Post-Representation Failures to Correct Error Extended Period for Filing Malpractice Action

By Samson Habte  


A malpractice action that accuses an attorney of botching a real estate closing may go forward, even though the three-year statute of limitations normally would have lapsed, where evidence showed that the lawyer's “opportunity to correct the negligence extended to a point less than three years before the commencement” of the action, the Connecticut Appellate Court ruled April 23 (Targonski v. Clebowicz, Conn. App. Ct., No. AC 33834, 4/23/13).

Writing for a unanimous court, Judge Michael R. Sheldon said the “continuing course of conduct” doctrine applies where the plaintiffs accuse their former attorney of failing to take advantage of several opportunities to remedy his initial failure to include a critical provision in a deed he executed on their behalf.

Those missed opportunities, the court noted, occurred when the lawyer ignored three letters in which the other contracting party's counsel notified him of the oversight and “propose[d] specific steps that might be taken to cure the problem.”

Although a lawyer's prior representation of a client generally “does not give rise to any continuing duty” to the client, Sheldon explained, such a duty will continue to exist where, as here, a lawyer learns about prior negligence “at a time when he has the power to remedy the problems arising from it.”

Accordingly, Sheldon said, a trial court erred in dismissing the malpractice complaint on the grounds that it was filed more than three years after the closing transaction in which the lawyer allegedly acted negligently.

'Don't Worry About It.'

According to the opinion, Agnes and Krzysztof Targonski hired Walter A. Clebowicz to represent them in a real estate transaction to purchase an undeveloped building lot. The purchase agreement, executed in April 2004, was conditioned expressly on their promise to build a house on the property and the seller's promise to provide the plaintiffs with a right-of-way.

Clebowicz conducted a closing on the plaintiffs' behalf in June 2004. However, the deed he procured “made no mention of the right-of-way,” the court said.

The plaintiffs asked if the condition had been included and Clebowicz allegedly “assured them that they 'need not worry about it,'” the court said. “The plaintiffs understood [his] response to mean that they in fact had acquired the right-of-way,” it added.

Evidence tended to establish that the lawyer “breached an ongoing duty … to correct his prior error at a time when he had the opportunity to do so.”
Connecticut Appellate Court

On “several occasions” after that closing, the court said, the seller's counsel “contacted the defendant in writing to advise him that the parties had not yet incorporated the right-of-way into the deed and to propose specific steps that might be taken to cure the problem.”

Clebowicz received three letters, the last of which, sent in December 2004, warned that his clients “will not enjoy a right of way … unless and until we have resolved the issue of a written easement agreement.”

“Despite this clear warning, the defendant never responded to any of [the] letters, never informed the plaintiffs of their existence or their contents, and never took any other action to correct or apprise the plaintiffs of the omission of the right-of-way from the deed,” Sheldon stated.

The plaintiffs alleged that Clebowicz's failures exposed them to liability when the seller, who retained an adjacent lot, sued them for trespass after they built a stone wall on property over which they believed they had obtained a right-of-way.

The wall was built in October 2005 and the seller claimed in August 2008 that it had been improperly constructed on her property; it was at that point, the court said, that Clebowicz “for the first time informed the plaintiffs that they had no right-of-way … and that the [seller] had a claim against them for unauthorized use of her property.”

Almost Five Years Later...

The plaintiffs sued Clebowicz in March 2009, nearly five years after the closing in which he failed to incorporate the right-of-way condition into their deed.

“In their complaint,” the court said, “the plaintiffs alleged that the defendant, after negligently failing to include the right-of-way in their deed, engaged in a continuous course of conduct to prolong the harm flowing from his drafting error by failing to respond to [seller's counsel's] letters proposing to cure the defective deed by having them enter into an easement agreement with [the seller].”

Clebowicz countered with a motion for summary judgment. In it, the court said, he “alleged that [Conn. Gen. Stat.] §52-577 barred the plaintiffs' claims against him because his representation of them with respect to their purchase … ended in July 2004, more than three years before” the malpractice suit was commenced.

According to the opinion, Clebowicz also argued that “the plaintiffs could not invoke the continuing representation doctrine to toll the statute of limitations for two reasons: first, that doctrine is limited in application to litigation matters; and second, the plaintiffs did not present evidence raising a genuine issue of material fact that the defendant continued to represent them in the same matter wherein he allegedly committed malpractice after the June 9, 2004 closing.”


The trial court ruled in Clebowicz's favor. “With respect to the plaintiffs' claim under the continuing course of conduct doctrine,” Sheldon said, “the court ruled that that doctrine did not toll the statute of limitations either because the defendant's alleged negligence had occurred only at and immediately after the June, 2004 closing, or because no evidence was presented to establish that the defendant owed the plaintiffs any continuing duty thereafter.”

The appellate court disagreed. The trial court, Sheldon said, erred in finding that no issue of material fact existed “as to whether the statute of limitations was tolled in this case by the continuing course of conduct doctrine.”

The plaintiffs' had the better argument, he said, when they contended “that [Clebowicz] breached a continuing duty” when he “learned of the error in the deed but failed to take action to correct it despite having the opportunity to do so.”

The court acknowledged that “As general matter, once the attorney-client relationship ends, the prior representation does not give rise to any continuing duty.” However, it noted, an attorney can still owe a duty to a former client if he acts negligently and “later learns of the negligence at a time when he has the power to remedy the problems arising from it.”

“By force of simple logic,” Sheldon explained, “this duty continues until such time as he takes action to cure his prior negligence or the opportunity to cure such prior negligence ceases to exist.” Accordingly, he said, summary judgment should not have been granted because the plaintiffs presented evidence, in the form of written communications with the seller's counsel, tending to establish that Clebowicz's “opportunity to cure his negligence lasted until well within three years” of the date when the plaintiffs' filed their lawsuit.

Offers from the seller's counsel to resolve the right-of-way issue, Sheldon explained, were not withdrawn until 2008, when the plaintiffs were sued to enjoin their use of the easement that they thought they had been granted.

The court said that in light of its ruling, there was no need to address the plaintiffs' alternative theory that the statute of limitations on their claim was tolled by the continuous representation doctrine.

The plaintiffs were represented by Juri E. Taalman and Timothy Brignole of Brignole, Bush & Lewis, Hartford, Conn.

The defendant was represented by Elizabeth M. Cristofaro and Sandra Snaden Kuwaye of Goldberg Segalla, Hartford.

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