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JOHN D. FLANNERY v. SINGER ASSET FINANCE

COMPANY, LLC, ET AL.

(SC 18821)

Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, Espinosa and

Lavine, Js.*

Argued January 11, 2013—officially released June 24, 2014

Thomas P. Willcutts, for the appellant (plaintiff).

Eliot B. Gersten, with whom was Richard C. Robinson, for the appellee (named defendant).
Opinion

ROGERS, C. J. This case concerns the availability of

the continuing course of conduct doctrine to toll the

statute of limitations on a claim of aiding and abetting

a principal accused of breach of a fiduciary duty when

the alleged aider and abettor has no special relationship

with the injured party and engages in no subsequent

wrongful behavior related to the original wrong. The

plaintiff, John D. Flanery,1 appeals, upon our grant of

his petition for certification,2

from the judgment of the

Appellate Court affirming the trial court’s rendering of

summary judgment in favor of the defendant Singer

Asset Finance Company, LLC.3 Flannery v. Singer Asset

Finance Co., LLC, 128 Conn. App. 507, 508–509, 17 A.3d

509 (2011). The plaintiff alleged that the defendant had

aided and abetted the plaintiff’s former attorneys in

breaching their fiduciary duties to the plaintiff, and

further, that the defendant’s actions in this regard constituted a violation of the Connecticut Unfair Trade

Practices Act (CUTPA), General Statutes § 42-110a et

seq. In response to the defendant’s invocation of the

applicable three year statutes of limitations,4

the plaintiff argued that, because the aiding and abetting claim

alleged against the defendant was derivative of the

breach of the fiduciary duty claims he had alleged

against the attorneys, the limitations period should be

tolled as to the defendant on the basis of a continuing

course of conduct by the attorneys, even though the

defendant itself owed no fiduciary duty to the plaintiff

and did not engage in any further activities that would

trigger tolling. After concluding for various reasons that

tolling was inapplicable and, therefore, that the plaintiff’s action was time barred, the trial court rendered

summary judgment in favor of the defendant. The

Appellate Court subsequently affirmed that judgment.

On appeal, the plaintiff contends that the Appellate

Court improperly determined that: (1) his causes of

action against the defendant were time barred because

he failed to allege sufficient facts in his pleadings before

the trial court to invoke the continuing course of conduct doctrine; and (2) under Fichera v. Mine Hill Corp.,

207 Conn. 204, 541 A.2d 472 (1988), the continuing

course of conduct doctrine does not apply to toll the

statute of limitations set forth in CUTPA. The defendant

contends otherwise and posits, as an alternative ground

for affirming the judgment of the Appellate Court, that

the undisputed facts in this case preclude the operation

of the continuing course of conduct doctrine as a matter

of law. We agree with the plaintiff that he sufficiently

invoked the continuing course of conduct before the

trial court. We agree with the defendant, however, that

equitable tolling pursuant to that doctrine is not available on the undisputed facts of this case and, accordingly, we affirm the judgment of the Appellate Court.5

For purposes of the summary judgment proceedings
and the subsequent appeal only, the following relevant

facts and procedural history were not disputed by the

parties.6In 1988, the plaintiff won $3 million in the Iowa

state lottery, to be paid in twenty annual installments

of $150,000. The defendant then was engaged in the

business of, inter alia, purchasing the installment payments of lottery winners by providing those winners

with discounted lump sum payments. Prior to March,

1999, the defendant had contacted the plaintiff numerous times in unsuccessful attempts to convince him to

sell his installment payments. At some point before

March 23, 1999, the defendant formed a business relationship with Attorney Glenn MacGrady forthe purpose

of having MacGrady provide what was purported to be

independent professional advice to lottery winners. The

purportedly independent advice, however, was tainted

by a conflict of interest. Specifically, MacGrady was

acting at the behest of the defendant to induce lottery

winners to sell theirinstallment payments to it by falsely

advising them that they could gain significant tax advantages.7 Consistent with this strategy, the defendant

arranged for MacGrady to communicate with the plaintiff, deliver the misleading advice and attempt to induce

him to sell his installment payments to the defendant.8

On March 23, 1999, the plaintiff entered into a retainer

agreement with MacGrady’s law firm, Pepe & Hazard,

LLP (Pepe & Hazard), pursuant to which MacGrady

and Pepe & Hazard agreed to represent the plaintiff

in connection with the sale of his lottery installment

payments. The retainer agreement executed by the

plaintiff provided that the agreed upon scope of representation was limited to the sale transaction, and that

the parties’ attorney-clientrelationship would terminate

upon completion of the services associated with the

transaction and final billing for that work.9

In May,

1999, MacGrady and Pepe & Hazard signed an additional

retainer agreement with the defendant, agreeing to provide it legal services in connection with its lottery purchase endeavors.10 On June 24, 1999, on the advice of

MacGrady, the plaintiff executed a sale agreement

whereby he agreed to sell his eight remaining installment payments, which would have totaled $1.2 million,

to the defendant for a discounted lump sum payment

of $868,500.

Following the June, 1999 lottery sale, the defendant

had no further contact with the plaintiff. It no longer

engaged in the lottery purchase business sometime in

2000 or 2001.11

On September 15, 1999, Pepe & Hazard sent the plaintiff a final bill for the services it had rendered, thereby

terminating the attorney-client relationship. Thereafter,

the plaintiff filed a 1999 tax return listing the full amount

of the lump sum payment as the proceeds of a sale of

a capital asset, paying only the capital gains tax rate

on the amount received. In October, 2002, the Internal
Revenue Service (IRS) notified the plaintiff that it did

not agree with his treatment of the lump sum payment,

and it concluded that the plaintiff owed a tax deficiency

of $163,523.

At that time, the plaintiff contacted MacGrady, who

no longer was employed by Pepe & Hazard. MacGrady

continued to maintain the correctness of the tax advice,

and encouraged the plaintiff to join a group of similarly

situated lottery winners who also were challenging the

IRS’ treatment of their lump sum payments. MacGrady

provided assistance to, and received a referral fee from,

a Florida attorney who ran the tax appeal group. The

plaintiff joined this group, which ultimately was unsuccessful with its appeal.

Throughout the entire time over which the foregoing

events occurred, from 1999 through 2002, MacGrady

never disclosed to the plaintiff his business relationship

with the defendant. Moreover, the defendant did not

disclose to the plaintiff its relationship with MacGrady.

On July 22, 2005, the plaintiff brought the present

action, claiming, in relevant part, that the defendant’s

conduct amounted to (1) aiding and abetting in the

breach of a fiduciary duty12 by MacGrady,13 and (2) a

violation of CUTPA.14 In its answer to the complaint,

the defendant set forth two special defenses, namely,

statutes of limitations and waiver. The plaintiff denied

the special defenses and pleaded, by way of avoidance

as to the statutes of limitations defenses, estoppel and

fraudulent concealment.15 After considerable discovery,

the defendant filed a motion for summary judgment,

which the plaintiff opposed. On June 30, 2009, the trial

court granted the defendant’s motion for summary judgment on the basis that the action was time barred.

Specifically, the trial court reasoned, the breach of

the fiduciary duty alleged consisted of a conflict of

interest, namely, MacGrady’s dual representation of the

plaintiff and the defendant. That dual representation

ceased to exist, however, when Pepe & Hazard sent the

plaintiff its final bill on September 15, 1999, more than

three years prior to the plaintiff filing this action in

2005. According to the trial court, ‘‘[o]nce the [dual]

representation ended any breach of fiduciary duty

ended,’’ and, therefore, the statute of limitations, as

to both MacGrady and the defendant, as an aider and

abettor, began to run on September 15, 1999. The court

reasoned additionally that, although MacGrady, as a

fiduciary, had an obligation to disclose the dual representation to the plaintiff, the defendant, as a mere purchaser of the lottery payments, owed no such duty to

the plaintiff. On the basis of similar reasoning, the trial

court also found the plaintiff’s claim of fraudulent concealment unavailing.

The trial court further found that the continuing

course of conduct doctrine was inapplicable to toll the
running of the statutes of limitations. According to the

court, the plaintiff had failed to plead a continuing

course of conduct in reply to the defendant’s special

defenses, and ‘‘[c]ontinuing course of conduct is a principle that is required to be specially pleaded.’’ Finally,

the court held, the statute of limitations on the plaintiff’s

CUTPA claim was not subject to tolling pursuant to

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

supra, 207 Conn. 204.

The plaintiff appealed from the judgment of the trial

court to the Appellate Court claiming, inter alia, that

the trial court improperly determined that the three

year statutes of limitations for his aiding and abetting

the breach of a fiduciary duty and CUTPA claims; see

footnote 4 of this opinion; were not tolled by the continuing course of conduct doctrine.16 Flannery v. Singer

Asset Finance Co., LLC, supra, 128 Conn. App. 513.

The Appellate Court rejected this claim, relying on its

decision in Beckenstein Enterprises-Prestige Park,

LLC v. Keller, 115 Conn. App. 680, 974 A.2d 764, cert.

denied, 293 Conn. 916, 979 A.2d 488 (2009), and concluding that the trial court had properly determined that

the plaintiff had not invoked this doctrine either in

his complaint or pleading in avoidance as required by

Practice Book § 10-57.17 Flannery v. Singer Asset

Finance Co., LLC, supra, 514–15. The Appellate Court

further agreed with the trial court that, pursuant to

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

the continuing course of conduct doctrine was inapplicable to the plaintiff’s CUTPA claim. Flannery v. Singer

Asset Finance Co., LLC, supra, 514. Accordingly, the

Appellate Court affirmed the judgment of the trial court,

concluding that the trial court properly granted the

defendant’s motion for summary judgment because ‘‘the

applicable statutes of limitations had not been tolled

by the actions of the defendant.’’ Id., 518. This certified

appeal followed. See footnote 2 of this opinion.

On appeal, the plaintiff claims that the Appellate

Court improperly: (1) concluded that the allegations

contained within his pleadings were insufficient to

invoke the continuing course of conduct doctrine; and

(2) relied on Fichera v. Mine Hill Corp., supra, 207

Conn. 216–17, in concluding that the continuing course

of conduct doctrine is inapplicable to the statute of

limitations governing CUTPA claims. In response, the

defendant contends otherwise and posits, as an alternative ground for affirming the judgment of the Appellate

Court, that the undisputed facts of this case preclude

the operation of the continuing course of conduct doctrine as a matter of law. We disagree with the Appellate

Court that the plaintiff did not adequately invoke the

continuing course of conduct doctrine but agree, nevertheless, with the defendant that that doctrine is inapplicable on the undisputed facts of this case. Because the

plaintiff’s tolling claim is entirely nonviable, we need

not address his second claim regarding the applicability
of tolling to save an untimely CUTPA action.

I

We begin with the plaintiff’s claim that the Appellate

Court improperly determined that he had not adequately pleaded the continuing course of conduct doctrine in avoidance of the defendant’s statute of

limitations defense in accordance with Practice Book

§ 10-57. Specifically, the plaintiff contends that his reply

to the defendant’s special defense, coupled with the

allegations set forth in his complaint, adequately

invoked the continuing course of conduct doctrine.

Contending that there is an absence of any ‘‘legal authority to support . . . a pleading requirement that the continuing course of conduct doctrine be specifically

labeled as such,’’ the plaintiff emphasizes that pleadings

should be read ‘‘broadly and realistically, rather than

narrowly and technically’’; (internal quotation marks

omitted) Collins v. Anthem Health Plans, Inc., 266

Conn. 12, 24, 836 A.2d 1124 (2003); and that ‘‘he included

the essential elements of the continuing course of conduct doctrine within his pleading of avoidance of limitations,’’ which should be read in context with the specific

factual allegations in the complaint. The plaintiff further

notes that the continuing course of conduct doctrine

was briefed and argued before the trial court, and was

supported by the parties’ evidentiary submissions in

connection with the defendant’s summary judgment

motion.

In response, the defendant contends that the plaintiff’s invocation of the continuing course of conduct

doctrine was inadequate because his pleadings referenced only ‘‘concealment doctrines,’’ ‘‘[did] not even

use the word ‘continuing’ ’’ and lacked necessary allegations as to either MacGrady or the defendant that would

implicate the doctrine. Citing Beckenstein EnterprisesPrestige Park, LLC v. Keller, supra, 115 Conn. App.

680, the defendant emphasizes that the plaintiff did not

comply with Practice Book § 10-57. See footnote 17 of

this opinion. We agree with the plaintiff and conclude

that, on this record, the Appellate Court should have

reached the merits of the plaintiff’s claims because the

trial court and the defendant were sufficiently apprised

of the continuing course of conduct issue by his pleadings and memoranda of law.

The applicable standard of review is undisputed and

well established. ‘‘The interpretation of pleadings is

always a question of law for the court . . . . Our

review of the trial court’s interpretation of the pleadings

therefore is plenary. . . . Furthermore, we long have

eschewed the notion that pleadings should be read in

a hypertechnical manner. Rather, [t]he modern trend,

which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and

technically. . . . [T]he complaint must be read in its

entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it proceeded, and do substantial justice between the parties.

. . . Our reading of pleadings in a manner that

advances substantial justice means that a pleading must

be construed reasonably, to contain all that it fairly

means, but carries with it the related proposition that

it must not be contorted in such a way so as to strain the

bounds of rational comprehension.’’ (Citation omitted;

internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d

367 (2012). ‘‘[T]he practice of reading pleadings broadly

applies to special defenses as well.’’ Travelers Ins. Co.

v. Namerow, 261 Conn. 784, 796, 807 A.2d 467 (2002).

‘‘As long as the pleadings provide sufficient notice of

the facts claimed and the issues to be tried and do not

surprise or prejudice the opposing party, we will not

conclude that the complaint is insufficient to allow

recovery.’’ (Internal quotation marks omitted.) Id., 795.

Practice Book § 10-57 provides in relevant part that

‘‘[m]atter in avoidance of affirmative allegations in an

answer or counterclaim shall be specially pleaded in

the reply. . . .’’ Under § 10-57, ‘‘the continuing course

of conduct doctrine is a matter that must be pleaded

in avoidance of a statute of limitations special defense.’’

Beckenstein Enterprises-Prestige Park, LLC v. Keller,

supra, 115 Conn. App. 688, citing Bellemare v. Wachovia

Mortgage Corp., 94 Conn. App. 593, 607 n.7, 894 A.2d

335 (2006), aff’d, 284 Conn. 193, 931 A.2d 916 (2007);

accord Beckenstein v. Potter & Carrier, Inc., 191 Conn.

150, 163, 464 A.2d 18 (1983) (‘‘[i]n order to raise a claim

of fraudulent concealment, the party challenging a statute of limitations defense must affirmatively plead it’’).

Thus, in Beckenstein Enterprises-Prestige Park,

LLC, the case on which the Appellate Court relied in

rejecting the plaintiff’s claim in the present case; see

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

Conn. App. 514; the Appellate Court concluded that the

trial court properly declined to charge a jury on the

continuing course of conduct doctrine, noting that ‘‘the

plaintiffs had not pleaded the existence of a continuing

course of conduct in avoidance of the statute of limitations defense’’; Beckenstein Enterprises-Prestige Park,

LLC v. Keller, supra, 115 Conn. App. 688; but rather,

had replied only with a general denial. The Appellate

Court rejected the plaintiffs’ claim that ‘‘they were not

required to plead the continuing course of conduct doctrine in response to the defendants’ special defense

because the factual allegations supporting the application of the doctrine were contained in the complaint.’’ Id.

Beckenstein Enterprises-Prestige Park, LLC, does

not, however, stand forthe proposition that the pleading

requirements are so rigid as to require that potentially

meritorious claims in avoidance of the statute of limitations be categorically barred in all cases because of
pleading lapses. Beyond the trial courts’ discretion to

overlook violations of the rules of practice in the

absence of a timely objection from the opposing party;

see, e.g., Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773

(2003); it may be just to reach the merits of a plaintiff’s

claim to a toll of the statute of limitations, even when

not properly pleaded pursuant to Practice Book § 10-

57, if the issue is otherwise put before the trial court

and no party is prejudiced by the lapse in pleading. For

example, in Bellemare v. Wachovia Mortgage Corp.,

supra, 94 Conn. App. 607, the Appellate Court deemed

it ‘‘just’’ to reach the merits of a plaintiff’s claim that

the statute of limitations was tolled by the continuing

course of conduct doctrine, despite the plaintiff’s failure

to plead the doctrine properly pursuant to Practice

Book § 10-57, when the plaintiff asserted the doctrine’s

applicability ‘‘for the first time in a pleading filed in

opposition to the defendant’s motion for summary judgment,’’ observing that ‘‘however imperfectly, the plaintiff placed the issue before the court . . . .’’ See also

Mollica v. Toohey, 134 Conn. App. 607, 611 n.3, 39 A.3d

1202 (2012) (reviewing plaintiffs’ continuing course of

conduct claim because, although they failed to plead

that issue in avoidance of special defense, defendant

did not object in trial court when plaintiffs raised doctrine in their objection to his summary judgment

motion).

In determining whether a party’s failure to ‘‘specially

plead’’ entitlement to a particular toll of the statute of

limitations pursuant to Practice Book § 10-57 is prejudicial to its adversary, we find instructive case law

applying, in the context of statute of limitations

defenses, Practice Book § 10-3 (a),18 which requires parties to ‘‘specifically [identify] by its number’’ in their

pleadings the statutory provisions that form the bases

for their claims. In that analogous context, our courts

have held the pleading requirement to be ‘‘directory

rather than mandatory. . . . As long as the defendant

is sufficiently apprised of the nature of the action . . .

the failure to comply with the directive of . . . § 10-3

(a) will not bar recovery.’’ (Citations omitted; emphasis

added; internal quotation marks omitted.) Spears v.

Garcia, 66Conn. App. 669, 675–76, 785 A.2d 1181 (2001),

aff’d, 263 Conn. 22, 818 A.2d 37 (2003); see also, e.g.,

Rocco v. Garrison, 268 Conn. 541, 556–57, 848 A.2d 352

(2004) (permitting plaintiff’s resort to improperly cited

accidental failure of suit statute because ‘‘there is no

indication that the defendant was misled by the plaintiffs’ incorrect citation’’). In the statute of limitations

context in particular, the Appellate Court has deemed

nonjurisdictional statute of limitations defenses to be

waived only when the record demonstrates that a party

has been prejudicially confused by its adversary’s failure to comply with the direction of Practice Book § 10-

3 (a). Compare, e.g., Cue Associates, LLC v. Cast Iron
Associates, LLC, 111 Conn. App. 107, 116–17, 958 A.2d

772 (2008) (limitations defense waived where, as to

particular claim, plaintiff unaware that defendant was

asserting it), and Ramondetta v. Amenta, 97 Conn. App.

151, 163–64, 903 A.2d 232 (2006) (defense to counterclaim waived when ‘‘[a]t no point from the filing of the

defendant’s counterclaim to the rendering of judgment

by the court did the plaintiffs identify the applicable

statute on which they relied’’), with Altfeter v. Naugatuck, 53 Conn. App. 791, 802, 732 A.2d 207 (1999) (permitting defendant’s reliance on statute not raised as

special defense or identified in summary judgment

motion, but cited in accompanying memorandum).

Thus, we conclude that the plaintiff’s failure to plead

specifically his entitlement to a particular tolling doctrine pursuant to Practice Book § 10-57, while not a

good practice, does not operate as a bar or waiver

of that doctrine if the record demonstrates that the

defendant, nevertheless, was sufficiently apprised of

the plaintiff’s intention to rely on that doctrine and that

the defendant has not been prejudiced by the plaintiff’s

lapse in pleading.

Having thoroughly reviewed the record in this case,

we conclude that the Appellate Court improperly

upheld the trial court’s determination that the plaintiff

waived his right to assert the continuing course of conduct doctrine in avoidance of the defendant’s statute

of limitations special defense by failing to plead specific

entitlement to that doctrine pursuant to Practice Book

§ 10-57. Although it would have been a far better practice forthe plaintiff to use the words ‘‘continuing course

of conduct’’ in his pleading in avoidance, the record

demonstrates that the defendant was sufficiently

apprised of the plaintiff’s intent to rely on that doctrine

and suffered no prejudice as a result of the plaintiff’s

lapse in pleading.19 Specifically, the plaintiff’s analysis in

his memorandum of law in opposition to the defendant’s

summary judgment motion sufficiently evokes the continuing course of conduct doctrine by arguing that, ‘‘[i]n

aiding and abetting MacGrady in the breach of his fiduciary duties, [the defendant’s] liability is also vicarious,

derivative and coextensive with that of MacGrady . . .

including with respect to applying the statute of limitations. In each case, the nature of the fiduciary misconduct gives rise to a tolling of limitations by application

of the continuous course of conduct doctrine.’’ After

discussing the various factual allegations in the case in

detail, the plaintiff then emphasized the ‘‘vicarious and

derivative’’ nature of the aiding and abetting cause of

action, thus contending that ‘‘limitations is tolled as to

[the defendant] for the same reasons as it is tolled for

[MacGrady and Pepe & Hazard].’’20

The defendant’s reply memorandum of law in support

of its motion for summary judgment contains a lengthy

responsive discussion of the continuing course of conduct doctrine and its inapplicability to this case. More-
over, the applicability of the continuing course of

conduct doctrine was argued in detail orally twice

before the trial court—once in connection with the

summary judgment motion filed by the MacGrady and

Pepe & Hazard; see footnote 3 of this opinion; and

several weeks later in connection with the defendant’s

motion, focusing in particular on whether MacGrady’s

action of referring the plaintiff to the tax appeal group

for people with similartax issues continued his previous

course of conduct. The record indicates, therefore, that

the defendant was not prejudiced by the plaintiff’s

apparent lapse in pleading, notwithstanding its objection before the trial court, which was renewed in the

Appellate Court.21 Thus, we conclude that both the

Appellate Court and the trial court should have reached

the merits of the plaintiff’s continuing course of conduct

claims in avoidance of the defendant’s statute of limitations defenses.

II

We turn to the defendant’s alternative ground for

affirmance, namely, that the admitted or undisputed

facts of this case preclude the application of the continuing course of conduct doctrine to toll the governing

three year statutes of limitations as a matter of law.

The defendant claims that the continuing course of

conduct doctrine is inapplicable because, indisputably,

it had no special relationship with the plaintiff and,

therefore, had no duty to disclose anything to the plaintiff, and it did not engage in any additional wrongdoing

toward, or have any further contact with, the plaintiff

following the close of the lottery transaction in 1999.

Moreover, according to the defendant, the fiduciary

status and/or conduct of MacGrady should not, as a

matter of law, be attributed to the defendant, an alleged

aider and abettor, for purposes of applying the continuing course of conduct doctrine. Finally, the defendant

contends, even if a principal actor’s status and conduct

properly are attributed to an aider and abettor for purposes of tolling a statute of limitations, there is no

genuine issue of material fact regarding whether MacGrady, in the three years following the close of the

lottery transaction, breached any continuing duty to the

plaintiff by engaging in subsequent wrongful conduct

related to his earlier wrongful acts. Specifically, the

defendant argues, MacGrady’s October, 2002 act of

referring the plaintiff to the tax appeal group occurred

after the three year statutes of limitations already had

expired,22 and furthermore, because the attorney-client

relationship between MacGrady and the plaintiff ceased

to exist in September, 1999, once the lottery transaction

was complete, the statutes were not tolled in the years

subsequent to that transaction by MacGrady’s continuing failure to disclose his prior conflict of interest.

The plaintiff disagrees with the defendant, arguing

that MacGrady’s fiduciary status and conduct properly
are attributable to the defendant for tolling purposes,

and that MacGrady engaged in a continuing course of

conduct by committing a fraud in connection with the

lottery transaction, by promising, contemporaneously

with that transaction, to represent the plaintiff anew if

he had trouble with the IRS, by continually failing to

disclose his conflict of interest subsequent to the close

of the transaction, and by referring the plaintiff to the

tax appeal group in October, 2002. According to the

plaintiff, despite the lack of an ongoing fiduciary relationship, MacGrady’s duty to disclose the conflict of

interest to the plaintiff continued indefinitely, until such

disclosure was made, and, therefore, his ongoing failure

to disclose constituted a continuing breach of that duty

that tolled the statutes of limitations. Moreover, the

plaintiff contends, the October, 2002 referral was a further extension of the breach.

Even if we were to assume, without deciding, that

the status and/or subsequent wrongful conduct of a

principal tortfeasor should be attributed to an alleged

aider and abettor for purposes of tolling a statute of

limitations, we agree with the defendant that that

assumption could not aid the plaintiff on the undisputed

facts of this case.23 Specifically, MacGrady’s initial

breach of his fiduciary duty, which was based on a

conflict of interest, concluded at the latest in September, 1999, after the lottery transaction closed and he

ceased to represent the plaintiff, and his subsequent

act of referring the plaintiff to the tax appeal group

occurred in October, 2002. The subsequent act, therefore, occurred after the three year statutes of limitations

already had expired, and it was of no consequence for

tolling purposes. Additionally, because the attorneyclient relationship between MacGrady and the plaintiff

clearly ended in September, 1999, MacGrady no longer

had a duty, in the years that followed, to disclose his

prior conflict of interest that no longer existed. Thus,

his ongoing nondisclosure was not a continuing breach

of such a duty that could toll the statute of limitations

indefinitely. For these reasons, we conclude that the

trial court properly held that the plaintiff’s action

against the defendant is time barred.

We begin with the standard of review. ‘‘The standards

governing [an appellate tribunal’s] review of a trial

court’s decision to grant a motion for summary judgment are well established. 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 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. . . . A

material fact . . . [is] a fact which will make a difference in the result of the case. . . . Finally, the scope

of our review of the trial court’s decision to grant the

[defendant’s] motion for summary judgment is plenary.

. . . Summary judgment may be granted where the

claim[s] [are] barred by the statute of limitations. . . .

Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the

statute of limitations [are] not in dispute . . . .’’ (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304,

312–13, 77 A.3d 726 (2013).

‘‘[I]n 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. See, e.g., Zielinski v. Kotsoris, 279 Conn. 312, 330,

901 A.2d 1207 (2006) (no genuine issue of material fact

as to whether statute of limitations was tolled under

continuing course of treatment or continuing course of

conduct doctrine); Witt v. St. Vincent’s Medical Center,

252 Conn. 363, 369–70, 746 A.2d 753 (2000) (genuine

issue of material fact as to whether continuous course

of conduct doctrine tolled statute of limitations in medical malpractice claim) . . . .’’ (Citations omitted.)

Romprey v. Safeco Ins. Co. of America, supra, 310

Conn. 321–22.24

The statutes of limitations applicable in the present

case are occurrence statutes. See footnote 4 of this

opinion. With such statutes, the limitations period typically begins to run as of the date the complained of

conduct occurs, and not the date when the plaintiff first

discovers his injury. Watts v. Chittenden, 301 Conn.

575, 583, 22 A.3d 1214 (2011). In certain circumstances,

however, we have recognized the applicability of the

continuing course of conduct doctrine to toll a statute

of limitations. Tolling does not enlarge the period in

which to sue that is imposed by a statute of limitations,

but it operates to suspend or interrupt its running while

certain activity takes place. Romprey v. Safeco Ins.

Co. of America, supra, 310 Conn. 330 (McDonald, J.,

dissenting). Consistent with that notion, ‘‘[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.’’ Handler v. Remington

Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957).
The test for determining whether the continuing

course of conduct doctrine should apply has developed

primarily in negligence cases. ‘‘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 negligence 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. . . .

‘‘Therefore, 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.) Watts v. Chittenden, supra, 301 Conn. 583–85. Such later ‘‘wrongful

conduct may include acts of omission as well as affirmative acts of misconduct . . . .’’ Blanchette v. Barrett,

229 Conn. 256, 264, 640 A.2d 74 (1994).

In sum, ‘‘[i]n deciding whetherthe trial court properly

granted the defendant’s motion for summary judgment,

we must determine if there is a genuine issue of material

fact with respect to whether the defendant: (1) committed an initial wrong upon the plaintiff;(2) owed a continuing duty to the plaintiff that was related to the alleged

original wrong; and (3) continually breached that duty.’’

Witt v. St. Vincent’s Medical Center, supra, 252

Conn. 370.

It is clear that in the present matter, the foregoing

test cannot be satisfied by looking to the actions of

the defendant. The plaintiff claimed that the defendant
aided and abetted MacGrady in committing an initial

wrong, namely, MacGrady’s breach of his fiduciary duty

contemporaneous with the sale of the plaintiff’s lottery

winnings in mid-1999. The plaintiff, however, has not

alleged or pointed to any evidence of any duty owed

by, or further misconduct on the part of, the defendant

following that sale. In regard to the lottery transaction,

the defendant and the plaintiff stood in relation of buyer

and seller and, as such,there was no specialrelationship

between them that imposed upon the defendant a duty

to disclose to the plaintiff any deception attendant to

the transaction. See Fichera v. Mine Hill Corp., supra,

207 Conn. 210. Moreover, there is no evidence that

suggests that the defendant had any further contact

with the plaintiff following that transaction, let alone

that it engaged in any additional related wrongdoing

toward the plaintiff.

The plaintiff argues, however, that because the defendant aided and abetted MacGrady’s commission of an

initial wrong upon him, and because thereafter, MacGrady continually breached a related continuing duty,

the statutes of limitations are tolled as to both his claims

against MacGrady and his claims against the defendant. Even if we were to assume that the plaintiff’s view

of the law is correct, we disagree that tolling applies to

save the claims alleged against the defendant in this

case, because the undisputed facts show no continuing

course of conduct by either the defendant or MacGrady.

There is no dispute that in mid-1999, MacGrady committed an initial wrong upon the plaintiff. By representing the plaintiff in connection with the sale of his lottery

winnings to the defendant, while simultaneously

engaged professionally with the defendant and failing

to disclose that circumstance to the plaintiff, MacGrady

acted pursuant to an obvious conflict of interest25 and,

consequently, breached the fiduciary duty he owed to

the plaintiff which arose from the attorney-client relationship. Nevertheless, subsequent to that initial

breach, MacGrady no longer owed a continuing duty

to the plaintiff that he continued to breach, either by

committing later misconduct that was related to his

initial wrongful act or because there was an ongoing

special relationship between him and the plaintiff.

As we have explained, the lottery transaction closed

in June, 1999, and, by the clear terms of the retainer

agreement, MacGrady ceased to represent the plaintiff

entirely in September, 1999. See footnote 9 of this opinion.As evidence of later wrongful misconduct,the plaintiff cites MacGrady’s act, in October, 2002, of referring

the plaintiff to the tax appeal group. We disagree that

that act, even if wrongful,26 could toll or, more accurately, revive, the three year statutes of limitations

because by that time, those statutes already had run.

In Watts v. Chittenden, supra, 301 Conn. 595–98, a

case in which we determined that the continuing course
of conduct doctrine was available to toll the statute

of limitations for a claim of intentional infliction of

emotional distress, we emphasized that portions of such

claims would be disallowed, as with any continuing

tort, when the instances of wrongdoing comprising the

course of conduct are separated by a gap that exceeds

the length of the applicable statute of limitations. In

such cases, although the course of conduct postdating

such a gap may remain actionable (so long as the action

is timely commenced from the last instance of misconduct), recovery is barred for the instances of misconduct predating the gap. See also id., 612 (McLachlan,

J., dissenting) (‘‘[o]ther jurisdictions have recognized

that a course of conduct ceases when followed by a

significant gap before the misconduct resumes’’); id.,

613 (McLachlan, J., dissenting) (‘‘[o]rdinarily, when a

course of conduct ceases and is followed by a gap, the

statute of limitations is tolled if the tortfeasor engages

in the [subsequent] misconduct before the limitations

period has run’’ [emphasis added]). In other words, in

a tort action, following an initial wrong, the subsequent

activity triggering tolling ‘‘itself must occur before the

three-year statute of limitations has run, to effectively

toll it.’’ Greene v. Morgan, Theeler, Cogley & Petersen,

575 N.W.2d 457, 460 (S.D. 1998).

In the present matter, 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 statutes of limitations already had run. Because

the gap between instances of alleged wrongful conduct

exceeds the length of the three year statutes of limitations for breach of a fiduciary duty and CUTPA claims,

no tolling is available under the rule stated in Watts v.

Chittenden, supra, 301 Conn. 583–85. Accordingly, the

plaintiff’s 2005 breach of a fiduciary duty claim against

MacGrady based on his conduct in 1999 was untimely.

By extension, the plaintiff’s aiding and abetting claim

against the defendant, as to its actions in 1999, also is

untimely, even if the plaintiff is correct that MacGrady’s

conduct properly is imputed to the defendant for tolling purposes.

The plaintiff attempts to bridge this fatal gap between

instances of wrongful activity by citing the special relationship between himself and MacGrady, which, in the

plaintiff’s view, gave rise to MacGrady’s ongoing duty to

disclose to the plaintiff his dealings with the defendant.

According to the plaintiff, MacGrady’s duty to disclose

those dealings continued indefinitely, until it was satisfied, and as long as that duty remained unsatisfied,

MacGrady was in breach of it such that the statutes of
limitations were tolled. We are not persuaded.27

As to the existence of a special relationship, there is

no question that MacGrady, during the period of time

he acted as the plaintiff’s attorney, had fiduciary responsibilities and an associated duty of loyalty toward the

plaintiff; see Beverly Hills Concepts, Inc. v. Schatz &

Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56, 717 A.2d

724 (1998) (‘‘an attorney-client relationship imposes a

fiduciary duty on the attorney’’); Matza v. Matza, 226

Conn. 166, 184, 627 A.2d 414 (1993) (‘‘[t]he relationship

between an attorney and his client is highly fiduciary

in its nature and of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and

good faith’’ [internal quotation marks omitted]); and

that MacGrady should not have represented the plaintiff

without disclosing his concurrent relationship with the

defendant. See Rules of Professional Conduct 1.7; see

also footnote 25 of this opinion. Pursuant to the clear

terms of the retainer agreement governing the relationship, however, MacGrady’s brief representation of the

plaintiff was of very limited scope, and it quickly came

to a close when the lottery transaction was completed

and the plaintiff received his final bill for services rendered, in September, 1999. See footnote 9 of this opinion; see also DeLeo v. Nusbaum, 263 Conn. 588, 597, 821

A.2d 744 (2003) (‘‘formal termination of the [attorneyclient] relationship occurs when . . . the matter for

which the attorney was hired comes to a conclusion’’).

Once that representation ceased, any remaining duties

MacGrady owed to the plaintiff as a former client were

limited and did not include, as the plaintiff contends,

an indefinite duty to inform him of the prior conflict

of interest that no longer existed.28

Consistent with the foregoing, Connecticut’s appellate jurisprudence addressing the continuing course of

conduct doctrine in the attorney-client context largely

has held it to be inapplicable when the legal representation at issue has come to a close and there is no further

contact between the parties. These cases generally

reject the notion that the attorney has a continuing duty

to the client to correct or report an earlier wrong that,

if left unsatisfied, would toll the statute of limitations.29

They recognize that imposing a continuing duty in such

circumstances is futile because, once representation

ceases, the initial wrong typically is complete, and in

the usual situation, it no longer can be undone by the

attorney. See, e.g., Robbins v. McGuiness, 178 Conn.

258, 261–62, 423 A.2d 897 (1979) (no continuing duty

to warn former client about results of title search performed in connection with completed land transaction);

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

App. 250, 251, 258–59, 15 A.3d 1215 (no continuing duty

to warn plaintiff of alleged breach of fiduciary duty

in connection with concluded representation, which

involved drafting of corporation’s employment and

stockholder agreements), cert. denied, 301 Conn. 926,
22 A.3d 1277 (2011); Sanborn v. Greenwald, 39 Conn.

App. 289, 297, 664 A.2d 803, cert. denied, 235 Conn. 925,

666 A.2d 1186 (1995)(no continuing duty to warn former

client of consequences of negligently drafted stipulation); but see Targonski v. Clebowicz, 142 Conn. App.

97, 110–11, 63 A.3d 1001 (2013) (defendant attorney had

ongoing duty to notify former clients of his failure to

secure right-of-way in connection with land purchase,

where, subsequent to closing, sellers’ attorney repeatedly contacted defendant offering to execute easement agreement).30

In the present case, as in Robbins, Sanborn, and Lee,

the attorney, MacGrady, represented the plaintiff client

for a discrete matter only, after which the attorneyclient relationship clearly was terminated. After the

attorney-client relationship between the plaintiff and

MacGrady came to a close, any conflict of interest

ceased to exist and, moreover, no further dealings

between the plaintiff and MacGrady were contemplated. Once the plaintiff sold his lottery winnings to

the defendant, the transaction that was the subject of

the representation was complete, and it could be neither

undone nor recompleted with MacGrady’s conflict of

interest properly disclosed and waived. See Rules of

Professional Conduct 1.7; see also footnote 25 of this

opinion. Accordingly, nothing would change were MacGrady to disclose to the plaintiff, retroactively, the preexisting conflict. We conclude, therefore, that under

the circumstances of this case, MacGrady did not have

a continuing duty to disclose his prior conflict of interest that he continually breached by failing to disclose

it.31

‘‘The gravamen of the continuing course of conduct

doctrine is that a duty continues afterthe original wrong

is committed.’’ Golden v. Johnson Memorial Hospital,

Inc., 66 Conn. App. 518, 525, 785 A.2d 234, cert. denied,

259 Conn. 902, 789 A.2d 990 (2001). ‘‘[I]n the absence

of a continuing special relationship, there must be a

subsequent wrongful act that is related to the prior

negligence.’’ (Internal quotation marks omitted.) Witt

v. St. Vincent’s Medical Center, supra, 252 Conn. 371.

In the present matter, in which no continuing special

relationship exists, the plaintiff essentially requests that

the three year statutes of limitations be tolled, indefinitely, on the basis of his former attorney’s ongoing

failure to confess his earlier tortious act. To accept

this argument, however, would render the three year

statutes of limitations meaningless. Cf. Fitzgerald v.

Seamans, 553 F.2d 220, 230 (D.C. Cir. 1977) (explaining,

in rejecting plaintiff’s claim that statute of limitations

was tolled in wrongful retaliatory discharge action on

ground of continuing conspiracy to deny him rightful

employment, when plaintiff did not specify any retaliatory actions taken by defendants within limitations

period, that ‘‘the mere failure to right a wrong and

make [the] plaintiff whole cannot be a continuing wrong
which tolls the statute of limitations, for that is the

purpose of any lawsuit and the exception would obliterate the rule’’).32

For the foregoing reasons, we conclude that the

undisputed evidence does not show a continuing course

of conduct on the part of MacGrady subsequent to the

lottery transaction in 1999. Accordingly, even if MacGrady’s continuing course of conduct properly is attributable to the defendant for tolling purposes, the plaintiff’s

claims against the defendant remain untimely.

‘‘The purposes of statutes of limitation include finality, repose and avoidance of stale claims and stale evidence.’’ Connecticut Bank & Trust Co. v. Winters, 225

Conn. 146, 157 n.20, 622 A.2d 536 (1993). These statutes

‘‘represent a legislative judgment about the balance of

equities in a situation involving the tardy assertion of

otherwise valid rights: [t]he theory is that even if one

has a just claim it is unjust not to put the adversary on

notice to defend within the period of limitation and that

the right to be free of stale claims in time comes to

prevail over the right to prosecute them.’’ (Internal quotation marks omitted.) State v. Skakel, 276 Conn. 633,

682, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.

Ct. 578, 166 L. Ed. 2d 428 (2006).

Although the conduct alleged by the plaintiff in his

complaint undeniably is reprehensible, 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. Although this alone would not bar the

plaintiff’s claims were the statutes of limitations amenable to tolling under the continuous course of conduct

doctrine, for the reasons we have explained herein, on

the undisputed facts of this case, they are not.

The judgment of the Appellate Court is affirmed.

In this opinion PALMER, ZARELLA and LAVINE,

Js., concurred.

* This case originally was argued before a panel of this court consisting

of Chief Justice Rogers and Justices Norcott, Palmer, Zarella and Eveleigh.

Thereafter, the court, pursuant to Practice Book § 70-7 (b), sua sponte,

ordered that the case be considered en banc. Accordingly, Judges Espinosa

and Lavine were added to the panel, and they have read the record and

briefs and listened to a recording of the oral argument prior to participating

in this decision.

The listing of justices reflects their seniority status on this court as of

the date of oral argument.

1 Like the AppellateCourt, we note thatthe correct spelling of the plaintiff’s

last name is Flanery. 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, we maintain the name Flannery in both the caption of this case

and internal citations in conformity with the pleadings, judgment file and

Appellate Court opinion.

2 We granted the plaintiff’s petition for certification limited to the following

issues: ‘‘1. Did the Appellate Court properly determine, in a case alleging

that the defendant [Singer Asset Finance Company, LLC] aided and abetted

[Attorney Glenn MacGrady and Pepe & Hazard, LLP] in a breach of their

fiduciary duty, that the allegations contained in both the plaintiff’s complaint

and in avoidance of a statute of limitations defense were insufficient to

invoke the continuous course of conduct doctrine as a means of tolling the
statute of limitations?

‘‘2. Did the Appellate Court properly determine that the three year statute

of limitations period for actions brought under the Connecticut Unfair Trade

Practices Act, General Statutes § 42-110a et seq., cannot be tolled?’’ Flannery

v. Singer Asset Finance Co., LLC, 302 Conn. 902, 902–903, 23 A.3d 1242

(2011).

3

‘‘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. We will refer only to Singer Asset Finance

Company, LLC, as the defendant for purposes of this opinion.’’ Flannery

v. Singer Asset Finance Co., LLC, 128 Conn. App. 507, 509 n.2, 17 A.3d

509 (2011).

4 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,’’ and is applicable to claims of breach of a fiduciary duty.

Ahern v. Kappalumakkel, 97 Conn. App. 189, 192 n.3, 903 A.2d 266 (2006).

General Statutes § 42-110g (f), which governs CUTPA claims, provides:

‘‘An action under this section may not be brought more than three years

after the occurrence of a violation of this chapter.’’

5 Because we conclude that the undisputed facts preclude tolling as to

both of the plaintiff’s claims, we need not decide whether Fichera v. Mine

Hill Corp., supra, 207 Conn. 204, also precludes tolling of the CUTPA claim.

6 The recited facts largely reflect the allegations ofthe plaintiff’s complaint.

The defendant denied all of the plaintiff’s allegations of its wrongdoing, but

its summary judgment motion assumed, for argument’s sake, that those

allegations were true.

7

In 1998, the defendant’s general counsel had provided MacGrady with

a confidential legal memorandum on the capital gains treatment of lottery

winnings that the accounting firm of Deloitte & Touche, LLP, had authored

for the defendant. Moreover, the defendant’s telephone records from early

1999 disclose that it communicated with MacGrady regarding a potential

transaction with the plaintiff.

8

‘‘The plaintiff points out: ‘It is worth repeating in this public document

that the evidence supports the conclusion that the law firm of Pepe & Hazard,

[LLP] at the time inexperienced in the tax matters, was not specifically aware

of what [A]ttorney MacGrady was up to with [the defendant]. That when

[Pepe & Hazard, LLP] became aware of what its employee was doing with

[the defendant] that it put a stop to it and soon after discharged MacGrady.’ ’’

Flannery v. Singer Asset Finance Co., LLC, supra, 128 Conn. App. 510 n.3.

9 The retainer agreement was comprised of a March 25, 1999 letter from

MacGrady to the plaintiff and an appended document outlining Pepe &

Hazard’s standard terms of engagement. The letter provided in relevant part:

‘‘The purpose of this letter is to outline the scope of the legal engagement,

to disclose to you our relationship with lottery purchase companies, and

to state our fees. The scope of the legal engagement is to represent you in

negotiating a lottery sale contract, to help you evaluate the tax and other

legal consequences of such a transaction, and to draft or review all the

legal and court documents needed to execute such a transaction.

‘‘Pepe & Hazard does not represent any lottery purchase company or

broker. Our only involvement with such organizations is that I have represented several other lottery winners in complex negotiations with them. In

that process, I have become very familiar with lottery purchase procedures

and contracts. I believe my name was suggested to you solely because

certain lottery purchase companies respect my professional ability as well

as my contract and tax knowledge. Our firm has no other relationship with

them. If you retain us, my firm will aggressively represent you to the best

of our abilities. . . .

‘‘A detailed description of our firm policies is contained in the enclosed

Standard Terms of Engagement for Legal Services. . . .

‘‘To confirm this engagement, please sign below on the enclosed copy of

this letter to indicate your understanding of and agreement to the terms.’’

(Emphasis added.) The plaintiff signed the letter agreement on March 26,

1999.

The appended document, entitled ‘‘Standard Terms of Engagement for

Legal Services,’’ stated in its introductory paragraph that the document

‘‘contains the standard terms of our engagement as your lawyers. Unless

modified in writing by mutual agreement, these terms will be an integral

part of our agreement with you.’’ Under the heading of ‘‘Scope of Pepe &
Hazard’s Representation,’’ the document provided further that ‘‘[t]he scope

of legal services we will provide is described in the accompanying engagement letter,’’ and that ‘‘[i]t is also our policy that the attorney-client relationship will be considered terminated upon our completion of any services

that you have retained us to perform. If you later retain us to perform

additional services, our attorney-client relationship will be revived subject

to these terms of engagement, as they may be supplemented at that time.’’

(Emphasis added.) Finally, under the heading ‘‘Ending Your Relationship

with Us,’’ the document provided that ‘‘[u]nless previously terminated, our

representation of you with respect to the agreed upon scope of representation will terminate upon sending you our final statement for services

rendered,’’ and that ‘‘[y]ou are engaging us to provide legal services in

connection with an agreed upon scope of representation. After completion

of the representation, changes may occur in the applicable laws or regulations that could have an impact upon yourfuture rights and liabilities. Unless

you actually engage us after the closing to provide additional advice on

issues arising from this representation, we have no continuing obligation

to advise you with respect to future legal developments.’’ (Emphasis added.)

10 Specifically, MacGrady agreed that he would, when requested by the

defendant, ‘‘communicate [his] current independent legal opinion on the

taxation of lottery assignments to persons and audiences selected by’’ the

defendant, including lottery winners and their professional advisers. He

further agreed to write a scholarly article setting forth his current legal

opinion on the taxation oflottery assignments. The retainer agreement stated

that MacGrady’s opinion would be ‘‘balanced, neutral and unbiased,’’ and

would neither favor nor disfavor the defendant’s economic interests. At the

same time, however, the agreement provided that the defendant would

compensate MacGrady at his hourly rate for the services performed and,

in its discretion, would pay a ‘‘performance bonus for any lottery assignment

transaction closed by [the defendant] in which the services provided hereunder by [Pepe & Hazard] is a significant contributing factor.’’

11 Billing records produced by Pepe & Hazard indicate that MacGrady

continued to provide professional services to the defendant, unrelated to

the lottery sale to the plaintiff, until September, 2000.

12 The Appellate Court assumed, without deciding, ‘‘that Connecticut recognizes an action for aiding and abetting in the breach of a fiduciary duty. See

Efthimiou v. Smith, 268 Conn. 499, 504–507, 846 A.2d 222 (2004) (discussing

claim of aiding and abetting in breach of fiduciary duty).’’ Flannery v. Singer

Asset Finance Co., LLC, supra, 128 Conn. App. 511 n.4. In Efthimiou,

although recognition of such a cause of action was unnecessary for the

disposition of the appeal, this court quoted Halberstam v. Welch, 705 F.2d

472, 477 (D.C. Cir. 1983), for the proposition that, ‘‘[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.) Efthimiou v. Smith, supra, 505. Similar to Efthimiou, the

present case does not require us to decide whether aiding and abetting a

breach of a fiduciary duty is a viable cause of action in Connecticut, and

we decline to do so in dicta.

13 Specifically, the plaintiff alleged that MacGrady breached his fiduciary

duty by giving the plaintiff erroneous tax advice, advising him to sell his

lottery installment payments to the defendant, encouraging him to join the

tax appeal group, and continually failing to disclose his business relationship

with the defendant.

14 The plaintiff also raised several claims against MacGrady and Pepe &

Hazard, including, as to each, breach of a fiduciary duty and a CUTPA

violation. Those claims are not at issue in this appeal. See footnote 3 of

this opinion.

15 Specifically, the plaintiff’s pleading in avoidance provided: ‘‘The defendant aided and abetted a fiduciary in concealing from the plaintiff and/or

failing to make proper disclosures to the plaintiff of the wrongdoing set

forth in the plaintiff’s complaint that gives rise to the plaintiff’s causes of

action and as a result is barred and estopped from asserting statute of

limitations defenses. The defendant fraudulently concealed from the plaintiff

its wrongdoing set forth in the plaintiff’s complaint that gives rise to the

plaintiff’s causes of action in violation of [General Statutes] § 52-595 and as

a result is barred from asserting statute of limitations defenses.’’

16 On appeal to the Appellate Court, the plaintiff also pursued his claim
of fraudulent concealment. Flannery v. Singer Asset Finance Co., LLC,

supra, 128 Conn. App. 515. The Appellate Court rejected this claim; id.,

515–17; and the plaintiff did not seek certification to appeal with respect

to it. Accordingly, we need not discuss the claim further.

17 Practice Book § 10-57 provides: ‘‘Matter in avoidance of affirmative

allegations in an answer or counterclaim shall be specially pleaded in the

reply. Such a reply may contain two or more distinct avoidances of the

same defense or counterclaim, but they must be separately stated.’’

18 Practice Book § 10-3 (a) provides: ‘‘When any claim made in a complaint,

cross complaint, special defense, or other pleading is grounded on a statute,

the statute shall be specifically identified by its number.’’

19 In regard to this pleading issue, the plaintiff contends that the allegations

set forth in his complaint are factually sufficient to support the invocation

of the continuing course of conduct doctrine as articulated in, for example,

Watts v. Chittenden, 301 Conn. 575, 585, 22 A.3d 1214 (2011). The defendant

argues to the contrary, positing that the absence of certain allegations in

the complaint, such as the existence of a ‘‘special relationship’’ between it

and the plaintiff or any conduct between them after the closing of the sale,

indicates that it could not have been expected to anticipate as a pleading

matter the plaintiff’s reliance on the continuing course of conduct doctrine,

which also fails on its merits. We decline to intertwine our consideration

of the merits of the plaintiff’s continuing course of conduct claims with a

determination of whether those claims are properly before the court. Put

differently, that the factual allegations in the complaint conceivably could

support application of this legal doctrine is not, by itself, sufficient to comply

with the rules of practice, which are intended to avoid unfair surprise to

the opposing parties and the court. Rather, what renders the merits of the

plaintiff’s claims reviewable at trial and on appeal is the fact that this record

reveals that the plaintiff’s pleading deficiencies plainly did not prejudice the

defendant’s statute of limitations defense.

20 In contrast, we note, however, that the plaintiff’s memoranda of law in

opposition to Pepe & Hazard and MacGrady’s motions for summary judgment

discussed the continuing course of conduct doctrine in detail.

21 Indeed, the record demonstrates that neither the plaintiff nor the defendant scrupulously adhered to the rules of practice by clearly indicating

which statutes of limitation and doctrines in avoidance applied in this case.

As the plaintiff noted before the trial court, however, he did not claim

prejudice as a result of the defendant’s failure to follow Practice Book § 10-

3 (a) and to cite the applicable statute of limitations in its broadly worded

special defense.

22 On October 27, 2013, following oral argument in this court, we ordered

the parties to submit supplemental briefs addressing the following question:

‘‘Was the plaintiff’s underlying claim against . . . MacGrady and [Pepe &

Hazard] time barred because more than three years had elapsed between

the time of the claimed breach of the fiduciary duty in 1999 and MacGrady’s

subsequent referral of the plaintiff to the tax [appeal] group in October,

2002?’’ The rules for reviewing unpreserved claims of error articulated in

Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut,

Inc., 311 Conn. 123, 144–64, 84 A.3d 840 (2014), are not implicated because

the issue on which briefing was ordered is but a facet of the preserved issue

that the parties have raised and briefed, namely, whether the continuing

course of conduct applies to render the plaintiff’s action timely. Moreover,

the supplemental briefing order predated the decision in Blumberg Associates Worldwide, Inc., by several months.

23 Even if the plaintiff’s claim were not foreclosed by factual deficiencies,

he has provided no legal authority, and little argument, in support of the

questionable notion that a principal tortfeasor’s conduct should be attributed

to an alleged aider and abettor for purposes of tolling a statute of limitations,

and the scant jurisprudence of which we are aware, which speaks only

indirectly to the issue, does not favor the plaintiff’s position. We agree with

the plaintiff that, because ‘‘the limitations period on a cause of action for

aiding and abetting a tort is the same as [that for] the underlying tort’’;

Wizard Gaming, Inc. v. Joshi, Docket No. B248174, 2014 WL 1047379, *5

(Cal. App. March 19, 2014); a claim of aiding and abetting the breach of a

fiduciary duty is subject to the same statute of limitations as the claim of

breach of a fiduciary duty against the principal tortfeasor, here, § 52-577.

Id.; see also Anderson v. Pine South Capital, LLC, 177 F. Supp. 2d 591, 604

(W.D. Ky. 2001). Moreover, because the aiding and abetting claim is derivative of the primary breach of a fiduciary duty claim, if the primary claim is

time barred, so is the aiding and abetting claim. See Kaufman v. Cohen,
307 App. Div. 2d 113, 124–25, 760 N.Y.S.2d 157 (2003); see also Marshak v.

Marshak, 226 Conn. 652, 667–68, 628 A.2d 964 (1993) (viability of aiding

and abetting claim dependent on viability of underlying cause of action),

overruled on other grounds as stated in State v. Vakilzaden, 251 Conn. 656,

664, 742 A.2d 767 (1999).

The plaintiff has not established, however, that the inverse also is true,

i.e., that if the claim against the primary tortfeasor is timely due to tolling,

so, necessarily, is the claim against the alleged aider and abettor. Extrajurisdictional authority, concededly sparse, suggests otherwise. See, e.g., Kaufman v. Cohen, supra, 307 App. Div. 2d 121–26 (holding that fraud discovery

accrual rule could operate to toll claims against principal tortfeasor, then

concluding, by analyzing alleged aiders and abettors’ own status and acts,

that same tolling doctrine did not apply to toll claims against them); see

also Wultz v. Bank of China, Ltd., United States District Court, Docket No.

11-Civ.-266 (SAS), F.R.D. (2013), 2013 WL 1641179, *2–3 (S.D.N.Y. April

16, 2013) (analyzing applicability of equitable tolling to aiding and abetting

claim by evaluating only actions of alleged aider and abettor); Ingham v.

Thompson, 88 App. Div. 3d 607, 608, 931 N.Y.S.2d 306 (2011) (same); cf.

Lesti v. Wells Fargo Bank, N.A., 960 F. Supp. 2d 1311, 1321 (M.D. Fla. 2013)

(looking only to behavior of alleged aider and abettor when determining

whether statute of limitations on aiding and abetting claim has run).

According to the dissenting opinion, Kaufman v. Cohen, supra, 307 App.

Div. 2d 125–27, Ingham ex rel. Cobalt Asset Management, L.P. v. Thompson,

supra, 88 App. Div. 3d 608–609, and Monaghan v. Ford Motor Co., 71 App.

Div. 3d 848, 850, 897 N.Y.S.2d 482 (2010), provide support for the proposition

that, if an aiding and abetting claim appears to have merit, the statute of

limitations on that claim may be tolled on the basis of the principal tortfeasor’s continuing course of conduct. None of those cases so hold, however,

either directly or indirectly. In both Kaufman v. Cohen, supra, 125–27, and

Ingham ex rel. Cobalt Asset Management, L.P. v. Thompson, supra, 608–609,

the Appellate Division of the Supreme Court, in evaluating claims of aiding

and abetting the breach of a fiduciary duty, simply concluded that those

claims both: (1) lacked substantive merit; and (2) were untimely because

certain tolling doctrines are inapplicable, after applying those doctrines with

reference to the alleged aiders’ and abettors’ own status and actions. In

neither case did the court indicate in any way that, had the aiding and

abetting claims been meritorious, they would have been timely because a

tolling doctrine applied to save the associated claim against the principal

actor. In fact, in Ingham ex rel. Cobalt Asset Management, L.P., the claims

against the principal actor are not even discussed. In Monaghan v. Ford

Motor Co., supra, 850, the Appellate Division held that: (1) because the

plaintiff’s claims of aiding and abetting a breach of a fiduciary duty contained

essential allegations of fraud, they were governed by a six year statute of

limitations, rather than a three year statute of limitations; and (2) those

claims were adequately pleaded in the plaintiff’s complaint. Again, the court

in Monaghan did not discuss the claims raised against the principal actor

and, moreover, no tolling doctrines are mentioned.

Putting aside the foregoing authority, 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 Neuhaus v. DeCholnoky, 280 Conn. 190, 206–207, 905 A.2d 1135 (2006).

From the perspective of an alleged aider and abettor who has no ongoing

relationship with a plaintiff, and engages in no further misconduct toward

that plaintiff, these concerns clearly are implicated.

24 We reject the plaintiff’s contention that it was the defendant’s burden, as

the party moving for summary judgment, to negate the plaintiff’s allegations

regarding the applicability of the continuing course of conduct doctrine.

The case on which the plaintiff relies, Allstate Ins. Co. v. Barron, 269 Conn.

394, 848 A.2d 1165 (2004), did not involve an equitable tolling doctrine and,

therefore, is inapposite.

25 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.’’

26 Unlike MacGrady’s conduct in 1999, it is unclear that the 2002 referral

was tainted by a conflict of interest and, therefore, constituted an additional

breach of a fiduciary duty.

27 In support of his claim that MacGrady’s duty to disclose his prior conflict

of interest continued indefinitely, until it was disclosed, the plaintiff cites

deposition testimony of the managing partner of Pepe & Hazard agreeing

with the plaintiff’s counsel when counsel queried the partner on this point.

The managing partner’s legal opinion, however, is not binding on this court.

The dissent inaccurately characterizes the partner’s deposition testimony

as expert testimony, accepts that testimony unquestioningly as an accurate

statement of the law, and contends, on the basis of the testimony, that it

is ‘‘undisputed’’ that MacGrady’s fiduciary duty survived the termination of

the attorney-client relationship with the plaintiff. We disagree with each of

these points. The partner testified as a fact witness, his answer regarding

the indefinite duty to disclose is not supported by our research, as we

discuss herein, and the defendant in the present matter clearly contests

whether that answer is correct.

28 The duties owed to a former client by his attorney ‘‘are significantly

lessened as compared to the corresponding duties owed to clients before

the client-lawyer relationship has terminated.’’ 1 G. Hazard & W. Hodes,

The Law of Lawyering (3d Ed. Supp. 2005) § 13.3, p. 13–7. Generally speaking,

an attorney must refrain from representing an adverse party in the same

matter in which he previously has represented the former client, or in a

substantially related matter, without the former client’s written consent,

and further, the attorney must not use or disclose confidential information

learned about the former client during the representation. See id., § 13.2,

p. 13–6; see also Rules of Professional Conduct 1.9. Additionally, an attorney

should return property and/or documents belonging to a former client, take

reasonable steps to convey to the client material communications received

thatrelate to the concluded representation and refrain from furtherrepresentation absent new authorization from the client. See 1 Restatement (Third),

The Law Governing Lawyers § 33 (2000).

The dissent, quoting without context from Mergler v. Crystal Properties

Associates, Ltd., 179 App. Div. 2d 177, 182, 583 N.Y.S.2d 229 (1992), observes

that ‘‘ ‘attorneys have a continuing confidential relationship of trust and fair

dealing [that] survives the termination of the attorney-client relationship

. . . .’ ’’ See footnote 9 of the dissenting opinion. In Mergler, however, the

court upheld the viability of a general release executed by a law firm and

its former client after the attorney-client relationship had been terminated.

Mergler v. Crystal Properties Associates, Ltd., supra, 183–84. The court

reasoned, in part, that the law firm was not required to establish that execution of the release was free from fraud because, at the time of execution,

there no longer was a fiduciary relationship between the parties. Id., 181.

Similarly, in the present case, after the completion of the lottery transaction,

there no longer was a fiduciary relationship between the plaintiff and

MacGrady.

The dissent contends additionally that MacGrady ‘‘extended’’ his 1999

breach of a fiduciary duty by assuring the plaintiff, at the time of the lottery

sale, that he would be available to represent him again in the future were

he to have trouble with the IRS, and that that assurance ‘‘cultivated [MacGrady’s] fiduciary relationship with the plaintiff . . . .’’ The dissent, however,

provides no support for the proposition that a fiduciary duty extends beyond

the termination of an attorney-client relationship because the attorney offers

to represent the client again in the future should the need happen to arise,

and we are not aware of any such authority.

29 In contrast, the doctrine has been found applicable in the case of an

ongoing, intra-family attorney-client relationship. See Giulietti v. Giulietti,

65 Conn. App. 813, 835–36, 784 A.2d 905 (defendant attorney, who provided

regularlegal services to his elderly father over period of years, had continuing

duty to effectuate father’s directives regarding transfers of his property to
plaintiff and his siblings), cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96,

97 (2001).

30 In the medical malpractice context, we have held that a physician’s duty

to warn a patient of a known dangerous medical condition or risk may

extend beyond the close of treatment, even when there no longer is a

physician-patient relationship, and that the physician may breach that duty

by his or her continual failure to warn, thereby triggering the continuing

course of conduct doctrine. See, e.g., Witt v. St. Vincent’s Medical Center,

supra, 252 Conn. 371–72 (pathologist had continuing duty to warn plaintiff

of his admitted concern that plaintiff may have been developing lymphoma,

which pathologist had failed to communicate at time he evaluated biopsy);

Sherwood v. Danbury Hospital, 252 Conn. 193, 207–208, 746 A.2d 730 (2000)

(hospital had continuing duty to inform patient of risk of HIV infection from

transfusion of untested blood). Public policy supports the imposition of a

continuing duty in this context because, even posttreatment, there is an

ongoing threat to the patient’s physical health that might be lessened or

alleviated by the receipt of a warning, even if it is belatedly delivered. In

other words, in such cases, a warning would not be a futility. See also

Handler v. Remington Arms Co., supra, 144 Conn. 321 (tolling statute of

limitation in negligence action for defendant manufacturer’s continuing failure to warn of danger from ammunition known to be defective).

31 The plaintiff directs us to allegations or evidence showing that MacGrady, by commission of his original wrong, committed fraud and, contemporaneously with that wrong, promised to do something additional in the

future, namely, to represent the plaintiff in related subsequent dealings with

the IRS. The plaintiff then contends that the statutes of limitations were

tolled under the continuing course of conduct doctrine on the basis of these

circumstances. In support of that argument, the plaintiff quotes language

from the Appellate Court’s opinion in Rosenfield v. Rogin, Nassau, Caplan,

Lassman & Hirtle, LLC, 69 Conn. App. 151, 161–62, 795 A.2d 572 (2002),

indicating that a defendant’s ‘‘affirmative conduct after the initial wrong’’

that could result in tolling includes ‘‘making promises after the initial wrong

or promises to do anything in the future,’’ or ‘‘commit[ing] fraud.’’ (Emphasis

added.) See also Sanborn v. Greenwald, supra, 39 Conn. App. 296–97 (stating

similarly). By its terms, this statement of law does not apply to the evidence

cited by the plaintiff because that evidence relates to MacGrady’s initial

misconduct, at the time of the lottery transaction, and not to any subsequently occurring misconduct.

The plaintiff also observes, repeatedly, that MacGrady and Pepe & Hazard

did not pursue, in their summary judgment motion, statutes of limitations

defenses on the malpractice and breach of a fiduciary duty claims that he

alleged against them, and contends that this, necessarily, is because those

defenses were not viable due to the availability of tolling. This argument

ignores the reality that, for various reasons, parties often choose to settle,

rather than litigate, claims for which there are potentially meritorious

defenses.

32 The dissent relies on the Appellate Court’s decision in Haas v. Haas,

137 Conn. App. 424, 48 A.3d 713 (2012), as support for the notion that

MacGrady’s ongoing failure to disclose his earlier breach of a fiduciary duty

constituted a continuing course of wrongful conduct. That case is readily

distinguishable from the present matter, however, in that it involved a defendant accountant’s repeated, active and deliberate concealment of documents

and information that would have illuminated his earlier wrongdoing. See

id., 434–35. Specifically, the defendant, both prior to and during litigation,

refused to provide those documents and information in response to numerous requests of the plaintiff, who was the defendant’s elderly mother, the

plaintiff’s attorney, and a court-ordered forensic accountant. See id., 428–30.

In contrast, in the present matter, MacGrady’s failure to disclose was

entirely passive.