SHERIF ABDELSAME v. MARIA FODEN DE CASTRO.

2007 Ct. Sup. 10894
No. CV 04-4000866SConnecticut Superior Court Judicial District of Hartford at Hartford
May 10, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #128
PETER E. WIESE, Judge.

I PROCEDURAL HISTORY
On July 23, 2004, the plaintiff, Sherif Abdelsame, filed, a two-count complaint against the defendant, Maria de Castro Foden, alleging legal malpractice and breach of fiduciary duty. The complaint alleges inter alia, that the defendant neglected to advise the plaintiff and to stamp his passport correctly. As a result of this alleged negligence the plaintiff was deported from the United States for five years, incurring various damages.

The complaint alleges the following facts. On and before January 1999, the plaintiff hired the defendant to provide legal services in hope of obtaining United States citizenship. Sometime thereafter the plaintiff sought permission from the defendant to travel to Egypt for two weeks to see his mother. The defendant said that she would take the necessary steps to allow the plaintiff to travel. The defendant took the plaintiff’s passport to obtain the necessary stamps, and thereafter returned the passport telling him that he could safely travel to Egypt. Sometime in February 1999, the plaintiff traveled to Egypt from JFK International Airport and upon his return, was refused admission to the country by immigration control. The plaintiff was deported and barred from the United States for five years under Section 212(a)(9) of the Immigration and Nationality Act.

On May 5, 1999, Mary Abdelsame, the plaintiff’s wife, filed a grievance complaint against the defendant with the statewide bar counsel. The grievance was filed individually and on behalf of the plaintiff. The grievance alleged that the defendant “illegally inserted a temporary I-151 permission stamp on [her] husband’s passport and advised [her husband] that he could travel outside of the United States, and could re-enter by displaying [the] stamp in [the] passport.” On CT Page 10895 November 19, 1999, a reviewing committee responded to the grievance, determining that there was “no misconduct on the part of the [defendant] warranting disciplinary action.”

Nearly five years later, on July 23, 2004, the plaintiff filed this action.[1] In count one, legal malpractice, the plaintiff alleges that “[in] representing the plaintiff in his immigration matters, the [defendant] failed to exercise that degree of care, skill and diligence normally possessed by a licensed attorney in one or more of the following ways, by: a. failing to properly advise the client that be could not leave the country while his application was pending; b. having the plaintiff’s passport improperly stamped; c. failing to refer the case to experienced and knowledgeable counsel; d. failing to communicate accurate information concerning his immigration status; and, e. by obtaining improper stamps.”[2] The second count, breach of fiduciary duty, was later stricken from the complaint.[3]

On May 4, 2006, the defendant filed a motion for summary judgment on the single remaining count of legal malpractice.[4] The ground for the defendant’s motion is that the plaintiff’s action is barred by the three-year statute of limitations period under General Statutes §52-577. The defendant filed a memorandum of law in support of her motion and also provided documents including her affidavit, a copy of the grievance complaint and a copy of the grievance report. On July 7, 2006, the plaintiff filed a memorandum in opposition to the defendant’s motion for summary judgment along with his affidavit. In the memorandum the plaintiff argues that the defendant is “equitably estopped” from asserting the statute of limitations defense. Specifically, the plaintiff claims that because the defendant misled the plaintiff into believing that he could lawfully travel to and from Egypt, the defendant is estopped from claiming that she is protected by the statute of limitations. On November 27, 2006, the plaintiff filed a supplemental memorandum in opposition to the defendant’s motion for summary judgment that claims the defendant is prevented from asserting the statute of limitations defense because of the continuing course of conduct doctrine.[5] This matter was heard on short calendar on January 16, 2007.

II DISCUSSION
“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 CT Page 10896 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.” (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006).

“[A]s a general rule, summary judgment may be rendered where the claim is barred by the statute of limitations . . .” (Internal quotation marks omitted.) Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn.App. 1, 8, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514
(2004). Summary judgment is appropriate on statute of limitation grounds when the `material facts concerning the statute of limitations [are] not in dispute . . .” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

A. STATUTE OF LIMITATIONS
The ground for the defendant’s motion for summary judgment is that the plaintiff’s legal malpractice claim “is barred by the applicable statute of limitations, General Statutes § 52-577, because all of the plaintiff’s claims of negligence occurred prior to [his] February 1999 trip to Egypt, or, at the very least, prior to the date [that the defendant’s] representation of the plaintiff terminated in May 1999.”

General Statutes § 52-577 provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” General Statutes § 52-577. “The relevant date of the act or omission complained of . . . is the date when the negligent conduct of the defendant occurs and not the date when the plaintiff’s first sustain damage. When conducting an analysis under § 52-577, the only facts material to the trial court’s decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed.” (Internal quotation marks omitted.) Farnsworth v. O’Doherty, 85 Conn.App. 145, 149-50, 856 A.2d 518 (2004).

In the present case, the plaintiff does not dispute that three years have passed since the alleged negligent acts occurred.[6] Instead, the CT Page 10897 plaintiff argues that either equitable estoppel or the continuing course of conduct doctrine is applicable to toll the statute of limitations.

B. TOLLING THE STATUTE OF LIMITATIONS
“The purpose of the time limitation for bringing complaints is to provide an opportunity for conciliation and investigation, including the preservation of evidence, while the complaint is still fresh . . . The tolling of a statute of limitations may potentially overcome a statute of limitations defense. 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.” (Citation omitted; internal quotation marks omitted.) Gager v. Sanger, 95 Conn.App. 632, 638, 897 A.2d 704 (2006).

I. DOCTRINE OF EQUITABLE TOLLING
The plaintiff argues in his memorandum in opposition to the defendant’s motion for summary judgment that the statue of limitations is tolled by the doctrine of equitable estoppel.

In certain situations, the doctrine of equitable tolling may excuse the untimely filing of a complaint. Gager v. Sanger, supra, 95 Conn.App. 638. In Morris v. Costa, 174 Conn. 592, 599, 392 A.2d 468 (1978), our Supreme Court applied the doctrine of equitable estoppel to toll the statute of limitations and to reject the defendant’s argument that the action was not filed in a timely manner. Id.

“Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct.” Glazer v. Dress Barn, Inc., 274 Conn. 33, 60, 873 A.2d 929 (2005). Equitable estoppel requires two essential elements: “[t]he party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done.” (Internal quotation marks omitted.) Id. Courts considering the doctrine of equitable estoppel will toll the statute of limitations only if there is evidence that the defendant intended to deceive the plaintiff, made misrepresentations, or in general, engaged CT Page 10898 in bad faith tactics to delay the commencement of litigation. See generally Williams v. Commission on Human Rights Opportunities, 67 Conn.App. 316, 329, 786 A.2d 1283 (2001) (recognizing that when applying equitable estoppel to employment discrimination cases, time limits will be tolled only when evidence shows that the defendant acted with fraud or to delay the filing of a complaint); Gallop v. Commercial Painting Co., 42 Conn.Sup. 187, 195, 612 A.2d 826 (1992) (finding that “equitable estoppel is ordinarily invoked in cases where the defendant misrepresented the length of the limitations period or in some way lulled the plaintiff into believing that it was not necessary for him to commence litigation”).

The plaintiff argues that the defendant is equitably estopped from asserting the statute of limitations defense because the defendant misled the plaintiff into thinking he could travel to Egypt, incorrectly stamped his passport, and failed to assist him after he was detained at JFK International Airport. Moreover, the plaintiff claims in his memorandum in opposition that he “has clearly met the two elements required to apply equitable estoppel” because he was “legally and physically expelled from the country making it impossible, to try a case or provide testimony in an effective manner.” The court is not persuaded by the plaintiff’s arguments for three reasons. First, even if the court assumes, arguendo, that the plaintiff’s factual allegations are true, he has provided no evidence that the defendant intended to induce or deceive the plaintiff into believing that he could travel in and out of the United States, or that the defendant lulled the plaintiff into believing that it was not necessary for him to commence litigation, or that it was impossible for him to file a timely claim from Egypt. Second, while a foreign plaintiff may face greater difficulties in filing a lawsuit than a domestic plaintiff, there is no evidence that the plaintiff attempted to file an action and was prevented from doing so. Finally, there is no legal authority that such filing is impossible or that such a plaintiff benefits from the doctrine of equitable tolling. Accordingly, the doctrine of equitable tolling is not applicable to the case at bar and therefore, the plaintiff has failed to establish the existence of a genuine issue of material fact.

2. TOLLING BASED ON THE CONTINUING COURSE OF CONDUCT DOCTRINE
The plaintiff argues in his supplemental memorandum that the continuing course of conduct doctrine tolls the statute of limitations. The doctrine is applicable, the plaintiff claims, because he and the CT Page 10899 defendant had a “special fiduciary relationship whereby the plaintiff put his entire trust in the defendant to properly stamp his passport.”[7] Additionally, the plaintiff argues that tolling is appropriate because the defendant engaged in wrongful conduct by failing: to help the plaintiff upon learning of his detainment at the airport, to admit to a United States attorney that another person, named Abdelrahme, was a client, and to provide help after the deportation.

“[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 . . . [I]n order to [s]upport 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 [our Supreme Court] has 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 . . .

“In sum, 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 . . . Second, there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . That continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . .” (Internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 140, 907 A.2d 1220 (2006), citing Giulietti v. Giulietti, 65 Conn.App. 813, 833-35, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

Here, the continuing course of conduct doctrine is not applicable. Even assuming that the defendant committed an initial wrong upon the plaintiff, neither a duty nor a breach of duty remained in existence after such wrong because the attorney-client relationship had already been de facto terminated.[8]

In DeLeo v. Nusbaum, 263 Conn. 588, 597-98, 821 A.2d 744 (2003), the Supreme Court stated: “A de facto termination occurs if the client takes a step that unequivocally indicates that [he has] ceased relying on his attorney’s professional judgment in protecting his legal interests, such as hiring a second attorney to consider a possible malpractice claim o filing a grievance against the attorney.” (Emphasis added.) CT Page 1090 Id.; see also 1 Restatement (Second), Agency § 119, comment (a) (1957) (stating that “[a]uthority created in any manner terminates when either party in any manner manifests to the other dissent to its continuance . . .” and commenting that “[e]ven though the authority of an agent has been created . . . his authority is revoked . . . by written or spoken works or other conduct which, reasonably interpreted, indicates that the principal no longer consents to have the agent act for him . . .”). The plaintiff in DeLeo argued that the attorney-client relationship was de facto terminated when he sent his wife a letter stating that “you[r] lawyers have not only committed malpractice in handling this case but are guilty of billing fraud,” and “[m]y lawyer has not done much better.” (Internal quotation marks omitted.) DeLeo v. Nusbaum, supra, 263 Conn. 600. The court disagreed, holding that “[t]he act of sending this letter to the plaintiff’s wife does not rise to the level of unequivocally indicating that the plaintiff had ceased relying on his attorney’s professional judgment in protecting his legal interests and, therefore, as a matter of law, does not constitute a de facto termination of the attorney-client relationship.” Id.

The facts in this action are distinguishable from DeLeo because here, the plaintiff’s wife filed a grievance, individually and on behalf of the plaintiff, against the defendant. The grievance filing unequivocally indicated that the plaintiff had ceased relying on the defendant’s professional and legal judgment.[9] Therefore, the grievance filing on May 5, 1999, constituted a de facto termination of the attorney-client relationship.[10]

The court notes that tolling the statute of limitations under the present facts would fail to justify the policy of the continuing course of conduct. “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 . . . For example, the doctrine is generally applicable under circumstances where it may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or 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. (Emphasis added.) Vanliner Ins. Co. v. Fay supra, 98 Conn.App. 141-42. In the case at bar, the filing of the grievance complaint terminated the parties’ relationship, and more so, the alleged negligence is not difficult to identify because each tortious act or omission was specifically enumerated in the complaint. For the foregoing reasons, the continuing course of conduct doctrine is not applicable to toll the untimely filing of the plaintiff’s action. CT Page 10901

III CONCLUSION
The court grants the defendant’s motion for summary judgment because there are no genuine issues of material fact regarding the plaintiff’s failure to timely commence this action within the three-year period that began to run on May 5, 1999, at the latest, and expired on May 5, 2002.

So ordered.

[1] To date, the defendant has not filed an answer.
[2] For reasons explained in the following two footnotes, the operative complaint for the purposes of this motion is the amended complaint filed on July 7, 2006.
[3] The plaintiff revised his original complaint on October 18, 2004. On November 1, 2004, the defendant filed a motion to strike the breach of fiduciary duty claim, along with a memorandum in support of the motion, and on March 23, 2005, the court, Wagner J.T.R., granted the motion. The plaintiff filed a substitute complaint March 28, 2005, in an attempt to correct the stricken claim. On April 12, 2005, the defendant filed a motion to strike the breach of fiduciary claim, along with a memorandum in support of the motion, and in a ruling dated June 29, 2005, the court, Shapiro, J., granted the motion. On July 14, 2005, the plaintiff made a request for leave and filed an amended complaint in an attempt to correct the stricken claim. On July 29, 2005, the defendant filed a motion to strike the claim, along with a memorandum in support of the motion, and on March 29, 2006, the court, Miller, J., granted the motion.
[4] Subsequent to the motion the plaintiff filed an amended complaint on July 7, 2006, containing an identical legal malpractice count to the July 14, 2005, amended complaint. Therefore, the court will consider the July 7, 2006, amended complaint as the operative complaint for the defendant’s motion for summary judgment.
[5] The defendant filed replies to the plaintiff’s memoranda in opposition of the motion for summary judgment.
[6] The alleged negligent acts occurred in early 1999 and service of process on the defendant was made on July 12, 2004.

CT Page 10902

[7] The court notes that no issue regarding any special fiduciary relationship, beyond the normal attorney-client relationship, remains in this action. As mentioned in footnote three, the court, Miller J., granted the motion to strike the second count of the complaint, breach of fiduciary duty. In doing so, Judge Miller opined that no special fiduciary relationship existed “because the plaintiff had not properly alleged that [the] defendant breached a specific promise or failed to deliver a guaranteed result.” Furthermore, the claim of breach of fiduciary duty is not included in the July 7, 2006 amended complaint.
[8] The plaintiff alleged various initial wrongs including the defendant’s negligence in stamping the passport, advising that the plaintiff could travel outside of the country, failing to refer the case, and failing to communicate accurate information.
[9] The concept of a de facto termination applies regardless of whether the issue concerns the continuing course conduct doctrine or the continuous representation doctrine, as in DeLeo.
[10] In addition, the plaintiff has failed to set forth any evidence of conduct or communications with the defendant that would indicate that the relationship continued after the filing of the grievance complaint.

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