Bagoly v. Riccio, 102 Conn. App. 792, 927 A.2d 950 (2007)

CT: Underlying post marital dissolution matter

Student Contributor: Nicholas Kingsbury

Facts: The former client was dissatisfied with the result of his marital dissolution agreement, and had an attorney file a motion to clarify and modify the agreement. The attorney negotiated with the other side and agreed that the client’s alimony payments would be replaced with his former wife being named as the beneficiary of the client’s life insurance policy. However, the signed agreement they reached (dated Feb 1997) only added the life insurance provision and did not remove the alimony obligation, thereby putting the client on the hook for even more money. In Nov 2001, the client discovered the defect. At a hearing, the attorney testified in favor of the client that the written agreement did not reflect the actual agreement reached. The client lost and then sued the attorney for malpractice in January 2002 alleging negligence and breach of contract. The court granted the attorney’s motions to dismiss, ruling that the client’s negligence claim was barred by the statute of limitations, and his breach of contract claim was barred by collateral estoppel and res judicata. The client argues that because the attorney testified for him in 2001, this constituted continuing representation which quelled the statute of limitations problem. The client also argues that collateral estoppel and res judicata do not bar his breach of contract claim because “neither the parties, nor the issues were the same.”

Issue: (1) Does an attorney’s affidavit and testimony on behalf of the client serve to quell the statute of limitations?
(2) Is a legal malpractice action barred by res judicata and collateral estoppel?

Ruling: (1) No. In order to satisfy the statute of limitations, the attorney would have had to, first, represent the client continually on this same matter. Since an affidavit and testimony on behalf of the client to repair any alleged damage in the prior representation does not constitute representation, the client cannot assert the continuing representation doctrine to defeat the statute of limitations.
(2) No. Res judicata (claim preclusion) only bars a claim when the same claim was already decided upon among the same parties. Here, the first claim was for a modification of the divorce settlement. The second claim is for money damages and attorney’s fees (from the lawyers who screwed up). The same is true for collateral estoppel (issue preclusion), involving the parties. The first action was the client against his ex-wife. The second action is the client against his former attorney. These two principals are there to ensure the same litigation doesn’t happen more than once. Therefore, neither res judicata nor collateral estoppel should bar the client’s breach of contract claim.

Lesson: (1)  The Connecticut statute of limitations for attorney negligence is 3 years.  After you’ve paid your attorney’s bill, the representation generally is completed.  If that lawyer testifies for you regarding an error on his part, this is not a continuation of that representation.  

               (2) Bringing a legal malpractice claim against your former attorney will not face problems with res judicata or collateral estoppel because you are asserting that your lawyer erred, not that you’re still trying to prevail in the  underlying lawsuit  where the lawyer originally erred.