Tunick v. Tunick

• Citation: 201 Conn.App. 512,242 A.3d 1011
• Decision Date: 01 December 2020
• Docket Number: AC 42031
• Court: Appellate Court of Connecticut
• Parties: Stephen M. TUNICK et al. v. Barbara TUNICK et al.

201 Conn.App. 512

242 A.3d 1011

Stephen M. TUNICK et al.

v.Barbara TUNICK et al.

AC 42031

Appellate Court of Connecticut.

Argued February 10, 2020

Officially released December 1, 2020

William W. Taylor, Westport, for the appellant (named plaintiff).

Richard E. Castiglione, for the appellee (named defendant).

Steven M. Frederick, Stamford, with whom, on the brief, was Sarah Gleason, for the appellee (defendant Roberta G. Tunick).

Robert C.E. Laney, Stamford, with whom, on the brief, was Karen L. Allison, for the appellee (defendant Richard S. DiPreta ).

Keller, Elgo and Lavery, Js.

ELGO, J.

This case concerns a dispute among family members over the administration of assets held in a trust created by the family patriarch. The plaintiff Stephen M. Tunick appeals from the judgment of the trial court rendered in favor of the defendants, Barbara Tunick, Roberta G. Tunick, and Richard S. DiPreta, administrator of the estate of Sylvia G. Tunick (estate).¹ On appeal, the plaintiff contends that (1) the court improperly granted DiPreta's motion to strike a breach of contract count, (2) the court improperly rejected the plaintiff's claim that his causes of action as a remainder beneficiary did not become ripe until the death of the primary beneficiary, (3) genuine issues of material fact exist as to whether the plaintiff's claims are time barred under General Statutes § 52-577, and (4) the court abused its discretion in declining to grant the plaintiff's motion to open the judgment. We dismiss the appeal in part and affirm the judgment of the trial court in all other respects.

Mindful of the procedural posture of this case, we set forth the following facts as gleaned from the pleadings, affidavits, and other proof submitted, viewed in the light most favorable to the plaintiff. See, e.g., Martinelli v. Fusi , 290 Conn. 347, 350, 963 A.2d 640 (2009). The settlor, David H. Tunick (settlor), established the David H. Tunick revocable trust (trust) in 1981. Among other things, the trust corpus included real property and antique automobiles. The settlor and his wife, Sylvia, were named as the primary beneficiaries of the trust, and their three children—the plaintiff, Barbara, and Roberta—were named as remainder beneficiaries. Although the plaintiff and Barbara initially were appointed cotrustees of the trust, it was amended in 1993 to include Sylvia as a third cotrustee.

The trust provided in relevant part that Sylvia would become the sole primary beneficiary of the trust upon the settlor's death and that all income and principal of the trust would be used for her benefit. The trust further provided that, upon Sylvia's death, the plaintiff, Barbara, and Roberta would receive equal shares of "the remaining trust property."

The settlor died in 1997, leaving Sylvia as the sole primary beneficiary of the trust. In 2004, Sylvia and Barbara filed an application with the Probate Court to remove the plaintiff as a trustee pursuant to General Statutes § 45a-242 (a). Following a hearing, the court issued a written decree, in which it found that the plaintiff "has neglected to perform the duties of the trust, has refused to account and has improperly distributed and wasted [t]rust property in his charge, and that it would be in the best interests of the beneficiaries to remove him as [t]rustee." The court thus ordered the plaintiff to be removed as a trustee and to "deliver any and all property belonging to the trust [to] the remaining [t]rustees." In addition, the court issued a specific order regarding the antique automobile assets of the trust, stating in relevant part: "[I]n regard to ... antique [automobiles], they are to be sold, and ... any [automobiles] that are kept by the beneficiaries or remainder beneficiaries of the trust, the value of the [automobile] shall be taken against the beneficiary's share of the trust. Once the [automobiles] are sold, a corporate trustee will be appointed and the remaining [t]rustees will resign ...."

Sylvia and Barbara thereafter acted as cotrustees of the trust from July 7, 2004, until June 11, 2013. On June 11, 2013, the Probate Court issued an order removing Sylvia and Barbara as cotrustees and appointing Richard J. Margenot as the successor trustee. Sylvia died on July 24, 2015, and DiPreta was appointed as the administrator of her estate.

The plaintiff commenced this civil action by service of process on May 5, 2017. He filed a first amended complaint containing thirteen counts on July 6, 2017, which he further revised on September 13, 2017. In response, DiPreta moved to strike count thirteen of the complaint, which alleged in relevant part that the trust was a contract that Sylvia had breached. In his motion to strike, DiPreta argued that the plaintiff could not maintain a breach of contract claim because a trust is not a contract. The trial court agreed with DiPreta and granted the motion to strike.

On February 7, 2018, the plaintiff filed the operative complaint, his second revised complaint. It contains twelve counts, eleven of which sound in tort. Counts one and two allege breach of fiduciary duty against Barbara and Sylvia, respectively. Counts three, four and five allege conversion against each defendant; counts six, seven and eight allege civil theft in violation of General Statutes § 52-564 against each defendant; and counts nine, ten and eleven allege fraudulent misrepresentation against each defendant. Last, count twelve asserts a breach of contract claim against Barbara.

On April 23, 2018, Barbara filed a motion to strike count twelve, claiming that it was legally insufficient because a trust is not a contract. While that motion was pending, Roberta and DiPreta filed separate motions for summary judgment on May 10, 2018, alleging that all counts against them were time barred pursuant to § 52-577.² One day later, Barbara moved for summary judgment as well, arguing that counts one, four, six and nine against her were time barred pursuant to § 52-577. Barbara further maintained that she was entitled to judgment as a matter of law on count twelve because a trust is not a contract. In response to the defendants’ motions for summary judgment, the plaintiff filed an opposition on June 15, 2018, that was accompanied by numerous exhibits, including an affidavit from Margenot, who had been appointed as successor trustee to the trust on June 11, 2013. In his memorandum of law in opposition to the three motions for summary judgment, the plaintiff argued that (1) the statute of limitations contained in § 52-577 did not begin to run until Sylvia's death in 2015, (2) the statute of limitations did not begin to run due to the pendency of an accounting before the Probate Court, and (3) the statute of limitations was tolled by a continuing course of conduct and, alternatively, fraudulent concealment on the part of the defendants.

On June 21, 2018, the court granted Barbara's motion to strike the breach of contract count. While the three motions for summary judgment remained pending, the plaintiff filed a third revised complaint on July 5, 2018. That complaint is largely identical to the operative complaint, with one exception—the plaintiff omitted the breach of contract count against Barbara and added an unjust enrichment count against her. On July 13, 2018, Barbara filed an objection to the plaintiff's third revised complaint, which the court overruled.

On July 16, 2018, the court rendered summary judgment in favor of all three defendants. In its memorandum of decision, the court stated in relevant part: "[T]he court agrees that all of the plaintiff's allegations of wrongdoing in the complaint describe conduct by the defendants from 1997 to 2013.... The plaintiff does not contest the defendants’ assertions that [Barbara] and [Sylvia] ceased acting as trustees in June, 2013. Also, there is no evidence showing that [Roberta] took any action in concert with either [Barbara] or [Sylvia] after June 11, 2013. There is no evidence (and the plaintiff does not allege) that Roberta's duties extended to anything other than assisting her mother and sister with bookkeeping for the trust, and it [is] clear that the need for those services ceased to exist after June 11, 2013. In short, the defendants have met their preliminary burden of showing that the plaintiff's claims are time barred by the three year statute of limitations under § 52-577. The burden now shifts to the plaintiff to show that genuine issues of material fact exist upon which the trier of fact could conclude that the statute of limitations has been tolled to May 5, 2017, the date of service. ... [T]he court rejects all the tolling arguments advanced by the plaintiff." (Citation omitted; footnote omitted.) The court then concluded: "[T]he court finds that no genuine issues of material fact [exist] as to when the plaintiff's causes of action accrued and when the present action was commenced. The court also finds no evidentiary basis for the plaintiff's claims that the statute of limitations is tolled by the continuous course of conduct doctrine or by fraudulent concealment. The defendants’ motions for summary judgment are granted as to all remaining counts in the complaint."

On August 6, 2018, the plaintiff filed a motion for reargument and reconsideration and a motion for articulation, which the court denied. On August 16, 2018, Barbara filed a motion for articulation, seeking clarification as to the unjust enrichment count contained in the plaintiff's third revised complaint that he had filed while the motions for summary judgment were pending. By order dated August 24, 2018, the court issued an articulation, stating, in relevant part: "The court entered judgment in favor of all three defendants on all counts remaining as of that date. Prior to that date, however, on July 5, 2018, the plaintiff filed a timely third revised complaint, adding a new count of unjust enrichment against [Barbara]. That new count was not addressed by the defendant's motion for...