200 Conn.App. 165
Conn. App. Ct.2020Background
- Defendant, an attorney who previously represented Stilkey in a 2003 divorce, had access to confidential QDRO information (SSN, DOB, address) and was listed as beneficiary on Stilkey’s Prudential IRA.
- Between October 2010 and January 2013 the defendant impersonated Stilkey in 24 recorded calls to Prudential, obtained checks drawn on Stilkey’s IRA, and deposited 19 checks into her own account (total deposited $101,501.31; total issued $155,002.18).
- Stilkey’s estate (administratrix) sued for statutory theft (treble damages). Suit commenced July 15, 2015. Defendant’s answer pleaded a statute-of-limitations special defense but did not specify the statute.
- The administratrix did not plead the continuing course of conduct doctrine in a reply to the special defense; she first invoked it in posttrial briefing. The trial court ordered supplemental briefs on the issue.
- Trial court found defendant stole the funds with intent to deprive Stilkey, inferred adverse admissions from defendant’s Fifth Amendment invocations, awarded treble damages, and held the continuing course of conduct doctrine tolled the three-year statute (so the action was timely).
- Defendant appealed, arguing (1) the court abused discretion by considering the continuing-course argument despite pleading defects, (2) the doctrine was improperly applied to toll the limitations period, and (3) factual findings (lack of Stilkey’s knowledge/consent) were erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused its discretion by considering the administratrix’ continuing-course-of-conduct tolling argument despite pleading defects | Stilkey’s estate: both sides had pleading defects; issue was placed before court and no prejudice shown, so court could reach the merits | Zembko: administratrix waived the doctrine by not pleading it in avoidance of the special defense and court should not consider it after trial | No abuse of discretion — court permissibly reached the merits and found no prejudice under the circumstances (court best positioned to assess prejudice) |
| Whether the continuing-course doctrine properly tolled the statute of limitations | Tolling applies where wrongful conduct is ongoing; limitations tolled until scheme ended (Jan 4, 2013) | Doctrine did not fit because acts were discrete and identifiable; tolling should not apply | Claim not reviewed on merits — defendant’s briefing on this issue was inadequately developed and thus abandoned on appeal |
| Whether trial court’s findings that Stilkey lacked knowledge/consent were clearly erroneous | Administratrix: evidence (recorded impersonations, forged checks, defendant’s invocation of Fifth) supports finding of no consent and intent to deprive | Zembko: deposits into Stilkey’s account, tax withholdings, and alleged assistance show Stilkey knew and consented; insufficient proof of forgery | Findings upheld — supported by record; appellate court will not retry facts or reassess witness credibility; adverse inferences from Fifth Amendment invocations were permitted |
Key Cases Cited
- Flannery v. Singer Asset Finance Co., LLC, 94 A.3d 553 (Conn. 2014) (trial court may reach merits of tolling claim not properly pleaded if issue is before court and no prejudice exists)
- Bellemare v. Wachovia Mortgage Corp., 894 A.2d 335 (Conn. App. 2006) (court may address imperfectly pleaded issues when placed before it and justice warrants reaching claim)
- Cue Associates, LLC v. Cast Iron Associates, LLC, 958 A.2d 772 (Conn. App. 2008) (§ 52-577 limitations is procedural and may be waived by deficient pleading)
- Olin Corp. v. Castells, 428 A.2d 319 (Conn. 1980) (Fifth Amendment invocation in civil cases permits adverse inferences against the party asserting the privilege)
- FirstLight Hydro Generating Co. v. Stewart, 182 A.3d 67 (Conn. 2018) (standards for appellate review of trial court factual findings and credibility determinations)
- Zatakia v. Ecoair Corp., 18 A.3d 604 (Conn. App. 2011) (trial court may disregard improperly raised claims if objection is timely; appellate review is abuse-of-discretion standard)