Tunick v. Tunick

• Decision Date: 20 December 2022
• Docket Number: AC 45085
• Parties: Stephen M. TUNICK v. Barbara TUNICK et al.
• Court: Connecticut Court of Appeals

217 Conn.App. 106

287 A.3d 1132

Stephen M. TUNICK

v.Barbara TUNICK et al.

AC 45085

Appellate Court of Connecticut.

Argued October 11, 2022

Officially Released December 20, 2022

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

Christina M. Volpe, with whom, on the brief, was Thomas P. O'Dea, Jr., for the appellee (named defendant).

Moll, Seeley and Lavine, Js.

LAVINE, J.

The plaintiff, Stephen M. Tunick, appeals from the judgment of the trial court rendered in favor of the defendant Barbara Tunick.¹ On appeal, the plaintiff contends that the court improperly granted the defendant's (1) motion to strike and (2) motion for summary judgment. We agree with the first claim and disagree with the second claim. Accordingly, we reverse in part and affirm in part the judgment of the trial court.

In Tunick v. Tunick , 201 Conn. App. 512, 517–22, 242 A.3d 1011 (2020), cert. denied, 336 Conn. 910, 244 A.3d 561 (2021), this court detailed the facts, as gleaned from the pleadings, affidavits, and other proof submitted, viewed in the light most favorable to the plaintiff, which we now summarize. In 1981, David H. Tunick (settlor) established the David H. Tunick revocable trust (trust). Id., at 517, 242 A.3d 1011. The trust corpus included, among other things, antique automobiles. Id. The primary beneficiaries of the trust were the settlor and his wife, Sylvia G. Tunick (Sylvia), and their three children—the plaintiff, the defendant, and Roberta G. Tunick (Roberta)—who were named as remainder beneficiaries. Id. The plaintiff and the defendant initially were appointed as cotrustees of the trust, and, in 1993, the trust was amended to include Sylvia as a third cotrustee. Id. 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. Id. The trust further provided that, upon Sylvia's death, the plaintiff, the defendant, and Roberta would receive equal shares of the remaining trust property. Id. The settlor died in 1997, leaving Sylvia as the sole primary beneficiary of the trust. Id. In 2004, Sylvia and the defendant filed an application with the Probate Court to remove the plaintiff as a trustee. Id. The court removed him as a trustee, ordering that he deliver any property belonging to the trust to the remaining trustees and that the antique automobiles be sold. Id., at 517–18, 242 A.3d 1011. Sylvia and the defendant acted as cotrustees of the trust from July 7, 2004, until June 11, 2013, when the Probate Court issued an order removing them as cotrustees.² Id., at 518, 242 A.3d 1011. Sylvia died in 2015, and Richard S. DiPreta was appointed as the administrator of her estate. Id.

The plaintiff thereafter commenced the present action in 2016 and alleged the following in his twelve count second revised complaint: breach of fiduciary duty against the defendant and Sylvia;³ conversion, civil theft in violation of General Statutes § 52-564, and fraudulent misrepresentation against the defendant, Sylvia, and Roberta; and breach of contract against the defendant. The defendant filed a motion to strike the breach of contract count, arguing that it was legally insufficient as a matter of law because a trust is not a contract. The defendant also filed a motion for summary judgment, in which she argued that the counts against her alleging breach of fiduciary duty, conversion, civil theft, and fraudulent misrepresentation were time barred pursuant to the three year tort statute of limitations, General Statutes § 52-577.⁴ The defendant also argued that she was entitled to summary judgment on the breach of contract count. Roberta and DiPreta filed separate motions for summary judgment and argued that the counts against them were time barred by § 52-577. In his memorandum of law in opposition to the three motions for summary judgment, the plaintiff argued, among other things, that the time limitation in § 52-577 was tolled by a continuing course of conduct.

The court, Truglia, J ., granted the defendant's motion to strike the breach of contract count. While the motions for summary judgment were pending, the plaintiff filed a third revised complaint, which, notably, omitted the breach of contract claim against the defendant and added a claim of unjust enrichment in its place. The court, Truglia, J ., thereafter, granted the defendant's motion for summary judgment on the counts in the second revised complaint against the defendant alleging breach of fiduciary duty, conversion, civil theft, and fraudulent misrepresentation. In response to a motion for articulation filed by the plaintiff, the court clarified that it had not rendered summary judgment as to the new twelfth count of the third revised complaint, which alleged unjust enrichment. The court granted in full the motions for summary judgment filed by Roberta and DiPreta.

Thereafter, the plaintiff appealed to this court, claiming, among other things, that genuine issues of material fact existed as to whether the claims in his complaint were time barred under § 52-577. Tunick v. Tunick , supra, 201 Conn. App. at 516–17, 242 A.3d 1011. This court affirmed the trial court's judgment granting the motions for summary judgment filed by Roberta and DiPreta and dismissed the portion of the plaintiff's appeal challenging the trial court's granting in part the defendant's motion for summary judgment. Id., at 522–24, 242 A.3d 1011. In 2021, the plaintiff filed a fifth revised complaint, which alleged, in count twelve, unjust enrichment.⁵ The defendant moved to strike the unjust enrichment count of the fifth revised complaint, arguing that it was time barred by § 52-577. The court, Radcliffe, J. , granted the motion. Thereafter, pursuant to Practice Book § 10-44, the defendant filed a motion for judgment on the stricken unjust enrichment count, which was the remaining count of the complaint directed to the defendant that was not disposed of by the court's granting of the defendant's motion for summary judgment.⁶ The court granted the motion and rendered judgment in favor of the defendant. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The plaintiff claims that the court improperly granted the defendant's motion to strike the unjust enrichment count of the fifth revised complaint on the ground that it was time barred by § 52-577. We agree.

In the twelfth count of the fifth revised complaint, the plaintiff alleged that the defendant breached her fiduciary duties under the trust agreement by, among other things, failing to turn over trust assets, and thereby unjustly enriched herself to the detriment of the plaintiff.⁷ In granting the motion to strike, the court determined that the three year tort statute of limitations in § 52-577 applied so as to bar the unjust enrichment claim, as it did not allege a contractual dispute but, rather, involved allegations of tortious conduct. "Whether a particular action is barred by the statute of limitations is a question of law to which we apply a plenary standard of review." Federal Deposit Ins. Corp. v. Owen , 88 Conn. App. 806, 814, 873 A.2d 1003, cert. denied, 275 Conn. 902, 882 A.2d 670 (2005).

Generally, a motion to strike is not the proper procedural vehicle for raising a claim that an action is time barred by the lapse of a statute of limitations. Forbes v. Ballaro , 31 Conn. App. 235, 239–40, 624 A.2d 389 (1993). In the present case, however, we turn our focus away from procedural concerns to an even more fundamental issue. In Reclaimant Corp . v. Deutsch , 332 Conn. 590, 211 A.3d 976 (2019), our Supreme Court held that "unjust enrichment is not a legal claim sounding in either tort or contract—it is an equitable claim for relief. As an equitable claim, its timeliness is not subject to a statute of limitations but, rather, to the equitable doctrine of laches." Id., at 613, 211 A.3d 976 ; see id. (for purposes of laches, courts in equitable proceedings may look by analogy to statute of limitations but are not obligated to adhere to those limitations). The court concluded that unjust enrichment claims are not barred by the three year limitation period in § 52-577. Id., at 614, 211 A.3d 976.

We agree with the plaintiff that his claim for unjust enrichment against the defendant is not subject to a statute of limitations. The defendant's argument—that § 52-577 applies because the unjust enrichment count contains tort like allegations of breaches of fiduciary duties—is creative, but unavailing. Reclaimant Corp. makes no exception to its holding that unjust enrichment claims are not bound by a statute of limitations. A claim of unjust enrichment, which sounds neither in tort nor in contract, is an equitable claim for relief that is not subject to any statute of limitations, including § 52-577. Id., at 613–14, 211 A.3d 976. Because the unjust enrichment count was not a tort claim and was not time barred by § 52-577, we conclude that the court improperly granted the motion to strike on that basis.

II

The plaintiff next claims that the court improperly granted the defendant's motion for summary judgment as to the counts of the second revised complaint⁸ alleging breach of fiduciary duty, conversion, civil theft, and fraudulent misrepresentation because genuine issues of material fact exist as to whether § 52-577⁹ was tolled by the continuing course of conduct doctrine. We disagree.

We begin with the standard of review and relevant legal principles. When reviewing a decision of a trial court to grant a motion for summary judgment, "[t]he facts at issue are those alleged in the pleadings .... Practice Book § 17-49 provides that summary judgment shall be rendered forthwith 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. In deciding a motion for...