201 Conn.App. 512
Conn. App. Ct.2020Background
- David H. Tunick created a revocable trust (1981); upon his 1997 death his wife Sylvia became sole life beneficiary; the three children (Stephen, Barbara, Roberta) were remainder beneficiaries.
- Stephen and Barbara were initially cotrustees; Sylvia was added as cotrustee (1993). Probate removed Stephen as trustee in 2004 and ordered sale/accounting of antique automobiles; Sylvia and Barbara remained cotrustees until removed by Probate on June 11, 2013, and a successor trustee was appointed.
- Sylvia died July 24, 2015; Richard DiPreta was appointed administrator of her estate.
- Stephen filed suit May 5, 2017 alleging breach of fiduciary duty, conversion, civil theft, fraudulent misrepresentation, fraudulent concealment (§52-595), and a breach-of-contract count against Sylvia (later stricken) and Barbara.
- Defendants moved for summary judgment under the three‑year tort statute (§52-577). The trial court granted DiPreta’s motion to strike the contract count, and granted summary judgment to Roberta, DiPreta, and Barbara (except an unjust‑enrichment count that Stephen filed against Barbara while motions were pending).
- On appeal the court dismissed the portion as to Barbara for lack of a final judgment (unjust‑enrichment count remained), and otherwise affirmed: tort claims were time‑barred and tolling doctrines (pending probate accounting, continuing course of conduct, fraudulent concealment) were not shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trust beneficiary may sue a trustee for breach of contract | Stephen: trust terms create contractual obligations enforceable at law | DiPreta: a trust is not a contract; trustee duties are fiduciary, not contractual | Count stricken — trust obligations are not enforceable as contract claims (trusts need no consideration and differ from contracts) |
| When §52‑577 (three‑year tort limitations) begins to run for claims against trustee | Stephen: claims as remainder beneficiary did not become ripe until Sylvia’s death (2015) | Defs: §52‑577 is an occurrence statute; accrual is the date of the act/omission alleged (not life tenant’s death) | Held for defendants — §52‑577 runs from the date of the alleged wrongful acts (plaintiff alleged misconduct through 2013; suit filed 2017) |
| Whether tolling applies (pending probate accounting / continuing course of conduct / fraudulent concealment) | Stephen: limitation tolled because (a) final accounting was pending in Probate, (b) continuing fiduciary duty and ongoing breaches after removal, (c) defendants fraudulently concealed facts | Defs: no probate bond claim under §52‑579; alleged post‑2013 breaches not shown; no clear, precise evidence of intentional concealment | Tolling rejected — (a) probate accounting does not automatically toll §52‑577, (b) continuing‑course doctrine not shown (post‑removal breaches were the same pre‑removal injury re: autos), (c) fraudulent concealment not established by clear, unequivocal evidence |
| Whether trial court abused discretion by denying motion to open judgment based on purported newly discovered evidence | Stephen: post‑judgment testimony shows continuing fiduciary duty and supports tolling | Defs: evidence would not change legal outcome (court already recognized continuing duty after removal) | Dismissed as moot — no practical relief because court concluded a continuing duty exists; opening would not alter result |
Key Cases Cited
- Palozie v. Palozie, 283 Conn. 538 (2007) (trusts may be created without consideration; distinguishes trusts from contracts)
- Fichera v. Mine Hill Corp., 207 Conn. 204 (1988) (§52‑577 is a statute of repose; limitation runs from date of act or omission)
- Pagan v. Gonzalez, 113 Conn. App. 135 (2009) (under §52‑577 only date of wrongful conduct and date suit filed are material on summary judgment)
- Flannery v. Singer Asset Financial Co., LLC, 312 Conn. 286 (2014) (summary judgment burden and application of continuing course of conduct doctrine)
- Martinelli v. Fusi, 290 Conn. 347 (2009) (standards on continuing course test and factual view on summary judgment)
- Iacurci v. Sax, 313 Conn. 786 (2014) (elements required to prove fraudulent concealment and tolling)
- Bartone v. Robert L. Day Co., 232 Conn. 527 (1995) (fraudulent concealment must be proved by clear, precise, and unequivocal evidence)
- Meribear Productions, Inc. v. Frank, 328 Conn. 709 (2018) (partial judgments are not appealable unless remaining claims are withdrawn or court issues a written determination)