SHELDON, J.
In this action for legal malpractice, the plaintiffs, Agnes Targonski and Krzysztof Targonski, appeal from the summary judgment rendered against them in favor of the defendant, Walter A. Clebowicz, an attorney, on the ground that their action is barred by the general three year tort statute of limitations, General Statutes § 52-577.
The following facts and procedural history are necessary to our disposition of this
When, on June 9, 2004, the defendant conducted the closing on behalf of the plaintiffs, he was aware of the terms and conditions of the agreement, including, inter alia, its right-of-way contingency.
On several occasions after June 9, 2004, Cronan contacted the defendant in writing to advise him that the parties had not yet incorporated the right-of-way into the deed and to propose specific steps that might be taken to cure the problem.
The plaintiffs subsequently constructed a house on the premises. Because the plaintiffs built their house too close to the setback line, however, the town required the plaintiffs to acquire additional property from Delahunty in order to conform to zoning regulations and obtain a certificate of occupancy. Thus, on August 25, 2005, the plaintiffs purchased an additional 48.61 square feet of property from Delahunty, who was still represented by Cronan.
In October, 2005, on the basis of the defendant's alleged misrepresentation concerning the creation of the right-of-way, the plaintiffs constructed a stone wall on that portion of Delahunty's adjacent property over which they believed that they had a right-of-way.
On August 1, 2008, nearly three years after the plaintiffs finished building the stone wall, the defendant received a letter from Cronan claiming that it had been improperly constructed on Delahunty's property.
On March 6, 2009, the plaintiffs filed the complaint in the present action against the defendant, claiming in relevant part that his conduct constituted negligence and negligent misrepresentation.
On January 31, 2011, the defendant moved for summary judgment on the plaintiffs' claims against him, arguing that those claims, as pleaded in the plaintiffs' complaint, were barred by the statute of limitations. In support of his motion, the defendant argued that the plaintiffs could not invoke the continuing representation doctrine to toll the statute of limitations for two reasons: first, that doctrine is limited in application to litigation matters; and second, the plaintiffs did not present evidence raising a genuine issue of material fact that the defendant continued to represent them in the same matter wherein he allegedly committed malpractice after the June 9, 2004 closing. The defendant addressed the plaintiffs' claim that the continuing course of conduct doctrine tolled the statute of limitations by arguing in a footnote that the doctrine is not applicable where, as alleged here, an
The plaintiffs were the only parties to submit evidence on the motion. Appended to their objection, such evidence included: (1) certified copies of excerpts from their own and the defendant's depositions in this case; (2) a copy of the 2004 purchase and sale agreement and deed; (3) copies of all written communications from Cronan to the defendant from November 9, 2004, through October 1, 2008; and (4) a copy of the defendant's letter to Cronan, dated September 29, 2008.
The court heard argument on the motion on April 4, 2011. The court subsequently granted the motion, rendering judgment in favor of the defendant in a memorandum of decision issued on July 18, 2011. With respect to the plaintiffs' claim under the continuous representation doctrine, the court ruled that, even if the defendant's later representation of the plaintiffs on their refinancing tolled the statute of limitations beyond the date of the defendant's initial drafting error in June, 2004, the defendant was entitled to summary judgment because there was no genuine issue of material fact that the defendant did not continue to represent the plaintiffs after the refinancing, which took place on September 20, 2005, more than three years before this action was commenced. With respect to the plaintiffs' claim under the continuing course of conduct doctrine, the court ruled that that doctrine did not toll the statute of limitations either because the defendant's alleged negligence had occurred only at and immediately after the June, 2004 closing, or because no evidence was presented to establish that the defendant owed the plaintiffs any continuing duty thereafter. The court thus concluded that the defendant was entitled to summary judgment because the plaintiffs commenced this action outside of the three year limitation period prescribed by § 52-577. After the court denied their ensuing motion for reconsideration and reargument on August 12, 2011, the plaintiffs filed this appeal.
"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." (Internal quotation marks omitted.) Lee v. Brenner, Saltzman & Wallman, LLP, 128 Conn.App. 250, 254-55, 15 A.3d 1215, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011). "Summary judgment may be granted where the claim is barred by the statute of limitations." (Internal quotation marks omitted.) Flannery v. Singer Asset Finance
"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 furthers 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 quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, supra, 128 Conn.App. at 513, 17 A.3d 509.
The claims underlying the plaintiffs' present action were based on negligence, and thus were subject to the three year limitation period set forth in § 52-577.
Here, the defendant's alleged acts and omissions at and immediately after the June 9, 2004 closing triggered the statute of limitations. The trial court found that the plaintiffs did not commence this action until February 26, 2009, which was outside of the three year limitation period prescribed by § 52-577. Accordingly, because more than three years had passed since the date of the defendant's alleged negligence before the plaintiffs served their complaint, the plaintiffs' claims can survive the defendant's challenge under the statute of limitations only if the statute was tolled before the limitation period expired.
On appeal, the plaintiffs claim that there is a genuine issue of material fact as to whether the statute of limitations was tolled in this case by the continuing course of conduct doctrine. Specifically, the plaintiffs argue that the defendant breached a continuing duty owed to them when,
"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.... The issue, however, of whether a party engaged in a continuous course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact.... We defer to the trial court's findings of fact unless they are clearly erroneous." (Internal quotation marks omitted.) Lee v. Brenner, Saltzman & Wallman, LLP, supra, 128 Conn.App. at 256-57, 15 A.3d 1215.
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.... Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." (Internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 139-40, 907 A.2d 1220 (2006).
"[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong.... Where we have 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 giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 584, 22 A.3d 1214 (2011). "Therefore, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff." (Internal quotation marks omitted.) Id., at 585, 22 A.3d 1214. "A second requirement for the operation of the continuing 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." (Internal quotation marks omitted.) Id. "The doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete...." Sanborn v. Greenwald, 39 Conn.App. 289, 297-98, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).
Here, the parties agree that the allegations of the plaintiffs' complaint are sufficient to state a claim of legal malpractice based upon the defendant's negligent drafting of the deed without providing for a right-of-way over the seller's property. They also agree that the plaintiffs commenced this action more than three years after the alleged malpractice was committed. Accordingly, the plaintiffs' appeal turns on our resolution of the second element of the continuing course of conduct doctrine, to wit: whether the defendant, by his conduct after the alleged malpractice, breached a continuing duty to the plaintiffs that was related to his initial wrong.
As general matter, once the attorney-client relationship ends, the prior representation does not give rise to any continuing duty. Id., at 297, 664 A.2d 803. Thus, in Sanborn, this court held that "[t]here is no tolling of statutes of limitations in either tort or contract actions for
Here, then, if the trial court received competent evidence tending to show that, after negligently failing to include the right-of-way in the deed, the defendant learned of his negligence but failed to correct it when he had the opportunity to do so, it should have denied the defendant's motion for summary judgment if the evidence also showed that his opportunity to correct the negligence extended to a point less than three years before the commencement of this action.
In the present case, the plaintiffs in fact have presented evidence, in the form of written communications between the defendant and Cronan, tending to establish that, upon learning of his earlier negligence in drafting the deed, the defendant breached an ongoing duty to the plaintiffs to correct his prior error at a time when he had the opportunity to do so. Specifically, the evidence shows that, after the June 9, 2004 closing, Cronan notified the defendant of his drafting error on multiple occasions and also advised him that his error could be rectified by having his clients, the plaintiffs, enter into an easement agreement with Delahunty. Because this offer was not withdrawn until Delahunty filed suit against the plaintiffs to enjoin their further use of the driveway in 2008, the defendant's opportunity to cure his negligence lasted until well within three years of the commencement of this action. The defendant's failure to inform the plaintiffs of the defects in their deed or of their opportunity to cure them, by the process suggested by Cronan or otherwise, constituted later wrongful conduct in violation of a continuing duty related to the defendant's original breach.
On appeal, the defendant argues that the letter and faxes from Cronan to the defendant are unauthenticated and inadmissible, and thus cannot be considered by the court. Without such evidence, he further argues, there was no competent proof before the trial court that the challenged communications, even if written in 2004, were ever received by the defendant in that time frame, thus giving rise to a continuing duty on his part to correct his prior negligence in drafting the deed while there was an opportunity to do so. We disagree.
Before a document may be considered by the court in opposition to a motion for summary judgment, the proponent need only advance "evidence sufficient to support a finding" that the proffered evidence is what it is claimed to be. Conn.Code Evid. § 9-1(a). A writing may be authenticated by an admission of the opposing party at a deposition. See id., commentary (a)(7); C. Tait & E. Prescott, Connecticut Evidence (4th Ed.2008) § 9.2.1, pp. 621-22. Here, appended to their opposition to the defendant's motion for summary judgment, the plaintiffs submitted a certified copy of the deposition of the defendant during which the defendant identified a letter and two faxes he had received from Cronan in 2004.
The judgment is reversed and the case is remanded for further proceedings according to law.
In this opinion the other judges concurred.
"I have also attached an unexecuted easement/maintenance agreement ... which I suggest we use for your clients as well."
"Does that mean that your clients are not interested in a formal easement agreement?"
"I am sorry to have to take this position but the absence of any response whatsoever to my earlier attempts to resolve this matter leave me no other choice."