times, different dates in June, 2011, as to when this action was
commenced. In Connecticut, a civil action is commenced with the service
of a writ, summons, and complaint. See Branford v. Santa Barbara, 294
Conn. 803, 811, 988 A.2d 221 (2010) (generally civil action commenced by
service of process). In the present matter, the marshal’s return of process
indicates that he made service on June 14, 2011.
11
Among the documents the defendants attached to their supplemental
brief were a letter from Fitzpatrick to Fuller conveying his sewer authority
file, and shipping receipts for materials sent to Fuller, Morris, and Dan
Weinreb. In his letter, Fitzpatrick stated, ‘‘Apparently, the applicant requests
that you handle the appeal.’’ (Emphasis added.)
The defendants also attached copies of three briefs Fuller signed and
submitted on behalf of the plaintiffs in the sewer appeal.
12
In their sewer appeal briefs, the plaintiffs represented that ‘‘[a]ll of the
additional terms [of the 2005 letter] were not acceptable and the letter was
not signed by an agent of the plaintiff and returned to [the sewer authority].’’
The plaintiffs’ September 18, 2009 reply brief in the sewer appeal stated:
‘‘The plaintiffs did not sign the letter because they did not agree with most
of the statements in it and those provisions had been voted upon by the
entire [sewer authority].’’ In a posttrial brief, Fuller stated that ‘‘Fitzpatrick,
representing the plaintiffs, dealt with the attorney for the [sewer authority].
He told Pocius several times that his clients did not agree to the terms in
the letter, that they had not been authorized by the [sewer authority] as
part of its approval, and that there was no agreement as to the terms, fees
or termination provisions in the undated, unsigned letter.’’
13
Ordinarily, we decline to address claims made for the first time in a
reply brief. State v. Lopez, 280 Conn. 779, 816 n.25, 911 A.2d 1099 (2007).
Because this issue is likely to recur on remand, we will address it on the
ground of judicial economy.
14
The court improperly resolved a genuine issue of material by crediting
Fitzpatrick’s representation that he had discussed the 2005 letter with Morris
and, thus, concluded that the defendants were not professionally negligent.
15
The statute of limitations at issue in Cefaratti was General Statutes
§ 52-584. In that case, the plaintiff alleged that neither the surgeon nor his
patient was aware of the surgeon’s alleged negligence in failing to remove
a surgical sponge at the end of the procedure. See Cefaratti v. Aranow, supra,
154 Conn. App. 5. The sponge was discovered years after the surgery. Id.
16
In DeLeo, our Supreme Court identified additional reasons to adopt the
continuous representation doctrine: (1) requiring a client to bring an action
before the attorney-client relationship terminates would encourage the client
to constantly second-guess the attorney and force the client to get a second
legal opinion on the way the case is being handled, (2) requiring a client to
bring a malpractice action against an attorney during the pendency of an
appeal from the underlying judgment in which the malpractice allegedly
occurred could force the client to adopt conflicting legal theories, (3) the
subject of the alleged malpractice is memorialized in pleadings and hearing
transcripts, and (4) adoption of the continuous representation doctrine
would prevent an attorney from postponing the inevitable event of defeat
beyond the statute of limitations. See DeLeo v. Nusbaum, supra, 263
Conn. 594–95.
Our Supreme Court identified two more reasons to adopt the continuous
representation doctrine. Id., 595. ‘‘The first is that a person seeking profes-
sional assistance has a right to repose confidence in the professional’s ability
and good faith, and realistically cannot be expected to question and assess
the techniques employed or the manner in which the services are rendered.
. . . The second is that the continuous representation doctrine furthers the
goal of enabling the attorney to correct, avoid or mitigate the consequences
of an apparent error . . . .’’ (Citation omitted; internal quotation marks
omitted.) Id., 595–96.
17
‘‘While we anticipate that these standards would be applicable to all
attorney malpractice cases, we acknowledge that the implications of tolling
for attorney-client relationships in the context of litigation may not be
the same as those for other attorney-client relationships. Accordingly, our
holding today is limited to cases in which an attorney is alleged to have
committed malpractice during the course of litigation.’’ (Emphasis added.)
DeLeo v. Nusbaum, supra, 263 Conn. 597 n.4.
18
The record is not clear, but the defendants suggest that there were
multiple reasons for the failure of the plaintiffs’ project to proceed. The fact
that there was a ‘‘global settlement conference’’ raises many factual issues.
19
Specifically, among other things, the plaintiffs submitted an affidavit
from Nelson, which is sufficient to raise a genuine issue of material fact
that Fitzpatrick, along with Fuller and Pearson, continued to represent the
plaintiffs until 2011. Paragraphs 13 through 17 of Nelson’s affidavit address
Fitzpatrick’s alleged continued representation of the plaintiffs, including on
the sewer capacity issue related to the alleged malpractice. In paragraph
13, Nelson avers that, although the plaintiffs hired Fuller to work on the
sewer authority revocation, ‘‘[o]ur specific instructions were for . . . Fuller
and . . . Fitzpatrick to work together on that appeal . . . and to my under-
standing, they did so.’’
Paragraph 14 of the affidavit states that, on August 26, 2009, Fitzpatrick
participated in a legal strategy session with Fuller, Nelson, and others, just
prior to a judicially supervised global settlement conference. During the
strategy session, Fitzpatrick ‘‘expressed confidence that the damage done
by the loss of capacity could be mitigated through that mediation.’’ This
averment, read in the light most favorable to the plaintiffs, as it must be,
is evidence that Fitzpatrick continued to represent the plaintiffs on the
project generally, and, along with Fuller, on the sewer capacity issue. It
additionally creates a genuine issue of material fact regarding whether Fitz-
patrick could still have mitigated any harm caused by his alleged profes-
sional negligence.
Paragraph 16 of Nelson’s affidavit avers that Fitzpatrick attended the
global settlement conference conducted by the court, Agati, J. Fitzpatrick
purportedly spoke on behalf of the plaintiffs at that conference, including
with respect to the sewer authority’s revocation and the zoning issues. In
paragraph 17, Nelson states that ‘‘Fitzpatrick continued to represent us on
various aspects of the [project] continuously into 2011.’’ Moreover, during
his deposition, Fitzpatrick admitted that he may have answered questions
regarding the sewer authority at the global settlement conference.
Although there may be evidence in the record to suggest that the attorney-
client relationship between Fitzpatrick and the plaintiffs had ended in late
2007 or early 2008, it is for the trier of fact, not the court on summary
judgment, to decide whether to credit that evidence over the evidence
provided in Nelson’s affidavit.
20
In their appellate brief, the plaintiffs also claim that Fitzpatrick failed
to inform them that he considered his representation of them to have termi-
nated prior to August 26, 2009, which was a breach of fiduciary duty. Not
only did the plaintiffs fail to plead these facts, but they also failed to make
this argument in the trial court, and, therefore, we do not address this claim.
See Azzarito v. Planning & Zoning Commission, 79 Conn. App. 614, 625–26,
830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003).
21
In their motion for summary judgment, the defendants claimed that the
plaintiffs’ complaint failed to state a cause of action for breach of fiduciary
duty and was devoid of any material fact based allegations beyond profes-
sional negligence. The plaintiffs, therefore, were on notice that the defen-
dants were challenging the legal sufficiency of that count of their complaint.
The plaintiffs apparently made no effort to amend their complaint to cure
the defect, if possible. Having failed to amend their complaint before the
court rendered summary judgment on the breach of fiduciary duty count,
the plaintiffs may not replead that count on remand, as judgment has entered
on that count.