Discover Bank v. Hill ( 2014 )

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DISCOVER BANK v. KEVIN P. HILL
(AC 34966)
Lavine, Alvord and Bishop, Js.
Argued March 11—officially released May 13, 2014
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Hiller, J.)
Daniel D. Skuret III, with whom was Patrick D.
Skuret, for the appellant (defendant-third party
plaintiff).
Jonathan E. Von Kohorn, with whom, on the brief,
was Tara L. Von Kohorn, for the appellee (third party
defendant Anapurna Duleep).
Opinion
ALVORD, J. The defendant-third party plaintiff, Kevin
P. Hill, appeals from the judgment in favor of the third
party defendant, Annapurna K. Duleep, rendered by
the trial court after a two day bench trial.1 The court
concluded that the plaintiff’s claims were barred by the
three year statute of limitations set forth in General
Statutes § 52-577.2 On appeal, the plaintiff claims that
the court improperly (1) failed to apply the statute of
limitations applicable to actions for indemnification,
(2) concluded that the relation back doctrine was not
applicable to the second count of his amended com-
plaint because it alleged an entirely new cause of
action,3 (3) failed to conclude that General Statutes
§ 52-5954 was applicable because the defendant had
fraudulently concealed the existence of the cause of
action, and (4) failed to conclude that the statute of
limitations had been tolled by the doctrine of equitable
estoppel. We disagree and affirm the judgment of the
trial court.
The court’s memorandum of decision and the record
reveal the following facts and procedural history. The
plaintiff and the defendant were married on August 28,
1998. The parties separated in the fall of 2003, and
the defendant left the marital residence. The plaintiff
commenced a dissolution action. A judgment of dissolu-
tion was rendered on April 14, 2004, which incorporated
the parties’ separation agreement. In connection with
the judgment, the parties filed updated financial affida-
vits that listed their assets and liabilities. The separation
agreement provided that neither party had incurred lia-
bilities other than those reflected in the affidavits and
that neither party would incur future liabilities for
which the other party would be liable. The agreement
additionally provided that each party would ‘‘keep the
other free, harmless and indemnified of and from any
and all debts, charges and liabilities heretofore or here-
after contracted by each of them.’’
Approximately one month prior to the judgment of
dissolution, the defendant, without the plaintiff’s knowl-
edge, opened a Discover card account in the plaintiff’s
name and transferred $5000 of debt from her personal
American Express card to the Discover card. At or
about the same time, the defendant also opened a cash
reserve loan account connected with the parties’ joint
checking account at the Bank of America.5 The plaintiff
was not aware that the defendant had opened this line
of credit because the bank statements were being sent
to her address in New York City. The parties had agreed
that, after the divorce was finalized, the formerly joint
checking account would be taken over by the defendant
and would remain in her name only. For that reason,
the plaintiff had opened his own personal checking
account with the Bank of America in March, 2004.
On April 14, 2004, the day that the judgment of disso-
lution was rendered, the plaintiff went to a local branch
office of the Bank of America and had his name removed
from the joint checking account. He later discovered
that as of April 5, 2004, the balance on the cash reserve
loan account associated with the formerly joint check-
ing account was more than $8000. The defendant contin-
ued to draw on the cash reserve loan account after
the divorce and owed the Bank of America more than
$10,000 by November 3, 2004.
On January 13, 2005, the plaintiff attempted to use
the debit card connected with his personal Bank of
America checking account. When it was declined, he
went to an automatic teller machine (ATM) to check
on his available balance. The ATM receipt indicated
that he had a zero balance in his personal account. On
January 14, 2005, upon further inquiry, he was told that
the Bank of America had transferred $10,671.24, the
funds in his personal account, to pay the balance due
and owing on the defendant’s cash reserve loan
account.
Discover Bank filed a small claims action against
the plaintiff on October 23, 2006, seeking to recover
$3340.15, which was the outstanding balance on the
Discover card account. The plaintiff filed a motion to
transfer the matter to the regular civil docket, which
was granted on April 16, 2007. After the court granted
the plaintiff’s motion to cite in the defendant as a party,
the third party complaint was served on the defendant
on November 26, 2007. The initial third party complaint
was comprised of one count that alleged that the defen-
dant had fraudulently opened the Discover card
account. On January 15, 2008, which was within thirty
days of the return date, the plaintiff filed an amended
third party complaint pursuant to Practice Book § 10-
59. The amended third party complaint added a second
count, which alleged that the defendant had opened a
cash reserve loan account with the Bank of America,
incurred debt in the plaintiff’s name without his con-
sent, and concealed the action from the plaintiff.
Thereafter, Discover Bank settled its claim against
the plaintiff for $3340 and withdrew its complaint
against him on July 21, 2009. The case proceeded to
trial on the third party complaint on January 5 and
February 3, 2012. The parties filed posttrial briefs, and,
on August 6, 2012, the court issued its memorandum
of decision. The court concluded that both counts of
the plaintiff’s action sounded in civil fraud and were
governed by the three year statute of limitations set
forth in § 52-577. The court found that the third party
action with respect to the Discover card account had
not been commenced within that requisite time period.
The court also found that count two, pertaining to
the Bank of America cash reserve loan account, was
barred by § 52-577. The court determined that the stat-
ute of limitations began to run, at the latest, on January
13, 2005, when Bank of America transferred $10,671.24
from the plaintiff’s personal checking account to pay
the outstanding balance on the cash reserve loan
account. The initial third party complaint did not
include a claim with respect to the cash reserve loan
account. The plaintiff filed an amended third party com-
plaint to include that entirely new cause of action on
January 15, 2008, which was outside the requisite three
year period. The court further concluded that the stat-
ute of limitations had not been tolled by the alleged
fraudulent concealment of the action by the defendant
or by the doctrine of equitable estoppel. Accordingly,
the court rendered judgment in favor of the defendant.
This appeal followed.
The plaintiff’s first claim is that the court improperly
concluded that his action was time barred by § 52-577,
which is the tort statute of limitations. The plaintiff
argues that he had raised claims of indemnification
pursuant to the parties’ separation agreement. The sepa-
ration agreement had been incorporated into the judg-
ment of dissolution and contained an indemnification
clause. He claims that, because it was undisputed that
the defendant failed to include the Discover card
account debt and the Bank of America cash reserve
loan account debt on her financial affidavit, the court
should have applied the statute of limitations applicable
to actions for indemnification. In his appellate brief,
the plaintiff cites General Statutes § 52-598a6 and makes
the following claim: ‘‘Based upon a claim for indemnifi-
cation, the earliest the three (3) year statute of limita-
tions would begin to run was from the date of settlement
[with Discover Bank], March 26, 2009. Clearly the claims
for indemnification were commenced within the appli-
cable time period.’’7
The court’s memorandum of decision does not
include an analysis of the indemnification claim. A
review of the trial transcript, however, discloses that
the court and the parties’ counsel discussed the indem-
nification provision found in the separation agreement.
On the first day of trial, when the plaintiff was on the
witness stand, the defendant’s counsel objected when
the plaintiff’s counsel asked the plaintiff if he had
entered into a separation agreement with the defendant
at the time of the dissolution. The following colloquy
took place among the court and the parties’ counsel:
‘‘[The Defendant’s Counsel]: Objection. Objection,
Your Honor. Relevancy with respect to the separation
agreement. It is not covered by any of the two counts
on plaintiff’s complaint.
‘‘The Court: Counsel?
‘‘[The Plaintiff’s Counsel]: It is covered, Your Honor.
It is also covered by way of our claims for relief, where
we’re claiming indemnification of damages pursuant to
the separation agreement; it says that on the last page,
Your Honor.
‘‘The Court: You have a count for indemnification?
‘‘[The Plaintiff’s Counsel]: We do have a claim for
indemnification, Your Honor.
‘‘[The Defendant’s Counsel]: There is no count for
indemnification, Your Honor, not in the two counts.
***
‘‘The Court: Is there a count for breach of an
agreement or breach of an agreement to pay, from
which indemnification might result?
‘‘[The Plaintiff’s Counsel]: We did make a claim, Your
Honor. Specifically we requested indemnification pur-
suant to the separation agreement entered into.
‘‘The Court: That’s a claim. Do you have a factual
count explaining why you’re entitled to indemnifi-
cation?
***
‘‘The Court: Where is there an allegation that there
was an agreement to indemnify? You have to have either
an agreement to indemnify alleged in a count or you
have to have a statute allowing indemnification. Those
are the only two bases for indemnification that the court
knows of.
‘‘[The Plaintiff’s Counsel]: Okay, Your Honor. In our
complaint, we specifically indicated the fact that she
never disclosed to the court on her financial affidavit
and attached to the divorce decree and judgment, which
is incorporated in the separation agreement, which I
was getting to, was a copy of the financial affidavits,
Your Honor, and . . . .
‘‘The Court: Whoa. Whoa. Whoa. Plain and simple, is
there a count in the complaint saying there was an
agreement to indemnify for any losses suffered as a
result of certain actions? I don’t see it. And either there’s
a statute that provides indemnification or there’s an
agreement alleged, by which you’re entitled to indemni-
fication. I don’t see it. The court could be wrong, but
I don’t see it, and until I see it in a count of the complaint,
I don’t think we have to go into it. So let’s go and
continue on the testimony of the witness.
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: Okay.
‘‘[The Plaintiff’s Counsel]: But it’s a full exhibit and
I should say a reply to their special defenses addresses
that to Your Honor. And specifically, which we filed
according to your allowing to amend, it specifically
indicates it’s in reply to their special defense. We do
allege the divorce decree in agreement . . . .
‘‘The Court: [Counsel] let’s stop. Let’s move on.
‘‘[The Plaintiff’s Counsel]: Okay.
‘‘The Court: I could be wrong and maybe tonight
you’ll show me something that says that I’m wrong, that
you have enough in there as an allegation and count
for indemnification. I don’t see it.8 So for now let’s
proceed with the testimony.
‘‘[The Plaintiff’s Counsel]: Okay. Thank you, Your
Honor.’’
The issue was not raised again during the trial. In
the plaintiff’s posttrial brief, there was no claim or argu-
ment addressed to § 52-598a, which is the statute of
limitations applicable to actions for indemnification.
The court did not address § 52-598a in its memorandum
of decision because it was not an issue in the case. The
plaintiff, if he intended to pursue that claim, should
have presented the argument to the trial court that his
amended third party complaint sufficiently alleged an
action for indemnification. He did not and, instead, pre-
sents that claim to this court for review.
The plaintiff did not try his case to the trial court on
the theory that his action was governed by the statute
of limitations set forth in § 52-598a. After the court
expressed its opinion that the third party complaint
failed to allege an action for indemnification, the plain-
tiff focused on his arguments that (1) the Bank of
America cash reserve loan account claim was made
timely because his amendment to add the second count
related back to the filing of the initial third party com-
plaint, (2) the plaintiff fraudulently concealed the action
from him, thereby extending the time for filing his claim,
and (3) the statute of limitations was tolled by the
doctrine of equitable estoppel. The plaintiff did not pre-
vail on his claims as presented to the trial court and
now attempts to resurrect on appeal a claim that the
trial court previously rejected. ‘‘[A] party cannot present
a case to the trial court on one theory and then seek
appellate relief on a different one . . . .’’ (Internal quo-
tation marks omitted.) Albemarle Weston Street, LLC
v. Hartford, 104 Conn. App. 701, 709, 936 A.2d 656(2007). Accordingly, we decline to review this claim.
With respect to the remaining claims of the plaintiff
on appeal, we conclude that these issues were analyzed
and resolved properly in the trial court’s complete and
well reasoned memorandum of decision. See Discover
Bank v. Hill, 53 Conn. Supp. 257, A.3d (2014).
We adopt that decision as the proper statement of the
relevant facts, issues and applicable law, as it would
serve no useful purpose for us to repeat the discussion
contained therein. See, e.g., Pellecchia v. Killingly, 147
Conn. App. 299, 301–302, 80 A.3d 931 (2013).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff, Discover Bank, also known as Discover Card, commenced
this action against the defendant, Kevin P. Hill, seeking to collect the unpaid
balance on a credit card account. While the action was pending, Hill filed
a motion to cite in Annapurna K. Duleep as a party defendant, which was
granted by the court, Levin, J., on November 5, 2007. Hill filed a third party
complaint against Duleep on November 29, 2007. Thereafter, Discover Bank
and Hill reached a settlement, and Discover Bank withdrew its complaint
against Hill on July 21, 2009. The case proceeded to trial on the third party
complaint. For the sake of convenience, we refer to Hill as the plaintiff and
Duleep as the defendant in this opinion.
2
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.’’
3
Under the relation back doctrine, ‘‘a party properly may amplify or
expand what has already been alleged in support of a cause of action,
provided the identity of the cause of action remains substantially the same.
. . . If a new cause of action is alleged in an amended complaint . . . it
will [speak] as of the date when it was filed.’’ (Internal quotation marks
omitted.) Austin-Casares v. Safeco Ins. Co. of America, 310 Conn. 640, 656,
81 A.3d 200 (2013).
4
General Statutes § 52-595 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.’’
5
The Bank of America was then known as Fleet Bank.
6
General Statutes § 52-598a provides: ‘‘Notwithstanding any provision of
this chapter, an action for indemnification may be brought within three
years from the date of the determination of the action against the party
which is seeking indemnification by either judgment or settlement.’’
7
The plaintiff does not state when the statute of limitations set forth in
§ 52-598a would begin to run with respect to the cash reserve loan account.
There was no evidence of any ‘‘judgment or settlement’’ with the Bank of
America. As previously noted, Bank of America transferred the plaintiff’s
funds from his personal checking account to satisfy the amount owed under
the cash reserve loan account.
8
The amended third party complaint dated January 11, 2008, which is the
operative complaint, has two counts. The first count is addressed to the
Discover card account and alleged that the defendant: (1) fraudulently
opened the account; (2) transferred her personal debt of $5000 from her
American Express card account to the Discover card account; (3) incurred
the Discover card debt in the plaintiff’s name without his consent; (4) refused
to make payments on the debt; (5) incurred the debt prior to the dissolution
judgment; and (6) failed to list the debt on her financial affidavit. The
first count does not mention the separation agreement or allege that the
defendant was obligated to indemnify the plaintiff for his loss or liability
in connection with the Discover card account.
The second count is addressed to the cash reserve loan account with the
Bank of America. In that count, the plaintiff alleged that the defendant: (1)
obtained $10,671.24 in connection with the cash reserve loan account; (2)
used the money for her own personal use; (3) incurred the debt in the
plaintiff’s name without his consent; (4) refused to make payments on the
debt; (5) incurred the debt prior to the dissolution judgment; (6) continued
to incur additional debt in connection with the cash reserve loan account
after the parties’ divorce was finalized; (7) failed to list the debt on her
financial affidavit; and (8) requested that the bank send the statements to
her New York City address in order to conceal the debt from the plaintiff.
The second count does not mention the separation agreement or allege that
the defendant was obligated to indemnify the plaintiff for his loss or liability
in connection with the cash reserve loan account.
In the third party complaint’s prayer for relief, the plaintiff requested
‘‘[i]ndemnification pursuant to the [s]eparation [a]greement entered into
with [the plaintiff] on April 14, 2004.’’ As the trial court correctly observed,
however, a cause of action for indemnification was not alleged in either
count of the third party complaint. Simply including indemnification as a
remedy sought in the prayer for relief did not convert the plaintiff’s civil
fraud action into an action for indemnification. The prayer for relief does
not constitute a cause of action.