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FLANNERY v. SINGER ASSET FINANCE COMPANY, LLC—DISSENT

NORCOTT, J., with whom EVELEIGH and

ESPINOSA, Js., join, dissenting. I respectfully disagree

with part II of the majority’s opinion,1 which concludes

that the claims of the plaintiff, John D. Flanery,2 alleging

that the defendant, Singer Asset Finance Company,

LLC,3 aided and abetted the plaintiff’s attorney in the

breach of his fiduciary duty and violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., were time barred on the admitted

or undisputed facts of this case. Accordingly, the majority affirms the judgment of the Appellate Court upholding the trial court’s grant of the defendant’s motion

for summary judgment. See Flannery v. Singer Asset

Finance Co., LLC, 128 Conn. App. 507, 518, 17 A.3d

509 (2011). In my view, the plaintiff adduced sufficient

evidence to raise a genuine issue of material fact that

the continuing course of conduct doctrine was available

to toll the statute of limitations because: (1) that doctrine tolled the running of the applicable three year

statute of limitations, General Statutes § 52-577,4 against

Glenn MacGrady, the attorney who had breached his

fiduciary duties while representing the plaintiff during

the sale of his lottery winnings to the defendant in

exchange for a lump sum payment; and (2) the defendant had aided and abetted MacGrady’s breach of that

fiduciary duty, thereby rendering the continuing course

of conduct toll applicable to the aiding and abetting

claims against the defendant. I further agree with the

plaintiff that the Appellate Court improperly relied on

this court’s decision in Fichera v. Mine Hill Corp., 207

Conn. 204, 541 A.2d 472 (1988), to conclude that, as a

matter of law, the continuing course of conduct doctrine does not apply to the three year CUTPA statute

of limitations, General Statutes § 42-110g (f).5 Because

the plaintiff is entitled to a trial on these issues, I would

reverse the judgment of the Appellate Court holding to

the contrary. Accordingly, I respectfully dissent.

I

AIDING AND ABETTING CLAIMS

I begin by noting my agreement with the majority’s

statement of the relevant facts and procedural history,

which I need notrepeat here. By way of background, the

defendant claims that the continuing course of conduct

doctrine is inapplicable because it individually did not

engage in any subsequent acts with respect to the plaintiff after the closing of the lottery winnings sale in

September, 1999, and, further, lacked the requisite ‘‘special relationship’’ with him, in contrast to his fiduciary

attorney-client relationship with MacGrady, the attorney who represented the plaintiff during the transaction. Relying heavily on a New York decision, Kaufman

v. Cohen, 307 App. Div. 2d 113, 760 N.Y.S.2d 157 (2003),
the defendant contends that the attorney-client fiduciary relationship between MacGrady and the plaintiff

should not be attributed to it for purposes of tolling

the statute of limitations, despite the derivative nature

of the plaintiff’s aiding and abetting claim against the

defendant. Finally, the defendant contends that, even

if the fiduciary relationship between MacGrady and the

plaintiff is attributed to it as an aider and abettor, under

Lee v. Brenner, Saltzman & Wallman, LLP, 128 Conn.

App. 250, 15 A.3d 1215, cert. denied, 301 Conn. 926, 22

A.3d 1277 (2011), and Sanborn v. Greenwald, 39 Conn.

App. 289, 664 A.2d 803, cert. denied, 235 Conn. 925,

666 A.2d 1186 (1995), the attorney-client relationship

between MacGrady and the plaintiff ended after the

closing of the sale in 1999, and MacGrady’s act of referring the plaintiff to another attorney for defense following the issuance of a tax deficiency by the Internal

Revenue Service (IRS) in 2002 did not constitute a continuing course of conduct for purposes of tolling the

statute of limitations.

In response, the plaintiffrelies upon Anderson v. Pine

South Capital, LLC, 177 F. Supp. 2d 591, 604 (W.D. Ky.

2001), for his argument that ‘‘the liability of one who

aids and abets a fiduciary in breaching their fiduciary

duty is not only derivative of the fiduciary’s duty, but

also coextensive with the liability of the fiduciary,

including as to the application of limitations defenses.’’

In his reply brief, the plaintiff then contends that the

New York decision in Kaufman is factually distinguishable and, further, stands for the proposition that,

because the plaintiffs’ allegations in that case against

the aiders and abettors ‘‘were insufficient to support

the claim that . . . [they] actively support[ed] [the

fiduciary’s] scheme, the only way that limitations could

be tolled as to those defendants would be if they owed

independent and direct fiduciary duties to the plaintiffs,’’ similar to the fiduciary. The plaintiff then cites

evidence in the record to contrast with Kaufman,

including the defendant’s telephone logs and sales notes

documenting the defendant’s attempt to woo the plaintiff, which demonstrates the defendant’s active role in

aiding and abetting MacGrady’s breach of his fiduciary

duty, thereby rendering MacGrady’s continuous course

of conduct during and after the legal representation

attributable to the defendant. The plaintiff further cites

the deposition testimony of Stephen Hazard, the managing partner of Pepe & Hazard, LLP (Pepe & Hazard),

MacGrady’s employer, and rule 1.7 of the Rules of Professional Conduct,6

in support of the proposition that

MacGrady’s unsatisfied obligation to disclose his conflict of interest continued indefinitely past the conclusion of his retained representation of the plaintiff, which

created a continuing duty under which the statute of

limitations was extended as to MacGrady; that extension was imputed to the defendant. I agree with the

plaintiff, and conclude that there is sufficient evidence
to create a genuine issue of material fact as to whether

the continuous course of conduct doctrine tolled the

running of the statute of limitations on his claim that

the defendant had aided and abetted the breach of a

fiduciary duty owed to him by MacGrady, his attorney.

A

Background Legal Principles

In the context of the summary judgment motion that

forms the basis forthis appeal, the ‘‘question of whether

a party’s claim is barred by the statute of limitations is

a question of law, which this court reviews de novo.’’

(Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 582, 22 A.3d 1214 (2011). Beyond the

well established general standard for granting summary

judgment; see, e.g., Zielinski v. Kotsoris, 279 Conn.

312, 318–19, 901 A.2d 1207 (2006); as the majority aptly

notes, this court has recently held that, ‘‘in the context

of a motion for summary judgment based on a statute

of limitations special defense, a defendant typically

meets its initial burden of showing the absence of a

genuine issue of material fact by demonstrating that

the action had commenced outside of the statutory

limitation period. . . . When the plaintiff asserts that

the limitations period has been tolled by an equitable

exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue

of material fact in avoidance of the statute.’’ (Citation

omitted.) Romprey v. Safeco Ins. Co. of America, 310

Conn. 304, 321, 77 A.3d 726 (2013).

The statute of limitations issue in this appeal is

informed by the derivative nature of the plaintiff’s claim

that the defendant aided and abetted MacGrady in the

breach of his fiduciary duty; the viability of the aiding

and abetting claim is intertwined with that of the underlying cause of action. See, e.g., Efthimiou v. Smith, 268

Conn. 499, 504–505, 846 A.2d 222 (2004) (concluding in

aiding and abetting case that plaintiffs were collaterally

estopped from relitigating underlying finding in related

case with respect to breach of fiduciary duty). In

Efthimiou, this court quoted Halberstam v. Welch, 705

F.2d 472, 477 (D.C. Cir. 1983), for the elements of the

aiding and abetting tort, namely: ‘‘(1) the party whom

the defendant aids must perform a wrongful act that

causes an injury; (2) the defendant must be generally

aware of his role as part of an overall illegal or tortious

activity at the time that he provides the assistance; [and]

(3) the defendant must knowingly and substantially

assist the principal violation . . . .’’ (Internal quotation

marks omitted.) Efthimiou v. Smith, supra, 505.

Because of the derivative nature of the cause of

action, if the underlying claim for aiding and abetting

the breach of a fiduciary duty is time barred by the

statute of limitations, then the derivative aiding and

abetting claim will be time barred as well. See, e.g.,
Anderson v. Pine South Capital, LLC, supra, 177 F.

Supp. 2d 604 (‘‘we hold that the statute of limitations

for a charge of aiding and abetting should fall under

the section reserved for the underlying cause of action

which, in the present case, has not yet expired’’); Kaufman v. Cohen, supra, 307 App. Div. 2d 124–25

(reviewing aiding and abetting claims to determine

whether they specifically are time barred because

appellate court’s determination that ‘‘primary breach

of fiduciary duty causes of action . . . are indeed viable . . . vitiates the [trial] court’s holding that the

derivative claims [for aiding and abetting] should be

dismissed’’); cf. Stokes v. Southeast Hotel Properties,

Ltd., 877 F. Supp. 986, 1001 (W.D.N.C. 1994)(concluding

that loss of consortium claim was time barred under

North Carolina law because it was derivative of time

barred wrongful death claim); Hinson v. Owens-Illinois, Inc., 677 F. Supp. 406, 407 n.1 (D.S.C. 1987)

(‘‘because [the husband’s] cause of action is barred by

the statute of limitations . . . [the wife’s] cause of

action [for loss of consortium] must also fail’’ [citations omitted]).

In this vein, the present appeal presents the question

of whether a claim could be time barred as to the aider

and abettor if not necessarily time barred as to the

principal actor. Thus, I note that the ‘‘parties in the

present case do not dispute that the plaintiff’s claim is

governed by the tort statute of limitations set forth in

. . . § 52-577. Section 52-577 provides: No action

founded upon a tort shall be brought but within three

years from the date of the act or omission complained

of. In construing our general tort statute of limitations

. . . we have concluded that the history of that legislative choice of language precludes any construction

thereof delaying the start of the limitation period until

the cause of action has accrued or the injury has

occurred. . . . The date of the act or omission complained of is the date when the . . . conduct of the

defendant occurs . . . .’’ (Citation omitted; internal

quotation marks omitted.) Watts v. Chittenden, supra,

301 Conn. 582–83.

As the majority recognizes, the harsh effects of the

occurrence nature of § 52-577 may, however, be mitigated by the application of certain tolling doctrines,

including the continuing course of conduct doctrine.

‘‘This court has recognized the continuing course of

conduct doctrine in many cases involving claims sounding in negligence. For instance, we have recognized

the continuing course of conduct doctrine in claims of

medical malpractice. . . . In doing so, we noted that

[t]he 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.

. . . The continuing course of conduct doctrine has

also been applied to other claims of professional negli-
gence in this state. . . .

‘‘In these negligence actions, this court has held that

in order [t]o support 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

priorto commencement of the period allowed for bringing an action for such a wrong. . . . Where we have

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. . . .

‘‘[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. . . .

‘‘A second requirement for the operation of the continuing course of conduct doctrine is that there must

be evidence of the breach of a duty that remained in

existence after commission of the original wrong

related thereto. . . . This court has held this requirement to be satisfied when there was wrongful conduct

of a defendant related to the prior act.’’ (Citations omitted; internal quotation marks omitted.) Id., 583–85.

‘‘[C]ontinuing wrongful conduct may include acts of

omission as well as affirmative acts of misconduct

. . . .’’ (Internal quotation marks omitted.) Sherwood

v. Danbury Hospital, 252 Conn. 193, 205, 746 A.2d 730

(2000). The effect of the continuing course of conduct

doctrine is to delay the commencement of the running

of the statute of limitations. See, e.g., Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793

(1957) (‘‘[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’’).

Given the paucity of case law from Connecticut or

elsewhere discussing the application of tolling doctrines to otherwise time barred claims of aiding and

abetting a breach of a fiduciary duty, I begin my analysis

with Kaufman v. Cohen, supra, 307 App. Div. 2d 113,

upon which both parties heavily rely. Kaufman concerned, inter alia, whether any of New York’s tolling

doctrines applied to save the plaintiffs’ otherwise time

barred aiding and abetting a breach of a fiduciary duty

claim against the ‘‘Falchi defendants,’’ who had secret

dealings with the defendant, Irwin B. Cohen, the plaintiffs’ former business partner, to reacquire a foreclosed

real estate investment property formerly held by the

plaintiffs and Cohen. Id., 125–27. As the defendant

argues, the court in Kaufman held that the continuing

course of conduct doctrine will toll the statute of limitations on an aiding and abetting claim when the aider

and abettor has its own fiduciary relationship with the
plaintiff and the principal actor engages in a continuing

course of conduct, namely because the aider and abettor with a fiduciary duty has an ongoing duty to disclose

material facts. Id., 126–27; accord Falls Church Group,

Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 107,

912 A.2d 1019 (2007) (‘‘although fraudulent concealment generally requires an affirmative act of concealment, nondisclosure is sufficient when the defendant

has a fiduciary duty to disclose material facts’’ [internal

quotation marks omitted]). The plaintiff does not dispute the defendant’s contention that no such independent fiduciary relationship existed here between it and

the plaintiff, as they were simply buyer and seller. See,

e.g., Fichera v. Mine Hill Corp., supra, 207 Conn. 210

(vendor-vendee ‘‘relationship does not give rise to obligations equivalent to those of a fiduciary’’).

That the plaintiff lacked an independent fiduciary

relationship with the defendant in this case is not, however, fatal to his attempt to toll the statute of limitations

against the defendant. I agree with the plaintiff that

Kaufman also stands for the proposition that, in the

absence of an independent fiduciary relationship

between the plaintiff and the aider and abettor, as is

the case here, the merits of the aiding and abetting

claims significantly inform whetherthe statute of limitations should be tolled. See Kaufman v. Cohen, supra,

307 App. Div. 2d 125–27; see also Ingham ex rel. Cobalt

Asset Management, L.P. v. Thompson, 88 App. Div.

3d 607, 608–609, 931 N.Y.S.2d 306 (2011) (aiding and

abetting breach of fiduciary duty claim barred by statute

of limitations when defendant, who entered into

agreement with plaintiff’s former business partner, did

not make any affirmative representations or have fiduciary duty directly to plaintiff, and no evidence that

defendant had reason to believe it was acting wrongfully

at time of transaction with plaintiff’s former business

partner); Monaghan v. Ford Motor Co., 71 App. Div. 3d

848, 850, 897 N.Y.S.2d 482 (2010)(concluding that aiding

and abetting fiduciary duty claim should not have been

dismissed as time barred because underlying claim was

timely, but then considering merits of aiding and abetting claim). Thus, put differently, the court must determine whether aiding and abetting actually occurred

rather than automatically applying any tolling doctrine

applicable to the principal actor to the alleged aider

and abettor; if that aiding and abetting occurred, then

a tolling doctrine applicable to the principal actor would

apply to the aider and abettor. This rule is consistent

with the derivative nature and elements of the aiding

and abetting tort, specifically, those of knowledge and

substantial assistance.7 See Efthimiou v. Smith, supra,

268 Conn. 505. Thus, I first examine whether the defendant engaged in aiding and abetting, before determining

whether the record supports the application of a tolling

doctrine against the principal actor, in this case,

MacGrady.
B

Whether the Defendant Aided and Abetted

MacGrady’s Breach

Thus, I turn to the record before the trial court in

deciding the summary judgment motion to determine

whether the pleadings and evidence in the present case

demonstrated a genuine issue of material fact as to

whether the defendant aided and abetted MacGrady’s

breach of his fiduciary duty to the plaintiff. As noted

previously, ‘‘[a]iding-abetting includes the following elements: (1) the party whom the defendant aids must

perform a wrongful act that causes an injury; (2) the

defendant must be generally aware of his role as part

of an overall illegal or tortious activity at the time that

he provides the assistance; [and](3)the defendant must

knowingly and substantially assist the principal violation. . . .’’ (Internal quotation marks omitted.) Id.

Viewing the evidence in the light most favorable to

the plaintiff, as the non-moving party, I conclude first

that the plaintiff has established a genuine issue of

material fact as to whether the defendant engaged in

aiding and abetting. The record in this case reveals a

scheme wherein the defendant furthered its own business interests by utilizing the purportedly independent

MacGrady as, in essence, an arm of its sales force,

thereby knowingly and substantially assisting in the

breach of MacGrady’s fiduciary duty to his client, the

plaintiff. Telephone records indicate that, from January,

1999, through September, 1999, Craig Wallace, one of

the defendant’s sales representatives, used the prospect

of long-term capital gains taxation of the plaintiff’s

annuitized lottery winnings to persuade the plaintiff to

sell those winnings to the defendant in exchange for a

lump sum. Wallace referred the plaintiff to MacGrady

for expert advice in treating the proceeds from the sale

as long-term capital gains, which was a tax advantage

that proved pivotal in persuading the plaintiff to sell

his annuitized winnings to the defendant. Having no

idea that there was a simultaneous business relationship between MacGrady and the defendant, wherein

MacGrady ultimately would be retained to write and

speak on the defendant’s behalf to convince lottery

winners to sell their winnings, and be eligible for ‘‘performance bonus[es]’’ for being a ‘‘significant contributing factor’’ in closing a sale, the plaintiff retained

MacGrady to represent him in the ‘‘matter of selling

[his] lottery winnings.’’ Further, the telephone sales logs

demonstrate that Wallace was in constant communication with MacGrady until the closing of the sale, directing him, for example, to speak to the plaintiff’s

accountant on the ‘‘tax angle’’ and updating him on

the status of competing offers from other lottery sales

companies. Finally, the defendant had actual notice of

the tortious nature of the scheme and its attendant

conflicts of interest by Pepe & Hazard’s retainer
agreement signed and furnished by MacGrady, which

provided that the defendant would waive any and all

conflicts of interests created by the Pepe & Hazard’s

representation of the plaintiff.

In sum, the evidence establishes, at least a genuine

issue of material fact, that the defendant was no mere

bystander to MacGrady’s breach of his fiduciary duty,

but actively created and fostered the environment that

was ripe for that breach by, in essence, using MacGrady

as part of its sales force to encourage the plaintiff to

sell his lottery winnings. I conclude, therefore, that a

finder of fact reasonably could find that these actions

by the defendant constituted: (1) an awareness in a

scheme of illegal or tortious activity intended to gain

an advantage over the plaintiff and induce him to sell

his lottery winnings; and (2) knowing and substantial

assistance in MacGrady’s breach of his fiduciary duty.

C

Whether the Continuing Course of Conduct Doctrine

Tolls the Statute of Limitations as to MacGrady

Having established that the defendant engaged in the

requisite aiding and abetting, I now turn to whether

there is a genuine issue of material fact about whether

the continuing course of conduct doctrine tolls the statute of limitations as to MacGrady. With respect to the

elements of the continuing course of conduct doctrine;

see Watts v. Chittenden, supra, 301 Conn. 583–85; I

first note that it is undisputed that MacGrady, as the

plaintiff’s attorney, owed him a fiduciary duty of loyalty,

which he breached through his conflict of interest occasioned by his simultaneous representation of the defendant. I part company from the majority, though, with

respect to the related continuing wrongful conduct. In

my view, MacGrady extended that breach by representing to the plaintiff in 1999 that he would be available

in the future to represent him if any problem developed

with the IRS in connection with the tax treatment of

the sale proceeds. In doing so, MacGrady cultivated his

fiduciary relationship with the plaintiff and provided

the assurances necessary to encourage the plaintiff to

move forward with the sale, despite the ongoing concerns of his tax accountant. Thus, MacGrady’s response

to the plaintiff’s call in 2002, after the plaintiff had

received an IRS deficiency notice, in which he referred

the plaintiff to a legal defense group for other lottery

winnings sellers, had the effect of continuing the course

of conduct started in 1999. This is particularly so given

that MacGrady took a referral fee from Eric Granitur,

the attorney coordinating that defense group, thus

allowing MacGrady to profit again from his role in the

scheme that had facilitated the sale of the plaintiff’s

lottery winnings to the defendant. Thus, I would conclude that this action was timely because it was filed

less than three years after MacGrady’s referral of the

case to, and acceptance of a fee from, Granitur in 2002.
Citing legal malpractice case law, however, namely,

Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn. App. 151, 795 A.2d 572 (2002), Lee v.

Brenner, Saltzman & Wallman, LLP, supra, 128 Conn.

App. 250, and Sanborn v. Greenwald, supra, 39 Conn.

App. 289, the defendant contends, and the majority

holds that MacGrady’s breach of his fiduciary duties

concluded in 1999 with the completion of the sale for

which he had been retained, and that the continuing

course of conduct doctrine is inapplicable because the

legal situation was no longer evolving thereafter. In

particular, the defendant quotes Sanborn for the proposition that, ‘‘[t]here is no tolling of statutes of limitations

in either tort or contract actions for the failure of an

attorney to tell a client that a document drafted by the

attorney could be inaccurate because, once the representation of the client is complete and the document

executed, any warning would be ineffective. . . . The

doctrine of continuing course of conduct as used to

toll a statute of limitations is better suited to claims

where the situation keeps evolving after the act complained of is complete, such as medical malpractice,

ratherthan one where the situation cannot change, such

as legal malpractice arising from negligent drafting of

the written word.’’ (Citation omitted.) Sanborn v.

Greenwald, supra, 297–98. Thus, the defendant and the

majority emphasize that, under the retainer agreement,

MacGrady’s representation of the plaintiff ceased in

June, 1999, and argues that MacGrady’s ‘‘brief, fleeting

contact with [the plaintiff] in October, 2002, was not

‘legal or fiduciary representation’ . . . .’’

I disagree with the majority’s application of these

legal malpractice cases in the context ofthis case, which

raises a distinct claim of breach of fiduciary duty of

loyalty rather than a claim that MacGrady’s representation was legal malpractice because it fell below the

applicable standard of care. ‘‘[P]rofessional negligence

alone . . . does not give rise automatically to a claim

for breach of fiduciary duty. . . . [Thus] not every

instance of professional negligence results in a breach

of [a] fiduciary duty. . . . Professional negligence

implicates a duty of care, while breach of a fiduciary

duty implicates a duty of loyalty and honesty.’’ (Internal

quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 196, 896 A.2d 777 (2006); see also

Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56–57, 717 A.2d 724 (1998)

(concluding that legal malpractice committed by law

firm’s junior associate was not breach of fiduciary duty

because ‘‘it cannot be said that [the associate] represented that she had superior knowledge, skill or expertise in the field of franchising, nor that she sought the

plaintiff’s special trust’’); Mangiante v. Niemiec, 82

Conn. App. 277, 284, 843 A.2d 656 (2004) (‘‘[t]he fiduciary duty of loyalty is breached when the fiduciary

engages in self-dealing by using the fiduciary relation-
ship to benefit her personal interest’’). Thus, tolling

analyses predicated on legal malpractice in the performance of discrete tasks should not dictate this court’s

conclusion vis-a-vis breach of fiduciary duty.

Put differently, and setting aside the substantive

merit of MacGrady’s tax advice, his statement in 1999

that he would assist the plaintiff were he to run into

tax trouble with the IRS in the future operated to cultivate the very fiduciary relationship that he ultimately

breached with his conflict of interest; this had the effect

of creating a continuing course of conduct that

extended the statute of limitations in this case. See

Giulietti v. Giulietti, 65 Conn. App. 813, 835–36, 784

A.2d 905 (continuing course of conduct tolled statute

of limitations when defendant attorney prepared deeds

and escrow agreements subject to conditions not specified by his father/client, and parties had continuing relationship wherein attorney continued to serve as general

counsel for his family’s business without taking ‘‘steps

necessary to effectuate his father’s wishes regarding

the property distribution,’’ which was omission that

‘‘related directly back to [the] attorney[’s] . . . earlier

wrongs’’), cert. denied, 258 Conn. 946, 947, 788 A.2d 95,

96, 97 (2001); cf. Targonski v. Clebowicz, 142 Conn.

App. 97, 110–11, 63 A.3d 1001 (2013)(following Sanborn

and concluding that ‘‘even after an attorney’s representation of a client ends, he owes a duty to his client,

which relates 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 the negligence at a time when he has the power to remedy the

problems arising from it,’’ and continuous course of

conduct doctrine tolled statute of limitations when

defendant repeatedly acquired that knowledge and

failed to act during limitations period to correct errors).

The plaintiff returning to MacGrady for assistance in

October, 2002, was, then, a natural consequence of that

1999 statement, coupled with MacGrady’s continuing

failure to disclose his conflict of interest in violation

of rule 1.7 of the Rules of Professional Conduct. See

footnote 9 of this dissenting opinion.

To this end, I disagree with the majority’s reliance

on our recent decision in Watts v. Chittenden, supra,

301 Conn. 575, in support of the proposition that the

continuing course of conduct doctrine is unavailable

because of the more than three year gap between the

closing of the sale in September, 1999, and MacGrady’s

referral of the plaintiff to the tax defense group in October, 2002.8 As the majority accurately observes, in Watts,

this court held that, ‘‘if no conduct has occurred within

the three year limitations period set forth in § 52-577,

the plaintiff will be barred from recovering for the prior

actions of intentional infliction of emotional distress. If,

however, additional actions occur within the limitations

period, the ability to bring an action will be further

extended.’’ Id., 596; see also id., 597–98 (continuing
course of conduct doctrine applied to toll statute of

limitations when defendant made repeated false accusations of sexual abuse against plaintiff, and ‘‘[a]t no time

. . . was there a gap of three years between the reports

of sexual abuse reported by the defendant against

the plaintiff’’).

In my view, applying the continuous course of conduct doctrine to toll the running of § 52-577 in the present case is wholly consistent with Watts, which

involved intentional infliction of emotional distress, a

tort of commission; the acts at issue, multiple false

accusations of child sexual abuse, were discrete and

identifiable.In contrast,this case involves an underlying

tort of omission, namely, the breach of a fiduciary duty

predicated on MacGrady’s continued failure to inform

the plaintiff of the conflict of interest created by his

relationship with the defendant. Indeed, MacGrady’s

failure to satisfy this fiduciary duty, which it is undisputed, survived the termination of the formal attorneyclient relationship with the closing of the lottery sale

in 1999,9 continued throughout the three year statutory

limitations period. Thus, our holding in Watts, which

by its language applies only to the tort of intentional

infliction of emotional distress, is distinguishable from

the present case. See Haas v. Haas, 137 Conn. App.

424, 427, 433–34, 48 A.3d 713 (2012) (continuing course

of conduct tolled § 52-577, despite plaintiff’s failure to

file action for four years after her discovery that defendant, her accountant son, had failed to file her tax

returns, which occurred five years after last failure,

because of trial court’s ‘‘pivotal . . . finding that the

defendant’s duty to the plaintiff was prolonged by the

defendant’s active concealment and withholding of documents and information relating to his initial failure to

file the plaintiff’s taxes’’); cf. Lake Road Trust, Ltd. v.

ABB, Inc., Superior Court, judicial district of Hartford,

Docket No. X04-CV-10-6016502-S (May 17, 2012) (contractor’s failure to disclose conflict of interest or earlier

misrepresentation not continuing conduct that would

toll statute of limitations because absent ‘‘fiduciary obligation’’ or ‘‘a special relationship, the defendant had no

duty to disclose its lack of candor with the plaintiffs’’).

Accordingly, I would reject the defendant’s alternate

ground for affirmance, and conclude that there is a

genuine issue of material fact with respect to whether

the continuing course of conduct doctrine operated to

toll the statute of limitations on the plaintiff’s aiding

and abetting claims.

II

CUTPA CLAIMS

Because I conclude that the continuing course of

conduct doctrine operated to toll the statute of limitations on the plaintiff’s aiding and abetting claims, I

must reach the plaintiff’s claim that the Appellate Court
improperly determined that, under this court’s decision

in Fichera v. Mine Hill Corp., supra, 207 Conn. 216–17,

the continuing course of conduct doctrine is inapplicable, as a matter of law, to the statute of limitations

governing CUTPA claims set forth in § 42-110g (f).10 See

Flannery v. Singer Asset Finance Co., LLC, supra, 128

Conn. App. 514. The plaintiff argues that Fichera simply

concluded that the plaintiff therein had not established

entitlement to the continuing course of conduct doctrine on the facts of that case—’’not that the doctrine

could not be applied to CUTPA under any facts’’—and

that the broader holding in Fichera was that fraudulent

concealment under General Statutes § 52-595 could not

be applied to ‘‘ ‘self-concealing fraud[s]’ ’’ that are

actionable under CUTPA. The defendant does not

defend the Appellate Court’s reading of Fichera at

length, candidly acknowledging that this court ‘‘never

specifically stated [therein] that the continuing course

of conduct doctrine does not toll the CUTPA statute of

limitations,’’ but calls the Appellate Court’s reasoning

‘‘sound, logical and correct’’ and considers the alleged

conduct in this case to be akin to the fraudulent concealment that this court held in Fichera did not toll the

statute of limitations. I agree with the plaintiff, and

conclude thatthe continuing course of conduct doctrine

is available to toll the statute of limitations under

CUTPA, and that the Appellate Court improperly read

Fichera as holding to the contrary.

I begin by noting that the plaintiff’s claim constitutes a

matter of statutory interpretation; see General Statutes

§ 1-2z; in the context of our previous decisions applying

and interpreting § 42-110g (f). See, e.g., New England

Road, Inc. v. Planning & Zoning Commission, 308

Conn. 180, 186, 61 A.3d 505 (2013) (‘‘in interpreting the

language of [General Statutes] § 52-72, we do not write

on a clean slate, but are bound by our previous judicial

interpretations of this language and the purpose of the

statute’’); Hummel v. Marten Transport, Ltd., 282 Conn.

477, 501, 923 A.2d 657 (2007) (‘‘[t]here is nothing in the

legislative history to suggest that the legislature also

intended to overrule every other case in which our

courts, prior to the passage of § 1-2z, had interpreted a

statute in a manner inconsistent with the plain meaning

rule, as that rule is articulated in § 1-2z’’). This is a

question of law over which our review is plenary. See,

e.g., HVT, Inc. v. Law, 300 Conn. 623, 629, 16 A.3d

686 (2011).

I begin with a review of Fichera, wherein this court

concluded that the plaintiffs’ CUTPA claims arising

from the defendants’ failure to construct recreational

facilities promised to purchasers in a residential development were time barred under § 42-110g (f), which is

the three year statute of limitations that governs CUTPA

claims. See Fichera v. Mine Hill Corp., supra, 207 Conn.

205–208. In Fichera, this court first concluded that § 42-

110g (f) is an occurrence statute like § 52-577, and that
‘‘[u]nlike the statutes of limitation of some other states

applicable to unfair trade practices legislation analogous to our CUTPA, which expressly allow a certain

period following the discovery of the deceptive practice

for commencing suit . . . § 42-110g (f) provides only

that an action must be brought within three years ‘after

the occurrence of a violation of this chapter.’ ’’ (Citations omitted.) Id., 212. After determining that, on the

record in that case, the plaintiffs were not entitled to toll

the statute of limitations using the continuing course of

conduct doctrine the courtthen noted thatthe plaintiffs,

in avoidance of the defendants’ statute of limitations

defense, had ‘‘pleaded facts purporting to show that

the defendants had fraudulently concealed from them

the existence of their CUTPA cause of action and thus

invoked the benefit of . . . § 52-595.’’ Id., 213. Noting

that this ‘‘court has not yet decided whether affirmative

acts of concealment are always necessary to satisfy

the requirements of § 52-595’’ the court described the

defendants’ false representations, namely, that they

would complete the recreational facilities despite having no intention of doing so, as a self-concealing fraud.

Id., 215–16. It then decided that it was not necessary

to determine whether self-concealing frauds satisfied

§ 52-595 in other cases, because permitting self-concealing frauds to satisfy § 52-595 in the CUTPA context

‘‘would defeat the legislative intention expressed in

§ 42-110g (f) to bar actions for CUTPA violations after

the lapse of more than three years from their occurrence.’’ Id.

In my view, the Appellate Court simply misread

Fichera as standing forthe proposition that the continuing course of conduct doctrine is unavailable as a matter

of law to toll the statute of limitations as to all CUTPA

claims. There is simply no language to that effect anywhere in Fichera; the continuing course of conduct

doctrine was not an available toll in that particular case

due to pleading and proof deficiencies that were the

subject of extensive record review therein. See id., 212–

13. Indeed, the Superior Court has aptly read § 42-110g

(f) as subject to toll by the continuing course of conduct

doctrine, following our application of that doctrine to

the similarly worded three yearrepose language of General Statutes § 52-584 in a medical malpractice case in

Witt v. St. Vincent’s Medical Center, 252 Conn. 363,

369–70, 746 A.2d 753 (2000). See Assurance Co. of

America v. Yakemore, 50 Conn. Supp. 28, 37–38, 911

A.2d 777 (2005); see also Levinson v. Westport National

Bank, 900 F. Supp. 2d 143, 180 (D. Conn. 2012) (criticizing Appellate Court’s decision in this case and deferring

consideration of defendant’s claim that continuing

course of conduct doctrine does not apply to CUTPA

because ‘‘Fichera appears to hold that such a determination is factual rather than purely legal’’), vacated on

other grounds, Levinson v. Westport National Bank,

United States District Court, Docket No. 3:09CV269
(VLB) (D. Conn. March 28, 2013); Udolf 631, LLC v.

Select Energy Contracting, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09-5032387-S

(January 12, 2012) (relying on Yakemore and criticizing

Appellate Court’s reading of Fichera in present case

as ‘‘overly broad’’ and inconsistent with other cases).

Accordingly, with no statutory language to the contrary,

and no claimed ambiguity that would justify resort to

extratextual sources; see General Statutes § 1-2z; I conclude that the CUTPA statute of limitations, § 42-110g

(f), is subject to toll by a properly pleaded and proven

continuing course of conduct claim.

I would, therefore, reverse the judgment of the Appellate Court and remand the case to that court with direction to reverse the judgment of the trial court and to

remand the case to the trial court with direction to deny

the defendant’s motion for summary judgment.

Accordingly, I respectfully dissent.

1

I agree with part I of the majority opinion, which concludes that the

AppellateCourt and trial court should have reached the merits ofthe plaintiff,

John D. Flanery’s, continuing course of conduct arguments, because the

plaintiff did not waive his right to assert that doctrine in avoidance of the

statute of limitations special defense by failing to plead specific entitlement

to it under Practice Book § 10-57.

2 Like the Appellate Court and the majority, I note that the correct spelling

of the plaintiff’s last name is Flanery. See Flannery v. Singer Asset Finance

Co., LLC, 128 Conn. App. 507, 508 n.1, 17 A.3d 509 (2011). For the purpose

of consistency, however, I too maintain the name Flannery in internal citations in conformity with the pleadings, judgment file and Appellate Court

opinion.

3 As the majority notes, ‘‘Attorney Glenn MacGrady and Pepe & Hazard,

LLP, also were defendants in this case. Partial summary judgment was

rendered in their favor on June 18, 2009, and the plaintiff, thereafter, withdrew all remaining claims against these defendants. Accordingly, MacGrady

and Pepe & Hazard, LLP, are not parties to this appeal.’’ (Internal quotation

marks omitted.) See footnote 3 of the majority opinion. For the sake of

simplicity, I will refer only to Singer Asset Finance Company, LLC, as the

defendant for purposes of this dissenting opinion.

4 General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall

be brought but within three years from the date of the act or omission

complained of.’’

5 General Statutes § 42-110g (f) provides: ‘‘An action under this section

may not be brought more than three years after the occurrence of a violation

of this chapter.’’

6 Rule 1.7 of the Rules of Professional Conduct provides: ‘‘(a) Except as

provided in subsection (b), a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

‘‘(1) the representation of one client will be directly adverse to another

client; or

‘‘(2) there is a significant risk that the representation of one or more

clients will be materially limited by the lawyer’s responsibilities to another

client, a former client or a third person or by a personal interest of the lawyer.

‘‘(b) Notwithstanding the existence of a concurrent conflict of interest

under subsection (a), a lawyer may represent a client if:

‘‘(1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

‘‘(2) the representation is not prohibited by law;

‘‘(3) the representation does not involve the assertion of a claim by one

client against another client represented by the lawyer in the same litigation

or the same proceeding before any tribunal; and

‘‘(4) each affected client gives informed consent, confirmed in writing.’’

7

Irespectfully disagree with the majority’s policy based arguments against

the adoption of this rule, namely: (1) ‘‘it is doubtful that tolling a statute of

limitations against an alleged aider and abettor on the basis of the principal
tortfeasor’s conduct alone is consistent with the policies underlying statutes

of limitations, namely, to prevent the unexpected enforcement of stale claims

and the impairment of proof wrought by lost witnesses and/or evidence’’;

see footnote 23 of the majority opinion; and (2) the ‘‘policy considerations

underlying statutes of limitations clearly are implicated by the substantial

amount of time that has elapsed between the acts complained of and the

filing of this action.’’ In my view, the derivative nature of the aiding and

abetting claim, and rigorous proof necessary to establish the elements both

of that claim; see, e.g., Efthimiou v. Smith, supra, 268 Conn. 505; and the

continuing course of conduct doctrine; see, e.g., Watts v. Chittenden, supra,

301 Conn. 583–85; renders concerns about claim staleness and impairment

of proof overstated in this context. This is particularly so on the facts of

this case, wherein it was wholly foreseeable to all of the parties involved

that the plaintiff’s tax exposure was likely to extend beyond the three year

occurrence period provided by the statutes of limitation, §§ 52-577 and 42-

110g (f).

8 Specifically, the majority posits that, under Watts, the continuing course

of conduct doctrine does not apply in this case because ‘‘MacGrady’s original

wrongdoing ceased in September, 1999, after the plaintiff sold his lottery

winnings to the defendant and MacGrady’s representation of the plaintiff,

and any conflict of interest due to MacGrady’s simultaneous representation

of the defendant, ended. Accordingly, when MacGrady resumed his presumably wrongful course of conduct in October, 2002, more than three years

later, when he advised the plaintiff to join a tax appeal group, the three

year statute of limitations had already run.’’

9 This continuing duty under rule 1.7 of the Rules of Professional Conduct

was acknowledged in a deposition by Stephen Hazard, the managing partner

of Pepe & Hazard, the law firm that had employed MacGrady, and is consistent with the proposition of law that ‘‘attorneys have a continuing confidential relationship of trust and fair dealing which survives the termination of

the attorney-client relationship . . . .’’ Mergler v. Crystal Properties Associates, Ltd., 179 App. Div. 2d 177, 182, 583 N.Y.S.2d 229 (1992).

I recognize that the majority properly does not deem this court bound

by Hazard’s testimony, which it considers a legal opinion. See, e.g., FCM

Group, Inc. v. Miller, 300 Conn. 774, 796, 17 A.3d 40 (2011) (court not bound

by legal opinions of parties, witnesses, or attorney trial referees); Lamont

v. New Hartford, 4 Conn. App. 303, 305, 493 A.2d 298 (1985) (court required

to consider, but ‘‘is not bound by the opinion of expert witnesses’’). Not

one of the parties, however, has provided the court with a citation to any

legal authority or contrary expert testimony that undermines the correctness

of Hazard’s testimony. Thus, I accept it for use in this case to define the

scope of MacGrady’s continuing duty to disclose his conflict of interest.

10 Because of its conclusion that the continuing course of conduct doctrine

does not apply to the facts of this case, the majority appropriately does not

reach this issue.