158 Conn.App. 726
Conn. App. Ct.2015Background
- David DiMichele raised two children during his marriage to Josinete; both children were biologically fathered by defendant Gary Perrella.
- Paternity tests (1997 and 2006) and a 2007 family court action confirmed Perrella as the biological father; DiMichele learned of paternity in April 2007.
- Plaintiff sued Perrella in April 2010 alleging fraud/deceit (count one), intentional and negligent infliction of emotional distress (counts two and three), and unjust enrichment (count four); unjust enrichment was struck.
- After trial, the superior court found for the plaintiff on the fraud count and awarded $30,000 (shared pari delicto between defendant and Josinete); defendant appealed.
- Appellate issue focused on whether Perrella had a legal duty to disclose paternity (fraud by silence) given no affirmative misrepresentations were made to DiMichele.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant had a duty to disclose the children’s paternity (fraud by silence) | DiMichele: as the psychological parent, he and Perrella (biological parent) shared a special relationship creating a duty to disclose | Perrella: no communications, no special relationship, and thus no duty to speak | Court: No duty to disclose; parties did not share a special relationship; fraud judgment reversed on count one |
| Whether plaintiff could proceed under fraud-by-silence absent statutory duty | DiMichele: common-law duty arises from the parent/psychological-parent relationship | Perrella: no common-law basis for such a duty here | Court: Common-law duty requires a special/confidential relationship; none existed here |
| Whether plaintiff timely filed under fraud statute of limitations | Not reached on appeal (court reversed on duty ground) | Not reached | Not decided by appellate court |
| Whether statutory consumer-protection type statutes barred the claim | Not reached on appeal | Not reached | Not decided by appellate court |
Key Cases Cited
- Reville v. Reville, 312 Conn. 428 (2014) (elements of fraud action)
- Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286 (2014) (no special-relationship duty to disclose in ordinary vendor–vendee contexts)
- Egan v. Hudson Nut Products, Inc., 142 Conn. 344 (1955) (silence may constitute fraud only when duty to speak exists)
- LePage v. Horne, 262 Conn. 116 (2002) (existence of duty is a question of law reviewed plenarily)
- Glazer v. Dress Barn, Inc., 274 Conn. 33 (2005) (duties to disclose may arise by statute or common law)
- Duksa v. Middletown, 173 Conn. 124 (1977) (party who speaks must make full and fair disclosure)
- Roberts v. Paine, 124 Conn. 170 (1938) (whether duty exists depends on relationship and circumstances)