Opinion
FSTCV166028741S
04-16-2018
Iise VIETOR-HAIGHT v. BNY MELLON, N.A., Trustee
UNPUBLISHED OPINION
Jacobs, J.
BACKGROUND
The plaintiff, Ilse Vietor-Haight, is the sole income beneficiary of the Charles T. Haight Trust, established in 1978. The defendant was the corporate trustee of said Trust. In her December 20, 2016 Amended Complaint [# 106], the plaintiff alleges the defendant’s breach of fiduciary duty (Count One), negligence (Count Two) and Recklessness (Count Three) in administering the Trust. The plaintiff seeks money damages, punitive and treble damages, compound interest, and attorney fees.
On August 7, 2017, the defendant filed the instant motion for summary judgment on following grounds: (1) the plaintiff’s claims have already been litigated and are barred by the doctrines of res judicata and/or collateral estoppel; (2) the plaintiff has failed to plead the necessary elements to prove the causes of action for general or reckless breach of fiduciary duty, and (3) the plaintiff’s claims are barred by the statutes of limitations as set forth in CGS § 52-577 and/or § 52-584. The defendant’s motion is accompanied by an affidavit by Steven P. Dericco, Esq., a copy of the Trust Agreement, records from the Probate Court, and an accounting report [# 119]. The plaintiff filed a memorandum in opposition and an affidavit on October 12, 2017 [# 126]. On December 13, 2017, the defendant filed a reply memorandum to the plaintiff’s objection [# 131]. The matter was heard at short calendar on December 18, 2017.
The court has considered the defendant’s motion and supporting documents, the plaintiff’s objection and opposing documents, the defendant’s reply, and the arguments of counsel at short calendar. This court has reviewed the January 11, 2016 probate court order (Hopper, J.).
The plaintiff alleges the following facts. In 1978, Charles T. Haight established a Trust Agreement (Trust) to provide for income beneficiaries. The Trust’s primary asset was a commercial and residential property located at 164 Mason Street in Greenwich. The Trust terminated on February 11, 2012. The plaintiff filed a Motion for Accounting in the Greenwich Probate Court. The Defendant filed an application to the probate court for an order allowing the final account, as amended, and for an order of distribution. The plaintiff objected to the allowance of the Account and alleged that Defendant failed to: (1) file accounts annually as required by the Trust; (2) maintain and provide accurate accounts; and (3) act as a prudent investor in its fiduciary capacity as trustee. The plaintiff alleged that the defendant made income distributions below the market rate from 1994-2012; made excess tax payments and fees to a company it contracted with in 1999; and failed to recover lost rent or lease a vacant space on the property from 2004-2007. In its January 11, 2011 Decision, the Probate Court judge criticized the defendant for, among other things, not performing in an exemplary manner, for making a number of poor decisions, for not communicating better with the beneficiary, and for not keeping better records. However, the court specifically found that the defendant did not act in bad faith or breach its fiduciary duty (quotation marks omitted). The court ordered the trustee to reimburse the plaintiff $542,904.44, plus $243,088.52, five percent simple interest, for the amounts borrowed to pay expenses. The court specifically stated that it applied simple interest rather than compounded interest in an effort to treat all of the beneficiaries more fairly.
Article VII of the Trust Agreement provides that " [n]o fiduciary shall be liable or responsible in any way or manner unless he shall have acted in bad faith. Article XII requires the Trustee to render annual accounts to each income beneficiary.
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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35 (2012). Summary judgment is an appropriate vehicle for resolving issues of res judicata and collateral estoppel. See Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712 (1993). " 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." (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 522-23 (2001).
Duplicate Claim
The parties agree that the factual allegations before the Probate Court are identical to those alleged in the amended complaint in the current case. The defendant asserts that count two, negligence, is a duplicate claim because the factual allegations there are identical to those alleged in count one, breach of fiduciary duty; thus, the amended complaint merely asserts two theories of liability. In response, the plaintiff admits the allegations in counts one and two are identical; however, the plaintiff asserts that her claim for negligence is distinct from her claim for breach of fiduciary duty.
Our rules of practice permit a plaintiff to " advance alternative ... theories of liability against one or more defendants in a single complaint." Dreier v. Upjohn Co., 196 Conn. 242, 245 (1985). Practice Book § 10-25 provides that " [t]he plaintiff may claim alternative relief, based upon an alternative construction of the cause of action." A trial court " has [an] obligation to review the pleadings so that the issues between the parties can be rationally defined." Hansen v. Mohegan Fire Co., Inc., Superior Court, judicial district of New London, Docket No. CV-96-0111388-S (October 1, 2001, Corradino, J.) (30 Conn.L.Rptr. 572). In considering § 10-25, the court in Hansen reasoned: " parties can plead in the alternative, but they may not plead ... the same legal theories in separate counts whose only difference is verbiage added to the headings but which make the same factual or legal allegations in the body of the counts."
The court agrees with the principles discussed above. Pleading duplicate claims or, as stated differently, pleading different theories of liability in separate counts under substantially similar allegations, is inconsistent with our rules of practice. Negligence is defined as " [t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation ..." Black’s Law Dictionary (10th Ed. 2014). The essential elements of a claim of negligence are: " (1) duty; (2) breach of that duty; (3) causation; and (4) actual injury." Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328 (2015).
Breach of fiduciary duty, in contrast, implicates a duty of care and a duty of loyalty. A plaintiff must specifically allege " that the defendants engaged in some form of fraudulent or immoral behavior beyond simple negligence ..." (emphasis added.) Lee v. Brenner, Saltzman & Wallman, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-5000728-S (May 24, 2007, Esposito, J.) (43 Conn.L.Rptr. 462). To establish breach of fiduciary duty, a plaintiff must arguably show: " (1) a fiduciary relationship existed which gave rise to (a) a duty of loyalty on the part of the defendant to the plaintiff, (b) an obligation on the part of the defendant to act in the best interests of the plaintiff, and (c) an obligation on the part of the defendant to act in good faith in any matter relating to the plaintiff; (2) the defendant advanced his or her own interests to the detriment of the plaintiff; (3) the plaintiff sustained damages; and (4) the damages were proximately caused by the fiduciary’s breach of his or her fiduciary duty." T. Merritt, 16 Connecticut Practice Series: Elements of an Action (2017 Ed.) § 8:1.
The plaintiff acknowledges that negligence and breach of fiduciary duty are independent theories of liability; yet count two merely repeats the allegations in count one. Count two fails to even allege a single element of a claim for negligence. The court concludes that count two is a duplicate claim for breach of fiduciary duties.
Prior Litigation of the Plaintiff’s Claims Res Judicata
The doctrine of res judicata bars parties in an action from relitigating similar claims that were, or could have been, litigated in a prior suit. See, e.g., Farmington Valley Recreational Park, Inc. v. Farmington Show Grounds, LLC, 146 Conn.App. 580, 588 (2013). " [Res judicata] bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action which were actually made or which might have been made ... Probate court decrees ... are final judgments for ... purposes of ... res judicata ... Probate courts are strictly statutory tribunals and, as such, they have only such powers as are expressly or implicitly conferred upon them by statute ... [T]he [Probate] [C]ourt may not, however, award money damages ... [and] any cause of action seeking such a remedy must be brought in a court of general jurisdiction." (Citations omitted; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 596-97 (2002). " [R]es judicata applies if the following elements are satisfied: the identity of the parties to the actions are the same; the same claim, demand or cause of action is at issue; the judgment in the first action was rendered on the merits [by a court of competent jurisdiction]; and the parties had an opportunity to litigate the issues fully." Farmington Valley Recreational Park, Inc. v. Farmington Show Grounds, LLC, supra, 146 Conn.App. 588.
The defendant asserts that the plaintiff had adequate opportunity to raise her claims to the Greenwich Probate Court judge. This court agrees. The plaintiff not only raised similar claims in the probate matter, they were decided by the probate court judge. Furthermore, this court rejects any claim that the plaintiff did not have adequate opportunity to appeal the probate court’s decision, since she did in fact do so and withdrew her appeal.
Collateral Estoppel
Collateral estoppel, or issue preclusion, " means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit ... Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment ... Collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest ... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for a determination, and in fact determined ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered ... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Heussner v. Day, Berry & Howard, LLP, 94 Conn.App. 569, 573 (2006). " The defendant has the burden of showing that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." (Internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 48 Conn. 364, 377 (1999).
In the instant case, the plaintiff is collaterally estopped from asserting breach of fiduciary duty because the Probate Court determined that the defendant " did not breach its fiduciary duty" in administering the Trust.
The Probate Court, however, did not determine whether the defendant engaged in reckless conduct; nor could the Probate Court have adjudicated the plaintiff’s recklessness claim in deciding upon the validity of the accounting rendered by the defendant because it does not have jurisdiction to award damages on claims requesting accounting and seeking equitable and monetary relief. As such, neither res judicata nor collateral estoppel precludes the plaintiff’s claim for recklessness.
Statute of Limitations
The defendant asserts that the, plaintiff’s claim for recklessness is time-barred under General Statutes § 52-584, because the factual allegations in the amended complaint are predicated on events which occurred between 1994-2012. The plaintiff argues that the doctrines of continuing course of conduct and fraudulent concealment apply to toll the statute of limitations. Specifically, the plaintiff asserts that a fiduciary relationship continued to exist until the Probate Court issued a decree on the defendant’s final accounting, and that the defendant fraudulently concealed accounting reports in order to avoid or limit its liability.
General Statutes § 52-584 provides in relevant part: " No action to recover damages for injury to the person ... caused by reckless or wanton misconduct ... shall be brought but within two years from the date when the injury is first sustained or discovered ..." See, e.g., Hill v. Williams, 74 Conn.App. 654, 658, cert. denied, 263 Conn. 918 (2003) (plaintiff’s claim for recklessness is governed by the two-year statute of limitations).
General Statutes § 52-595 provides: " If any person, liable to an action by another, fraudulently conceals from him [or her] 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."
" [A] statute of limitations may be tolled under the ... continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date." Sherwood v. Danbury Hospital, 252 Conn. 193, 202-03 (2000). Pursuant to this doctrine, " the statute [of limitations] does not begin to run until [the] course of conduct is completed." (Internal quotation marks omitted.) Id., 206 n.12. " [T]he doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the ... statute of limitations to run ..." (Internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn.App. 289, 295-96, cert. denied, 235 Conn. 925 (1995).
" [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong ... Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Citation omitted.) Sherwood v. Danbury Hospital, supra, 252 Conn. 203.
In the instant case, the Trust terminated on February 11, 2012. There is no evidence the Trust Agreement provided that the defendant had an ongoing duty to file annual accounts or provide income distributions to income beneficiaries thereafter. There is also no evidence that the alleged tortious acts continued to evolve well after the Trust terminated. See, e.g., Macellaio v. Newington Police Dept., 145 Conn.App. 426, 436 (2013) (no genuine issue of material fact that " the alleged violation continued to evolve after the act complained of was complete" ).
Nor is there evidence of any knowledge or awareness that the defendant fraudulently concealed facts from the plaintiff in an attempt to avoid or limit its liability. " [T]o prove fraudulent concealment, the plaintiff [must] show: (1) the defendants’ actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiff’s cause of action; (2) the defendants’ intentional concealment of these facts from the plaintiff; and (3) the defendants’ concealment of these facts was for the purpose of obtaining delay on the plaintiff’s part in filing a complaint on his [or her] cause of action." Macellaio v. Newington Police Dept., supra, 145 Conn.App. 432. The plaintiff generally has the burden of showing fraudulent concealment. See Stuart v. Snyder, 125 Conn.App. 506, 513 (2010). " To meet this burden, it [is] not sufficient for the [plaintiff] to prove merely that it was more likely than not that the [defendant] had concealed the cause of action. Instead, the [plaintiff must] prove fraudulent concealment by the more exacting standard of clear, precise and unequivocal evidence ..." (Emphasis added; internal quotation marks omitted.) Byrne v. Burke, 112 Conn.App. 262, 272, cert. denied, 290 Conn. 923 (2009).
In DelBianco v. Brenes, Superior Court, judicial district of Waterbury, Docket No. CV-16-6031186-S (March 9, 2017, Brazzel-Massaro, J.), the plaintiff, alleged the defendant’s fraud, conversion, and theft by obtaining a combination to the plaintiff’s safe and providing it to her son, who then removed valuable contents from her safe. The defendant moved for summary judgment on grounds of statute of limitations under § 52-577. In defense, the plaintiff argued that the doctrine of fraudulent concealment applied. The trial court examined the plaintiff’s affidavit, which contained detailed factual background of events leading up to her discovery of missing contents in her safe, and concluded that genuine issues of material fact existed in determining whether § 52-595 applied.
Unlike DelBianco, the plaintiff’s affidavit in the instant case fails to contain a detailed background of events which might raise an issue of material fact that the defendant attempted to fraudulently conceal facts from her. The Probate Court acknowledged that the defendant made a number of erroneous decisions and failed to perform in an exemplary manner in accounting for the Trust, and should have kept better accounting records. The Probate Court also found that the defendant made excessive tax payments and fees to a company it contracted with in 1999, albeit reasonable, and that the defendant " arbitrarily utilized income" from the Trust’s principal to pay for expenses, " without considering proper planning." In considering all the evidence, however, the Probate Court found that the defendant did not act in bad faith. The probate court findings show that there is no genuine issue of material fact that fraudulent concealment applies to toll the statute of limitations. As such, the plaintiff’s claim for recklessness is time barred under § 52-584.
CONCLUSION
Having determined that the doctrines of res judicata and collateral estoppel apply to the current case and bar the plaintiff’s claim of breach of fiduciary duty, and, having determined that the plaintiff has failed to bring her recklessness claim within the time period set forth in the applicable statute of limitations for recklessness, the court grants the defendant’s motion for summary judgment.