ROGERS, C.J.
This case concerns the availability of the continuing course of conduct doctrine to toll the statute of limitations on a claim of aiding and abetting a principal accused of breach of a fiduciary duty when the alleged aider and abettor has no special relationship with the injured party and engages in no subsequent wrongful behavior related to the original wrong. The plaintiff, John D. Flanery,
On appeal, the plaintiff contends that the Appellate Court improperly determined that: (1) his causes of action against the defendant were time barred because he failed to allege sufficient facts in his pleadings before the trial court to invoke the continuing course of conduct doctrine; and (2) under Fichera v. Mine Hill Corp., 207 Conn. 204, 541 A.2d 472 (1988), the continuing course of conduct doctrine does not apply to toll the statute of limitations set forth in CUTPA. The defendant contends otherwise and posits, as an alternative ground for affirming the judgment of the Appellate Court, that the undisputed facts in this case preclude the operation of the continuing course of conduct doctrine as a matter of law. We agree with the plaintiff that he sufficiently invoked the continuing course of conduct before the trial court. We agree with the defendant, however, that equitable tolling pursuant to that doctrine is not available on the undisputed facts of this case and, accordingly, we affirm the judgment of the Appellate Court.
For purposes of the summary judgment proceedings and the subsequent appeal only, the following relevant facts and procedural history were not disputed by the parties.
On March 23, 1999, the plaintiff entered into a retainer agreement with MacGrady's law firm, Pepe & Hazard, LLP (Pepe & Hazard), pursuant to which MacGrady and Pepe & Hazard agreed to represent the plaintiff in connection with the sale of his lottery installment payments. The retainer agreement executed by the plaintiff provided that the agreed upon scope of representation was limited to the sale transaction, and that the parties' attorney-client relationship would terminate upon completion of the services associated with the transaction and final billing for that work.
Following the June, 1999 lottery sale, the defendant had no further contact with the plaintiff. It no longer engaged in the lottery purchase business sometime in 2000 or 2001.
On September 15, 1999, Pepe & Hazard sent the plaintiff a final bill for the services it had rendered, thereby terminating the attorney-client relationship. Thereafter, the plaintiff filed a 1999 tax return listing the full amount of the lump sum payment as the proceeds of a sale of a capital asset, paying only the capital gains tax rate on the amount received. In October, 2002, the Internal Revenue Service (IRS) notified the plaintiff that it did not agree with his treatment of the lump sum payment, and it concluded that the plaintiff owed a tax deficiency of $163,523.
At that time, the plaintiff contacted MacGrady, who no longer was employed
Throughout the entire time over which the foregoing events occurred, from 1999 through 2002, MacGrady never disclosed to the plaintiff his business relationship with the defendant. Moreover, the defendant did not disclose to the plaintiff its relationship with MacGrady.
On July 22, 2005, the plaintiff brought the present action, claiming, in relevant part, that the defendant's conduct amounted to (1) aiding and abetting in the breach of a fiduciary duty
Specifically, the trial court reasoned, the breach of the fiduciary duty alleged consisted of a conflict of interest, namely, MacGrady's dual representation of the
The trial court further found that the continuing course of conduct doctrine was inapplicable to toll the running of the statutes of limitations. According to the court, the plaintiff had failed to plead a continuing course of conduct in reply to the defendant's special defenses, and "[c]ontinuing course of conduct is a principle that is required to be specially pleaded." Finally, the court held, the statute of limitations on the plaintiff's CUTPA claim was not subject to tolling pursuant to this court's decision in Fichera v. Mine Hill Corp., supra, 207 Conn. at 204, 541 A.2d 472.
The plaintiff appealed from the judgment of the trial court to the Appellate Court claiming, inter alia, that the trial court improperly determined that the three year statutes of limitations for his aiding and abetting the breach of a fiduciary duty and CUTPA claims; see footnote 4 of this opinion; were not tolled by the continuing course of conduct doctrine.
We begin with the plaintiff's claim that the Appellate Court improperly determined that he had not adequately pleaded the continuing course of conduct doctrine in avoidance of the defendant's statute of limitations defense in accordance with Practice Book § 10-57. Specifically, the plaintiff contends that his reply to the defendant's special defense, coupled with the allegations set forth in his complaint, adequately invoked the continuing course of conduct doctrine. Contending that there is an absence of any "legal authority to support ... a pleading requirement that the continuing course of conduct doctrine be specifically labeled as such," the plaintiff emphasizes that pleadings should be read "broadly and realistically, rather than narrowly and technically"; (internal quotation marks omitted) Collins v. Anthem Health Plans, Inc., 266 Conn. 12, 24, 836 A.2d 1124 (2003); and that "he included the essential elements of the continuing course of conduct doctrine within his pleading of avoidance of limitations," which should be read in context with the specific factual allegations in the complaint. The plaintiff further notes that the continuing course of conduct doctrine was briefed and argued before the trial court, and was supported by the parties' evidentiary submissions in connection with the defendant's summary judgment motion.
In response, the defendant contends that the plaintiff's invocation of the continuing course of conduct doctrine was inadequate because his pleadings referenced only "concealment doctrines," "[did] not even use the word `continuing'" and lacked necessary allegations as to either MacGrady or the defendant that would implicate the doctrine. Citing Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn.App. at 680, 974 A.2d 764, the defendant emphasizes that the plaintiff did not comply with Practice Book § 10-57. See footnote 17 of this opinion. We agree with the plaintiff and conclude that, on this record, the Appellate Court should have reached the merits of the plaintiff's claims because the trial court and the defendant were sufficiently apprised of the continuing course of conduct issue by his pleadings and memoranda of law.
The applicable standard of review is undisputed and well established. "The interpretation of pleadings is always a question of law for the court.... Our review of the trial court's interpretation of the pleadings therefore is plenary.... Furthermore, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he
Practice Book § 10-57 provides in relevant part that "[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply...." 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, supra, 115 Conn.App. at 688, 974 A.2d 764, citing Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 607 n. 7, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007); accord Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983) ("[i]n order to raise a claim of fraudulent concealment, the party challenging a statute of limitations defense must affirmatively plead it").
Thus, in Beckenstein Enterprises-Prestige Park, LLC, the case on which the Appellate Court relied in rejecting the plaintiff's claim in the present case; see Flannery v. Singer Asset Finance Co., LLC, supra, 128 Conn.App. at 514, 17 A.3d 509; the Appellate Court concluded that the trial court properly declined to charge a jury on the continuing course of conduct doctrine, noting that "the plaintiffs had not pleaded the existence of a continuing course of conduct in avoidance of the statute of limitations defense"; Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn.App. at 688, 974 A.2d 764; but rather, had replied only with a general denial. The Appellate Court rejected the plaintiffs' claim that "they were not required to plead the continuing course of conduct doctrine in response to the defendants' special defense because the factual allegations supporting the application of the doctrine were contained in the complaint." Id.
Beckenstein Enterprises-Prestige Park, LLC, does not, however, stand for the proposition that the pleading requirements are so rigid as to require that potentially meritorious claims in avoidance of the statute of limitations be categorically barred in all cases because of pleading lapses. Beyond the trial courts' discretion to overlook violations of the rules of practice in the absence of a timely objection from the opposing party; see, e.g., Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003); it may be just to reach the merits of a plaintiff's claim to a toll of the statute of limitations, even when not properly pleaded pursuant to Practice Book § 10-57, if the issue is otherwise put
In determining whether a party's failure to "specially plead" entitlement to a particular toll of the statute of limitations pursuant to Practice Book § 10-57 is prejudicial to its adversary, we find instructive case law applying, in the context of statute of limitations defenses, Practice Book § 10-3(a),
Having thoroughly reviewed the record in this case, we conclude that the Appellate Court improperly upheld the trial court's determination that the plaintiff waived his right to assert the continuing course of conduct doctrine in avoidance of the defendant's statute of limitations special defense by failing to plead specific entitlement to that doctrine pursuant to Practice Book § 10-57. Although it would have been a far better practice for the plaintiff to use the words "continuing course of conduct" in his pleading in avoidance, the record demonstrates that the defendant was sufficiently apprised of the plaintiff's intent to rely on that doctrine and suffered no prejudice as a result of the plaintiff's lapse in pleading.
The defendant's reply memorandum of law in support of its motion for summary judgment contains a lengthy responsive discussion of the continuing course of conduct doctrine and its inapplicability to this case. Moreover, the applicability of the continuing course of conduct doctrine was argued in detail orally twice before the trial court — once in connection with the summary judgment motion filed by the MacGrady and Pepe & Hazard; see footnote 3 of this opinion; and several weeks later in connection with the defendant's motion, focusing in particular on whether MacGrady's action of referring the plaintiff to the tax appeal group for people with
We turn to the defendant's alternative ground for affirmance, namely, that the admitted or undisputed facts of this case preclude the application of the continuing course of conduct doctrine to toll the governing three year statutes of limitations as a matter of law. The defendant claims that the continuing course of conduct doctrine is inapplicable because, indisputably, it had no special relationship with the plaintiff and, therefore, had no duty to disclose anything to the plaintiff, and it did not engage in any additional wrongdoing toward, or have any further contact with, the plaintiff following the close of the lottery transaction in 1999. Moreover, according to the defendant, the fiduciary status and/or conduct of MacGrady should not, as a matter of law, be attributed to the defendant, an alleged aider and abettor, for purposes of applying the continuing course of conduct doctrine. Finally, the defendant contends, even if a principal actor's status and conduct properly are attributed to an aider and abettor for purposes of tolling a statute of limitations, there is no genuine issue of material fact regarding whether MacGrady, in the three years following the close of the lottery transaction, breached any continuing duty to the plaintiff by engaging in subsequent wrongful conduct related to his earlier wrongful acts. Specifically, the defendant argues, MacGrady's October, 2002 act of referring the plaintiff to the tax appeal group occurred after the three year statutes of limitations already had expired,
The plaintiff disagrees with the defendant, arguing that MacGrady's fiduciary status and conduct properly are attributable
Even if we were to assume, without deciding, that the status and/or subsequent wrongful conduct of a principal tortfeasor should be attributed to an alleged aider and abettor for purposes of tolling a statute of limitations, we agree with the defendant that that assumption could not aid the plaintiff on the undisputed facts of this case.
We begin with the standard of review. "The standards governing [an appellate tribunal's] review of a trial court's decision to grant a motion for summary judgment are well established. 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact ... [is] a fact which will make a difference in the result of the case.... Finally, the scope of our
"[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period.... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute. See, e.g., Zielinski v. Kotsoris, 279 Conn. 312, 330, 901 A.2d 1207 (2006) (no genuine issue of material fact as to whether statute of limitations was tolled under continuing course of treatment or continuing course of conduct doctrine); Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369-70, 746 A.2d 753 (2000) (genuine issue of material fact as to whether continuous course of conduct doctrine tolled statute of limitations in medical malpractice claim)...." (Citations omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. at 321-22, 77 A.3d 726.
The statutes of limitations applicable in the present case are occurrence statutes. See footnote 4 of this opinion. With such statutes, the limitations period typically begins to run as of the date the complained of conduct occurs, and not the date when the plaintiff first discovers his injury. Watts v. Chittenden, 301 Conn. 575, 583, 22 A.3d 1214 (2011). In certain circumstances, however, we have recognized the applicability of the continuing course of conduct doctrine to toll a statute of limitations. Tolling does not enlarge the period in which to sue that is imposed by a statute of limitations, but it operates to suspend or interrupt its running while certain activity takes place. Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. at 330, 77 A.3d 726 (McDonald, J., dissenting). Consistent with that notion, "[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." Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957).
The test for determining whether the continuing course of conduct doctrine should apply has developed primarily in negligence cases. "For instance, we have recognized the continuing course of conduct doctrine in claims of medical malpractice.... In doing so, we noted that [t]he continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.... The continuing course of conduct doctrine has also been applied to other claims of professional negligence in this state....
"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....
"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.... This court has held this requirement to be satisfied when there was wrongful conduct of a defendant related to the prior act." (Citations omitted; internal quotation marks omitted.) Watts v. Chittenden, supra, 301 Conn. at 583-85, 22 A.3d 1214. Such later "wrongful conduct may include acts of omission as well as affirmative acts of misconduct...." Blanchette v. Barrett, 229 Conn. 256, 264, 640 A.2d 74 (1994).
In sum, "[i]n deciding whether the trial court properly granted the defendant's motion for summary judgment, we must determine if there is a genuine issue of material fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff; (2) owed a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) continually breached that duty." Witt v. St. Vincent's Medical Center, supra, 252 Conn. at 370, 746 A.2d 753.
It is clear that in the present matter, the foregoing test cannot be satisfied by looking to the actions of the defendant. The plaintiff claimed that the defendant aided and abetted MacGrady in committing an initial wrong, namely, MacGrady's breach of his fiduciary duty contemporaneous with the sale of the plaintiff's lottery winnings in mid-1999. The plaintiff, however, has not alleged or pointed to any evidence of any duty owed by, or further misconduct on the part of, the defendant following that sale. In regard to the lottery transaction, the defendant and the plaintiff stood in relation of buyer and seller and, as such, there was no special relationship between them that imposed upon the defendant a duty to disclose to the plaintiff any deception attendant to the transaction. See Fichera v. Mine Hill Corp., supra, 207 Conn. at 210, 541 A.2d 472. Moreover, there is no evidence that suggests that the defendant had any further contact with the plaintiff following that transaction, let alone that it engaged in any additional related wrongdoing toward the plaintiff.
The plaintiff argues, however, that because the defendant aided and abetted MacGrady's commission of an initial wrong upon him, and because thereafter, MacGrady continually breached a related continuing duty, the statutes of limitations are tolled as to both his claims against MacGrady and his claims against the defendant. Even if we were to assume that the plaintiff's view of the law is correct, we disagree that tolling applies to save the claims alleged against the defendant in this case, because the undisputed facts show no continuing course of conduct by either the defendant or MacGrady.
As we have explained, the lottery transaction closed in June, 1999, and, by the clear terms of the retainer agreement, MacGrady ceased to represent the plaintiff entirely in September, 1999. See footnote 9 of this opinion. As evidence of later wrongful misconduct, the plaintiff cites MacGrady's act, in October, 2002, of referring the plaintiff to the tax appeal group. We disagree that that act, even if wrongful,
In Watts v. Chittenden, supra, 301 Conn. at 595-98, 22 A.3d 1214 a case in which we determined that the continuing course of conduct doctrine was available to toll the statute of limitations for a claim of intentional infliction of emotional distress, we emphasized that portions of such claims would be disallowed, as with any continuing tort, when the instances of wrongdoing comprising the course of conduct are separated by a gap that exceeds the length of the applicable statute of limitations. In such cases, although the course of conduct postdating such a gap may remain actionable (so long as the action is timely commenced from the last instance of misconduct), recovery is barred for the instances of misconduct predating the gap. See also id., at 612, 22 A.3d 1214 (McLachlan, J., dissenting) ("[o]ther jurisdictions have recognized that a course of conduct ceases when followed by a significant gap before the misconduct resumes"); id., at 613, 22 A.3d 1214 (McLachlan, J., dissenting) ("[o]rdinarily, when a course of conduct ceases and is followed by a gap, the statute of limitations is tolled if the tortfeasor engages in the [subsequent] misconduct before the limitations period has run" [emphasis
In the present matter, MacGrady's original wrongdoing ceased in September, 1999, after the plaintiff sold his lottery winnings to the defendant and MacGrady's representation of the plaintiff, and any conflict of interest due to MacGrady's simultaneous representation of the defendant, ended. Accordingly, when MacGrady resumed his presumably wrongful course of conduct in October, 2002, more than three years later, when he advised the plaintiff to join a tax appeal group, the three year statutes of limitations already had run. Because the gap between instances of alleged wrongful conduct exceeds the length of the three year statutes of limitations for breach of a fiduciary duty and CUTPA claims, no tolling is available under the rule stated in Watts v. Chittenden, supra, 301 Conn. at 583-85, 22 A.3d 1214. Accordingly, the plaintiff's 2005 breach of a fiduciary duty claim against MacGrady based on his conduct in 1999 was untimely. By extension, the plaintiff's aiding and abetting claim against the defendant, as to its actions in 1999, also is untimely, even if the plaintiff is correct that MacGrady's conduct properly is imputed to the defendant for tolling purposes.
The plaintiff attempts to bridge this fatal gap between instances of wrongful activity by citing the special relationship between himself and MacGrady, which, in the plaintiff's view, gave rise to MacGrady's ongoing duty to disclose to the plaintiff his dealings with the defendant. According to the plaintiff, MacGrady's duty to disclose those dealings continued indefinitely, until it was satisfied, and as long as that duty remained unsatisfied, MacGrady was in breach of it such that the statutes of limitations were tolled. We are not persuaded.
As to the existence of a special relationship, there is no question that MacGrady, during the period of time he acted as the plaintiff's attorney, had fiduciary responsibilities and an associated duty of loyalty toward the plaintiff; see Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56, 717 A.2d 724 (1998) ("an attorney-client relationship imposes a fiduciary duty on the attorney"); Matza v. Matza, 226 Conn. 166, 184, 627 A.2d 414 (1993) ("[t]he relationship between an attorney and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and good faith" [internal quotation marks omitted]); and that MacGrady should not have represented the plaintiff without disclosing his concurrent relationship with the defendant. See Rules of
Consistent with the foregoing, Connecticut's appellate jurisprudence addressing the continuing course of conduct doctrine in the attorney-client context largely has held it to be inapplicable when the legal representation at issue has come to a close and there is no further contact between the parties. These cases generally reject the notion that the attorney has a continuing duty to the client to correct or report an earlier wrong that, if left unsatisfied, would toll the statute of limitations.
In the present case, as in Robbins, Sanborn, and Lee, the attorney, MacGrady, represented the plaintiff client for a discrete matter only, after which the attorney-client relationship clearly was terminated. After the attorney-client relationship between the plaintiff and MacGrady came to a close, any conflict of interest ceased to exist and, moreover, no further dealings between the plaintiff and MacGrady were contemplated. Once the plaintiff sold his lottery winnings to the defendant, the transaction that was the subject of the representation was complete, and it could be neither undone nor recompleted with MacGrady's conflict of interest properly disclosed and waived. See Rules of Professional Conduct 1.7; see also footnote 25 of this opinion. Accordingly, nothing would change were MacGrady to disclose to the plaintiff, retroactively, the preexisting conflict. We conclude, therefore, that under the circumstances of this case, MacGrady did not have a continuing duty to disclose his prior conflict of interest that he continually
"The gravamen of the continuing course of conduct doctrine is that a duty continues after the original wrong is committed." Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 525, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001). "[I]n the absence of a continuing special relationship, there must be a subsequent wrongful act that is related to the prior negligence." (Internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, supra, 252 Conn. at 371, 746 A.2d 753. In the present matter, in which no continuing special relationship exists, the plaintiff essentially requests that the three year statutes of limitations be tolled, indefinitely, on the basis of his former attorney's ongoing failure to confess his earlier tortious act. To accept this argument, however, would render the three year statutes of limitations meaningless. Cf. Fitzgerald v. Seamans, 553 F.2d 220, 230 (D.C.Cir.1977) (explaining, in rejecting plaintiff's claim that statute of limitations was tolled in wrongful retaliatory discharge action on ground of continuing conspiracy to deny him rightful employment, when plaintiff did not specify any retaliatory actions taken by defendants within limitations period, that "the mere failure to right a wrong and make [the] plaintiff whole cannot be a continuing wrong which tolls the statute of limitations, for that is the purpose of any lawsuit and the exception would obliterate the rule").
For the foregoing reasons, we conclude that the undisputed evidence does not
"The purposes of statutes of limitation include finality, repose and avoidance of stale claims and stale evidence." Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 157 n. 20, 622 A.2d 536 (1993). These statutes "represent a legislative judgment about the balance of equities in a situation involving the tardy assertion of otherwise valid rights: [t]he theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." (Internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 682, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006).
Although the conduct alleged by the plaintiff in his complaint undeniably is reprehensible, the policy considerations underlying statutes of limitations clearly are implicated by the substantial amount of time that has elapsed between the acts complained of and the filing of this action. Although this alone would not bar the plaintiff's claims were the statutes of limitations amenable to tolling under the continuous course of conduct doctrine, for the reasons we have explained herein, on the undisputed facts of this case, they are not.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ZARELLA and LAVINE, Js., concurred.
NORCOTT, J., with whom EVELEIGH and ESPINOSA, Js., join, dissenting.
I respectfully disagree with part II of the majority's opinion,
I begin by noting my agreement with the majority's statement of the relevant facts and procedural history, which I need not repeat here. By way of background, the defendant claims that the continuing course of conduct doctrine is inapplicable because it individually did not engage in any subsequent acts with respect to the plaintiff after the closing of the lottery winnings sale in September, 1999, and, further, lacked the requisite "special relationship" with him, in contrast to his fiduciary attorney-client relationship with MacGrady, the attorney who represented the plaintiff during the transaction. Relying heavily on a New York decision, Kaufman v. Cohen, 307 App.Div.2d 113, 760 N.Y.S.2d 157 (2003), the defendant contends that the attorney-client fiduciary relationship between MacGrady and the plaintiff should not be attributed to it for purposes of tolling the statute of limitations, despite the derivative nature of the plaintiff's aiding and abetting claim against the defendant. Finally, the defendant contends that, even if the fiduciary relationship between MacGrady and the plaintiff is attributed to it as an aider and abettor, under Lee v. Brenner, Saltzman & Wallman, LLP, 128 Conn.App. 250, 15 A.3d 1215, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011), and Sanborn v. Greenwald, 39 Conn.App. 289, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995), the attorney-client relationship between MacGrady and the plaintiff ended after the closing of the sale in 1999, and MacGrady's act of referring the plaintiff to another attorney for defense following the issuance of a tax deficiency by the Internal Revenue Service (IRS) in 2002 did not constitute a continuing course of conduct for purposes of tolling the statute of limitations.
In response, the plaintiff relies upon Anderson v. Pine South Capital, LLC, 177 F.Supp.2d 591, 604 (W.D.Ky.2001), for his argument that "the liability of one who
In the context of the summary judgment motion that forms the basis for this appeal, 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.) Watts v. Chittenden, 301 Conn. 575, 582, 22 A.3d 1214 (2011). Beyond the well established general standard for granting summary judgment; see, e.g., Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006); as the majority aptly notes, this court has recently held that, "in the
The statute of limitations issue in this appeal is informed by the derivative nature of the plaintiff's claim that the defendant aided and abetted MacGrady in the breach of his fiduciary duty; the viability of the aiding and abetting claim is intertwined with that of the underlying cause of action. See, e.g., Efthimiou v. Smith, 268 Conn. 499, 504-505, 846 A.2d 222 (2004) (concluding in aiding and abetting case that plaintiffs were collaterally estopped from relitigating underlying finding in related case with respect to breach of fiduciary duty). In Efthimiou, this court quoted Halberstam v. Welch, 705 F.2d 472, 477 (D.C.Cir. 1983), for the elements of the aiding and abetting tort, namely: "(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation...." (Internal quotation marks omitted.) Efthimiou v. Smith, supra, at 505, 846 A.2d 222.
Because of the derivative nature of the cause of action, if the underlying claim for aiding and abetting the breach of a fiduciary duty is time barred by the statute of limitations, then the derivative aiding and abetting claim will be time barred as well. See, e.g., Anderson v. Pine South Capital, LLC, supra, 177 F.Supp.2d at 604 ("we hold that the statute of limitations for a charge of aiding and abetting should fall under the section reserved for the underlying cause of action which, in the present case, has not yet expired"); Kaufman v. Cohen, supra, 307 App.Div.2d at 124-25, 760 N.Y.S.2d 157 (reviewing aiding and abetting claims to determine whether they specifically are time barred because appellate court's determination that "primary breach of fiduciary duty causes of action... are indeed viable ... vitiates the [trial] court's holding that the derivative claims [for aiding and abetting] should be dismissed"); cf. Stokes v. Southeast Hotel Properties, Ltd., 877 F.Supp. 986, 1001 (W.D.N.C.1994) (concluding that loss of consortium claim was time barred under North Carolina law because it was derivative of time barred wrongful death claim); Hinson v. Owens-Illinois, Inc., 677 F.Supp. 406, 407 n. 1 (D.S.C.1987) ("because [the husband's] cause of action is barred by the statute of limitations ... [the wife's] cause of action [for loss of consortium] must also fail" [citations omitted]).
In this vein, the present appeal presents the question of whether a claim could be time barred as to the aider and abettor if not necessarily time barred as to the principal actor. Thus, I note that the "parties in the present case do not dispute that the plaintiff's claim is governed by the tort statute of limitations set forth in ... § 52-577. Section 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. In construing our general tort statute of limitations ... we have concluded that the history of that legislative choice of language precludes
As the majority recognizes, the harsh effects of the occurrence nature of § 52-577 may, however, be mitigated by the application of certain tolling doctrines, including the continuing course of conduct doctrine. "This court has recognized the continuing course of conduct doctrine in many cases involving claims sounding in negligence. For instance, we have recognized the continuing course of conduct doctrine in claims of medical malpractice.... In doing so, we noted that [t]he continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.... The continuing course of conduct doctrine has also been applied to other claims of professional negligence in this state....
"In these negligence actions, this court has held that in 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....
"[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....
"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.... This court has held this requirement to be satisfied when there was wrongful conduct of a defendant related to the prior act." (Citations omitted; internal quotation marks omitted.) Id., at 583-85, 22 A.3d 1214. "[C]ontinuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct...." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 205, 746 A.2d 730 (2000). The effect of the continuing course of conduct doctrine is to delay the commencement of the running of the statute of limitations. See, e.g., Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957) ("[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").
Given the paucity of case law from Connecticut or elsewhere discussing the application of tolling doctrines to otherwise time barred claims of aiding and abetting a breach of a fiduciary duty, I begin my analysis with Kaufman v. Cohen, supra, 307 App.Div.2d at 113, 760 N.Y.S.2d 157, upon which both parties heavily rely. Kaufman concerned, inter alia, whether any of New York's tolling doctrines applied to save the plaintiffs' otherwise time barred aiding and abetting a breach of a fiduciary duty claim against the "Falchi defendants," who had secret dealings with the defendant, Irwin B. Cohen, the plaintiffs'
That the plaintiff lacked an independent fiduciary relationship with the defendant in this case is not, however, fatal to his attempt to toll the statute of limitations against the defendant. I agree with the plaintiff that Kaufman also stands for the proposition that, in the absence of an independent fiduciary relationship between the plaintiff and the aider and abettor, as is the case here, the merits of the aiding and abetting claims significantly inform whether the statute of limitations should be tolled. See Kaufman v. Cohen, supra, 307 App.Div.2d at 125-27, 760 N.Y.S.2d 157; see also Ingham ex rel. Cobalt Asset Management, L.P. v. Thompson, 88 App.Div.3d 607, 608-609, 931 N.Y.S.2d 306 (2011) (aiding and abetting breach of fiduciary duty claim barred by statute of limitations when defendant, who entered into agreement with plaintiff's former business partner, did not make any affirmative representations or have fiduciary duty directly to plaintiff, and no evidence that defendant had reason to believe it was acting wrongfully at time of transaction with plaintiff's former business partner); Monaghan v. Ford Motor Co., 71 App.Div.3d 848, 850, 897 N.Y.S.2d 482 (2010) (concluding that aiding and abetting fiduciary duty claim should not have been dismissed as time barred because underlying claim was timely, but then considering merits of aiding and abetting claim). Thus, put differently, the court must determine whether aiding and abetting actually occurred rather than automatically applying any tolling doctrine applicable to the principal actor to the alleged aider and abettor; if that aiding and abetting occurred, then a tolling doctrine applicable to the principal actor would apply to the aider and abettor. This rule is consistent with the derivative nature and elements of the aiding and abetting tort, specifically, those of knowledge and substantial assistance.
Thus, I turn to the record before the trial court in deciding the summary judgment motion to determine whether the pleadings and evidence in the present case demonstrated a genuine issue of material fact as to whether the defendant aided and abetted MacGrady's breach of his fiduciary duty to the plaintiff. As noted previously, "[a]iding-abetting includes the following elements: (1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and] (3) the defendant must knowingly and substantially assist the principal violation...." (Internal quotation marks omitted.) Id.
Viewing the evidence in the light most favorable to the plaintiff, as the non-moving party, I conclude first that the plaintiff has established a genuine issue of material fact as to whether the defendant engaged in aiding and abetting. The record in this case reveals a scheme wherein the defendant furthered its own business interests by utilizing the purportedly independent MacGrady as, in essence, an arm of its sales force, thereby knowingly and substantially assisting in the breach of MacGrady's fiduciary duty to his client, the plaintiff. Telephone records indicate that, from January, 1999, through September, 1999, Craig Wallace, one of the defendant's sales representatives, used the prospect of long-term capital gains taxation of the plaintiff's annuitized lottery winnings to persuade the plaintiff to sell those winnings to the defendant in exchange for a lump sum. Wallace referred the plaintiff to MacGrady for expert advice in treating the proceeds from the sale as long-term capital gains, which was a tax advantage that proved pivotal in persuading the plaintiff to sell his annuitized winnings to the defendant. Having no idea that there was a simultaneous business relationship between MacGrady and the defendant, wherein MacGrady ultimately would be retained to write and speak on the defendant's behalf to convince lottery winners to sell their winnings, and be eligible for "performance bonus[es]" for being a "significant contributing factor" in closing a sale, the plaintiff retained MacGrady to represent him in the "matter of selling [his] lottery winnings." Further, the telephone sales logs demonstrate that Wallace was in constant communication with MacGrady until the closing of the sale, directing him, for example, to speak to the plaintiff's accountant on the "tax angle" and updating him on the status of competing offers from other lottery sales companies. Finally, the defendant had actual notice of the tortious nature of the scheme
In sum, the evidence establishes, at least a genuine issue of material fact, that the defendant was no mere bystander to MacGrady's breach of his fiduciary duty, but actively created and fostered the environment that was ripe for that breach by, in essence, using MacGrady as part of its sales force to encourage the plaintiff to sell his lottery winnings. I conclude, therefore, that a finder of fact reasonably could find that these actions by the defendant constituted: (1) an awareness in a scheme of illegal or tortious activity intended to gain an advantage over the plaintiff and induce him to sell his lottery winnings; and (2) knowing and substantial assistance in MacGrady's breach of his fiduciary duty.
Having established that the defendant engaged in the requisite aiding and abetting, I now turn to whether there is a genuine issue of material fact about whether the continuing course of conduct doctrine tolls the statute of limitations as to MacGrady. With respect to the elements of the continuing course of conduct doctrine; see Watts v. Chittenden, supra, 301 Conn. at 583-85, 22 A.3d 1214; I first note that it is undisputed that MacGrady, as the plaintiff's attorney, owed him a fiduciary duty of loyalty, which he breached through his conflict of interest occasioned by his simultaneous representation of the defendant. I part company from the majority, though, with respect to the related continuing wrongful conduct. In my view, MacGrady extended that breach by representing to the plaintiff in 1999 that he would be available in the future to represent him if any problem developed with the IRS in connection with the tax treatment of the sale proceeds. In doing so, MacGrady cultivated his fiduciary relationship with the plaintiff and provided the assurances necessary to encourage the plaintiff to move forward with the sale, despite the ongoing concerns of his tax accountant. Thus, MacGrady's response to the plaintiff's call in 2002, after the plaintiff had received an IRS deficiency notice, in which he referred the plaintiff to a legal defense group for other lottery winnings sellers, had the effect of continuing the course of conduct started in 1999. This is particularly so given that MacGrady took a referral fee from Eric Granitur, the attorney coordinating that defense group, thus allowing MacGrady to profit again from his role in the scheme that had facilitated the sale of the plaintiff's lottery winnings to the defendant. Thus, I would conclude that this action was timely because it was filed less than three years after MacGrady's referral of the case to, and acceptance of a fee from, Granitur in 2002.
Citing legal malpractice case law, however, namely, Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.App. 151, 795 A.2d 572 (2002), Lee v. Brenner, Saltzman & Wallman, LLP, supra, 128 Conn.App. at 250, 15 A.3d 1215 and Sanborn v. Greenwald, supra, 39 Conn.App. at 289, 664 A.2d 803, the defendant contends, and the majority holds that MacGrady's breach of his fiduciary duties concluded in 1999 with the completion of the sale for which he had been retained, and that the continuing course of conduct doctrine is inapplicable because the legal situation was no longer evolving thereafter.
I disagree with the majority's application of these legal malpractice cases in the context of this case, which raises a distinct claim of breach of fiduciary duty of loyalty rather than a claim that MacGrady's representation was legal malpractice because it fell below the applicable standard of care. "[P]rofessional negligence alone... does not give rise automatically to a claim for breach of fiduciary duty.... [Thus] not every instance of professional negligence results in a breach of [a] fiduciary duty.... Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 196, 896 A.2d 777 (2006); see also Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56-57, 717 A.2d 724 (1998) (concluding that legal malpractice committed by law firm's junior associate was not breach of fiduciary duty because "it cannot be said that [the associate] represented that she had superior knowledge, skill or expertise in the field of franchising, nor that she sought the plaintiff's special trust"); Mangiante v. Niemiec, 82 Conn.App. 277, 284, 843 A.2d 656 (2004) ("[t]he fiduciary duty of loyalty is breached when the fiduciary engages in self-dealing by using the fiduciary relationship to benefit her personal interest"). Thus, tolling analyses predicated on legal malpractice in the performance of discrete tasks should not dictate this court's conclusion vis-a-vis breach of fiduciary duty.
Put differently, and setting aside the substantive merit of MacGrady's tax advice, his statement in 1999 that he would assist the plaintiff were he to run into tax trouble with the IRS in the future operated to cultivate the very fiduciary relationship that he ultimately breached with his conflict of interest; this had the effect of creating a continuing course of conduct that extended the statute of limitations in this case. See Giulietti v. Giulietti, 65 Conn.App. 813, 835-36, 784 A.2d 905 (continuing course of conduct tolled statute of limitations when defendant attorney prepared deeds and escrow agreements subject to conditions not specified by his father/client, and parties had continuing relationship wherein attorney continued to serve as general counsel for his family's business without taking "steps necessary to effectuate his father's wishes regarding the property distribution," which was omission that "related directly back to [the] attorney['s] ... earlier wrongs"), cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96 (2001); cf. Targonski v. Clebowicz, 142 Conn.App. 97, 110-11, 63 A.3d 1001 (2013) (following Sanborn, and concluding
To this end, I disagree with the majority's reliance on our recent decision in Watts v. Chittenden, supra, 301 Conn. at 575, 22 A.3d 1214 in support of the proposition that the continuing course of conduct doctrine is unavailable because of the more than three year gap between the closing of the sale in September, 1999, and MacGrady's referral of the plaintiff to the tax defense group in October, 2002.
In my view, applying the continuous course of conduct doctrine to toll the running of § 52-577 in the present case is wholly consistent with Watts, which involved intentional infliction of emotional distress, a tort of commission; the acts at issue, multiple false accusations of child sexual abuse, were discrete and identifiable. In contrast, this case involves an underlying tort of omission, namely, the breach of a fiduciary duty predicated on MacGrady's continued failure to inform the plaintiff of the conflict of interest created by his relationship with the defendant. Indeed, MacGrady's failure to satisfy this fiduciary duty, which it is undisputed, survived the termination of the formal attorney-client relationship with the closing of the lottery sale in 1999,
Accordingly, I would reject the defendant's alternate ground for affirmance, and conclude that there is a genuine issue of material fact with respect to whether the continuing course of conduct doctrine operated to toll the statute of limitations on the plaintiff's aiding and abetting claims.
Because I conclude that the continuing course of conduct doctrine operated to toll the statute of limitations on the plaintiff's aiding and abetting claims, I must reach the plaintiff's claim that the Appellate Court improperly determined that, under this court's decision in Fichera v. Mine Hill Corp., supra, 207 Conn. at 216-17, 541 A.2d 472, the continuing course of conduct doctrine is inapplicable, as a matter of law, to the statute of limitations governing CUTPA claims set forth in § 42-110g (f).
I begin by noting that the plaintiff's claim constitutes a matter of statutory interpretation; see General Statutes § 1-2z; in the context of our previous decisions applying and interpreting § 42-110g (f). See, e.g., New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180, 186, 61 A.3d 505 (2013) ("in interpreting the language of [General Statutes] § 52-72, we do not write on a clean slate, but are bound by our previous judicial interpretations of this language and the purpose of the statute"); Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d 657 (2007) ("[t]here is nothing in the legislative history to suggest that the legislature also intended to overrule every other case in which our courts, prior to the passage of § 1-2z, had interpreted a statute in a manner inconsistent with the plain meaning rule, as that rule is articulated in § 1-2z"). This is a question of law over which our review is plenary. See, e.g., HVT, Inc. v. Law, 300 Conn. 623, 629, 16 A.3d 686 (2011).
I begin with a review of Fichera, wherein this court concluded that the plaintiffs' CUTPA claims arising from the defendants' failure to construct recreational facilities promised to purchasers in a residential development were time barred under § 42-110g (f), which is the three year statute of limitations that governs CUTPA claims. See Fichera v. Mine Hill Corp., supra, 207 Conn. at 205-208, 541 A.2d 472. In Fichera, this court first concluded that § 42-110g (f) is an occurrence statute like § 52-577, and that "[u]nlike the statutes of limitation of some other states applicable to unfair trade practices legislation analogous to our CUTPA, which expressly allow a certain period following the discovery of the deceptive practice for commencing suit ... § 42-110g (f) provides only that an action must be brought within three years `after the occurrence of a violation of this chapter.'" (Citations omitted.) Id. at, 212. After determining that, on the record in that case, the plaintiffs were not entitled to toll the statute of limitations using the continuing course of conduct doctrine the court then noted that the plaintiffs, in avoidance of the defendants' statute of limitations defense, had "pleaded facts purporting to show that the defendants had fraudulently concealed from them the existence of their CUTPA cause of action and thus invoked the benefit of ... § 52-595." Id., at 213, 541 A.2d 472. Noting that this "court has not yet decided whether affirmative acts of concealment are always necessary to satisfy the requirements of § 52-595" the court described the defendants' false representations, namely, that they would complete the recreational facilities despite having no intention of doing so, as a self-concealing fraud. Id., at 215-16, 541 A.2d 472. It then decided that it was not necessary to determine whether self-concealing frauds satisfied § 52-595 in other cases, because permitting self-concealing frauds to satisfy § 52-595 in the CUTPA context "would defeat the legislative intention expressed in § 42-110g (f) to bar actions for CUTPA violations after the lapse of more than three years from their occurrence." Id.
I would, therefore, reverse the judgment of the Appellate Court and remand the case to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court with direction to deny the defendant's motion for summary judgment.
Accordingly, I respectfully dissent.
The listing of justices reflects their seniority status on this court as of the date of oral argument.
"2. Did the Appellate Court properly determine that the three year statute of limitations period for actions brought under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., cannot be tolled?" Flannery v. Singer Asset Finance Co., LLC, 302 Conn. 902, 902-903, 23 A.3d 1242 (2011).
General Statutes § 42-110g (f), which governs CUTPA claims, provides: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter."
"Pepe & Hazard does not represent any lottery purchase company or broker. Our only involvement with such organizations is that I have represented several other lottery winners in complex negotiations with them. In that process, I have become very familiar with lottery purchase procedures and contracts. I believe my name was suggested to you solely because certain lottery purchase companies respect my professional ability as well as my contract and tax knowledge. Our firm has no other relationship with them. If you retain us, my firm will aggressively represent you to the best of our abilities....
"A detailed description of our firm policies is contained in the enclosed Standard Terms of Engagement for Legal Services....
"To confirm this engagement, please sign below on the enclosed copy of this letter to indicate your understanding of and agreement to the terms." (Emphasis added.) The plaintiff signed the letter agreement on March 26, 1999.
The appended document, entitled "Standard Terms of Engagement for Legal Services," stated in its introductory paragraph that the document "contains the standard terms of our engagement as your lawyers. Unless modified in writing by mutual agreement, these terms will be an integral part of our agreement with you." Under the heading of "Scope of Pepe & Hazard's Representation," the document provided further that "[t]he scope of legal services we will provide is described in the accompanying engagement letter," and that "[i]t is also our policy that the attorney-client relationship will be considered terminated upon our completion of any services that you have retained us to perform. If you later retain us to perform additional services, our attorney-client relationship will be revived subject to these terms of engagement, as they may be supplemented at that time." (Emphasis added.) Finally, under the heading "Ending Your Relationship with Us," the document provided that "[u]nless previously terminated, our representation of you with respect to the agreed upon scope of representation will terminate upon sending you our final statement for services rendered," and that "[y]ou are engaging us to provide legal services in connection with an agreed upon scope of representation. After completion of the representation, changes may occur in the applicable laws or regulations that could have an impact upon your future rights and liabilities. Unless you actually engage us after the closing to provide additional advice on issues arising from this representation, we have no continuing obligation to advise you with respect to future legal developments." (Emphasis added.)
The plaintiff has not established, however, that the inverse also is true, i.e., that if the claim against the primary tortfeasor is timely due to tolling, so, necessarily, is the claim against the alleged aider and abettor. Extrajurisdictional authority, concededly sparse, suggests otherwise. See, e.g., Kaufman v. Cohen, supra, 307 App.Div.2d at 121-26, 760 N.Y.S.2d 157 (holding that fraud discovery accrual rule could operate to toll claims against principal tortfeasor, then concluding, by analyzing alleged aiders and abettors' own status and acts, that same tolling doctrine did not apply to toll claims against them); see also Wultz v. Bank of China, Ltd., United States District Court, Docket No. 11-Civ.-266 (SAS), ___ F.R.D. ___, ___ - ___ (2013), 2013 WL 1641179, *2-3 (S.D.N.Y. April 16, 2013) (analyzing applicability of equitable tolling to aiding and abetting claim by evaluating only actions of alleged aider and abettor); Ingham v. Thompson, 88 App.Div.3d 607, 608, 931 N.Y.S.2d 306 (2011) (same); cf. Lesti v. Wells Fargo Bank, N.A., 960 F.Supp.2d 1311, 1321 (M.D.Fla.2013) (looking only to behavior of alleged aider and abettor when determining whether statute of limitations on aiding and abetting claim has run).
According to the dissenting opinion, Kaufman v. Cohen, supra, 307 App.Div.2d at 125-27, 760 N.Y.S.2d 157, Ingham ex rel. Cobalt Asset Management, L.P. v. Thompson, supra, 88 App.Div.3d at 608-609, 931 N.Y.S.2d 306 and Monaghan v. Ford Motor Co., 71 App. Div.3d 848, 850, 897 N.Y.S.2d 482 (2010), provide support for the proposition that, if an aiding and abetting claim appears to have merit, the statute of limitations on that claim may be tolled on the basis of the principal tortfeasor's continuing course of conduct. None of those cases so hold, however, either directly or indirectly. In both Kaufman v. Cohen, supra, at 125-27, 760 N.Y.S.2d 157, and Ingham ex rel. Cobalt Asset Management, L.P. v. Thompson, supra, at 608-609, 931 N.Y.S.2d 306, the Appellate Division of the Supreme Court, in evaluating claims of aiding and abetting the breach of a fiduciary duty, simply concluded that those claims both: (1) lacked substantive merit; and (2) were untimely because certain tolling doctrines are inapplicable, after applying those doctrines with reference to the alleged aiders' and abettors' own status and actions. In neither case did the court indicate in any way that, had the aiding and abetting claims been meritorious, they would have been timely because a tolling doctrine applied to save the associated claim against the principal actor. In fact, in Ingham ex rel. Cobalt Asset Management, L.P., the claims against the principal actor are not even discussed. In Monaghan v. Ford Motor Co., supra, at 850, 897 N.Y.S.2d 482, the Appellate Division held that: (1) because the plaintiff's claims of aiding and abetting a breach of a fiduciary duty contained essential allegations of fraud, they were governed by a six year statute of limitations, rather than a three year statute of limitations; and (2) those claims were adequately pleaded in the plaintiff's complaint. Again, the court in Monaghan did not discuss the claims raised against the principal actor and, moreover, no tolling doctrines are mentioned.
Putting aside the foregoing authority, it is doubtful that tolling a statute of limitations against an alleged aider and abettor on the basis of the principal tortfeasor's conduct alone is consistent with the policies underlying statutes of limitations, namely, to prevent the unexpected enforcement of stale claims and the impairment of proof wrought by lost witnesses and/or evidence. See Neuhaus v. DeCholnoky, 280 Conn. 190, 206-207, 905 A.2d 1135 (2006). From the perspective of an alleged aider and abettor who has no ongoing relationship with a plaintiff, and engages in no further misconduct toward that plaintiff, these concerns clearly are implicated.
"(1) the representation of one client will be directly adverse to another client; or
"(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
"(b) Notwithstanding the existence of a concurrent conflict of interest under subsection (a), a lawyer may represent a client if:
"(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
"(2) the representation is not prohibited by law;
"(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or the same proceeding before any tribunal; and
"(4) each affected client gives informed consent, confirmed in writing."
The dissent inaccurately characterizes the partner's deposition testimony as expert testimony, accepts that testimony unquestioningly as an accurate statement of the law, and contends, on the basis of the testimony, that it is "undisputed" that MacGrady's fiduciary duty survived the termination of the attorney-client relationship with the plaintiff. We disagree with each of these points. The partner testified as a fact witness, his answer regarding the indefinite duty to disclose is not supported by our research, as we discuss herein, and the defendant in the present matter clearly contests whether that answer is correct.
The dissent, quoting without context from Mergler v. Crystal Properties Associates, Ltd., 179 App.Div.2d 177, 182, 583 N.Y.S.2d 229 (1992), observes that "`attorneys have a continuing confidential relationship of trust and fair dealing [that] survives the termination of the attorney-client relationship....'" See footnote 9 of the dissenting opinion. In Mergler, however, the court upheld the viability of a general release executed by a law firm and its former client after the attorney-client relationship had been terminated. Mergler v. Crystal Properties Associates, Ltd., supra, at 183-84, 583 N.Y.S.2d 229. The court reasoned, in part, that the law firm was not required to establish that execution of the release was free from fraud because, at the time of execution, there no longer was a fiduciary relationship between the parties. Id., at 181, 583 N.Y.S.2d 229. Similarly, in the present case, after the completion of the lottery transaction, there no longer was a fiduciary relationship between the plaintiff and MacGrady.
The dissent contends additionally that MacGrady "extended" his 1999 breach of a fiduciary duty by assuring the plaintiff, at the time of the lottery sale, that he would be available to represent him again in the future were he to have trouble with the IRS, and that that assurance "cultivated [MacGrady's] fiduciary relationship with the plaintiff...." The dissent, however, provides no support for the proposition that a fiduciary duty extends beyond the termination of an attorney-client relationship because the attorney offers to represent the client again in the future should the need happen to arise, and we are not aware of any such authority.
The plaintiff also observes, repeatedly, that MacGrady and Pepe & Hazard did not pursue, in their summary judgment motion, statutes of limitations defenses on the malpractice and breach of a fiduciary duty claims that he alleged against them, and contends that this, necessarily, is because those defenses were not viable due to the availability of tolling. This argument ignores the reality that, for various reasons, parties often choose to settle, rather than litigate, claims for which there are potentially meritorious defenses.
"(1) the representation of one client will be directly adverse to another client; or
"(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
"(b) Notwithstanding the existence of a concurrent conflict of interest under subsection (a), a lawyer may represent a client if:
"(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
"(2) the representation is not prohibited by law;
"(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or the same proceeding before any tribunal; and
"(4) each affected client gives informed consent, confirmed in writing."
I recognize that the majority properly does not deem this court bound by Hazard's testimony, which it considers a legal opinion. See, e.g., FCM Group, Inc. v. Miller, 300 Conn. 774, 796, 17 A.3d 40 (2011) (court not bound by legal opinions of parties, witnesses, or attorney trial referees) Lamont v. New Hartford, 4 Conn.App. 303, 305, 493 A.2d 298 (1985) (court required to consider, but "is not bound by the opinion of expert witnesses"). Not one of the parties, however, has provided the court with a citation to any legal authority or contrary expert testimony that undermines the correctness of Hazard's testimony. Thus, I accept it for use in this case to define the scope of MacGrady's continuing duty to disclose his conflict of interest.
