CHAPTER 9 - 9-4 STATUTE OF LIMITATIONS

• Jurisdiction: United States

9-4 Statute of Limitations

9-4:1 An Occurrence Statute for Claims of Professional Negligence

The timeliness of a claim of legal malpractice for professional negligence, the most common legal malpractice claim, is governed by Connecticut General Statutes Section 52-577, the statute that covers negligence generally.¹⁰ The statute provides "[n]o action founded upon tort shall be brought but within three years from the date of the act or omission complained of."¹¹

Connecticut General Statutes Section 52-577 is an occurrence statute that begins to run at the time of the "act or omission complained of" regardless of when a plaintiff actually discovers the harm.¹² The three-year limitation period begins with the date of the act or omission complained of, not the date the plaintiff actually first discovers an injury or sustains injury.¹³ A plaintiff's negligence claim is time barred if the alleged acts and/or omissions occurred three years before the service of the complaint. In Farnsworth v. O'Doherty,¹⁴ the Appellate Court upheld the trial court's granting of summary judgment on statute of limitations even though the plaintiffs had not even known about the malpractice until after the statute of limitations had run.¹⁵

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."¹⁶ Summary judgment has been granted in cases where the claim is barred due to the applicable statute of limitations.¹⁷ On a motion for summary judgment on statute of limitations grounds, the only facts material to the court's decision are the date of the wrongful conduct alleged in the complaint and the date the action was commenced.¹⁸ An action is commenced on the date that the writ and summons are served on the defendant.¹⁹

In Sanborn v. Greenwald,²⁰ the Appellate court rejected the argument that the three-year statute of limitations violated the open court's provision of the Connecticut Constitution.²¹ In so holding, the court recognized that the right to sue for legal malpractice existed at the time of the adoption of the Constitution, and could be traced back to "the common law trespass on the case."²² The claim for trespass on the case had a six-year statute of limitations. The court reasoned that the legislature was constitutionally entitled to restrict, but not abolish, the common law right to sue for trespass on the case, i.e., legal malpractice, in enacting Section 52-577 and curtailing the limitations period from six to three years.²³

9-4:2 Other Statute of Limitations

Connecticut General Statutes Section 52-577 is the statute of limitations generally for torts. It would apply to claims for breach of fiduciary duty, fraud, and intentional infliction of emotional distress, vexatious litigation and abuse of process.²⁴ A six-year statute of limitations would apply to a valid breach of contract claim against an attorney in a legal malpractice setting.²⁵ The statute of limitations for a CUTPA claim is three years.²⁶ An argument can be made that the two-year statute of limitations set forth in Connecticut General Statutes Section 52-572h would apply to a claim for negligent infliction of emotional distress because the damages claimed in such an action resulted from "personal injury."

9-4:3 Tolling the Statute of Limitations

There are several doctrines that permit the courts to toll the statute of limitations, especially for claims of negligence. These doctrines keep in mind the underlying purposes behind the statute of limitations, which are to prevent the unexpected enforcement of stale and fraudulent claims, to allow people to plan their affairs with a reasonable degree of certainty, and to aid in the search for truth that may be impaired by the loss of evidence.²⁷ When a statute of limitations is tolled, it does not run and the time during which the statute is tolled is considered, in effect, as not having occurred. "Therefore, if a statute in a particular case is tolled, it is as if the statute commenced on a later date."²⁸

9-4:3.1 Continuing Course of Conduct

The continuing course of conduct doctrine, sometimes called the continuing tort doctrine, has been used in a variety of settings to toll the statute of limitations, particularly where the relationship between the parties evolves.

In negligence actions, when the wrong sued upon consists of a continuing course of conduct, the statute of limitations does not begin to run until that course of conduct is completed.²⁹ "[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 . . . there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . ."³⁰ Furthermore, this doctrine of continuing course of conduct is better suited to claims where the situation "keeps evolving after the act complained of is complete. . . ."³¹ There are two alternative ways to prove continuing course of conduct. There must be evidence of a "special relationship between the parties . . . or some later wrongful conduct of a defendant related to the prior act."³²

The 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."³³ The doctrine is generally applicable under circumstances where the negligence consists of a series of acts or omissions and it is "appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run. . . ."³⁴ The continuous course of conduct doctrine is "conspicuously fact-bound."³⁵

In Sanborn v. Greenwald,³⁶ the Appellate Court held that representations that an attorney made to a client about the effectiveness of a stipulation for a divorce agreement four years after the stipulation had been drafted did not toll the statute of limitations on the basis of a continuing course of conduct.³⁷

In Targonsky v. Clebowicz,³⁸ the Appellate Court held that the continuing course of conduct doctrine tolled the statute of limitations. That case concerned a real estate transaction in which it was alleged that defendant failed to obtain a right-of-way. The plaintiffs alleged that even after the closing, defendant was given several opportunities to obtain the right away, but he failed to do so.

The issue arose whether, after the closing, there was a continuing duty on defendant's part, especially when, in the usual course of real estate transactions, those duties end at the time of the closing. The court in the Targonsky case looked at the Sanborn case and drew a strategic distinction, reasoning "[t]he clear implication this [Sanborn] holding is that even after an attorney's representation of a client ends, he owes a duty to his client, which related back to his original wrong of rendering negligent services to the client, to correct the results of such prior negligence if he later learns of negligence at a time when he has the power to remedy the problems arising from it." In Targonski,³⁹ there was evidence that the attorney for the seller had notified the defendant of the error and gave him multiple opportunities to correct it.

At the trial court level, plaintiff was able to avail himself of this doctrine to toll the statute of limitations in Peterson v. Bornhorst.⁴⁰ The defendants drafted a prenuptial agreement and represented to the plaintiff that it would be enforceable so long as a dissolution action was filed before July 12, 2007. The agreement was declared invalid in a dissolution action filed on February 27, 2007. The court held without much discussion or analysis, that there was a continuing course of conduct through the defendant's representation of the plaintiff in the dissolution action.

9-4:3.2 Continuous Representation Rule

In order to alleviate the harsh consequences of the occurrence rule, the Connecticut Supreme Court in DeLeo v. Nusbaum adopted the continuing representation doctrine, concluding that in legal malpractice cases, "the statute of limitations is tolled during that period for which the plaintiff must show that (1) the defendant continued to represent him with regard to the same underlying matter and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period."⁴¹ Whether an attorney-client relationship or fiduciary relationship existed between the parties at the time of the alleged misconduct is a question of fact.⁴²

In Rosenfeld v. Rogin, Nassau, Caplan, Lassman & Hirtle LLC, the Appellate Court articulated five reasons for permitting this rule:

We conclude that we should adopt the continuous representation doctrine for several reasons. First, we already permit tolling of the statute of limitations under the continuing course of conduct and continuous treatment doctrines, which are very similar in policy and application to the continuous representation doctrine. Second, to require a client to bring an action before the attorney-client relationship terminates would encourage the client constantly to second-guess the attorney and force the client to obtain other legal opinions on the attorney's handling of the case. Nothing could be more destructive of the attorney-client relationship, which we strive to preserve. Third, requiring a client to bring a malpractice action against the attorney during the pendency of an appeal from the judgment in an underlying action in which that attorney allegedly committed malpractice could force the client into adopting inherently different litigation postures and thereby

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