Cruz v. Schoenhorn
204 A.3d 764
Conn. App. Ct.2019Background
- Cruz sued his former attorneys Schoenhorn and Sierra for legal malpractice arising from alleged improper service of process on two defendants in a 2003 personal-injury suit (Continental action).
- Key events: alleged improper service in April 2004; judgment entered against the nonresidents in 2005; Cruz filed grievance complaints (Schoenhorn: 2006, 2008; Sierra: 2006, 2010); Cruz filed a self-represented appearance in the Continental action on August 26, 2009.
- Minnella, Tramuta & Edwards appeared for Cruz on September 17, 2012; the judgment was opened as to one defendant on December 18, 2012; the Continental action was later dismissed as to the two nonresidents in 2013.
- Cruz commenced the malpractice action December 15, 2014 and later filed an operative complaint (Aug. 24, 2015). Defendants moved for summary judgment asserting the § 52-577 three-year limitations bar.
- Trial court granted both motions, holding that any continuous-representation tolling ended no later than August 26, 2009 (when Cruz appeared pro se), so the malpractice claim was filed after the applicable limitations period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the continuous representation doctrine tolled § 52-577 until Sept. 17, 2012 (so claim timely) | Cruz: representation continued into Sept. 2012 (new counsel appeared Sept. 17, 2012); he learned of malpractice Dec. 18, 2012 | Defendants: representation ended earlier (grievances and/or Cruz’s Aug. 26, 2009 pro se appearance) so tolling ended by Aug. 26, 2009 (or earlier) | Court: No genuine issue; de facto termination occurred by Aug. 26, 2009 (and for Sierra possibly as early as Sept. 19, 2006 due to grievance). Claims time barred under § 52-577 |
| Whether the Nov. 9, 2016 affidavit created a factual dispute or was properly considered | Cruz: affidavit states representation continued until Sept. 17, 2012 and should create a factual dispute | Defendants: affidavit is conclusory/untimely (filed after Schoenhorn’s hearing) and does not negate documentary evidence of de facto termination | Court: Affidavit was not timely for Schoenhorn’s motion and is conclusory for Sierra; it did not create a genuine factual dispute |
Key Cases Cited
- DeLeo v. Nusbaum, 821 A.2d 744 (Conn. 2003) (adopts continuous representation doctrine; explains formal and de facto termination)
- Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 41 A.3d 674 (Conn. App. 2012) (malpractice actions governed by § 52-577; summary judgment may be granted on statute-of-limitations grounds)
- Chamerda v. Opie, 197 A.3d 982 (Conn. App. 2018) (§ 52-577 is an occurrence statute; limitations period begins when act/omission occurs)
- Weiner v. Clinton, 942 A.2d 469 (Conn. App. 2008) (legal malpractice based on negligence is subject to § 52-577)
- Farnsworth v. O’Doherty, 856 A.2d 518 (Conn. App. 2004) (describes elements of continuous representation doctrine and required showing)