Opinion
CV156061976S
05-01-2018
Barbara Coffey v. John T. Fiorillo
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Peck, A. Susan, J.T.R.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
PECK, JTR
The plaintiff, Barbara Coffey, in an amended complaint, filed on April 4, 2016, alleges the following facts: The plaintiff was a state marshal who entered into an oral contract with the defendant, John T. Fiorillo, on March 9, 2007. The defendant, through a limited liability company created on the same date known as " John T. Fiorillo Connecticut State Marshal, LLC" (the LLC), and the plaintiff, agreed that the plaintiff would provide certain marshal services and the defendant would pay her personally or through the LLC, a base salary plus fifteen percent of all profits realized by services rendered to certain law firms. From March 9, 2007 to September 21, 2009, the plaintiff performed all the services required of her under the agreement and the defendant purported to pay her the agreed-upon base salary plus fifteen percent of all profits realized by services to the named client law firms. The plaintiff relied upon the defendant to determine the proper amount of profits to be paid to her. The profits paid to the plaintiff for each of the years 2007 through 2010 were as follows: $18,000 paid over four weeks in December 2007; $80,000 paid in a single payment on or about December 4, 2008; $88,000 paid in a single payment sometime in December 2009; and $74,000 paid in a single payment on or about October 4, 2010. For each of those years, the defendant, personally, or through the LLC, failed to pay her an amount equal to fifteen percent of the profits as promised. Although the defendant represented to the plaintiff that the amounts paid to her amounted to fifteen percent of the profits realized by her services, those representations were known by the defendant to be false and that the plaintiff relied on those representations to her detriment. The LLC was dissolved by the defendant on September 28, 2012. Upon dissolution, all of the assets of the LLC were distributed to the defendant.
The plaintiff filed her original complaint on September 2, 2015, followed by a first revised complaint on October 14, 2015, a second revised complaint on November 13, 2015, and the present complaint, an amended complaint, filed April 4, 2016. In response to the amended complaint, the defendant filed an answer, special defenses and a counterclaim on May 23, 2016.
In 2011, the defendant created Paralegal Assistance Services, LLC (Paralegal, LLC) to provide administrative and office services to the plaintiff and other marshals. Between October 2011 and November 2013, the plaintiff paid the sums represented by the defendant to be her share of the services provided to her by Paralegal, LLC. Nevertheless, the defendant misrepresented the amount the plaintiff owed for the services causing her to overpay. The defendant overcharged the plaintiff for the express purpose of diverting funds to a company that he controlled, known as Office Solutions of Connecticut, Inc.
The amended complaint alleges five counts: (1) breach of contract; (2) civil action to collect wages pursuant to General Statutes § 31-72; (3) unjust enrichment; (4) fraudulent misrepresentation; and (5) fraudulent misrepresentation by the Paralegal, LLC. Pending before the court is the defendant’s motion for summary judgment filed on October 3, 2017, accompanied by a memorandum of law. In support of the motion, the defendant submitted a memorandum of decision on a motion for summary judgment in the substantially similar case of Bennett v. Fiorillo, Superior Court, judicial district of Hartford, Docket No. 16-6065144S (June 16, 2017, Scholl, J.); a transcript of the plaintiff’s December 13, 2016 deposition; an Attorney’s General Opinion concerning the illegality of contracts for marshal services; Opinions, Conn. Atty. Gen. No. 2009-009 (September 21, 2009); a court decision in the case of Stien v. Blau, United States District Court, Docket No. 3:16CV450 (AWT) (D.Conn. January 23, 2017); and the defendant’s affidavit. The plaintiff filed a memorandum of law in opposition to the defendant’s motion on December 8, 2017, including the plaintiff’s affidavit; a transcript of the deposition of Gina Clark, the defendant’s employee; a transcript of the plaintiff’s July 27, 2016 deposition; and, a transcript of the plaintiff’s December 13, 2016 deposition. On January 4, 2018, the defendant filed a reply to the plaintiff’s opposition memorandum, accompanied by portions of the transcripts of plaintiff’s July 27, 2016 and December 13, 2016 depositions and Clark’s deposition. Oral argument on the motion was held on January 8, 2018.
General Statutes § 31-72 provides in relevant part: " When any employer fails to pay an employee wages ... such employee or labor organization shall recover, in a civil action, (1) twice the full amount of such wages, with costs and such reasonable attorneys fees as may be allowed by the court, or (2) if the employer establishes that the employer had a good faith belief that the underpayment of wages was in compliance with law, the full amount of such wages or compensation, with costs and such reasonable attorneys fees as may be allowed by the court."
DISCUSSION
" Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ..." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). " [O]nly [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [does] the burden [shift] to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of-America, 310 Conn. 304, 320, 77 A.3d 726 (2013).
" Summary judgment may be granted where the claim is barred by the statute of limitations." (Internal quotation marks omitted.) Id., 313. " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period ... When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." (Citation omitted.) Id., 321.
The defendant moves for summary judgment on the following grounds: (1) counts one through three of the plaintiff’s complaint are time barred pursuant to General Statutes § 52-596; count four of the plaintiff’s complaint is time barred pursuant to General Statutes § 52-577; count five of the plaintiff’s complaint is partially time barred pursuant to § 52-577; (4) the defendant cannot be personally liable for counts one and three when he was neither a party to the contract nor unjustly enriched; and (5) count one fails as a matter of law because the contract was illegal, against public policy, and unenforceable. The plaintiff responds by arguing the continuing course of conduct and fraudulent concealment doctrines toll the statutes of limitations for counts one through four; the defendant may be held personally liable because he was the sole member of the LLC; and, the contract was legal, not against public policy, and enforceable.
General Statutes § 52-596 provides in relevant part: " No action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues ..."
General Statutes § 52-577 provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
The plaintiff has only alleged an employment relationship with the defendant for the time period of March 9, 2007 through September 21, 2009. In his own affidavit, the defendant attests to the following: he employed the plaintiff and other individuals between April 2007 and September 2009; in September 2009, the Attorney General issued a formal opinion concluding that marshals could not engage in " employer-employee relationships" ; upon the issuance of this opinion, the defendant immediately ceased employing state marshals through the LLC, including the plaintiff; and that he has not employed the plaintiff in any capacity since September 2009. Based on the allegations of the complaint and the foregoing evidence, the court finds that there is no claim of an employment relationship in this case beyond September 21, 2009 involving the LLC, and the court need not further address this ground of the motion for summary judgment as to count one.
I.
The defendant first moves for summary judgment on counts one through three of the plaintiff’s complaint on the ground that those counts are time barred pursuant to the two-year statute of limitations set forth in § 52-596. The plaintiff argues there is a genuine issue of material fact as to when the contract in question was breached. Alternatively, she argues the continuing course of conduct and fraudulent concealment doctrines toll the statute of limitations for these counts.
" For purposes of section 52-596, a cause of action for payment of remuneration for employment accrues when an employer refuses to compensate an employee according to the terms of an express or implied employment contract." Warzecha v. Nutmeg Companies, Inc., 48 F.Supp.2d 151, 158 (D.Conn. 1999). " This statute, however, does not govern all payments by employer to employee. Connecticut courts have recognized that § 52-596 does not apply to certain agreements or forms of compensation." Duplissie v. Devino, 96 Conn.App. 673, 683, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). For instance, a bonus is not wages when the plaintiff is contractually entitled to it, but the actual amount is discretionary. Ziotas v. Reardon Law Firm, P.C., 296 Conn. 579, 588, 997 A.2d 453 (2010). Moreover, even when the plaintiff is contractually entitled to the bonus and the bonus amount is nondiscretionary, the bonus is only wages when it is dependent on the employee’s performance. Assn. Resources, Inc. v. Wall, 298 Conn. 145, 178-80, 2 A.3d 873 (2010).
Although the plaintiff scrupulously avoids using the term bonus when discussing the fifteen percent annual payments at issue, the court finds that the payments claimed by the plaintiff in counts one through three are in fact claims for bonus payments and not wages or " for remuneration for employment payable periodically" as referenced in § 52-596.
In the present case, although the plaintiff was allegedly contractually entitled to an annual fifteen percent payment; see Ziotas v. Reardon Law Firm, P.C., supra, 296 Conn. 588; and the amount was nondiscretionary; see Assn. Resources, Inc. v. Wall, supra, 298 Conn. 178-80; there is no evidence that the fifteen percent was dependent on the plaintiff’s individual performance. Cf. id. Although the plaintiff alleges in paragraph 9 of count one of the amended complaint that the defendant failed to pay her " an amount equal to 15% of the profits that were realized from the client law firms by virtue of the work that the plaintiff performed," the affidavit she submitted in opposition to the motion for summary judgment states that she was entitled to fifteen percent of the profits " realized from ... [the] LLC’s providing of marshal services to Hunt & Leibert and Bendett-McHugh," thus indicating that the plaintiff’s entitlement to a fifteen percent share of profits was not dependent on her performance. Coffey’s Aff. Opp’n Def’s. Mot. Summ. J. ¶4. In addition, in the amended complaint, the plaintiff alleges an employment relationship with the defendant limited to the time period March 9, 2007 through September 21, 2009, a fact which is confirmed by the defendant’s statement in his affidavit in support of the motion for summary judgment. Based on this evidence, counts one, two, and three reflect the plaintiff’s claim of entitlement to a fifteen percent share of profits derived from Hunt Leibert and Bendett-McHugh for the years 2007-2010, as alleged in paragraphs 8 and 9 of the amended complaint. Further, although the word " bonus" never appears in the plaintiff’s amended complaint, the transcripts of her deposition testimony reflect that she regarded the fifteen percent as a bonus and not as wages.
For the aforementioned reasons, the court concludes that the agreement between the parties as to the plaintiff’s entitlement to a fifteen percent share of the profits from the two named client law firms is an agreement separate and distinct from the employment relationship with the defendant which indisputably ended no later than September 21, 2009. Therefore, count two of the plaintiff’s amended complaint, although stated as a wage claim pursuant to General Statutes § 31-72 actually fails to state such a claim. Accordingly, the defendant’s motion for summary judgment as to count two is granted.
See footnote 5 of this memorandum.
Because counts one and three arise out of the defendant’s alleged failure to pay the plaintiff fifteen percent of the profits derived from services performed for the two named client law firms as promised, they sound in contract and are subject to the six-year statute of limitations of General Statutes § 52-576, not the two-year statute of limitations of § 52-596. See Novak v. Omega Plastics Corp., Inc., 60 Conn.App. 424, 427-28, 760 A.2d 137, cert. denied, 255 Conn. 910, 763 A.2d 1035 (2000) (whether plaintiff received sufficient funds for his contractual five percent commission was breach of contract action); see also Burns v. Koellmer, 11 Conn.App. 375, 385, 527 A.2d 1210 (1987) (unjust enrichment sounds in contract).
Although an oral contract is subject to a three-year statute of limitations, pursuant to General Statutes § 52-581, that statute only applies to executory contracts. John H. Kolb & Sons, Inc. v. G&L Excavating, Inc., 76 Conn.App. 599, 610, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003). " A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations." (Emphasis omitted.) Id. In the present case, the plaintiff alleges, and there is no disputing evidence, that she fully performed under the contract. Thus, the contract here was executed, making § 52-581 inapplicable.
Section 52-576 provides in relevant part: " (a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues ..." A cause of action for the failure to pay a bonus in a breach of a contract action arises when the bonus is not paid. See Burns v. Koellmer, supra, 11 Conn.App. 388.
Although the defendant does not address the § 52-576 statute of limitations in his motion papers, in the interest of judicial economy, the court chooses to do so as the plaintiff references § 52-576 and it is directly related to other findings essential to resolving the present motion.
The plaintiff alleges that defendant breached the contract between them for each year from 2007 to 2010 by failing to pay her fifteen percent of the profits realized from the marshal services provided to the Hunt Leibert and Bendett-McHugh law firms. The plaintiff commenced this action on August 21, 2015. See Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 238, 763 A.2d 54 (2000) (" an action is brought on the date on which the writ is served on a defendant" [internal quotation marks omitted] ). Accordingly, § 52-576 bars any alleged acts by the defendant in counts one and three that occurred more than six years prior to August 21, 2015, thus barring the plaintiff’s claims from 2007 and 2008, but not barring her claims from 2009 and 2010. Nevertheless, the plaintiff argues there is a genuine issue of material fact as to when the contract was breached. Alternatively, she argues the continuing course of conduct doctrine or the fraudulent concealment doctrine tolls the statute of limitations.
A
The plaintiff first argues there is a genuine issue of material fact as to when the contract was allegedly breached. " Applied to a cause of action, the term to accrue means to arrive; to commence; to come into existence; to become a present enforceable demand ... While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action." (Citation omitted; internal quotation marks omitted.) Coelho v. ITT Hartford, 251 Conn. 106, 111, 752 A.2d 1063 (1999). " [I]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action." Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 156, 464 A.2d 18 (1983).
In the present case, the defendant allegedly breached the contract with the plaintiff in each of the years 2007, 2008, 2009, and 2010, when he did not pay the plaintiff an amount equal to fifteen percent of the profits realized by the LLC as her bonus. See Am. Compl. ¶¶8-9. Although the plaintiff allegedly did not learn about the defendant’s breaches until 2014, she stated at her deposition of December 13, 2016 that the reports filed by the defendant with the ethics commission, which required him to disclose all income and expenses derived from marshal services, were public records and available to her. The plaintiff also stated at her deposition of December 13, 2016 that she could have calculated whether her bonus was accurate using those ethics reports. Clark also testified to the same two points in her deposition. Thus, there is no genuine issue of material fact that the information underlying the plaintiff’s claims of breach of contract could have been known to her upon the submission of the defendant’s ethics reports, a time well within the applicable six-year statute of limitations pursuant to § 52-576. Thus, § 52-576 bars certain of the plaintiff’s claims unless the statute is tolled.
B
The plaintiff argues the continuing course of conduct doctrine tolls § 52-576. " [W]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." (Internal quotation marks omitted.) Szynkowicz v. Bonauito-O’Hara, 170 Conn.App. 213, 228, 154 A.3d 61 (2017). Three factors must be present before the continuing course of conduct can apply: (1) the defendant must commit an initial wrong upon the plaintiff; (2) the defendant must owe a continuing duty to the plaintiff that was related to the alleged original wrong; and (3) the defendant must continually breach that duty. Flannery v. Singer Asset Financial Co., LLC, 312 Conn. 286, 313, 94 A.3d 553 (2014). A duty may be found when there is a special relationship between the parties or when there was a subsequent wrongful act that is related to the prior act. Id., 321. Nevertheless, " a mere contractual relationship does not create a fiduciary or confidential relationship." Saint Bernard School of Montville, Inc. v. Bank of America, 312 Conn. 811, 836, 95 A.3d 1063 (2014). " [T]he continuing course of conduct doctrine is one classically applicable to causes of action in tort, rather than in contract. The doctrine concerns itself with wrongs, the nomenclature of tort, not with breach, the language of contract." (Internal quotation marks omitted.) Fradianni v. Protective Life Ins. Co., 145 Conn.App. 90, 100 n.9, 73 A.3d 896, cert. denied, 310 Conn. 934, 79 A.3d 888 (2013).
Procedurally, " the continuing course of conduct doctrine is a matter that must be leaded in avoidance of a statute of limitations special defense." (Internal quotation marks omitted.) Flannery v. Singer Asset Financial Co., LLC, 312 Conn. 286, 300, 94 A.3d 553 (2014). Nevertheless, a plaintiff’s failure to plead specifically his or her entitlement to a particular tolling doctrine pursuant to Practice Book § 10-57 does not bar or waive the doctrine if the record demonstrates that the defendant was sufficiently apprised of the plaintiff’s intention to rely on that doctrine and the defendant has not been prejudiced by the plaintiff’s lapse in pleading. Id., 303-04. In present case, although the plaintiff never pleaded the continuing course doctrine in her reply to the defendant’s special defenses, the record sufficiently notifies the defendant of plaintiff’s intent to use the doctrine. The plaintiff’s alleged injury stems from the defendant’s continuous failure over a number of years to pay her the fifteen percent bonus pursuant to their alleged agreement. This allegation is sufficient to put the defendant on notice of the plaintiff’s intention to rely on that doctrine, and there is no evidence showing that the defendant has been prejudiced by the plaintiff’s lapse in pleading.
In the present case, counts one through three of the plaintiff’s complaint sound in contract. Accordingly, the continuing course of conduct doctrine does not apply and it does not toll the six-year statute of limitations pursuant to § 52-576.
Moreover, the plaintiff actually alleges a failure to make the proper fifteen percent payments for the time period 2007 through 2010. The plaintiff’s allegations may be fairly read as the failure to pay the proper amount of the promised bonus for each of those years as giving rise to four distinct claims. Further, the plaintiff stated at her deposition of December 13, 2016 that the fifteen percent bonus was to be paid annually toward the end of the year.
C
The plaintiff next argues the fraudulent concealment doctrine tolls § 52-576. The fraudulent concealment doctrine is codified in General Statutes § 52-595, which provides: " If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence." " [T]o toll a statute of limitations by way of our fraudulent concealment statute, a plaintiff must present evidence that a defendant: (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the [plaintiff’s] cause of action; (2) intentionally concealed these facts from the [plaintiff]; and (3) concealed the facts for the purpose of obtaining delay on the [plaintiff’s] part in filing a complaint on their cause of action." (Internal quotation marks omitted.) Bozelko v. Webster Bank, N.A., 159 Conn.App. 821, 827, 123 A.3d 1250, cert. denied, 320 Conn. 910, 128 A.3d 954 (2015). " The actions of the defendant must be directed to the very point of obtaining the delay of which he afterward seeks to take advantage by pleading the statute." (Internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990). To meet its burden, the plaintiff must prove the defendant " concealed the cause of action by the more exacting standard of clear, precise, and unequivocal evidence." Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019 (2007). " There can be no concealment which will prevent the running of the statute of limitations where the cause of action is known to the plaintiff or there is a presumption of such knowledge." (Internal quotation marks omitted.) Discover Bank v. Hill, 53 Conn.Supp. 257, 265, 94 A.3d 1287 (2012), aff’d, 150 Conn.App. 164, 93 A.3d 159, cert denied, 312 Conn. 924, 94 A.3d 1203 (2014).
" In order to raise a claim of fraudulent concealment, the party challenging a statute of limitations defense must affirmatively plead it."
In the present case, there is no genuine issue of material fact that the doctrine of fraudulent concealment does not apply. The plaintiff stated in her deposition of December 13, 2016 that the defendant did not fraudulently conceal the existence of her causes of action. Rather, according to the plaintiff’s testimony, the defendant only concealed the proper amounts she claims was due to her. This does not meet the test outlined in Bozelko because the defendant’s conduct does not go above and beyond the defendant’s allegedly wrongful act. See Bozelko v. Webster Bank, N.A., supra, 159 Conn.App. 827. Moreover, because the defendant’s records were public, and because the plaintiff could have calculated whether her payments were correct based on those records, the plaintiff was, at the very least, presumed to know of the reduced profits. See Discover Bank v. Hill, supra, 53 Conn.Supp. 265; see also Geiger v. Carey, 170 Conn.App. 459, 491, 154 A.3d 1093 (2017) (" [i]gnorance of [a plaintiff’s] rights on the part of the person against whom the statute has begun to run, will not suspend [the statute of limitations] operation" [internal quotation marks omitted] ). The plaintiff has not shown, with clear, precise, and unequivocal evidence, a genuine issue of material fact concerning whether the defendant intentionally concealed the facts establishing the plaintiff’s cause of action and, even if the defendant concealed those facts, he did so to try and prevent the plaintiff from filing her cause of action. Accordingly, the fraudulent concealment doctrine does not toll the six-year statute of limitations pursuant to § 52-576.
Because there is no genuine issue of material fact as to when the contract in question was allegedly breached and the statute of limitations is not tolled, § 52-576 bars any claim for breach of contract based on improper action by the defendant occurring more than six years prior to August 21, 2015. Accordingly, the defendant’s motion for summary judgment as to counts one and three is granted in part as to the years 2007 and 2008, and denied as to the years 2009 and 2010, based on the allegations of paragraphs 8 and 9 of count one of the amended complaint. The defendant’s motion for summary judgment is granted as to count two brought pursuant to § 31-72 as, based on the allegations of the complaint and the evidence submitted by the parties, that statute is inapplicable.
II
The defendant next moves for summary judgment on count four, fraudulent misrepresentation, of the plaintiff’s complaint on the ground that it is time barred pursuant General Statutes § 52-577. The plaintiff argues the continuing course of conduct doctrine and fraudulent concealment doctrine toll the statute of limitations for this count.
Section 52-577 provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." A cause of action sounding in tort arises " when the wrongful conduct occurs, not when the plaintiff discovers or should have discovered the conduct." Certain Underwriters at Lloyd’s, London v. Cooperman, 289 Conn. 383, 409 n.27, 957 A.2d 836 (2008). " [F]raudulent misrepresentation is an intentional tort." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010). " When conducting an analysis under § 52-577, the only facts material to the trial court’s decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed." (Internal quotation marks omitted.) Piteo v. Gottier, 112 Conn.App. 441, 445-46, 963 A.2d 83 (2009).
In the present case, the alleged tortious conduct occurred during the time period from 2007 to 2010 and the lawsuit was commenced on August 21, 2015. Accordingly, § 52-577 bars all of the claims alleged in count four absent any circumstance that tolls the statute of limitations. The plaintiff argues the continuing course of conduct doctrine and the fraudulent concealment doctrine toll § 52-577.
A
The plaintiff argues the continuing course of conduct doctrine tolls § 52-577. " The doctrine concerns itself with wrongs, the nomenclature of tort ..." (Internal quotation marks omitted.) Fradianni v. Protective Life Ins. Co., supra, 145 Conn.App. 100 n.9. " [W]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed." (Internal quotation marks omitted.) Szynkowicz v. Bonauito-O’Hara, supra, 170 Conn.App. 228. " [I]n a tort action, following an initial wrong, the subsequent activity triggering tolling itself must occur before the three-year statute of limitations has run, to effectively toll it." (Internal quotation marks omitted.) Flannery v. Singer Asset Financial Co., LLC, supra, 312 Conn. 315-16.
There is no genuine issue of material fact that the doctrine does not apply to count four of the amended complaint. The plaintiff alleges that the defendant allegedly misrepresented that he paid the plaintiff the proper amount of her fifteen percent bonus each year from 2007 to 2010. The alleged wrong originated in 2007 when the defendant first misrepresented the bonus amount the plaintiff received. That wrong was allegedly continued by the defendant’s subsequent misrepresentations about the bonus amounts the plaintiff was entitled to for each year until 2010. Nevertheless, the doctrine, assuming it is applicable, would only extend the plaintiff’s cause of action to 2013 because the course of conduct, as alleged, was allegedly completed in 2010. See Szynkowicz v. Bonauito-O’Hara, supra, 170 Conn.App. 228. In short, the doctrine, if it applied, would toll the plaintiff’s claim for her alleged injuries until 2013 because the statute would have begun to run in 2010 when the conduct ended. Because the plaintiff did not bring her claim until August 21, 2015, § 52-577 bars the claim. Accordingly, the continuing course of conduct doctrine is inapplicable and does not toll the three-year statute of limitations pursuant to § 52-577.
B
The plaintiff next argues the fraudulent concealment doctrine tolls § 52-577. For the doctrine to apply, " [t]he actions of the defendant must be directed to the very point of obtaining he delay of which he afterward seeks to take advantage by pleading the statute." (Internal quotation marks omitted.) Connell v. Colwell, supra, 214 Conn. 251. " There can be no concealment which will prevent the running of the statute of limitations where the cause of action is known to the plaintiff or there is a presumption of such knowledge." (Internal quotation marks omitted.) Discover Bank v. Hill, supra, 53 Conn.Supp. 265.
For the reasons previously stated, the defendant has shown there is no genuine issue of material fact that he did not fraudulently conceal his actions. The plaintiff has not shown, with clear, precise, and unequivocal evidence, a genuine issue of material fact concerning whether the defendant intentionally concealed the facts establishing the plaintiff’s cause of action and, even if the defendant concealed those facts, he did so to try and prevent the plaintiff from filing her cause of action. Accordingly, the fraudulent concealment doctrine does not toll the three-year statute of limitations pursuant to § 52-577.
See Section I.C. of this memorandum.
Because neither the continuing course of conduct doctrine nor the fraudulent concealment doctrine toll the statute of limitations, § 52-577 bars any alleged actions by the defendant occurring more than three years prior to August 21, 2015. The evidence reveals that the last action of the defendant in connection with the bonus payments occurred in October 2010, Accordingly, the defendant’s motion for summary judgment as to count four is granted.
III
Count five of the amended complaint alleges that between October 2011 and November 2013, the plaintiff paid more than the amounts she rightfully owed for services provided by the Paralegal, LLC based on false overcharges by the defendant made by him for the express purpose of diverting the excess funds to another company that he controlled. The defendant moves for summary judgment on count five, fraudulent misrepresentation as to the Paralegal, LLC, of the plaintiff’s complaint on the ground that all purported action occurring before August 21, 2012 is barred pursuant § 52-577. The plaintiff argues the continuing course of conduct doctrine and fraudulent concealment doctrine toll § 52-577. Nevertheless, neither doctrine tolls § 52-577.
First, the defendant has shown that there is no genuine issue of material fact that the continuing course of conduct doctrine does not toll § 52-577 here because there was no continuing action. " In between the case in which a single event gives rise to continuing injuries and the case in which a continuous series of events gives rise to a cumulative injury is the case in which repeated events give rise to discrete injuries, as in suits for lost wages. If [the] plaintiff were seeking backpay for repeated acts of wage discrimination (suppose that every pay day for five years he had received $100 less than he was entitled to), he would not be permitted to reach back to the first by suing within the limitations period for the last ... [T]he damages from each discrete act of discrimination would be readily calculable without waiting for the entire series of acts to end. There would be no excuse for the delay. And so the violation would not be deemed continuing." (Citations omitted; emphasis added; internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 588-89, 22 A.3d 1214 (2011).
In the present case, the defendant has shown there is no genuine issue of material fact that the defendant’s actions were not continuing. The LLC allegedly breached the contract only once per year. The plaintiff stated at her deposition of December 13, 2016 that she received her bonus at the end of the year. Clark stated in her deposition that the plaintiff received the bonus once per year. Although the plaintiff argues there is a genuine issue of material fact concerning whether late payments by the law firms was continuous conduct, such a dispute only goes to her readily calculable damages and does not make the conduct continuing. See id. Thus, the plaintiff has failed to show there is a genuine issue of material fact. Because there is no genuine issue of material fact that the defendant’s conduct was not continuous, the continuing course of conduct doctrine does not apply and does not toll § 52-577.
Second, the defendant has shown there is no genuine issue of material fact that the fraudulent concealment doctrine does not apply here because, for the reasons previously stated, there is no evidence showing the LLC engaged in any act to fraudulently conceal the existence of the plaintiff’s cause of action. The plaintiff has failed to meet her burden by showing, with clear, precise, and unequivocal evidence, that the LLC intentionally concealed the facts establishing the plaintiff’s cause of action and, even if the LLC concealed those facts, he did so to try and prevent the plaintiff from filing her cause of action. Therefore, the fraudulent concealment doctrine does not toll § 52-577. Accordingly, the motion for summary judgment is granted in part as to any claimed misrepresentations occurring prior to August 21, 2012, as they are barred by the three-year statute of limitations set forth in § 52-577.
See Section I.C. of this memorandum. ---------
IV
The defendant next moves for summary judgment on count three, unjust enrichment, on the ground that he cannot be personally liable for the alleged actions of the LLC. The plaintiff argues that the defendant dissolved the LLC, making him liable for its actions.
General Statutes § 34-134 provides in relevant part: " A member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company ..." General Statutes § 34-133(b) provides an exception, allowing a member of a LLC to be " personally liable for negligence or wrongful acts or misconduct committed by him ..." Nevertheless, neither statute controls here because both parties agree that the defendant dissolved the LLC. Therefore, the court analyzes the arguments in the context of General Statutes § 34-214 because the defendant, as the sole member of the LLC, presumably received the assets of the LLC upon its dissolution. See Nadler v. Grayson Construction Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-02-0190015-S (April 15, 2003, Adams, J.) .
Section § 34-214 provides: " Any claim not barred pursuant to sections 34-212 and 34-213 may be enforced by a claimant, legal representative or assignee against: (1) The dissolved limited liability company to the extent of its undistributed assets, or (2) if the assets of a dissolved limited liability company have been distributed in liquidation, against one or more members of the dissolved limited liability company to the extent of their pro rata shares of the claim or the assets of the limited liability company distributed to them in liquidation, whichever is less, but no member’s total liability for all claims under this section shall exceed the total amount of assets distributed to that member." " General Statutes § 34-214 authorizes claims against a dissolved limited liability company or its members under certain circumstances ... In particular, such claims must not be barred under § § 34-212 or 34-213." (Citation omitted; internal quotation marks omitted.) PGP Group, LLC v. LaBossiere Builders, LLC, Superior Court, judicial district of New Haven, Docket No. CV-15-6052082-S (January 19, 2016, Wilson, J.). " Sections 34-212 and 34-213 require that a dissolved LLC provide actual and constructive notice, respectively, to the LLC’s known and unknown creditors so as to trigger a limitation period within which an aggrieved party may bring a claim against the LLC." Desir v. Clanton, Superior Court, judicial district of New London, Docket No. CV- 09-5011887-S (April 30, 2010, Cosgrove, J.) (49 Conn.L.Rptr. 739, 740).
In the present case, there is nothing in the record that shows that the defendant provided the required notice necessary to trigger application of § § 34-212 or 34-213. Accordingly, neither statute bars the plaintiff’s claim, meaning that the plaintiff may pursue her cause of action for unjust enrichment under § 34-214. Accordingly, the defendant’s motion for summary judgment for count three on this ground is denied.
CONCLUSION
For all the foregoing reasons, the defendant’s motion for summary judgment as to counts one and three is hereby granted for the years 2007 and 2008 as the plaintiff’s claims for the fifteen percent payments claimed due from the defendant for those years are time barred; however, the motion for summary judgment as to counts one and three is hereby denied for the years 2009 and 2010. The motion for summary judgment is hereby granted as to count two because § 31-72 is inapplicable. The motion for summary judgment as to count four is hereby granted as that claim is time barred. The motion for summary judgment as to count five is hereby granted in part as to any claimed misrepresentations occurring prior to August 21, 2012.
Beckenstein v. Potter & Carrier, Inc., supra, 191 Conn. 163. In present case, the plaintiff pleaded fraudulent concealment in her reply to the defendant’s first answer. Although the defendant amended his answer, the plaintiff did not need to reply. See Practice Book § 10-61 (" [i]f the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading" ).