Stilkey v. Zembko

200 Conn.App. 165

238 A.3d 78

Lois R. STILKEY

v.Elizabeth A. ZEMBKO

AC 42410

Appellate Court of Connecticut.

Argued March 4, 2020

Officially released September 15, 2020

Scott M. Schwartz, for the appellant (defendant).

Michael P. Barry, Wethersfield, for the appellee (substitute plaintiff).

DiPentima, C. J., and Keller and Flynn, Js.^*

DiPENTIMA, C. J.

The defendant, Elizabeth A. Zembko, appeals from the judgment rendered after a court trial in favor of the substitute plaintiff, Pamela Rustigian, administratrix of the estate of Lois R. Stilkey (administratrix). ¹

On appeal, the defendant claims that the court (1) abused its discretion in considering the administratrix’ continuing course of conduct argument despite improper pleading, (2) improperly concluded that the continuing course of conduct doctrine tolled the statute of limitations, and (3) erroneously found that Stilkey had no knowledge of the defendant's actions and did not consent to or authorize those actions. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history, as set forth by the trial court in its memorandum of decision or otherwise gleaned from the record, are relevant to the defendant's claims on appeal. The defendant, an attorney, represented Stilkey in her 2003 divorce. As part of the dissolution action, Stilkey and her former husband executed a qualified domestic relations order (QDRO),² under which Stilkey received a 50 percent interest in his Iron Workers’ Local 15 and 424 Annuity Fund. The QDRO contained confidential information, including Stilkey's Social Security number, date of birth, home address and telephone number. The defendant had access to all of the confidential information contained in the QDRO.

Stilkey's QDRO funds were invested in a Prudential individual retirement account (IRA). The IRA enrollment form listed Stilkey's mailing address as 11 Townsend Road, Farmington, Connecticut. Stilkey never resided at that address; rather, the defendant had lived there with her husband. Additionally, the defendant was identified as the primary beneficiary of the IRA in the event of Stilkey's death.

From October, 2010 to January, 2013, the defendant made twenty-four phone calls to Prudential, which were recorded. During each call, the defendant misrepresented herself as "Lois Stilkey" and instructed the Prudential representative to disburse funds from the IRA and to send the funds to the defendant's address.

The defendant deposited nineteen of the twenty-four Prudential checks into her own checking account. The checks were endorsed "Lois Stilkey pay to the order of Elizabeth Zembko," or with similar language. The total sum of funds disbursed in the twenty-four checks was $155,002.18, and the total sum deposited into the defendant's checking account was $101,501.31. The five checks deposited into Stilkey's account totaled $56,500.80.

Stilkey commenced this action on July 16, 2015. The administratix revised complaint alleged statutory theft and sought treble damages pursuant to General Statutes § 52-564. The defendant filed an answer and raised a statute of limitations special defense.³ After the November 1, 2017 trial and a number of posttrial briefs, the court, Wiese, J. , issued a memorandum of decision on December 3, 2018. The court rendered judgment in favor of the administratrix in the amount of $304,503.93, awarding treble damages pursuant to § 52-564. The court found that Stilkey had not authorized the defendant to remove $101,501.31 from her Prudential account and that the defendant "took those funds with the intent to deprive ... Stilkey of her moneys. The theft represented an ongoing scheme to appropriate the moneys and to deplete the Prudential account owned by ... Stilkey."

Additionally, the court rejected the defendant's statute of limitations defense. Specifically, it concluded that the continuing course of conduct doctrine operated to toll the three year statute of limitations set forth in General Statutes § 52-577. The court stated: "The defendant's theft was not complete until January 4, 2013, and this action, having been commenced by service on July 16, 2015, is within the limitation period set forth in § 52-577." This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court abused its discretion in considering the administratrix’ continuing course of conduct argument despite improper pleading. Specifically, she argues that the court should not have considered that doctrine as a consequence of the administratrix’ failure to raise it "in the pleadings, at trial and in her initial posttrial brief." The administratrix counters that "[t]he trial court did not err in recognizing a ‘continuing course of conduct’ exclusion from the statute of limitations defense." We conclude that the court did not abuse its discretion in applying the continuing course of conduct doctrine.

The following additional facts are necessary for our discussion. The first check that the defendant wrongfully deposited into her own checking account was dated October 12, 2010. The final stolen check was dated January 3, 2013. Stilkey filed her complaint on July 15, 2015. The defendant first raised her statute of limitations special defense on May 10, 2017, by way of answer to the administratrix’ revised complaint. After trial, the court ordered posttrial briefing on the statute of limitations defense. In the parties’ posttrial briefs, they addressed the bilateral pleading deficiencies with respect to the statute of limitations defense and the continuing course of conduct doctrine. The administratrix argued that the defendant had waived the statute of limitations special defense by failing to specify the precise statute on which she relied. In that same brief, the administratrix argued for the first time that if the statute of limitations special defense had been pleaded properly, then she would have had the opportunity to plead the continuing course of conduct doctrine to toll the statute of limitations. After that "passing reference to the continuing course of conduct doctrine" the court ordered supplemental briefing, ordering the parties to address it specifically. The defendant responded that the continuing course of conduct doctrine should not be considered, because it must be pleaded in avoidance of a special defense pursuant to Practice Book § 10-57.⁴

The court addressed the statute of limitations issue and the deficient pleadings in its memorandum of decision. Specifically, the court explained that "[t]he defendant argues that the court need not reach the merits of the [administratrix’] continuing course of conduct argument because it was not specially pleaded and raised for the first time in a posttrial brief. The court rejects the defendant's argument. The defendant herself did not identify the specific statute on which she relied for her statute of limitations defense until her second posttrial brief. The court will not fault the [administratrix] for failing to plead the continuing course of conduct doctrine in avoidance of the defendant's special defense, when that special defense was a bare assertion that the ‘[p]laintiff's cause of action is barred by the statute of limitations.’ Both parties have erred in their pleadings but however imperfectly they have each pleaded, the issues have been placed before the court and the merits will be reached." The court ruled that the continuing course of conduct doctrine applied, tolling the statute of limitations until the defendant's wrongful conduct terminated.

We agree with the court that both parties failed to comply with our rules of practice. The defendant did not identify specifically the statute on which her statute of limitations defense was based, in violation of the requirement of Practice Book § 10-3(a). Then, the administratrix, in turn, did not comply with Practice Book § 10-57, due to her failure to plead the continuing course of conduct doctrine in avoidance of the defendant's special defense. The court, nevertheless, decided to overlook the parties’ pleading deficiencies.

The issue, therefore, is whether the court properly considered the continuing course of conduct doctrine under these facts and circumstances. We begin with our standard of review. Our Supreme Court has stated that "when a party properly objects to a violation of the rules of practice, the trial court may disregard the improperly raised claim if doing so is not an abuse of discretion." (Internal quotation marks omitted.) Zatakia v. Ecoair Corp. , 128 Conn. App. 362, 367, 18 A.3d 604, cert. denied, 301 Conn. 936, 23 A.3d 729 (2011).

"In general, [an] abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors .... Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required." (Internal quotation marks omitted.) D'Ascanio v. Toyota Industries Corp. , 133 Conn. App. 420, 428, 35 A.3d 388 (2012), aff'd, 309 Conn. 663, 72 A.3d 1019 (2013). "When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be in favor of its correctness .... Furthermore, we have stated in other contexts in which an abuse of discretion standard has been employed that this court will rarely overturn the decision of the trial court."⁵ (Footnote added and omitted; internal quotation marks omitted.) Zatakia v. Ecoair Corp. , supra, at 368, 18 A.3d 604.

In the present case, the court, in exercising its discretion, chose to resolve the statute of limitations issue on the merits despite both parties’ clear procedural errors. For example, the court could have declined to consider the defendant's statute of...