David Farnsworth, et al. v. Maureen O'Doherty

In this legal malpractice action, the
plaintiffs, David Farnsworth and Sharon Farnsworth,
appeal from the summary judgment rendered by the
trial court in favor of the defendant attorney, Maureen
O'Doherty. On appeal, the plaintiffs claim that the court
improperly concluded that the limitations period for
commencing an action, set forth in General Statutes
§ 52-577, began to run on April 26, 1995, the date the
defendant filed a complaint on the plaintiffs' behalf,
and was not tolled by subsequent developments in the
case, and, therefore, the court improperly granted the
defendant's motion for summary judgment. We affirm
the judgment of the trial court.

The following facts and procedural history are relevant
to our resolution of the plaintiffs' appeal. On
November 1, 1994, the plaintiffs retained the defendant
to represent them in a lawsuit seeking to recover damages
resulting from the alleged negligent construction
of an addition to their Branford home. On April 26,
1995, the defendant filed a complaint on the plaintiffs'
behalf against the building contractor, the town engineer
and the town of Branford. The defendant ceased
to represent the plaintiffs on September 20, 1996.

The town engineer and the town both claimed and
qualified for governmental immunity pursuant to General
Statutes § 52-557n on January 22, 1999. The complaint
against the building contractor was withdrawn
in the fall of 2000 after he filed for bankruptcy protection.
The plaintiffs filed the legal malpractice claim
against the defendant, from which the present appeal
arises, on January 20, 2001.

In the present appeal, the plaintiffs claim that the
complaint against the town engineer and the town of
Branford drafted by the defendant failed to allege recklessness
or wanton disregard for health and safety so
as to preclude the defense of governmental immunity
under § 52-557n. Additionally, the plaintiffs claim that
the defendant negligently failed to name the town building
inspector as a defendant, arguing that the town
building inspector failed to inspect the building foundation
and that he recklessly issued a certificate of occupancy
in January, 1993.

The defendant filed a motion for summary judgment
on April 2, 2003, in which she argued that, as she had
not rendered any legal services to the plaintiffs in more
than four years, the plaintiffs were time barred by § 52-
577 from bringing their legal malpractice action. The
court agreed that the plaintiffs were time barred from
bringing the action because they had failed to commence
it within three years after the defendant had
ceased representation of the plaintiffs. The defendant's
motion for summary judgment was granted by the court
in a memorandum of decision filed August 1, 2003.

At the outset, we set forth our standard of review.

‘‘We exercise plenary review over a trial court's decision
to grant a motion for summary judgment. . . . 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.'' (Citation
omitted; internal quotation marks omitted.) Bebry v.
Zanauskas, 81 Conn. App. 586, 589, 841 A.2d 282 (2004).

The plaintiffs argue that the present action did not
become ripe for adjudication until after the court dismissed
their underlying claims against the town engineer
and the town of Branford. Specifically, the
plaintiffs argue that the current action only became
ripe after they were unable to collect damages in the
underlying action and were thereby damaged by the
alleged negligence of the defendant. We are not persuaded.
The claim underlying the plaintiffs' present action
was based on negligence, which was subject to the
limitation period set forth in § 52-577. ‘‘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.''
(Internal quotation marks omitted.) Rosenfield v.
Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69
Conn. App. 151, 159, 795 A.2d 572 (2002). 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.'' (Emphasis Added by MoreLaw)
This court has
determined that ‘‘[s]ection 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.''
(Internal quotation marks omitted.) Rosenfield v.
Rogin, Nassau, Caplan, Lassman&Hirtle, LLC, supra,
158. Moreover, our Supreme Court has stated that ‘‘[i]n
construing our general tort statute of limitations, General
Statutes § 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.'' (Internal quotation marks omitted.)
Fichera v. Mine Hill Corp., 207 Conn. 204, 212,
541 A.2d 472 (1988).

Furthermore, ‘‘[t]he exact wording of [§ 52-577], barring
the bringing of any action founded upon a tort ‘but
within three years from the date of the act or omission
complained of,' pinpoints the basic question . . . as
being just what actually constituted the ‘act or omission
complained of' . . . .'' (Emphasis in original.) Prokolkin
v. General Motors Corp., 170 Conn. 289, 294, 365
A.2d 1180 (1976). The relevant date of the act or omission
complained of, as that phrase is used in § 52-577,
is the date when the negligent conduct of the defendant
occurs and not the date when the plaintiffs first sustain
damage. (Emphasis Added by MoreLaw).
‘‘When conducting an analysis under § 52-577,
the only facts material to the trial court's decision on
a motion for summary judgment are the date of the
wrongful conduct alleged in the complaint and the date
the action was filed. . . . The three year limitation
period of § 52-577 begins with the date of the act or
omission complained of, not the date when the plaintiff
first discovers an injury.'' (Citation omitted; internal
quotation marks omitted.) Collum v. Chapin, 40 Conn.
App. 449, 451, 671 A.2d 1329 (1996).

To alleviate the harsh consequences of the occurrence
rule, our Supreme Court recently adopted the
continuous representation doctrine in DeLeo v. Nusbaum,
263 Conn. 588, 821 A.2d 744 (2003). Under that
rule, ‘‘a plaintiff may invoke the doctrine, and thus toll
the 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
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
representation period.'' (Emphasis in original.) DeLeo
v. Nusbaum, supra, 263 Conn. 597.

In the present case, the occurrence that triggered the
statute of limitation in § 52-577 was the defendant's
filing, on the plaintiffs' behalf, of a complaint against
the building contractor, the town engineer and the town
of Branford on April 26, 1995. The plaintiffs did not
file their malpractice claim against the defendant until
January 20, 2001, which was well outside of three year
time period prescribed by § 52-577. We conclude, therefore,
that the statute of limitations already had expired
when the plaintiffs filed their malpractice claim against
the defendant.

We conclude further that the plaintiffs have failed to
meet the first prong of the continuous representation
test. The act or omission complained of within the
meaning of § 52-577 was the defendant's alleged negligently
pleaded complaint, which occurred when she
filed the complaint on the plaintiffs' behalf on April 26,
1995. The defendant ceased to represent the plaintiffs
on September 20, 1996, tolling the § 52-577 statute of
limitations under the continuous representation doctrine
until the defendant's termination of representation
on that date. Thus, under the continuous representation
doctrine, the statute of limitations ran on September
20, 1999. The plaintiffs filed the legal malpractice claim
against the defendant on January 20, 2001. The defendant
did not continue to represent the plaintiffs during
the three years before the statute of limitations ran.

The plaintiffs, therefore, may not invoke the continuous
representation doctrine. We need not reach the second
prong of the test because the defendant did not continuously
represent the plaintiffs during the three years
prior to this action.

On the basis of our review, we conclude that the
court, in its thoughtful and thoroughly reasoned memorandum
of decision, properly interpreted § 52-577 as it
applies to this case. Accordingly, the court properly
granted the defendant's motion for summary judgment.