MEMO TO:
Alexsei Demo US
RESEARCH ID:
#40008271a0f685
JURISDICTION:
State
STATE/FORUM:
Connecticut, United States of America
ANSWERED ON:
August 18, 2022
CLASSIFICATION:
Torts
Professions and occupations
Civil practice and procedure

Issue:

What is the statute of limitations for a legal malpractice claim in Connecticut?

Conclusion:

Conn. Gen. Stat. § 52-577 (2022) sets out a three-year statute of limitations for tort actions. The three-year period runs from the date of the act or omission complained of.  (Conn. Gen. Stat. § 52-577 (2022))

Accordingly, a claim for legal malpractice must be brought within three years from the date of the act or omission complained of, not the date when the plaintiff first discovers an injury. (Sanborn v. Greenwald, 664 A.2d 803, 39 Conn.App. 289 (Conn. App. 1995), Cruz v. Schoenhorn, 188 Conn. App. 208, 204 A.3d 764 (Conn. App. 2019), DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744 (Conn. 2003), DeLeo v. Nusbaum, 49 Conn. Supp. 366, 2004 Conn. Super. LEXIS 1640, 888 A.2d 189 (Conn. Super. Ct. June 22, 2004))

However, under the continuous representation doctrine, a plaintiff may toll the statute of limitations on a legal malpractice claim when the plaintiff can show that the defendant continued to represent the plaintiff with regard to the same underlying matter and, either that the plaintiff did not know of the alleged malpractice, or, that the attorney could still mitigate the harm allegedly caused by the malpractice during the continued representation period. (Cruz v. Schoenhorn, 188 Conn. App. 208, 204 A.3d 764 (Conn. App. 2019), DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744 (Conn. 2003), DeLeo v. Nusbaum, 49 Conn. Supp. 366, 2004 Conn. Super. LEXIS 1640, 888 A.2d 189 (Conn. Super. Ct. June 22, 2004))

Additionally, courts have the discretion to stay a legal malpractice case when the underlying case has been adjudicated but the damages may be minimized substantially by the outcome of another pending action. (Lee v. Harlow, Adams and Friedman, P.C., 975 A.2d 715, 116 Conn.App. 289 (Conn. App. 2009))

Law:

In Cruz v. Schoenhorn, 188 Conn. App. 208, 204 A.3d 764 (Conn. App. 2019) ("Cruz"), the Appellate Court of Connecticut explained that actions for legal malpractice based on negligence are subject to the tort statute of limitations, Conn. Gen. Stat. § 52-577. Section 52-577 sets out a three-year limitation period that begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury (at 769):

"Summary judgment may be granted where the claim is barred by the statute of limitations." (Internal quotation marks omitted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 134 Conn. App. 785, 789, 41 A.3d 674 (2012), aff'd, 311 Conn. 282, 87 A.3d 534 (2014). "Actions for legal malpractice based on negligence are subject to § 52-577, the tort statute of limitations." (Internal quotation marks omitted.) Weiner v. Clinton, 106 Conn. App. 379, 386, 942 A.2d 469 (2008). "This court has determined that [§] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.... Moreover, our Supreme Court has stated that [i]n construing our general tort statute of limitations ... § 52-577, which allows an action to be brought within three years from the date of the act or omission complained of, we have concluded that the history of that legislative choice of language precludes any construction thereof delaying the start of the limitation period until the cause of action has accrued or the

[188 Conn.App. 216]

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 quotation marks omitted.) Chamerda v. Opie, 185 Conn. App. 627, 652, 197 A.3d 982, cert. denied, 330 Conn. 953, 197 A.3d 893 (2018).

§ 52-577. Action founded upon a tort

No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.

In Sanborn v. Greenwald, 664 A.2d 803, 39 Conn.App. 289 (Conn. App. 1995), the Appellate Court of Connecticut explained that Conn. Gen. Stat. § 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. In this case, the plaintiff argued that section 52-577 was unconstitutional because she did not discover her injury until after the statute of limitations expired (at 810): 

Actions for legal malpractice based on negligence are subject to § 52-577, the tort statute of limitations. Shuster v. Buckley, supra, 5 Conn.App., at 477, 500 A.2d 240. Section [39 Conn.App. 302] 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." Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988); see Prokolkin v. General Motors Corp., 170 Conn. 289, 294-97, 365 A.2d 1180 (1976). Here, the plaintiff claims that her common law right to bring a legal malpractice action in tort, as it existed in 1818, was unconstitutionally abolished by the enactment of § 52-577 because it prevents her from asserting a claim arising out of an injury she discovered after the time period in which to bring the claim had expired.

The Court explained that Conn. Gen. Stat. § 52-577 does not restrict or abridge the right to sue an attorney for legal malpractice, but instead establishes the time period in which a plaintiff must assert this right. Under section 52-577, a claim for legal malpractice must be brought within three years from the date of the act or omission complained of. The Court held that in limiting the time for bringing a legal malpractice claim the Legislature had not acted unconstitutionally (at 811-812): 

The common law right that the plaintiff claims was abridged by the passage of § 52-577 is the right to sue an attorney for legal malpractice in tort. Section 52-577 [39 Conn.App. 305] does not, on its face, restrict or abridge this cause of action, but, rather, only establishes the time period in which a plaintiff must assert this right. Therefore, § 52-577 restricts the right only to the extent that it restricts the time for bringing the action. By analogy, if the § 13a-149 bar of an action against a municipality for injuries arising out of highway defects if notice is not given within ninety days, an action that existed at common law; see Sanzone v. Board of Police Commissioners, supra, 219 Conn., at 196-97 n. 13, 592 A.2d 912, can survive an attack on its constitutionality, we conclude that § 52-577 can also survive such an attack.

"There are two principal reasons generally given for the enactment of a statute of repose: (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 furthers the public

Page 812

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." (Citation omitted; internal quotation marks omitted.) Daily v. New Britain Machine Co., supra, 200 Conn., at 582-83, 512 A.2d 893.

Statutes of repose are constitutional enactments that involve a balancing of the hardship caused by the potential bar of a just claim with the advantage of barring stale claims. Id., at 583, 512 A.2d 893. Section 52-577 does not alter the common law cause of action of legal malpractice. It limits its availability but legal redress for the action still exists. Statutes of limitation are generally procedural. Baxter v. Sturm, Ruger & Co., 230 Conn. 335, 347, 644 A.2d 1297 (1994); Ecker v. West Hartford, supra, 205 Conn., at 231-32, 530 A.2d 1056. They function as a qualification of the remedy to enforce the right; Baxter v. Sturm, Ruger & Co., supra, 230 Conn., at 347, 644 A.2d 1297; and limit the time in which to bring the [39 Conn.App. 306] action. Ecker v. West Hartford, supra, 205 Conn., at 231-32, 530 A.2d 1056. They do not in themselves create or negate a cause of action, and simply act as a bar to a remedy otherwise available. Id. When a right exists at common law, a statute of repose "functions only as a qualification on the remedy to enforce the preexisting right." Baxter v. Sturm, Ruger & Co., supra, 230 Conn., at 347, 644 A.2d 1297.

The legislature has not tampered with the cause of action here that existed at common law in 1818. It has, however, amended the procedural aspect of enforcing the right by limiting the time within which the action could have been brought. The action, which had to have been brought within six years after the right of action accrued, now must be brought within three years from the date of the act or omission complained of. In limiting the time for bringing an action, even though it is possible that on the date of the expiration of the limitation period no injury has yet been sustained, the legislature has not acted unconstitutionally. See Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174, 127 A.2d 814 (1956). The statute as applied to the plaintiff was not unconstitutional.

The judgment is affirmed.

However, in Cruzsupra, the Appellate Court of Connecticut also explained that to avoid the harsh consequences of Conn. Gen. Stat. § 52-577, the Supreme Court of Connecticut adopted the continuous representation doctrine in DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744 (Conn. 2003) ("DeLeo"). Under this doctrine, a plaintiff may toll the statute of limitations on a legal malpractice claim when the plaintiff can show that the defendant continued to represent them with regard to the same underlying matter and, either that the plaintiff did not know of the alleged malpractice, or, that the attorney could still mitigate the harm allegedly caused by the malpractice during the continued representation period. For the purposes of this doctrine, the representation continues until either the formal or the de facto termination of the attorney-client relationship. The formal termination of the relationship occurs when the attorney is 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 they have ceased relying on their attorney's professional judgment in protecting their legal interests (at 769-770): 

"To alleviate the harsh consequences of the occurrence rule, our Supreme Court ... 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; internal quotation marks

[204 A.3d 770]

omitted.) Farnsworth v. O'Doherty, 85 Conn. App. 145, 150, 856 A.2d 518 (2004). "With regard to the first prong ... the representation continues for the purposes of the continuous representation doctrine until either the formal or the de facto termination of the attorney-client relationship. The formal termination of the relationship occurs when the attorney is 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 professional judgment in protecting his legal interests, such as hiring a second attorney to consider a possible malpractice claim or filing a grievance against the attorney. Once such a step has been taken, representation may not be said to continue for purposes of the continuous representation doctrine.

[188 Conn.App. 217]

A client who has taken such a concrete step may not invoke this doctrine, because such actions clearly indicate that the client no longer is relying on his attorney's professional judgment but instead intentionally has adopted a clearly adversarial relationship toward the attorney. Thus, once such a step has been taken, representation does not continue for purposes of the continuous representation doctrine." (Footnotes omitted.) DeLeo v. Nusbaum, supra, at 597–98, 821 A.2d 744.

In DeLeosupra, the Supreme Court of Connecticut reiterated that even when the relationship continues and has not been terminated, either formally or de facto, the continuous representation doctrine only tolls the statute of limitations for as long as either the plaintiff does not know of the alleged malpractice or the attorney may still be able to mitigate the harm allegedly caused (at 599-600):

In addition, as noted previously, even when the relationship continues and has not been terminated, either formally or de facto, the continuous representation doctrine we adopt today only tolls the statute of limitations for as long as either the plaintiff does not know of the alleged malpractice or the attorney may still be able to mitigate the harm allegedly caused. Tolling the statute while the plaintiff lacks actual knowledge of the alleged malpractice serves the purpose of not requiring the client to second-guess his attorney. Tolling the statute while the attorney may be able to mitigate the damage permits the client, without endangering his malpractice claim, to allow the attorney who is already working on his case to attempt to mitigate or even prevent harm.7

[263 Conn. 600]

Furthermore, it will ordinarily be the case that tolling while mitigation remains possible will prevent the client from having to sue his attorney while the initial litigation is pending. When none of these purposes is furthered by tolling the statute, however, the tolling must end.

In this case, the Court found that the trial court erred in finding that the plaintiff's relationship with the defendants had deteriorated to such an extent that the plaintiff was not entitled to the protection of this doctrine based on evidence that the plaintiff had sent a letter to his wife criticizing his lawyer, as well as her lawyers. The Court explained that the act of sending this letter did not rise to the level of unequivocally indicating that the plaintiff had ceased relying on his attorney's professional judgment in protecting his legal interests. Therefore, as a matter of law, the act of sending this letter did not constitute a de facto termination of the attorney-client relationship. As to whether the plaintiff could establish either the mitigation or lack of knowledge components of the second prong, the Court found that the plaintiff had not presented any evidence on the issue, nor was it considered by the trial court. Therefore, the Court concluded that it was proper to reverse and remand the case to the trial court (at 600-601): 

In applying this test to the facts of the present case, we conclude the following. First, with regard to whether there was a de facto or formal termination of the relationship, the trial court, in finding that the plaintiff's relationship with the defendants had deteriorated to such an extent that the plaintiff was not entitled to the protection of this doctrine, relied on evidence that the plaintiff had sent a letter to his wife stating that "you[r] lawyers have not only committed malpractice in handling this case but are guilty of billing fraud," and "[m]y lawyer has not done much better." The act of sending this letter to the plaintiff's wife does not rise to the level of unequivocally indicating that the plaintiff had ceased relying on his attorney's professional judgment in protecting his legal interests and, therefore, as a matter of law, does not constitute a de facto termination of the attorney-client relationship.

Accordingly, we next consider whether the plaintiff can establish either the mitigation or lack of knowledge components of the second prong. The trial court found that the plaintiff had admitted that the defendants could not have mitigated the damage allegedly caused by their negligence in 1992. Thus, because of the inability to establish mitigation, the plaintiff is required to show that he had no knowledge of the defendants' negligence. The plaintiff has not presented any evidence on this issue, nor was it considered by the trial court, because the plaintiff and the trial court reasonably did not understand the rule to require such evidence. Under these circumstances, we conclude that it is proper to reverse the judgment of the trial court and remand the case to that court with direction to consider, in light of the

[263 Conn. 601]

continuous representation doctrine we adopt today, whether the plaintiff's claim is barred by the statute of limitations.

On remand, in DeLeo v. Nusbaum, 49 Conn. Supp. 366, 2004 Conn. Super. LEXIS 1640, 888 A.2d 189 (Conn. Super. Ct. June 22, 2004), the Superior Court of Connecticut for the Judicial District of Stamford-Norwalk found that the plaintiff's letter to his wife could not be understood by any reasonable jury to mean anything other than establishing that the plaintiff knew of the defendants' negligence as of the date of the letter. Therefore, the three-year statute of limitations started to run on the date of the letter. The plaintiff did not file this legal malpractice lawsuit until after the statute of limitations had already run. Thus, the Court concluded that a directed verdict must be granted (at 380-381): 

That letter was discussed by the Supreme Court in DeLeo v. Nusbaum, supra, 263 Conn. 600 [**22]. The Supreme Court used that letter in analyzing whether there was a de facto or formal termination of the attorney-client relationship. The court determined: "The act of sending this letter to the plaintiff's wife does not rise to the level of unequivocally indicating that the plaintiff had ceased relying on his attorney's professional judgment in protecting his legal interests and, therefore, as a matter of law, does not constitute a de facto termination of the attorney-client relationship." Id. The Supreme Court did not analyze the letter in regard to whether the plaintiff had knowledge of the defendants' malpractice as of June 22, 1993, the date of the letter.

This court will now conduct such an analysis. The letter specifically uses the word "malpractice." It references the fact that the plaintiff is aware of the legal concept of malpractice as applied to lawyers in this case. He is directly accusing his wife's attorneys of committing malpractice in the handling of various aspects of this case. In addition in the June 22, 1993 letter, he advances not only the allegation of malpractice, but states unequivocally that his wife's attorneys engaged in conduct that exceeds malpractice [**23]  in that they were "guilty of billing fraud." Evidence introduced  [*381]  at the jury trial established that the plaintiff followed up on his malpractice charges against his wife's attorneys by filing a complaint with the statewide grievance committee.

By adding the asterisk and the phrase, "my lawyer has not done much better," the plaintiff was adopting the same language and accusations addressed to his wife's attorneys and addressing those complaints to his own attorney, the defendants. The accusation of the wife's attorneys being guilty of malpractice is unequivocal. There is no less equivocation in the phrase by adding the asterisk directed to the defendants. The court is of the opinion that the June 22, 1993 letter could not be understood by any reasonable jury to mean anything other than the fact that as of June 22, 1993, the plaintiff knew of (1) malpractice by his wife's attorneys, (2) billing fraud by his wife's attorneys, (3) malpractice by his attorneys and (4) billing fraud by his attorneys. His only attorney as of June 22, 2003 was Nusbaum of the law firm of Nusbaum and Parrino, P.C.

The plaintiff on June 22, 1993, knew of the defendants' negligence. The three year statute of [**24]  limitations started to run on June 22, 1993. At the date of the commencement of this legal malpractice lawsuit on June 27, 1996, the statute of limitations, § 52-577, had already run. A jury could not reasonably reach any other conclusion than that contained in the prior three sentences. A directed verdict must be granted.

Additionally, in Lee v. Harlow, Adams and Friedman, P.C., 975 A.2d 715, 116 Conn.App. 289 (Conn. App. 2009), the Appellate Court of Connecticut held that courts have the discretion to stay a legal malpractice case when the underlying case has been adjudicated but the damages may be minimized substantially by the outcome of another pending action (at 728-729): 

We understand the difficulty faced by the parties and the trial court when the statute of limitations is running on a legal malpractice claim because some injury has occurred but the full extent of damages cannot be ascertained because of other ongoing litigation. To avoid the parties having to litigate such a cause of action under

[116 Conn.App. 310]

such circumstances, the court, in the exercise of its discretion, may stay the proceedings.

In a Michigan case, Grace v. Grace, 253 Mich.App. 357, 655 N.W.2d 595 (2003), it was demonstrated how a failure to stay a legal malpractice action can result in a windfall benefit to the person most directly responsible for the harm suffered at the expense of the harmed party's former attorney. As explained in 3 R. Mallen & J. Smith, Legal Malpractice (2009 Ed.) § 22:5, p. 119: "The failure to stay or abate the action can subject an attorney to an avoidable liability. For example, in September 1992, a Michigan lawyer was sued for failing to discover the husband's fraud in secreting the full extent of his assets. A year later, the client sued her husband for the same fraud. Relief was denied, but the judgment was reversed in 1996. Upon remand, the client recovered a judgment for $3.1 million against her former husband. In the interim, the legal malpractice action was settled. The court held that the entire amount of the settlement had to be offset from the judgment against the husband, since it was for the same injury." In such a scenario, the fraudulent party, who was most responsible for the plaintiff's loss, received a windfall from the malpractice case against the plaintiff's former lawyer. The loss should justly fall on the party who principally caused it.

"The issue of another action pending presents two recurring situations. First, the legal malpractice may be premature, if an element of the cause of action needs to be adjudicated.... Second, there may be a legally cognizable cause of action for legal malpractice, but the apparent error, causal relationship, or the existence or extent of damage may be affected by the resolution of another proceeding. For example, an action against a New York law firm for failing to obtain a first priority secured interest was stayed, because the amount of recovery from the debtor in bankruptcy was uncertain."

[116 Conn.App. 311]

4 R. Mallen & J. Smith, Legal Malpractice (2009 Ed.) § 35:10, pp. 1199-1200, discussing Washington Mutual Bank v. Law Office of Robert Jay Gumenick, P.C., 561 F. Sup.2d 410 (S.D.N.Y.2008).

"The difference between legal prematurity and a discretionary stay were examined

[975 A.2d 729]

in a 1999 Illinois federal court decision. [See Alper v. Altheimer & Gray, 65 F. Sup.2d 778 (N.D.Ill.1999).] The clients sold their discount merchandising business for $53 million. They claimed that the lawyers erred by including their wholesale business. The clients first sued a former employee for a variety of torts. Concurrently, the clients sued the employee and the buyer in federal court for similar wrongs. The clients voluntarily dismissed the state action. The federal action was dismissed, because the judge found that the sales documents encompassed the wholesale business and that no restriction was imposed on the former employee. The court declined to exercise pendent jurisdiction over the state claims. The legal malpractice suit followed. The law firm sought summary judgment on the ground that the action was premature, because the claims against the former employee and buyer had not been resolved. The court disagreed, noting that the judicial construction of the contract established damage, but commented that, if the clients pursued the state claims, `a stay or some [other] measure might well be appropriate.'" 4 R. Mallen & J. Smith, supra, § 35:10, at p. 1200. We agree.

"In the absence of a statutory mandate, the granting of an application or a motion for a stay of an action or proceeding is addressed to the discretion of the trial court...." (Internal quotation marks omitted.) Voluntown v. Rytman, 21 Conn.App. 275, 287, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990). "[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and

[116 Conn.App. 312]

effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance." Landis v. North American Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 81 L.Ed. 153 (1936). Whether to stay a legal malpractice case when the underlying case has been adjudicated but damages may be minimized substantially by the outcome of another pending action is left to the trial court's sound discretion. However, there is jurisdiction to exercise that discretion.

Authorities:
Cruz v. Schoenhorn, 188 Conn. App. 208, 204 A.3d 764 (Conn. App. 2019)
Conn. Gen. Stat. § 52-577 (2022)
Sanborn v. Greenwald, 664 A.2d 803, 39 Conn.App. 289 (Conn. App. 1995)
DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744 (Conn. 2003)
DeLeo v. Nusbaum, 49 Conn. Supp. 366, 2004 Conn. Super. LEXIS 1640, 888 A.2d 189 (Conn. Super. Ct. June 22, 2004)
Lee v. Harlow, Adams and Friedman, P.C., 975 A.2d 715, 116 Conn.App. 289 (Conn. App. 2009)