Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C.
Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C.
Opinion of the Court
Opinion
The plaintiff, Andrea Meyers, appeals from the summary judgment rendered by the trial court in favor of the defendant, Livingston, Adler, Pulda, Mei-klejohn & Kelly, P.C. On appeal, the plaintiff claims that the court erred in granting the defendant’s motion for summary judgment on the ground that the action was commenced beyond the applicable statute of limitations. We affirm the judgment of the trial court.
The record reveals the following. The defendant represented the plaintiff in an action against Shek Hong, Joanne Hong, Hontek Corporation and T.C. Specialty Products, Inc. While representing the plaintiff in that action, the defendant agreed to represent another client, Diane Thibodeau, who had similar claims against the same parties. The defendant joined the claims of the plaintiff and Thibodeau into a single legal action. On December 14, 1999, a settlement of the litigation was reported on the record. The terms of the settlement
The plaintiff served a one count complaint on February 21, 2006. The plaintiff claimed that the defendant was not entitled to an attorney’s fee because its representation was unprofessional. She alleged that the defendant “breached its contract duties” to her by bringing about a settlement of the prior action in furtherance of Thibodeau’s interests and against the interests of the plaintiff.
The defendant filed a motion for summary judgment on the ground that the plaintiffs claim sounded in tort and was barred by the applicable three year statute of limitations; General Statutes § 52-577; or, in the alternative, that it was barred by the six year statute of limitations for contract claims. General Statutes § 52-576.
In January, 2010, the court granted the defendant’s motion to reargue the denial of its motion for summary judgment. At reargument, the defendant argued that the plaintiffs complaint sounded in tort, not contract. The court vacated its prior ruling in which it had denied the defendant’s motion for summary judgment and granted the motion for summary judgment, reasoning that the complaint sounded in tort and that the three year limitations period on tort actions had run. The court additionally found that if it were a contract action, it still was not commenced within the six year statute of limitations because the statute began to run on December 14,1999, the date on which the alleged injury was inflicted, more than six years before the action was brought in February, 2006.
In June, 2010, the plaintiff filed a motion to reargue the court’s granting of the defendant’s motion for summary judgment. After reconsideration of the parties’ arguments, the court denied the relief requested and affirmed its decision granting the defendant’s motion for summary judgment. The court determined that the complaint claimed both legal malpractice and breach of contract and that because the plaintiff was fully aware of her claims by December 14, 1999, but did not bring the action until 2006, her claim was barred by both the three year legal malpractice and six year contract statutes of limitations. This appeal followed.
We first set forth the applicable standard of review. “[T]he scope of our review of the granting of a motion
The plaintiff claims that the court erred in granting the defendant’s motion for summary judgment based on its statute of limitations defense. The plaintiff contends that the court improperly determined that her cause of action had accrued on December 14, 1999. She asserts that her cause of action did not accrue until February 25, 2000, and thus service of the action on February 21, 2006, was within the six year statute of limitations for contract claims. Her argument appears to assume that her cause of action properly sounded in contract.
In order to resolve the plaintiffs claim, we must first examine the complaint to determine the nature of the cause of action raised. Whether the plaintiffs complaint sounds in tort, contract or both depends on the allegations in the complaint. “Interpretation of the pleadings
“Connecticut law recognizes that one may bring against an attorney an action sounding in both negligence and contract. ... At the same time, one cannot bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract. . . . [T]ort claims cloaked in contractual language are, as a matter of law, not breach of contract claims.” (Citations omitted; internal quotation marks omitted.) Id., 383. “When a defendant’s liability to a plaintiff is premised, however, on principles of tort law . . . the plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in his complaint . . . and consequently a reviewing court may pierce the pleading veil to ensure that such is not the case. . . . Thus, in doing so, we look beyond the language used in the complaint to determine the true basis of the claim. . . . Whether the plaintiffs cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint. . . . Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services .... The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Citations omitted; internal quotation marks omitted.) Pelletier v. Galske, 105 Conn. App. 77, 81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1100 (2008).
A fair reading of the complaint reveals that the plaintiff did not allege a contract claim. In a true contract claim, “a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result.” Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (2003). The plaintiff does not allege in her complaint that the defendant breached a contract with the plaintiff for legal services by failing to obtain a specific result or to perform a specific task.
Although the plaintiff invokes contract language in her complaint, analysis reveals that the claim functionally is one of professional negligence.
Because the sole cause of action in the complaint sounds in tort, it is governed by the three year statute of limitations set forth in § 52-577. We need not address the issue discussed by the plaintiff regarding the accrual date of her cause of action. Regardless of whether it accrued on February 25, 2000, or December 14, 1999, the plaintiffs initiation of an action in February, 2006, is well beyond the three year time bar.
The judgment is affirmed.
In this opinion LAVINE, J., concurred in the result.
There is no claim in the complaint that the filing of the motion to withdraw constituted a breach of the representation agreement.
The plaintiff specifically stated in her complaint that the defendant “breached its contract duties to the plaintiff in one or more of the following respects: (a) it pursued the interests of . . . [Thibodeau] in derogation of the interests, wishes and instructions of the plaintiff in bringing about a settlement of the lawsuit; and/or, (b) it failed and/or refused to follow the express wishes and instructions of the plaintiff to reject the settlement offer in the lawsuit and to continue to prosecute the lawsuit.”
The defendant argued that the alleged breach of contract occurred, if at all, on December 14, 1999.
The defendant argues that the complaint can properly be read to state a cause of action in tort only; to this extent, it implicitly claims that the court erred in finding that the action sounded in both contract and tort. We note that the defendant filed a preliminary statement of issues stating an intent to raise alternate grounds for affirmance. Although the preliminary statement of issues is phrased generally, it has not been contested, and the plaintiff had the opportunity to respond in a reply brief to the argument that the defendant made in its brief.
The contract does, of course, specifically require representation; the plaintiff’s claim is that the representation was executed unethically. This does not equate to no representation at all.
The dissent agrees that a claim alleging a failure to obtain a specific result pursuant to an agreement sounds in contract. Caffery v. Stillman, supra, 79 Conn. App. 197. We agree with the dissent that there may be other contractual duties set forth in an agreement. For example, a complaint alleging a refusal to perform specific tasks required by a contract also may set forth a contract claim. Hill v. Williams, 74 Conn. App. 654, 662, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). In either event, there is a specific result or task set forth in an agreement that the attorney has promised to do; an allegation that the attorney failed or refused to do that specific task may constitute a contract claim. The retainer agreement in the present case, however, does not require the defendant to do anything
In Caffery, this court stated: “[T]he plaintiff claimed that the present case is indistinguishable from Hill v. Williams, [supra, 74 Conn. App. 662], in which we concluded that one of the plaintiffs counts did sound in contract and, thus, was not barred by the tort statute of limitations. Contrary to the plaintiffs assertions, our determination of the issue before us is not governed by the reasoning of Hill. In Hill, we found that the plaintiff had alleged that the defendant had promised to take specific actions that he later refused to undertake and that the plaintiff suffered damages as a result. Id., 659. Here, although the plaintiff alleged that the defendant had promised to bring aliability action against the city, the plaintiff does not claim that he sustained damages as a consequence of the defendant’s failure to bring such an action. Rather, he claims that the promise to bring such an action was premised on an incorrect understanding of the law and that he suffered damages as a result of the defendant’s failure to understand the limits of the legal remedy.” Caffery v. Stillman, supra, 79 Conn. App. 197-98. Similarly, in the present case, the plaintiff claims that the manner in which the defendant performed its legal services was improper. An allegation that one failed to perform professional services with the proper degree of skill sounds in legal malpractice. See Pelletier v. Galske, supra, 105 Conn. App. 81.
The concurrence is correct in noting that even if it were a contract claim, summary judgment is, nonetheless, appropriate.
Concurring Opinion
concurring. I agree that the judgment of the trial court should be affirmed. With regard to motions for summary judgment, “[t]he judgment sought 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.” Practice Book § 17-49.
Whether the action by the plaintiff, Andrea Meyers, sounds in contract or tort does not affect the outcome of this case. In its ruling on the plaintiffs motion for reconsideration, the court stated, “[a]s noted in the [affidavit of the plaintiff dated July 20, 2009 . . . the plaintiff was aware prior to the December 14, 1999 settlement that [Diane] Thibodeau had been joined with
Dissenting Opinion
dissenting. In affirming summary judgment, the majority concludes that the trial court correctly determined that the complaint by the plaintiff, Andrea Meyers, sounds in negligence and not contract and, therefore, the plaintiffs claim is time barred by General Statutes § 52-577. The basis of the court’s conclusion appears to be twofold: first, the complaint sounds in negligence, and, second, the plaintiff does not allege that the defendant, Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., breached its contract by failing to obtain a specific result and, therefore, did not allege
It is axiomatic that the interpretation of pleadings is a question of law and, therefore, our assessment of the legal nature of the complaint on appeal is plenary. Montanaro v. Gorelick, 73 Conn. App. 319, 323, 807 A.2d 1083 (2002). In making this determination, I am mindful of Connecticut’s legal tradition to “construe pleadings broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988).
With regard to claims against attorneys, this court has previously held that not all such claims must necessarily be construed as sounding in tort. Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 530, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). Furthermore, in Connecticut, “[o]ne may bring against an attorney an action sounding in both negligence and contract.” Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (2003). Nor must tort claims be separated from contract claims in a complaint. As this court has previously indicated: “We have uniformly approved the use of a single count to set forth the basis of a plaintiffs claims for relief where they grow out of a single occurrence or transactions or closely related occurrences or transactions, and it does not matter that the claims for relief do not have the same legal basis.” (Internal quotation marks omitted.) Hill v. Williams, 74 Conn. App. 654, 661, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). I am aware, as well, that this courtz
Unlike the majority, I believe a fair and liberal reading of the underlying complaint in the present case reveals that, although the complaint contains allegations that may sound in tort, it also contains allegations, based on express or implied contract, that the defendant refused to take specific action requested and directed by the plaintiff. In paragraph seven of the complaint, the plaintiff alleges that “[the defendant] breached its contract duties to the plaintiff in one or more of the following respects:
“(a) it pursued the interests of Diane [Thibodeau, another client who had similar claims against the same parties, as did the plaintiff] in derogation of the interests, wishes and instructions of the plaintiff in bringing about a settlement of the lawsuit;
“(b) it failed and/or refused to follow the express wishes and instructions of the plaintiff to reject the settlement offer in the lawsuit and to continue to prosecute the lawsuit.”
These claims, I believe, are not merely negligence claims cloaked in contract terms. Rather, I view them as claims that, contrary to express or implied agreement, the defendant failed to follow the plaintiffs instructions to take specific actions in regard to her case and settled against her interests.
In concluding that the complaint does not sound in contract, the majority appears to posit that a claim against an attorney is based in contract only if it alleges that the attorney failed to obtain a specific result. The majority states: “In a true contract claim, a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result. Caffery v. Stillman, [supra, 79 Conn. App. 197]. The plaintiff does not allege in her complaint that the defendant breached its contract with the plaintiff for legal services by failing to obtain a specific result or to perform a specific task. The unambiguous language of the parties’ contract for legal services, which was attached as an exhibit to the defendant’s motion for summary judgment, reveals that
Respectfully, I believe the majority applies Caffery too broadly and takes the cited language out of its factual context. Certainly, as noted by Caffery, a claim that a defendant failed to obtain a specific result after agreeing to do so sets forth a contract claim. Caffery did not purport, however, to circumscribe the world of contract law as it relates to attorney defendants. Indeed, as this court recognized in Connecticut Education Assn., Inc. v. Milliman USA, Inc., 105 Conn. App. 446, 938 A.2d 1249 (2008), “Allegations of a lawyer’s refusal to take certain actions indicated an intentional act rather than inadvertence or negligence and went beyond being merely couched in the language of tort . . . .” (Internal quotation marks omitted.) Id., 459. Accordingly, in Hill, the court applied the six year statute of limitations for contracts to allegations in the plaintiffs complaint seeking to hold the defendant liable for “his refusal to perform his duties pursuant to his contracts with the plaintiff.” Hill v. Williams, supra, 74 Conn. App. 662. As in Hill, where the plaintiff alleged that the defendant refused to take certain actions in furtherance of his contractual duties, so, too, the plaintiff in the present appeal has alleged that the defendant refused her specific instructions in regard to pursuing a satisfactory resolution of her claims.
My conclusion that the plaintiff adequately has set forth a breach of contract claim does not imply, of course, a belief that the plaintiff is entitled to prevail
Furthermore, my determination that the complaint adequately sets forth a contractual claim does not end the necessary analysis of whether summary judgment was correctly rendered. In the present case, the trial court determined that, even if the complaint sets forth a contractual claim, it arose more than six: years before the action was commenced and, therefore, was barred by § 52-576. In reaching its determination, however, I believe that the court incorrectly decided facts in dispute. The court concluded that the plaintiffs contract claim arose on December 14, 1999, the date on which the parties to the plaintiffs underlying claim put a settlement agreement on the record in court. The plaintiff claims, however, that the defendant’s contractual obligations to her continued beyond December 14, 1999, and did not accrue until February 25, 2000, the date on which she alleges she executed a settlement agreement under duress and the date on which she claims her fee dispute with the defendant arose.
Finally, the plaintiff claims that the defendant should be estopped from asserting that any contract based claims arose on December 14, 1999, because of its refusal to turn her file over to her until several months after the defendant moved to withdraw from its representation of her on the basis of a conflict of interest. As to this claim, the court determined that the defendant should not be estopped from asserting a statute of limitations defense because the plaintiff knew of her harm in December, 1999. In response, the plaintiff points out, however, that her estoppel claim is not premised on when she learned that counsel was acting against her wishes but rather on her claim that because the defendant unreasonably withheld her file from her for several months, the defendant should be deprived, as a sanction, from claiming that she should have earlier brought her action. Because the determination of the date on which the plaintiffs cause of action in contract accrued requires an evidentiary hearing, the issue of estoppel is not presently ripe for legal assessment. Rather, I
Accordingly, I respectfully dissent.
As the majority correctly points out, the plaintiff does not allege that the defendant failed to represent her at all. She does, however, allege that the defendant failed to take specific action on her behalf through her claim that the defendant failed to follow her wishes and instructions regarding settlement of the case. In light of the terms of the contract, I believe that this allegation, coupled with the plaintiffs request for remittance of the fees
I recognize that the complaint sets forth a claim for damages in addition to a return and remittance of fees. To the extent that the claim of relief for damages relates to the allegations of the complaint regarding the defendant’s alleged breach of duty of undivided loyalty, it may well be barred by § 52-577. To the extent that the majority holds that this claim is time barred, I agree.
It is important to note that, unlike a typical tort based malpractice claim, this one count complaint contains no allegations that the defendant’s conduct was negligent or that its performance was below a standard of competence. Taken as a whole, the complaint succeeds or fails as a contract claim.
An illustration of the confusion and uncertainty regarding this inquiry is suggested by the court’s rulings regarding the start date for purposes of
Reference
- Full Case Name
- Andrea Meyers v. Livingston, Adler, Pulda, Meiklejohn and Kelly, P.C.
- Cited By
- 4 cases
- Status
- Published