The plaintiff appeals the trial court's granting of summary judgment in favor of the defendants.
"19. The defendants breached their representation agreement with the plaintiff in that they did not defend the suit brought by American Savings Bank, they did not seek to obtain the release of the attachment on the plaintiff's property, and they did not timely seek to recover the plaintiff's losses from American Savings Bank.
"20. As a result of the defendants' breach of agreement, the plaintiff suffered the losses set forth in paragraph 15 above and is no longer able to recover these losses from American Savings Bank as well as treble damages in accordance with C.G.S. § 52-568."
On April 7, 1988, the trial court granted the defendants' motion for summary judgment. The trial court stated: "In this case, the plaintiff's claim is based upon the alleged breach of a professional standard of care, not the breach of a contract. Unequivocally, the plaintiff's cause of action, if any, accrued on December 1, 1980; therefore, the plaintiff's claim is barred by the applicable statute of limitations, General Statutes (Rev. to 1987) § 52-577. Accordingly, defendants' motion for summary judgment is granted."
The plaintiff claims that the trial court erred in applying General Statutes § 52-577 to bar the cause of action alleged in its complaint. The defendants have presented, as an alternate ground upon which the judgment may be affirmed, the claim that the cause of action is barred by General Statutes § 52-581, as alleged in their special defense.
A statute of limitations defense must be specially pleaded. Practice Book § 164. General Statutes § 52-577 is a procedural statute and is waived if not pleaded. Orticelli v. Powers, 197 Conn. 9, 15-16, 495 A.2d 1023 (1985); L.G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d 144 (1975). "In deciding a motion for summary judgment, the trial
Summary judgment is appropriate "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." Practice Book § 384; Yanow v. Teal Industries, Inc. 178 Conn. 262, 268, 422 A.2d 311 (1979). Interpretation of the pleadings is a question of law. Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985); Sauerwein v. Bell, 17 Conn.App. 697, 702, 556 A.2d 613 (1989).
Although the complaint does not expressly use the word "contract," a fair and reasonable construction of the phrase "the defendants breached their representation agreement" clearly states a claim in contract. See Fuessenich v. DiNardo, 195 Conn. 144, 150-51, 487 A.2d 514 (1985).
The trial court stated the issue in the case to be whether a plaintiff in a legal malpractice action could rely on an alleged breach of contract in order to extend the statute of limitations. It further stated that the question to be decided was "whether the breach of contract claim is viable."
The trial court based its decision to render summary judgment on the premise that, under our decision in Shuster v. Buckley, 5 Conn.App. 473, 500 A.2d 240 (1985), a claim against an attorney, even though couched in the language of contract, is actually a claim
A physician may be subject to a claim for breach of contract arising from an agreement to perform professional services; see Bria v. St. Joseph's Hospital, 153 Conn. 626, 220 A.2d 29 (1966); and there seems to be no reason for treating claims against attorneys differently. It was error to apply the tort statute of limitations to the plaintiff's claim in contract. "Where two distinct causes of action arise from the same wrong, each is controlled by the statute of limitations appropriate to it." Perzanowski v. New Britain, 183 Conn. 504, 506, 440 A.2d 763 (1981).
The defendants have presented as an alternative ground for affirming the judgment their claim that the cause of action alleged in the first count of the complaint is barred by General Statutes § 52-581.
It cannot be determined from the record whether the plaintiff had fully performed his obligation under the contract or whether this was an executory contract. See Tierney v. American Urban Corporation, 170 Conn. 243, 248-49, 365 A.2d 1153 (1976). Therefore, summary judgment based upon General Statutes § 52-581 is inappropriate because there is a genuine
There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.