DocketNumber: No. CV 92 51159 S
Judges: HAMMER, J.
Filed Date: 11/15/1994
Status: Non-Precedential
Modified Date: 4/17/2021
The underlying facts concerning the defendant's legal representation of the plaintiff in connection with the modification of the original divorce decree are substantially undisputed in the pleadings and in the documents and affidavits filed by the parties for the court's consideration in ruling on the motion for summary judgment. The orders entered at the time of the dissolution of the marriage on August 30, 1982, included a provision for the conveyance by the husband of his interest in the marital home to the wife in consideration of the funding by her of a trust fund for the benefit of the minor child upon the happening of certain stated contingencies, including the cohabitation or remarriage of the wife or the sale of the family residence.
On or about August 20, 1984, the plaintiff retained the defendant to file a contempt motion against her former husband because of his failure to make the payments due on the second j mortgage on the marital home as he was required to do under the terms of the dissolution judgment. After the court had ruled favorably on her motion the parties entered into negotiations to modify the terms of the original judgment.
The defendant advised the plaintiff that it would be in her best interest to delete from the judgment the provision that she fund the trust for the minor child, and that, in consideration of such a concession being made by her former husband, she should assume the second mortgage on the home, accept less by way of support payments and forgive any arrearages in his support and alimony payments. Thereafter, the defendant drafted a stipulation for the modification of the judgment that the plaintiff signed in reliance on the defendant's advice that she would no longer be obligated to fund the trust as she had been under the terms of the original judgment, and the stipulation, which was dated April 8, 1985 and signed by both parties, was approved by the court on April 22, 1985.
The defendant asserts in his affidavit in support of the motion that on September 11, 1985, he transmitted to the plaintiff the recorded quit claim deed of her former husband's one-half interest in the jointly-owned residence as well as the stipulated CT Page 11221-CC modification of judgment and asked her to contact him if she had any questions about them. He also states that his representation of the plaintiff terminated upon the transmittal of the relevant documents to her and that he "never represented Ms. Sanborn on any matter after 1985."
The stipulated modification of judgment (Defendant's Exhibit A) which has been submitted by the defendant in support of his motion purports to modify the paragraph of the judgment which contained the provision for funding the trust, but does so only to the extent that it requires the husband to quitclaim his interest in the jointly owned residence subject to the existing first and second mortgages which the wife agrees to assume and pay and also waives any claim on her part for arrearages in payment on the second mortgage. It does not, however, expressly state that the wife was to be relieved of the obligation to fund the trust and goes on to state that the original judgment of the court is to remain the same "[i]n all other respects."
The plaintiff states in her affidavit in opposition to the motion that "[i]n December, 1989, I learned that my ex-husband expected me to fund the trust [and] I then retained a new attorney, Cynthia Houck, to represent me in this matter." (Plaintiff's Exhibit A, paras. 9 and 10). She also states that Houck told her that she had consulted with "my former attorney", the defendant, and that he had told Houck that the plaintiff "was under no legal obligation to fund the trust, based on the Stipulated Modification of Judgment which he drafted for me in 1985." Id. para. 12.
The plaintiff goes on to assert in her affidavit (paras. 13 and 14) that on June 25, 1990, the defendant, when called as a witness at a hearing held on a motion for contempt filed by her former husband to order her to fund the trust for the child, "attempted to testify, in Superior Court, that the intent, in part, of the Stipulated Modification of Judgment was to void my obligation to fund the trust." She concludes by stating that contrary to the defendant's "representations to me, the Superior Court for the Judicial District of Tolland at Rockville, on June 25, 1990, ruled that I was obligated to fund the trust . . .", and that thereafter she commenced the present action "less than three years after Charles Greenwald advised me that I owed no legal obligation to fund the trust," Id. paras. 16 and 17.
The affidavit of Cynthia Houck which was filed in opposition to the motion states that she represented the plaintiff from CT Page 11221-DD December 1989 through June of 1990 in the contempt proceeding brought by her former husband, and that the plaintiff told her when she was first retained "that it was her understanding that she was not obligated to fund the trust" because the stipulated modification of judgment drafted by the defendant in 1985, "was intended, in part, to eliminate her obligation to fund the trust." Plaintiff's Exhibit B, paras. 3 and 6. She also states in her affidavit that on December 27, 1989, April 25, 1990 and June 25, 1990, the defendant "advised me that according to his interpretation of the Stipulated Modification of Judgment . . . Ms. Sanborn was not required to fund the trust [and that she] communicated Mr. Greenwald's advice and representations to my client, Ms. Sanborn." Id. paras. 8 and 9.
The plaintiff has also filed a transcript of the proceedings held on June 25, 1990 (Plaintiff's Exhibit C) in which the court (Jackaway, J.) ordered the plaintiff to fund the trust. The basis of the ruling as stated by the court was "[b]ecause the stipulation was very poorly drafted [and] if they had intended that the obligation to create the trust should be taken out of that paragraph, it should have said so, but it doesn't [and] that's the problem." Id. p. 9.
Paragraph 14 of the plaintiff's amended complaint alleges that the defendant "negligently failed to prepare a modification that I was legally sufficient to express the agreement of the parties", and paragraph 15 alleges that the defendant "negligently failed to warn and advise the plaintiff concerning the legal consequences of the modification he prepared, which failure to warn and advise continued until August 3, 1990, when the court ruled." The defendant's third special defense, which is denied by the plaintiff in her reply, alleges that the defendant's representation of the plaintiff terminated "on or about August 20, 1984", and that the plaintiff's action is barred by §
In the course of his oral argument in opposition to the defendant's motion for summary judgment, counsel for the plaintiff acknowledged (Transcript, January 18, 1994, pp. 2-3) that the attorney — client relationship between the parties was terminated "no later than 1985", and stated that he was not claiming that the statute of limitations was tolled, or that the accrual of the plaintiff's cause of action was deferred, under the "continuing CT Page 11221-EE representation rule" which has been defined by our Appellate Court as being applicable only ``while the attorney continues to represent the client and the representation relates to the same transaction or subject matter as the allegedly negligent acts.' S.M.S. TextileMills, Inc. v. Brown, Jacobson, Tillinghast, Lahan King, P.C.,
Where the complaint in an action for legal malpractice against an attorney alleges negligence in his representation of the plaintiff, the three year limitation period imposed by §
The trial court may properly grant summary judgment where there is no dispute as to the applicable statute of limitations and there is no genuine issue of material fact concerning the date of the wrongful conduct alleged in the complaint. Shuster v. Buckley, supra, 478. Where the plaintiff's complaint and the documentation she offers in opposition to the motion fail to state facts giving rise to a continuing duty on the part of the defendant which would serve to impede or avoid the normal application of the particular limitations period, the court may properly render a summary judgment for the defendant because the issue must be one which the plaintiff is entitled to litigate under her pleadings. Id. 477.
The wrongful conduct alleged by the plaintiff in her complaint was the defendant's negligent failure to draft the stipulation so was "to express the agreement of the parties", (Complaint, para. 14), and it is undisputed both factually, and as a matter of law in view of Judge Jackaway's subsequent ruling, that "the agreement itself could not have been changed" or otherwise rectified after CT Page 11221-FF its approval by the court on April 22, 1985, as plaintiff's counsel conceded (Transcript, supra, 4) in the course of his oral argument. See McClain v. Johnson,
The continuing course of conduct doctrine as articulated by the Supreme Court in Fichera v. Mine Hill Corporation, supra,
Similarly, the rationale given by the courts that have applied the continuing course of conduct doctrine to legal malpractice cases by adopting the continuous representation rule is that the rule gives an attorney the opportunity to remedy his error or to establish that no error was made during the time that "the attorney continues to represent the client and the representation relates to the same transaction or subject matter as the allegedly negligent acts." Wall v. Lewis,
The requirement that there must be evidence of a subsequent breach of duty in order to support a finding of a continuing course of conduct is not satisfied by the failure of the alleged tortfeasor to notify the plaintiff of his wrongdoing. Connell v.Colwell,
A former client's contact with her attorney to seek help to rectify an error previously made cannot revive a cause of action after the statute of limitations has already run. Schoenrock v.Tappe,