Valentine v. Labow

897 A.2d 624

95 Conn.App. 436

Richard H. VALENTINE, Trustee, et al. v. Myrna LaBOW et al.

No. 24483.

Appellate Court of Connecticut.

Argued December 5, 2005.

Decided May 16, 2006.

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Nathalie Feola-Guerrieri, with whom were Myrna LaBow, pro se, and, on the brief, Daniel Shepro, Stratford, for the appellant (named defendant).

Barbara M. Schellenberg, Bridgeport, for the appellee (intervening plaintiff Robert Rubin).

Gwen E. Adamson, for the appellee (substitute plaintiff Ronald LaBow).

SCHALLER, FLYNN and HARPER, Js.^*

SCHALLER, J.

The defendant Myrna LaBow¹ appeals from the summary judgment rendered by the trial court in favor of the intervening plaintiff Robert Rubin.² On appeal, the defendant claims that the court improperly (1) granted Rubin's motion for summary judgment as to the defendant's special defenses and counterclaim, (2) denied several of her motions challenging the court's summary judgment ruling and (3) rendered judgment of partition by sale without first deciding the defendant's quiet title action. We affirm the judgment of the trial court.

The defendant's present appeal marks yet another chapter in a saga of hostilities that, for the last thirty-two years, has resulted in extensive litigation in the trial and appellate courts of Connecticut and New York. The following facts and procedural history, which are necessary for our resolution of the defendant's appeal, highlight the tortuous history of this case. On July 9, 1974, the defendant initiated a dissolution of marriage action against her then husband, Ronald LaBow. At that time, the LaBows jointly owned, with rights of survivorship, twenty-nine acres of property in Weston and Fairfield. The property consisted of a twenty-two acre parcel in Weston and an adjacent seven acre parcel in Fairfield.

"On November 5, 1975, while [the dissolution] action was pending, Ronald LaBow transferred his interest in the twenty-two acres in Weston to [a trust with] Richard H. Valentine [acting as] trustee. There is an ongoing dispute between the LaBows as to the validity of that trust, which was set up by Ronald LaBow as settlor. At the time the dissolution decree was issued by the court . . . on August 28, 1978, the twenty-two acres in Weston were in the trust, but Ronald LaBow still had record title to the seven acres in Fairfield. The dissolution decree . . . did not transfer title to or direct the conveyance of either parcel to [the defendant]. On September 18, 1978, after the dissolution, Ronald LaBow transferred the Fairfield property to Anthony DeVita . . . ."³ LaBow v. LaBow, 69 Conn.App. 760, 762, 796 A.2d 592, cert. denied, 261 Conn. 903, 802 A.2d 853 (2002).

Subsequently, on July 5, 1979, Valentine, acting as trustee, initiated this partition action against the defendant as to the Weston parcel. In response to the partition complaint, the defendant filed her first special defense, dated October 3, 1979, in which she claimed that the trust was "illegal, void and of no force and effect, such that [Valentine] may not prosecute" the action. On December 11, 1981, the defendant filed further special defenses and a counterclaim, in which she expressly alleged that Ronald LaBow's November 5, 1975 transfer to the trust was fraudulent.

In 1983, Valentine stepped down as trustee, and Ronald LaBow succeeded him in that capacity. Thereafter, Rubin, a neighbor of the LaBows, purchased the Weston parcel from the trust on January 5, 1985, as well as the Fairfield parcel from DeVita on January 16, 1985. Consequently, since January, 1985, Rubin and the defendant have owned the Weston and Fairfield parcels as tenants in common.

After Rubin acquired an interest in the properties, the defendant filed a complaint against him, dated November 12, 1985, in which she alleged that the parcels were conveyed to him fraudulently. Subsequently, Rubin joined this partition action as a party plaintiff on November 25, 1985, and on June 16, 1989, amended the partition complaint to include the Fairfield property. The record reflects that the defendant continued to file a series of revised special defenses and a counterclaim, concluding with her July 27, 1988, nine count counterclaim that alleged (1) a fraudulent conveyance from Ronald LaBow to Rubin, (2) conspiracy between Ronald LaBow and Rubin, (3) intentional infliction of emotional distress, (4) deceit that misled the defendant, (5) payment of less than the fair market value for the property, (6) that Rubin took charge of the property in disregard of the interest of the defendant in the property, (7) malice, (8) unclean hands and (9) any other relief that the court deemed proper.⁴

On December 16, 1993, Rubin filed a motion for summary judgment with respect to the partition complaint and the defendant's special defenses and counterclaim. Specifically, Rubin's motion for summary judgment alleged that the defendant's counterclaim was barred by "one or more of the following doctrines: (1) the statute of limitations contained in General Statutes § 52-577; (2) laches; (3) res judicata; (4) collateral estoppel; or (5) the application of General Statutes § 46b-86 to post-judgment attempts to modify property distributions."

On February 14, 1994, the court, Fuller, J., concluded that all the counts of the defendant's counterclaim were barred by "several" of Rubin's special defenses. The court explained that because a number of the defendant's claims against Rubin were based on actions committed by Rubin's grantors, these claims failed if the defendant had no valid claim to either parcel when Rubin acquired the parcels. The court concluded that the defendant had no legally cognizable claims against Rubin's grantors.

Specifically, the court determined that the first count of the defendant's counterclaim, fraudulent conveyance, was barred by the statute of limitations contained in § 52-577, as well as by the doctrine of collateral estoppel and the application of General Statutes § 46b-81 to postjudgment attempts to modify property distributions. The court further concluded that the second, fourth, fifth, sixth, seventh and eighth counts of the defendant's counterclaim failed because they were "dependent upon a colorable claim to attack the conveyance to Rubin as fraudulent"⁵ and that the ninth count failed to state a cause of action. As to the third count, intentional infliction of emotional distress, the court found that Rubin's conduct was not extreme and outrageous. The court, therefore, granted Rubin's motion for summary judgment, but declined to decide whether the partition would be in kind or by sale. Accordingly, further proceedings were ordered for these purposes.

Thereafter, the defendant filed numerous motions challenging the court's summary judgment ruling. Each motion was denied, and on July 14, 2003, the court, Stevens, J., rendered judgment of partition by sale. This appeal followed.⁶ Additional facts will be provided where necessary.

I

The defendant first claims that the court, Fuller, J., improperly granted Rubin's motion for summary judgment as to her special defenses and counterclaim. In support of her claim, the defendant argues that the court improperly determined that the first count of her counterclaim, which alleged fraudulent conveyance, was barred by (1) laches,⁷ (2) collateral estoppel, (3) the three year tort statute of limitations contained in § 52-577 and (4) the application of § 46b-81. The defendant further argues that the court improperly granted the motion for summary judgment on the intentional infliction of emotional distress count of her counterclaim. We conclude that the court correctly determined that (1) the defendant's fraudulent conveyance claim was barred by the statute of limitations contained in § 52-577, and (2) Rubin's conduct was not sufficiently extreme and outrageous so as to maintain a claim for intentional infliction of emotional distress.

As a preliminary matter, we set forth the applicable standard of review. Practice Book § 17-49 provides in relevant part 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 summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]. . . . Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Citations omitted; internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 840-41, 888 A.2d 104 (2006).

A

The defendant first argues that the court improperly rendered summary judgment with respect to the first count of her counterclaim. Specifically, the defendant argues that the court improperly concluded that the statute of limitations contained in § 52-577 barred her claim of fraudulent conveyance. We are not persuaded.

At the outset, we note that "[s]ection 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues. . . . [Section] 52-577 provides: No action founded upon a tort shall be...