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Manzo-Ill v. Schoonmaker

Court of Appeals of Connecticut

March 12, 2019

ELLEN M. MANZO-ILL
v.
SAMUEL V. SCHOONMAKER III ET AL.

          Argued October 18, 2018

         Procedural History

         Action to recover damages for, inter alia, legal malpractice, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Povodator, J., granted in part the defendants' motion to dismiss; thereafter, the court granted the motion to bifurcate the trial filed by the defendant Schoonmaker, George & Blomberg, P.C., and the matter was tried to the court; judgment for the defendant Schoonmaker, George&Blomberg, P.C.; subsequently, the court denied the plaintiff's motion to reargue, and the plaintiff appealed to this court. Affirmed.

          James H. Lee, for the appellant (plaintiff).

          Scott S. Centrella, with whom, on the brief, was Timothy P. Moylan, for the appellee (defendant Schoon-maker, George & Blomberg, P.C.).

          DiPentima, C. J., and Keller and Moll, Js.

          OPINION

          DIPENTIMA, C. J.

         The plaintiff, Ellen M. Manzo-Ill, appeals from the judgment of the trial court rendered in favor of the defendant Schoonmaker, George & Blomberg, P.C., [1] after a trial before the court. The court concluded that the plaintiff's claims of legal malpractice and fraudulent misrepresentation were barred by the three year statute of limitations set forth in General Statutes § 52-577.[2] On appeal, the plaintiff claims that the court (1) misapplied our Supreme Court's holding in DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744 (2003), regarding the continuous representation doctrine and the tolling of the statute of limitations and (2) abused its discretion in denying her motion to reargue. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our resolution of this appeal. In May, 2007, the plaintiff's then husband, Charles L. Ill. III initiated a dissolution action, and, in June, 2007, the plaintiff hired the defendant to represent her. The dissolution court issued a memorandum of decision on August 19, 2008, dissolving the marriage between the plaintiff and Ill. See Ill v. Manzo-Ill, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA-07-4011753-S (August 19, 2008).

         On May 20, 2013, the plaintiff delivered the writ of summons and complaint to a state marshal, who made service on the defendant on June 10, 2013.[3] The operative complaint, dated August 28, 2014, set forth two causes of action against the defendant: legal malpractice[4] and fraudulent misrepresentation.[5] Generally, the complaint alleged that the attorneys of the defendant law firm had ‘‘deviated from accepted professional standards directly causing [the plaintiff] to lose millions of dollars in what would have been her share of undiscovered marital assets. Worse yet, [the plaintiff] paid the [defendant] tens of thousands of dollars in legal fees and expenses for this deficient representation.'' Specifically, the complaint alleged that the defendant (1) was negligent in failing to conduct financial discovery as to the former employers of Ill. (2) was negligent and committed fraud with respect to Ill's testamentary interests, (3) was negligent during the dissolution trial and (4) was negligent during the posttrial proceedings.

         On November 10, 2014, the defendant filed an answer and raised a statute of limitations defense, pursuant to § 52-577, as to both counts of the operative complaint. Approximately one month later, the defendant moved for summary judgment on the basis that the plaintiff's action was time barred. In its motion, the defendant argued that it had been replaced as the plaintiff's counsel on March 11, 2010, when the law firm of Tibbetts, Keating & Butler, LLC (successor counsel) filed an ‘‘in lieu of'' appearance on behalf of the plaintiff. It further maintained that because the process initiating the present action was not delivered to the state marshal until May 20, 2013, and was not served on the defendant until June 10, 2013, more than three years after the defendant had been replaced by successor counsel, it was entitled to summary judgment. The defendant also argued that the continuous representation doctrine did not apply to this matter.

         On January 29, 2015, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment. She argued that the defendant had performed legal services after May 20, 2010, and, therefore, her action was not barred by the statute of limitations. In support of her opposition, the plaintiff directed the court to the defendant's invoices indicating that legal work had been done on behalf of the plaintiff on May 20 and September 1, 2010. The plaintiff also argued that the continuous representation doctrine served to toll[6]§ 52-577.

         The court, Povodator, J., issued a memorandum of decision denying the defendant's motion for summary judgment on April 28, 2015. Specifically, the court reasoned that the post May 20, 2010 invoice and the parties' competing explanations thereof could not be resolved in the context of a motion for summary judgment.

         On February 29, 2016, the defendant moved to bifurcate the trial pursuant to General Statutes § 52-205 and Practice Book § 15-1 so that its statute of limitations defense would be considered before the merits of the plaintiff's operative complaint. Over the plaintiff's objection, the court granted the motion to bifurcate on March 7, 2016.

         The court conducted a three day trial on the defendant's statute of limitations defense on March 29, April 15 and July 6, 2016. On the first day, the defendant presented testimony from Paul Tusch, the attorney who represented Ill. in the dissolution action; John P. Ekberg III, an attorney with the defendant from November, 1999 until April, 2012; and Aidan Welsh, an attorney with the defendant since 2006. At the conclusion of the testimony from the three witnesses, the defendant rested as to the issue of the statute of limitations. On April 15, 2016, the plaintiff was the only witness to testify. On July 6, 2016, the plaintiff presented testimony from Timothy Butler, an attorney with successor counsel, and recalled herself to testify.

         On March 7, 2017, the court issued its memorandum of decision.[7] It found that in January, 2010, Attorney Samuel V. Schoonmaker III, [8] the attorney and partner at the defendant who had primary responsibility for representing the plaintiff in the dissolution action, wrote to her confirming his plan to retire, effective April 1, 2010. ‘‘In that letter, [Schoonmaker] further indicated that he did not wish to refer the file to someone else in his office. This was understood by the plaintiff to reflect the need for retention of new counsel, which she did obtain in March of 2010.'' Successor counsel filed an appearance in lieu of the defendant on March 11, 2010.

         The court addressed the evidence of conversations between Schoonmaker and the plaintiff and successor counsel in the spring and summer of 2010. The court found that the thrust of Schoonmaker's post-May, 2010 conversations with the plaintiff related to her outstanding bill with the defendant. It further observed that other aspects of the case likely were discussed but were not the primary reason for the communications. ‘‘With respect to the testimony of successor counsel relating to discussion he had with . . . Schoonmaker relating to the handling of the case, there is no affirmative evidence refuting that testimony. There is a negative inference available, however-while . . . Schoonmaker documented (in time records) his bill related conversations with the plaintiff (for which no charge was ever imposed), whatever discussions he may have had with successor counsel did not warrant any time record entries at all, with or without an associated fee for services.''

         The court also considered the evidence that the defendant had billed the plaintiff for services in late May, 2010, ‘‘including preparation of certain documents and legal research. The defendant did not dispute that on or about May 20, 2010, an attorney from the defendant . . . did, in fact, prepare an affidavit for use in connection [with] the marriage dissolution action (specifically in connection with a motion to open judgment), but disputed its value as probative of ongoing representation, emphasizing that it was purely factual in nature and intended for use by successor counsel.''

         The court noted the billing entry detailing a conversation between Schoonmaker and Tusch, Ill's attorney, that had occurred on September 1, 2010. ‘‘It reflects a conversation . . . concerning settlement. The testimony of successor counsel suggests that such a telephone call did occur-he testified that there had been problems with a payment from [Ill]; Mr. Schoonmaker said he would call [Tusch]; and payment was made shortly thereafter.'' Tusch testified, however, that such a telephone conversation did not occur. Ultimately, the court found that Schoonmaker did speak with Tusch on September 1, 2010, ‘‘but the purpose of the call was not to discuss anything of a substantive nature but, rather, was likely to have been an informal call concerning a long overdue payment, sufficiently informal that . . . Tusch likely saw no need to memorialize the conversation in his time and billing records.''

         In November, 2010, the plaintiff sent a letter to Schoonmaker questioning some of the items contained in the defendant's invoice. Specifically, she wrote: ‘‘The second item in question which makes me suspect that there exists an error is that the invoice indicates that you have signed an affidavit on [May 20, 2010] which was signed and emailed to [an attorney employed by successor counsel]. On [May 20, 2010, the defendant] was no longer representing me given your January, 2010 letter to me in which you indicated that you would be retiring from your firm effective [April 1, 2010]. Your letter also indicated that you couldn't advise that other partners in your firm take on my case for the reason that so much had transpired in the case and the learning curve was too deep. As you're aware, I reacted as quickly as possible to your news and secured and retained alternate representation . . . to assume my case. [Successor counsel was] representing me in May, 2010. As a result, I am unclear as to why you would have signed an affidavit relative to my case in May, 2010 and thus, suspect a slight billing error.''

         The court ultimately found that the statute of limitations had not been tolled by the continuous representation doctrine. The court determined that the defendant's appearance was withdrawn by operation of law pursuant to Practice Book § 3-9[9] following the appearance filed by successor counsel on March 11, 2010. It further concluded that ‘‘the representation by the defendant was not continuous but, rather, changed materially, effective no later than March 11, 2010. Effective that date, the defendant no longer was counsel of record in the pending litigation; the defendant no longer was ‘the' legal advisor for the plaintiff. Instead, at most, the defendant as personified by . . . Schoonmaker was assisting successor counsel, providing advice to the plaintiff and/or new counsel. Absent an appearance in the pending litigation, it does not seem he had the ability to rectify anything, without reliance on successor counsel.''

         The court then specifically addressed the plaintiff's arguments regarding the applicability of the continuing representation doctrine. First, it set forth fifteen billing entries, post-March 11, 2010, on which the plaintiff had relied for the claim of continuous representation.[10] It then determined that most of these entries had ‘‘no apparent possible ‘substantive' quality'' and that, during the transition from the defendant to successor counsel, ‘‘there would be some level of communication . . . .'' (Citation omitted.)

         The court accepted the defendant's explanation for the May, 2010 entries for fees associated with a legal research database as costs that had been incurred in the prior months. The court further found that, with respect to the fees charged to the plaintiff for the preparation of an affidavit, such charges were made in error by the defendant.[11]

         With respect to Schoonmaker's interactions with successor counsel, the court determined that such conversations were informal in nature and constituted a blend of professional courtesy and ensuring an efficient transition from the defendant to successor counsel. Turning to the September 1, 2010 billing entry and the plaintiff's claim that Schoonmaker had engaged in settlement conversations with Tusch, the court found that this interaction ‘‘appears to have been a relatively ministerial issue of compliance with an existing settlement [specifically, the payment of money by Ill. to the plaintiff] rather than working toward achieving a new settlement.''

         The court concluded that the defendant had met its burden of proving that its representation of the plaintiff ended on March 11, 2010, and, thus, the burden shifted to the plaintiff to establish that the continuing representation doctrine tolled the statute of limitations. It further found that the plaintiff had not proven by a preponderance of the evidence ‘‘that there had been continuous representation by [the] defendant extending to (or beyond) May 20, 2010, three years prior to the date on which a marshal was given process for serving on the intended defendants, the event which would have stopped the running of the statute of limitations under General Statutes § 52-593a. The action was not commenced within three years of the last act giving rise to ...


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