Tunick v. Tunick

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STEPHEN M. TUNICK ET AL. v. BARBARA
TUNICK ET AL.
(AC 42031)
Keller, Elgo and Lavery, Js.
Syllabus
The plaintiff, who was a remainder beneficiary of a revocable trust, brought
an action for damages against his sisters, B and R, and against D, the
administrator of the estate of the plaintiff’s mother, S, in connection
with the administration of the trust. The plaintiff claimed, inter alia,
that B and S, who had been cotrustees of the trust, had breached their
fiduciary duties to him, and that S, D and R had fraudulently concealed,
pursuant to statute (§ 52-595), facts that were necessary to his causes
of action against them. In 2004, S and B filed an application with the
Probate Court to remove the plaintiff as a trustee pursuant to statute
(§ 45a-242 (a)). The court thereafter issued a written decree in which
it found, inter alia, that the plaintiff had neglected to perform the duties
of the trust and ordered his removal as a trustee. The court also issued
orders pertaining to certain antique automobiles that were part of the
trust. S and B thereafter acted as cotrustees until June, 2013, when
the Probate Court issued an order removing them as cotrustees and
appointing a successor trustee. After S died in 2015, the Probate Court
appointed D the administrator of her estate. The plaintiff commenced
his action against B, R and D in May, 2017. The trial court thereafter
granted motions to strike that were filed by D and B as to certain counts
of the complaint against them that alleged that the trust was a contract
they had breached. R, D and B subsequently filed separate motions for
summary judgment in May, 2018, in which they alleged that all counts
of the complaint against them were time barred pursuant to the three
year tort statute (§ 52-577) of limitations. While the three motions for
summary judgment were pending, the plaintiff filed a revised complaint
that added a count against B sounding in unjust enrichment, which was
not thereafter adjudicated in the trial court’s ruling on B’s motion for
summary judgment. The trial court then granted the summary judgment
motions filed by R, D and B. The court determined, inter alia, that the
plaintiff’s allegations of wrongdoing described conduct that occurred
from 1997 to 2013, and that R, D and B had met their burden of showing
that the plaintiff’s claims were time barred by § 52-577. The court further
determined that there was no evidentiary basis for the plaintiff’s claims
that the statute of limitations in § 52-577 was tolled by the continuous
course of conduct doctrine or by fraudulent concealment, and it con-
cluded that no genuine issues of material fact existed as to when the
plaintiff’s causes of action accrued and when his action was com-
menced. Held:
1. This court lacked subject matter jurisdiction over that portion of the
plaintiff’s appeal that concerned the partial summary judgment rendered
in favor of B, as it was undisputed that his unjust enrichment count
against her remained pending; the plaintiff did not request a written
determination from the trial court regarding the significance of the issues
resolved by the partial summary judgment, the record did not contain
a withdrawal or an unconditional abandonment of the unjust enrichment
count, and, as that count remained unadjudicated, it presented the possi-
bility that B could be found liable to the plaintiff for damages; accord-
ingly, the portion of the plaintiff’s appeal as to B was dismissed.
2. The trial court properly granted D’s motion to strike the breach of contract
count in the plaintiff’s complaint, as S, by having agreed to perform her
duties as a trustee, did not enter into a contract to perform provisions
of the trust that were enforceable by an action sounding in contract;
the plaintiff provided no authority in which a court has held that a trust
beneficiary may bring an action sounding in contract against a trustee,
the plaintiff having disregarded several critical distinctions between a
trust and a contract, including that a trust needs no consideration to
support it.
3. The plaintiff could not prevail on his claim that his causes of action as
a remainder beneficiary did not become ripe until S’s death, as that
proposition contravened precedent that § 52-577 operates as a bar to
tort claims irrespective of when they accrue; none of the conduct on
the part of the defendants that the plaintiff detailed in his complaint
was alleged to have occurred after June, 2013, when S and B were
removed as trustees, and, because the dates alleged in the complaint
were the metric for purposes of applying the limitation period of § 52-
577, the trial court properly concluded that the defendants satisfied their
burden of demonstrating the applicability of § 52-577 to the plaintiff’s
tort claims.
4. The plaintiff could not prevail on his claim that genuine issues of material
fact existed as to whether § 52-577 was tolled by the pendency of a
final accounting in the Probate Court, the continuing course of conduct
doctrine and fraudulent concealment:
a. This court found unavailing the plaintiff’s assertion that the trial court
made a legal error when it concluded that the limitation period of § 52-
577 commenced in 2013 because the Probate Court had not yet approved
the accountings submitted by S and B: the plaintiff’s reliance on the
statute (§ 52-579) governing actions against a surety on a probate bond
was misplaced, as the limitation period in § 52-579 expressly is condi-
tioned on the Probate Court’s approval of a final accounting, there was no
allegation or evidence of the existence of a probate bond, the operative
complaint contained no claim against the surety of a probate bond, and
the only facts under § 52-577 that were material to the trial court’s ruling
were the date of the wrongful conduct alleged in the complaint and the
date the action was filed; moreover, the plaintiff provided no authority,
nor was this court aware of any, in which it has been held that the
limitation period of § 52-577 automatically is tolled for tort claims against
a trustee due to the pendency of a final accounting in the Probate Court,
this court was not inclined to articulate such a per se rule, and the
accounting issue, which implicated the fiduciary duty of a removed
trustee, properly fell within the purview of the continuous course of
conduct doctrine.
b. The trial court properly concluded that the continuing course of
conduct doctrine did not apply to the plaintiff’s claims against R; the
plaintiff asserted in his complaint that he suffered money damages as
a result of R’s conduct from 1997 through 2013, he did not offer affidavits
or other proof that R engaged in activity with respect to the trust after
June, 2013, he did not allege that R owed a legal duty to him, and R never
was a trustee and did not stand in a fiduciary relation to the plaintiff.
c. Although the plaintiff met his burden of establishing that S owed a
continuing fiduciary duty to account for trust assets following her
removal as a trustee in June, 2013, he failed to establish a genuine issue
of material fact as to whether S and D continually breached that fiduciary
duty to the remainder beneficiaries, which resulted in an enhanced
injury to him following S’s removal as a trustee that would toll the
limitation period in § 52-577; contrary to the plaintiff’s allegation that S
and D engaged in a continuous course of conduct by failing to account
for the automobiles and automobile parts, which was the only factual
allegation in the plaintiff’s pleadings of a continuing breach of the fidu-
ciary duty owed to remainder beneficiaries subsequent to S’s removal,
that failure did not constitute a series of events that gave rise to a
cumulative injury, and the subsequent injury the plaintiff allegedly sus-
tained following S’s removal as trustee, which was the failure to obtain
an accounting of the automobile assets, was the same injury he allegedly
incurred prior to her removal.
d. The trial court properly concluded that no genuine issue of material
fact existed with respect to the plaintiff’s claim that S, D and R fraudu-
lently concealed his causes of action against them such that the limitation
period for those causes of action was tolled by § 52-595: the plaintiff’s
assertion that the defendants should bear the burden to demonstrate
that they did not engage in fraudulent concealment was unavailing, as
our Supreme Court has held that the burden of establishing fraudulent
concealment belongs to the party seeking to avail itself of that tolling
doctrine, and this court, as an intermediate appellate tribunal, was not
at liberty to modify, reconsider or overrule precedent of the Supreme
Court; furthermore, the plaintiff did not provide clear and unequivocal
evidence that S, D or R had actual awareness of the facts necessary
to establish the plaintiff’s causes of action or that they intentionally
concealed such facts from him, as the trial court carefully reviewed all of
the materials that the plaintiff submitted in opposition to the defendants’
motions for summary judgment, which did not show any intent on the
part of the defendants to conceal facts or support a finding that their
alleged concealment was directed toward delaying commencement of
an action against them.
5. The plaintiff’s appeal as to his claim that the trial court improperly denied
his motion to open the judgment was moot; the plaintiff’s request to
submit what he asserted was newly discovered evidence that contra-
vened D’s contention that S had no continuing duty to the remainder
trustees after her removal as a cotrustee in June, 2013, ostensibly sup-
ported this court’s legal conclusion that S owed such a duty following
her removal; accordingly, there was no practical relief that could be
afforded to the plaintiff, and that portion of his appeal challenging the
propriety of the denial of his motion to open the judgment was dismissed.
Argued February 10—officially released December 1, 2020
Procedural History
Action for, inter alia, breach of fiduciary duty, and
for other relief, brought to the Superior Court in the
judicial district of Fairfield, where the court, Truglia,
J., granted the motions to strike filed by the defendant
Richard S. DiPreta et al.; thereafter, the named plaintiff
filed an amended complaint; subsequently, the court
granted in part the motion for summary judgment filed
by the named defendant, granted the motions for sum-
mary judgment filed by the defendant Roberta G. Tunick
et al. and rendered judgment thereon, from which the
named plaintiff appealed to this court; thereafter, the
court, Truglia, J., issued an articulation of its decision
as to the named defendant; subsequently, the court,
Truglia, J., denied the named plaintiff’s motion to open
the judgment, and the named plaintiff filed an amended
appeal. Appeal dismissed in part; affirmed.
William W. Taylor, for the appellant (named plain-
tiff).
Richard E. Castiglione, for the appellee (named
defendant).
Steven M. Frederick, with whom, on the brief, was
Sarah Gleason, for the appellee (defendant Roberta
G. Tunick).
Robert C.E. Laney, with whom, on the brief, was
Karen L. Allison, for the appellee (defendant Richard
S. DiPreta).
Opinion
ELGO, J. This case concerns a dispute among family
members over the administration of assets held in a
trust created by the family patriarch. The plaintiff Ste-
phen M. Tunick appeals from the judgment of the trial
court rendered in favor of the defendants, Barbara
Tunick, Roberta G. Tunick, and Richard S. DiPreta,
administrator of the estate of Sylvia G. Tunick (estate).1
On appeal, the plaintiff contends that (1) the court
improperly granted DiPreta’s motion to strike a breach
of contract count, (2) the court improperly rejected the
plaintiff’s claim that his causes of action as a remainder
beneficiary did not become ripe until the death of the
primary beneficiary, (3) genuine issues of material fact
exist as to whether the plaintiff’s claims are time barred
under General Statutes § 52-577, and (4) the court
abused its discretion in declining to grant the plaintiff’s
motion to open the judgment. We dismiss the appeal
in part and affirm the judgment of the trial court in all
other respects.
Mindful of the procedural posture of this case, we set
forth the following facts as gleaned from the pleadings,
affidavits, and other proof submitted, viewed in the
light most favorable to the plaintiff. See, e.g., Martinelli
v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009). The
settlor, David H. Tunick (settlor), established the David
H. Tunick revocable trust (trust) in 1981. Among other
things, the trust corpus included real property and
antique automobiles. The settlor and his wife, Sylvia,
were named as the primary beneficiaries of the trust,
and their three children—the plaintiff, Barbara, and
Roberta—were named as remainder beneficiaries.
Although the plaintiff and Barbara initially were
appointed cotrustees of the trust, it was amended in
1993 to include Sylvia as a third cotrustee.
The trust provided in relevant part that Sylvia would
become the sole primary beneficiary of the trust upon
the settlor’s death and that all income and principal of
the trust would be used for her benefit. The trust further
provided that, upon Sylvia’s death, the plaintiff, Bar-
bara, and Roberta would receive equal shares of ‘‘the
remaining trust property.’’
The settlor died in 1997, leaving Sylvia as the sole
primary beneficiary of the trust. In 2004, Sylvia and
Barbara filed an application with the Probate Court to
remove the plaintiff as a trustee pursuant to General
Statutes § 45a-242 (a). Following a hearing, the court
issued a written decree, in which it found that the plain-
tiff ‘‘has neglected to perform the duties of the trust,
has refused to account and has improperly distributed
and wasted [t]rust property in his charge, and that it
would be in the best interests of the beneficiaries to
remove him as [t]rustee.’’ The court thus ordered the
plaintiff to be removed as a trustee and to ‘‘deliver any
and all property belonging to the trust [to] the remaining
[t]rustees.’’ In addition, the court issued a specific order
regarding the antique automobile assets of the trust,
stating in relevant part: ‘‘[I]n regard to . . . antique
[automobiles], they are to be sold, and . . . any [auto-
mobiles] that are kept by the beneficiaries or remainder
beneficiaries of the trust, the value of the [automobile]
shall be taken against the beneficiary’s share of the
trust. Once the [automobiles] are sold, a corporate
trustee will be appointed and the remaining [t]rustees
will resign . . . .’’
Sylvia and Barbara thereafter acted as cotrustees of
the trust from July 7, 2004, until June 11, 2013. On June
11, 2013, the Probate Court issued an order removing
Sylvia and Barbara as cotrustees and appointing Rich-
ard J. Margenot as the successor trustee. Sylvia died
on July 24, 2015, and DiPreta was appointed as the
administrator of her estate.
The plaintiff commenced this civil action by service
of process on May 5, 2017. He filed a first amended
complaint containing thirteen counts on July 6, 2017,
which he further revised on September 13, 2017. In
response, DiPreta moved to strike count thirteen of the
complaint, which alleged in relevant part that the trust
was a contract that Sylvia had breached. In his motion
to strike, DiPreta argued that the plaintiff could not
maintain a breach of contract claim because a trust is
not a contract. The trial court agreed with DiPreta and
granted the motion to strike.
On February 7, 2018, the plaintiff filed the operative
complaint, his second revised complaint. It contains
twelve counts, eleven of which sound in tort. Counts
one and two allege breach of fiduciary duty against
Barbara and Sylvia, respectively. Counts three, four and
five allege conversion against each defendant; counts
six, seven and eight allege civil theft in violation of
General Statutes § 52-564 against each defendant; and
counts nine, ten and eleven allege fraudulent misrepre-
sentation against each defendant. Last, count twelve
asserts a breach of contract claim against Barbara.
On April 23, 2018, Barbara filed a motion to strike
count twelve, claiming that it was legally insufficient
because a trust is not a contract. While that motion was
pending, Roberta and DiPreta filed separate motions
for summary judgment on May 10, 2018, alleging that
all counts against them were time barred pursuant to
§ 52-577.2 One day later, Barbara moved for summary
judgment as well, arguing that counts one, four, six and
nine against her were time barred pursuant to § 52-577.
Barbara further maintained that she was entitled to
judgment as a matter of law on count twelve because
a trust is not a contract. In response to the defendants’
motions for summary judgment, the plaintiff filed an
opposition on June 15, 2018, that was accompanied by
numerous exhibits, including an affidavit from
Margenot, who had been appointed as successor trustee
to the trust on June 11, 2013. In his memorandum of
law in opposition to the three motions for summary
judgment, the plaintiff argued that (1) the statute of
limitations contained in § 52-577 did not begin to run
until Sylvia’s death in 2015, (2) the statute of limitations
did not begin to run due to the pendency of an account-
ing before the Probate Court, and (3) the statute of
limitations was tolled by a continuing course of conduct
and, alternatively, fraudulent concealment on the part
of the defendants.
On June 21, 2018, the court granted Barbara’s motion
to strike the breach of contract count. While the three
motions for summary judgment remained pending, the
plaintiff filed a third revised complaint on July 5, 2018.
That complaint is largely identical to the operative com-
plaint, with one exception—the plaintiff omitted the
breach of contract count against Barbara and added an
unjust enrichment count against her. On July 13, 2018,
Barbara filed an objection to the plaintiff’s third revised
complaint, which the court overruled.
On July 16, 2018, the court rendered summary judg-
ment in favor of all three defendants. In its memoran-
dum of decision, the court stated in relevant part: ‘‘[T]he
court agrees that all of the plaintiff’s allegations of
wrongdoing in the complaint describe conduct by the
defendants from 1997 to 2013. . . . The plaintiff does
not contest the defendants’ assertions that [Barbara]
and [Sylvia] ceased acting as trustees in June, 2013.
Also, there is no evidence showing that [Roberta] took
any action in concert with either [Barbara] or [Sylvia]
after June 11, 2013. There is no evidence (and the plain-
tiff does not allege) that Roberta’s duties extended to
anything other than assisting her mother and sister with
bookkeeping for the trust, and it [is] clear that the need
for those services ceased to exist after June 11, 2013.
In short, the defendants have met their preliminary bur-
den of showing that the plaintiff’s claims are time barred
by the three year statute of limitations under § 52-577.
The burden now shifts to the plaintiff to show that
genuine issues of material fact exist upon which the
trier of fact could conclude that the statute of limita-
tions has been tolled to May 5, 2017, the date of service.
. . . [T]he court rejects all the tolling arguments
advanced by the plaintiff.’’ (Citation omitted; footnote
omitted.) The court then concluded: ‘‘[T]he court finds
that no genuine issues of material fact [exist] as to
when the plaintiff’s causes of action accrued and when
the present action was commenced. The court also finds
no evidentiary basis for the plaintiff’s claims that the
statute of limitations is tolled by the continuous course
of conduct doctrine or by fraudulent concealment. The
defendants’ motions for summary judgment are granted
as to all remaining counts in the complaint.’’
On August 6, 2018, the plaintiff filed a motion for
reargument and reconsideration and a motion for artic-
ulation, which the court denied. On August 16, 2018,
Barbara filed a motion for articulation, seeking clarifica-
tion as to the unjust enrichment count contained in the
plaintiff’s third revised complaint that he had filed while
the motions for summary judgment were pending. By
order dated August 24, 2018, the court issued an articu-
lation, stating, in relevant part: ‘‘The court entered judg-
ment in favor of all three defendants on all counts
remaining as of that date. Prior to that date, however,
on July 5, 2018, the plaintiff filed a timely third revised
complaint, adding a new count of unjust enrichment
against [Barbara]. That new count was not addressed
by the defendant’s motion for summary judgment.
Therefore, new count twelve of the plaintiff’s third
revised complaint was not included in the court’s ruling
on [Barbara’s] motion for summary judgment. Judg-
ment enters in favor of [Roberta] and [DiPreta] . . .
on all counts . . . and in favor of [Barbara] on all
counts against her except [the unjust enrichment count]
of the plaintiff’s third revised complaint.’’ The plaintiff
commenced this appeal days later.
On December 21, 2018, the plaintiff filed a motion to
open the judgment, which was predicated on testimony
provided by DiPreta during a November 20, 2018 pro-
bate proceeding. The court denied that motion. The
plaintiff thereafter sought an articulation of that ruling,
as well as reconsideration thereon. The court denied
those requests, and this amended appeal followed.3
I
Before addressing the claims advanced by the plain-
tiff in this appeal, we first consider a jurisdictional ques-
tion regarding the plaintiff’s action against Barbara.
Prior to oral argument, this court sua sponte instructed
the parties to be prepared to address ‘‘whether the
portion of this appeal challenging the trial court’s rul-
ings as to [Barbara] should be dismissed for lack of a
final judgment because the trial court has yet to render
a final judgment as to [Barbara] by disposing of the
unjust enrichment count directed against her. See Prac-
tice Book §§ 61-2 [and] 61-3.’’ We now conclude that
this portion of the appeal must be dismissed.
‘‘The lack of a final judgment implicates the subject
matter jurisdiction of an appellate court to hear an
appeal. A determination regarding . . . subject matter
jurisdiction is a question of law . . . . The jurisdiction
of the appellate courts is restricted to appeals from
judgments that are final. General Statutes §§ 51-197a
and 52-263; Practice Book § [61-1] . . . . The policy
concerns underlying the final judgment rule are to dis-
courage piecemeal appeals and to facilitate the speedy
and orderly disposition of cases at the trial court level.
. . . The appellate courts have a duty to dismiss, even
on [their] own initiative, any appeal that [they lack]
jurisdiction to hear.’’ (Internal quotation marks omit-
ted.) Mazurek v. Great American Ins. Co., 284 Conn.
16, 33, 930 A.2d 682 (2007); see also, e.g., In re Santiago
G., 325 Conn. 221, 229, 157 A.3d 60 (2017) (lack of final
judgment constitutes jurisdictional defect that necessi-
tates dismissal of appeal).
Our precedent further instructs that ‘‘[a] judgment
that disposes of only a part of a complaint is not a final
judgment . . . unless the partial judgment disposes of
all causes of action against a particular party or parties;
see Practice Book § 61-3; or if the trial court makes a
written determination regarding the significance of the
issues resolved by the judgment and the chief justice
or chief judge of the court having appellate jurisdiction
concurs. See Practice Book § 61-4 (a).’’ (Internal quota-
tion marks omitted.) Tyler v. Tyler, 151 Conn. App. 98,
103, 93 A.3d 1179 (2014). It is undisputed that the partial
summary judgment rendered by the court on July 16,
2018, did not dispose of all causes of action against
Barbara, as the unjust enrichment count remained
pending. In addition, the plaintiff has not requested a
written determination from the trial court regarding
the significance of the issues resolved by the partial
summary judgment entered against Barbara.
As a result, the plaintiff could appeal from the partial
summary judgment ‘‘only if the remaining causes of
action or claims for relief [were] withdrawn or uncondi-
tionally abandoned before the appeal [was] taken.’’ Mer-
ibear Productions, Inc. v. Frank, 328 Conn. 709, 717,
183 A.3d 1164 (2018). The record before us does not
contain a withdrawal or an unconditional abandonment
of the unjust enrichment count by the plaintiff. To para-
phrase our Supreme Court, not only does that second
count remain unadjudicated, it also presents the possi-
bility that Barbara could be found liable to the plaintiff
for damages. See id., 726. In such instances, ‘‘it cannot
be said that further proceedings could have no effect’’
on the parties. Id.; see also State v. Ebenstein, 219 Conn.
384, 389–90, 593 A.2d 961 (1991) (dismissing appeal
from partial summary judgment for lack of final judg-
ment and emphasizing that parties will still be before
trial court for final determination of ancillary claim).
We conclude that the plaintiff has not appealed from
a final judgment with respect to his action against Bar-
bara, as the unjust enrichment count remains pending.
Accordingly, this court lacks subject matter jurisdiction
over that portion of the plaintiff’s appeal concerning
the partial summary judgment rendered in favor of
Barbara.4
II
The plaintiff claims that the court improperly granted
DiPreta’s motion to strike the breach of contract count
of his first amended complaint. We disagree.
The standard that governs our review of the granting
of a motion to strike is well established. ‘‘Because a
motion to strike challenges the legal sufficiency of a
pleading and, consequently, requires no factual findings
by the trial court, our review of the court’s ruling . . .
is plenary. . . . We take the facts to be those alleged
in the complaint that has been stricken and we construe
the complaint in the manner most favorable to sus-
taining its legal sufficiency.’’ (Internal quotation marks
omitted.) Sepega v. DeLaura, 326 Conn. 788, 791, 167
A.3d 916 (2017); see also Parsons v. United Technolo-
gies Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997) (‘‘[a]
determination regarding the legal sufficiency of a claim
is . . . a conclusion of law, not a finding of fact’’).
In count thirteen of his first amended complaint, as
revised on September 13, 2017, the plaintiff alleged in
relevant part that the trust is a ‘‘contract’’ and that
Sylvia had ‘‘breached the contract by her refusal to
follow the [t]rust instrument, and [by] her unlawful
actions as fiduciary to said [t]rust.’’ In moving to strike
that count, DiPreta argued that the plaintiff could not
maintain a breach of contract claim because ‘‘a trust
is not a contract, but rather a conveyance of an equitable
interest in property . . . .’’ The trial court agreed and
granted the motion to strike.
We conclude that the court’s determination was
proper. The plaintiff has provided this court with no
authority in which a court has held that a trust benefi-
ciary may bring an action sounding in contract against
a trustee for breaching the terms of a trust. The over-
whelming weight of authority indicates otherwise. As
our Supreme Court has emphasized, ‘‘[a] trust may be
created without notice to or acceptance by any benefi-
ciary or trustee . . . and in the absence of consider-
ation.’’ (Citation omitted; internal quotation marks omit-
ted.) Palozie v. Palozie, 283 Conn. 538, 545, 927 A.2d 903
(2007); cf. Chiulli v. Chiulli, Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX-S (July
8, 2014) (‘‘[t]he essential terms of a valid contract are
an offer, acceptance of that offer, and consideration’’
(internal quotation marks omitted)) (reprinted at 161
Conn. App. 638, 647, 127 A.3d 1146 (2015)); see also 1
R. Lord, Williston on Contracts (4th Ed. 2007) § 1:5, p.
38 (express contract requires ‘‘mutual assent or offer
and acceptance, consideration, legal capacity, and a
lawful subject matter’’). The Restatement (Second) of
Trusts likewise notes that ‘‘[a] trustee who fails to per-
form his duties as trustee is not liable to the beneficiary
for breach of contract . . . . The creation of a trust is
conceived of as a conveyance of the beneficial interest
in the trust property rather than as a contract. . . .
The trustee by accepting the trust and agreeing to per-
form his duties as trustee does not make a contract to
perform the trust enforceable in an action at law.’’ 1
Restatement (Second), Trusts § 197, comment (b), pp.
433–34 (1959); accord In re Naarden Trust, 195 Ariz.
526, 530, 990 P.2d 1085 (App. 1999) (‘‘[T]he undertaking
between the settlor and trustee is not properly charac-
terized as contractual and does not stem from the prem-
ise of mutual assent to an exchange of promises. . . .
Therefore, although the trustee may be liable for a
breach of fiduciary duties, its undertakings or promises
in a trust instrument are not normally ‘contractual.’ ’’),
review denied, Arizona Supreme Court (January 4,
2000); Gibbons v. Anderson, 575 S.W.3d 144, 148 (Ark.
App. 2019) (‘‘a trust agreement is not a contract’’); In
re Calomiris, 894 A.2d 408, 410 (D.C. 2006) (‘‘an inter
vivos trust is not a contract’’ (internal quotation marks
omitted)); In re Will of Allis, 6 Wis. 2d 1, 6 n.1, 94 N.W.2d
226 (1959) (‘‘a testamentary trust is not a contract’’).
The proposition advanced by the plaintiff disregards
several critical distinctions between a trust and a con-
tract. As one court observed, ‘‘[t]rusts are distinguish-
able from contracts in that the parties to a contract
may decide to exchange promises, but a trust does not
rest on an exchange of promises and instead merely
requires a trustor to transfer a beneficial interest in
property to a trustee who, under the trust instrument,
relevant statutes, and common law, holds that interest
for the beneficiary. The undertaking between the settlor
and trustee is not properly characterized as contractual
and does not stem from the premise of mutual assent
to an exchange of promises. Although the trustee’s
duties may derive from the trust instrument, they ini-
tially stem from the special nature of the relation
between trustee and beneficiary, and thus, the trustee’s
undertakings or promises in a trust instrument are nor-
mally not contractual. A trust is also distinguishable
from a contract in that a trust is a fiduciary relationship
with respect to property. The relation ordinarily created
by a contract is that of promisor and promisee, obligor
and obligee, or debtor and creditor; in most contracts
of hire, a special confidence is reposed in each other
by the parties, but more than that is required to establish
a fiduciary relation. An essential aspect of a trust is
that the putative trustee has received property under
conditions that impose a fiduciary duty to the grantor
or a third person; a mere contractual obligation, includ-
ing a contractual promise to convey property, does not
create a trust. One of the major distinctions between
a trust and contract is that in a trust, there is always
a divided ownership of property, the trustee having
usually a legal title and the beneficiary an equitable
one, whereas in contract, this element of division of
property interest is entirely lacking.’’5 Gibbons v. Ander-
son, supra, 575 S.W.3d 149 n.3; see also G. Bogert, Trusts
and Trustees (2020) § 17 (‘‘[A] trust which is completely
created needs no consideration to support it and make
it enforceable . . . . Contracts are still dependent on
consideration for their enforceability. This is a marked
distinction between a trust and a contract.’’ (Footnote
omitted.)); 4 A. Scott et al., Scott and Ascher on Trusts
(5th Ed. 2007) § 24.1.2, pp. 1657–58 (‘‘[T]he fact that
the trustee has expressly agreed to perform the trust
adds nothing to the trustee’s duties or liabilities. The
trustee is not liable in an action for breach of contract
merely for having agreed to act as trustee.’’).
In light of the foregoing, we conclude as a matter of
law that Sylvia, by agreeing to perform her duties as
trustee, did not enter into a contract to perform the
provisions of the trust that was enforceable by an action
sounding in contract. For that reason, the court properly
granted DiPreta’s motion to strike count thirteen of the
plaintiff’s first amended complaint.
III
The plaintiff also contends that the court improperly
rejected his claim that his causes of action as a remain-
der beneficiary did not become ripe until the death of
the primary beneficiary. He argues that the court ‘‘made
a legal error in not finding [that] the [plaintiff’s] action
was triggered by the death of [Sylvia].’’ The plaintiff
thus posits that the statute of limitations set forth in
§ 52-577 ‘‘did not begin to run until [her death] on July
24, 2015.’’6 On our plenary review of that question of
law; see Pasco Common Condominium Assn., Inc. v.
Benson, 192 Conn. App. 479, 501, 218 A.3d 83 (2019);
we disagree.
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.’’ (Emphasis
added.) As this court has observed, ‘‘[§] 52-577 is an
occurrence statute, meaning that the time period within
which a plaintiff must commence an action begins to
run at the moment the act or omission complained of
occurs.’’ (Internal quotation marks omitted.) Pagan v.
Gonzalez, 113 Conn. App. 135, 139, 965 A.2d 582 (2009).
For that reason, ‘‘[w]hen conducting an analysis under
§ 52-577, the only facts material to the trial court’s deci-
sion on a motion for summary judgment are the date
of the wrongful conduct alleged in the complaint and the
date the action was filed.’’ (Emphasis added; internal
quotation marks omitted.) Id.
‘‘Legal actions in Connecticut are commenced by ser-
vice of process.’’ (Internal quotation marks omitted.)
Rios v. CCMC Corp., 106 Conn. App. 810, 820, 943 A.2d
544 (2008). It is undisputed that service of process in
the present case occurred on May 5, 2017. The wrongful
conduct detailed in the operative complaint allegedly
transpired from 1997 to 2013. Because the present
action was not commenced until 2017, the tort counts
alleged by the plaintiff fall outside the three year statu-
tory period set forth in § 52-577.
Relying on a decision from a century ago, the plaintiff
argues that those counts ‘‘did not become ripe’’ until
Sylvia’s death in 2015. The sole authority cited by the
plaintiff for that novel contention is State ex rel.
McClure v. Northrop, 93 Conn. 558, 569, 106 A. 504
(1919). Northrop did not involve an action against trust-
ees of a trust but, rather, a claim against sureties of a
probate bond. Id., 562. The statute of limitations at issue
in that case was not § 52-577—it was General Statutes
§ 6151, which governed actions ‘‘brought on contracts
under seal . . . .’’ Id., 563. Moreover, in Northrop, the
court stated that ‘‘[i]t is undoubted that the statute of
limitation[s] begins to run as soon as the right of action
has accrued. . . . But the right of action will not accrue
until there is a person or persons capable of suing and
being sued.’’ (Citation omitted.) Id. In the present case,
the plaintiff’s causes of action against Sylvia all pertain
to her conduct as a trustee. As a result, she was capable
of being sued prior to the expiration of the three year
limitation period of § 52-577, and the plaintiff has not
argued otherwise in this appeal. In addition, we note
that the limited discussion of remainder beneficiaries
in Northrop pertained to whether they were subject to
a defense of laches, and not their failure to file a tort
claim within the statutory period of repose.7 Northrop
is, in a word, inapposite to the present case.
The plaintiff’s contention that his causes of action
did not become ‘‘ripe’’ until the death of Sylvia also
contravenes the well established precedent of this state
that § 52-577 operates as a bar to tort claims irrespective
of when they accrue. As our Supreme Court has
explained, ‘‘the history of [the] legislative choice of
language [contained in § 52-577] precludes any con-
struction thereof delaying the start of the limitation
period until the cause of action has accrued or the
injury has occurred.’’ Fichera v. Mine Hill Corp., 207
Conn. 204, 212, 541 A.2d 472 (1988); see also Prokolkin
v. General Motors Corp., 170 Conn. 289, 294–95, 365
A.2d 1180 (1976) (noting that legislature, in crafting
§ 52-577, ‘‘distinguished Connecticut’s statutes of limi-
tations for torts from those of other jurisdictions, the
majority of which begin to run only after the cause of
action has accrued’’ (internal quotation marks omit-
ted)); Sanborn v. Greenwald, 39 Conn. App. 289, 302,
664 A.2d 803 (1995) (‘‘[§] 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’’ (emphasis added;
internal quotation marks omitted)), cert. denied, 235
Conn. 925, 666 A.2d 1186 (1995). This court is bound
by that precedent.
Our law instructs that ‘‘[t]he date of the act or omis-
sion complained of’’ pursuant to § 52-577 is the date
when the conduct of the defendant occurs. (Internal
quotation marks omitted.) Certain Underwriters at
Lloyd’s, London v. Cooperman, 289 Conn. 383, 408, 957
A.2d 836 (2008). In his operative complaint, the plaintiff
details specific conduct on the part of the defendants,
none of which is alleged to have transpired after Sylvia’s
and Barbara’s removal as cotrustees on June 11, 2013.8
The dates alleged in the complaint are the relevant
metric for purposes of applying the limitation period
of § 52-577. Because the conduct described therein is
beyond that limitation period, the court properly con-
cluded that the defendants satisfied their burden of
demonstrating the applicability of § 52-577 to the plain-
tiff’s tort claims.
IV
We next address the question of whether genuine
issues of material fact exist as to the plaintiff’s tolling
claims. The plaintiff submits that § 52-577 was tolled in
the present case by (1) the pendency of a final account-
ing in the Probate Court, (2) the continuing course of
conduct doctrine, and (3) fraudulent concealment. We
address each in turn.
We begin by noting the well established standard that
governs our review of the trial court’s decision to grant
a motion for summary judgment. ‘‘The facts at issue
are those alleged in the pleadings.’’ (Internal quotation
marks omitted.) Parnoff v. Aquarion Water Co. of Con-
necticut, 188 Conn. App. 153, 164, 204 A.3d 717 (2019).
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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. . . . [T]he moving party . . .
has the burden of showing the absence of any genuine
issue as to all the material facts . . . . When docu-
ments submitted in support of a motion for summary
judgment fail to establish that there is no genuine issue
of material fact, the nonmoving party has no obligation
to submit documents establishing the existence of such
an issue. . . . Once the moving party has met its bur-
den, however, the [nonmoving] party must present evi-
dence that demonstrates the existence of some disputed
factual issue. . . . Our review of the trial court’s deci-
sion to grant the defendant’s motion for summary judg-
ment is plenary.’’ (Citations omitted; internal quotation
marks omitted.) Lucenti v. Laviero, 327 Conn. 764, 772–
73, 176 A.3d 1 (2018).
As our Supreme Court has explained, ‘‘[i]n the con-
text of a motion for summary judgment based on a
statute of limitations special defense, a defendant typi-
cally 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 [limitation] period has been tolled by an equitable
exception to the statute of limitations, the burden nor-
mally shifts to the plaintiff to establish a disputed issue
of material fact in avoidance of the statute. . . . The
statutes of limitations applicable in the present case
are occurrence statutes. . . . With such statutes, the
[limitation] period typically begins to run as of the date
the complained of conduct occurs, and not the date
when the plaintiff first discovers his injury. . . . In cer-
tain circumstances, however, we have recognized the
applicability of the continuing course of conduct doc-
trine to toll a statute of limitations. Tolling does not
enlarge the period in which to sue that is imposed by
a statute of limitations, but it operates to suspend or
interrupt its running while certain activity takes place.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Flannery v. Singer Asset Financial
Co., LLC, 312 Conn. 286, 310–11, 94 A.3d 553 (2014).
With those principles in mind, we turn to the plain-
tiff’s claims.
A
Pending Accounting in Probate Court
The plaintiff claims that the court ‘‘made a legal error’’
in concluding that the limitation period of § 52-577 com-
menced in 2013, because the Probate Court ‘‘has not
yet approved [the] accountings’’ submitted by Sylvia
and Barbara. We disagree.
In his principal appellate brief, the plaintiff relies on
State ex rel. McClure v. Northrop, supra, 93 Conn. 558,9
and a 1996 Superior Court decision to support his con-
tention that the limitation period of § 52-577 does not
begin to run until a final accounting has been approved
in the Probate Court. His reliance is misplaced, as nei-
ther case involved the statute of limitations for tort
claims. Rather, both involved actions against the surety
on a probate bond, which are governed by General
Statutes § 52-579.10 Unlike § 52-577, application of the
limitation period contained in § 52-579 expressly is con-
ditioned on the approval of a final accounting by the
Probate Court.11
In this case, there is no allegation or evidence of the
existence of a probate bond. The operative complaint
contains no claim against the surety of a probate bond.
Section 52-579 and its requirements thus have no bear-
ing on the present case.
Although the plaintiff concedes that he ‘‘is not suing
on a surety bond,’’ he nonetheless argues that the analy-
sis under §§ 52-577 and 52-579 ‘‘is the same.’’ We do
not agree. As we observed in part III of this opinion,
‘‘[w]hen 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.’’ (Emphasis added; internal quotation marks
omitted.) Pagan v. Gonzalez, supra, 113 Conn. App.
139. Moreover, the plaintiff has provided this court with
no authority, nor are we aware of any, in which a court
has held that the limitation period of § 52-577 automati-
cally is tolled for any and all tort claims against a trustee
due to the pendency of a final accounting in the Probate
Court, and we are not inclined to articulate such a per
se rule here.12 Rather, we believe that the accounting
issue raised by the plaintiff in this appeal, which impli-
cates the fiduciary duty of a removed trustee, properly
falls within the purview of the continuous course of
conduct doctrine.
B
Continuing Course of Conduct
The continuing course of conduct doctrine operates
to delay the commencement of the running of an other-
wise applicable statute of limitations. See, e.g., Handler
v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d
793 (1957) (‘‘[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’’).
‘‘When presented with a motion for summary judgment
under the continuous course of conduct doctrine, [the
court] must determine whether there is a genuine issue
of material fact with respect to whether the defendant:
(1) committed an initial wrong upon the plaintiff; (2)
owed a continuing duty to the plaintiff that was related
to the alleged original wrong; and (3) continually
breached that duty.’’ (Internal quotation marks omit-
ted.) Martinelli v. Fusi, supra, 290 Conn. 357; see also
Vaccaro v. Shell Beach Condominium, Inc., 169 Conn.
App. 21, 45, 148 A.3d 1123 (2016) (‘‘[i]f there is no
genuine issue of material fact with respect to any one
of the three prongs [of the continuous course of conduct
test] summary judgment is appropriate’’ (internal quota-
tion marks omitted)), cert. denied, 324 Conn. 917, 154
A.3d 1008 (2017). ‘‘Although the question of whether a
party’s claim is barred by the statute of limitations is
a question of law, the issue of whether a party engaged
in a continuing course of conduct that tolled the running
of the statute of limitations is a mixed question of law
and fact.’’ (Internal quotation marks omitted.) Straw
Pond Associates, LLC v. Fitzpatrick, Mariano & San-
tos, P.C., 167 Conn. App. 691, 715, 145 A.3d 292, cert.
denied, 323 Conn. 930, 150 A.3d 231 (2016).
1
Roberta
We begin with the plaintiff’s counts against Roberta,
which sound in conversion, civil theft, and fraudulent
misrepresentation. Nowhere in the operative complaint
or his reply to the statute of limitations special defense
does the plaintiff allege that Roberta owed a legal duty
to him. Unlike Sylvia and Barbara, Roberta never was
a trustee and did not stand in a fiduciary relation to
him. The plaintiff’s claims pertain to her activities as a
bookkeeper who allegedly provided assistance to Sylvia
and Barbara during their tenure as trustees.13 Moreover,
the plaintiff has not offered affidavits or other proof
indicating that Roberta engaged in any activity with
respect to the trust after June 11, 2013. Indeed, the
plaintiff alleges in count three of his operative com-
plaint, which sets forth a conversion claim against
Roberta, that, ‘‘[a]s a result of [Roberta’s] misconduct
from 1997 through 2013, the plaintiff has suffered
money damages.’’ For that reason, the court properly
concluded that the continuing course of conduct doc-
trine did not apply to the plaintiff’s claims against
Roberta.
2
Sylvia
a
The continuing course of conduct doctrine often is
implicated when a fiduciary relationship exists between
the parties. See, e.g., Essex Ins. Co. v. William Kramer
& Associates, LLC, 331 Conn. 493, 506–507, 205 A.3d 534
(2019) (continuing course of conduct doctrine implicated
by fiduciary relationship); Flannery v. Singer Asset
Financial Co., LLC, supra, 312 Conn. 304–305 (conclud-
ing that Appellate Court improperly declined to reach
merits of plaintiff’s ‘‘continuing course of conduct claims
in avoidance of the defendant’s statute of limitations
defenses’’ because plaintiff had alleged breach of fidu-
ciary duty); Carson v. Allianz Life Ins. Co. of North
America, 184 Conn. App. 318, 332, 194 A.3d 1214 (2018)
(concluding that continuing course of conduct doctrine
did not apply to toll § 52-577 because no genuine issue
of material fact existed ‘‘as to whether the defendant
had a fiduciary duty to the plaintiff’’), cert. denied, 331
Conn. 924, 207 A.3d 27 (2019). Unlike Roberta, Sylvia
served as a trustee from 1993 to June 11, 2013. She thus
owed a fiduciary duty to the plaintiff as a remainder
beneficiary of the trust. See Ramondetta v. Amenta, 97
Conn. App. 151, 157 n.4, 903 A.2d 232 (2006) (trustee
accountable to beneficiary for breach of fiduciary
duties); 3 Restatement (Third), Trusts § 70, p. 6 (2007)
(trustee owes fiduciary duty to beneficiary). That fidu-
ciary duty includes the duty to provide an accounting
to trust beneficiaries.14 See Phillips v. Moeller, 148
Conn. 361, 371, 170 A.2d 897 (1961) (trustee has duty
‘‘to keep clear and accurate accounts, and in his reports
he should . . . keep beneficiaries informed concern-
ing the management of the trust’’); Dettenborn v. Hart-
ford-National Bank & Trust Co., 121 Conn. 388, 391,
185 A. 82 (1936) (requirement that trustee file final
accounting ‘‘is implicit in the statutory provisions gov-
erning the matter’’); 3 A. Scott et al., supra, § 17.5, pp.
1196–97 (‘‘The trustee is under a duty to give the benefi-
ciaries . . . complete and accurate information as to
the administration of the trust . . . . The beneficiaries
are entitled to know what the trust property is and how
the trustee has dealt with it.’’).
More complicated is the question of precisely when
Sylvia’s fiduciary duty to the plaintiff expired. Though
numerous are the decisions involving the duty of a
trustee upon termination of a trust, there is scant
authority regarding the duty of a trustee who has been
removed.15 A brief review of the trustee’s duty upon
termination of a trust, therefore, is warranted.
When a trust is terminated, a trustee is obligated
under Connecticut law to render a final accounting. See
General Statutes § 45a-175 (a) (vesting Probate Court
with ‘‘jurisdiction of the . . . final accounts’’ of trust-
ees); General Statutes § 45a-177 (a) (requiring trustees
to file ‘‘periodic accounts of their trusts’’ as well as ‘‘a
final account’’); cf. Dettenborn v. Hartford-National
Bank & Trust Co., supra, 121 Conn. 391 (requirement
that trustee file final accounting ‘‘is implicit in the statu-
tory provisions governing the matter’’). That precept is
well recognized throughout the United States. See, e.g.,
Brine v. Paine, Webber, Jackson & Curtis, Inc., 745
F.2d 100, 104 (1st Cir. 1984) (‘‘[o]nce a trust is termi-
nated, the trustee has the continuing power and obliga-
tion only to preserve the trust property while winding
up the trust and to deliver any remaining trust property
to the beneficiary’’); In re Estate of Moring v. Colorado
Dept. of Health Care Policy & Financing, 24 P.3d 642,
647 (Colo. App. 2001) (‘‘it is the duty of the trustee to
make a final accounting’’); Duncan v. Dow, 95 N.H. 5,
10, 57 A.2d 417 (1948) (‘‘[f]inal accounts should . . .
be filed at the expiration of a trust and whenever a
trustee severs his connection by reason of resignation,
removal or otherwise’’); In re Cary’s Estate, 81 Vt. 112,
120, 69 A. 736 (1908) (at expiration of trust ‘‘it was then
the duty of the trustee . . . to render a full and final
account of his trust to the probate court, and on settle-
ment thereof to turn over the trust fund to the remain-
dermen’’); Klein v. Estate of Klein, Docket No. 54192-
7-I, 2005 WL 3105580, *5 (Wn. App. November 21, 2005)
(‘‘testamentary trusts do not terminate until a final
accounting by the trustee and the end of the trust, and
a trustee is not discharged from his duties until all of the
property in the trust is accounted for and distributed’’)
(decision without published opinion, 130 Wash. App. 1029
(2005)); Matter of Sensenbrenner, 76 Wis. 2d 625, 634,
252 N.W.2d 47 (1977) (‘‘[T]he law is clear that upon the
event terminating a trust, the trustees must use due
care and diligence to distribute the trust assets. The
distribution must be accomplished as soon as it is rea-
sonably possible to do so.); accord 2 Restatement (Sec-
ond), supra, § 345, p. 193 (‘‘[u]pon the termination of
the trust it is the duty of the trustee to the person
beneficially entitled to the trust property to transfer the
property to him’’); id., comment (e), p. 195 (‘‘[i]t is the
duty of the trustee . . . to make his final accounting
with reasonable promptness’’); 5 A. Scott et al., supra,
§ 36.1, pp. 2321–23 (trustee’s duties continue until final
accounting rendered and trust assets distributed).
Significantly, a trustee’s fiduciary duty does not
immediately end upon termination of a trust. As this
court explained in Ramondetta v. Amenta, supra, 97
Conn. App. 157–58, ‘‘the fiduciary duty of a trustee does
not immediately terminate when the trust property
ceases to exist. Rather, the trustee’s fiduciary duty sur-
vives even the termination of the trust.’’ (Footnote omit-
ted.) Accord 1A A. Scott & W. Fratcher, Scott on Trusts
(4th Ed. 1987) § 74.2, p. 435 (trustee still under duty to
account to beneficiary and still owes fiduciary duties
as ‘‘fiduciary relation continues, although it ceases to
be a relation with respect to any specific property’’); 2
Restatement (Second), supra, § 344, p. 190 (‘‘[w]hen the
time for the termination of the trust has arrived, the
trustee has such powers and duties as are appropriate
for the winding up of the trust’’).
That maxim applies with equal force to trustees who
resign their position. As the Restatement (Third) of
Trusts notes, ‘‘[r]esignation does not relieve the trustee
from liability for breaches of trust committed prior to
the time the resignation becomes effective. Normally
the trustee has a duty to account to the beneficiaries,
and this accounting may have the effect of determining
any liability of the resigning trustee and of relieving the
trustee of other liability. . . . The trustee also has a
duty to administer and preserve the trust property until
a successor is properly appointed and assumes the
duties of the trusteeship.’’ (Citations omitted.) 2
Restatement (Third), Trusts, § 36, comment (d), p. 130
(2003); see also 2 A. Scott et al., supra, § 11.9.3, p. 653
(‘‘[g]enerally, the court does not permit a trustee to
resign until a successor has been appointed, title to the
trust property has been transferred to the successor
trustee, and the trustee has accounted’’). Connecticut
law likewise provides that ‘‘resignation shall not relieve
[a] fiduciary from the obligation to fully and finally
account to the court for the administration of such
fiduciary’s trust.’’ General Statutes § 45a-242 (b).
We see no good reason why the principles that govern
the duties of a trustee upon either resignation or the
termination of the trust should not also apply to a
trustee that is removed by order of the Probate Court.
In each instance, the trustee’s tenure has come to a
close; in each, the trustee is in a paramount position
to survey the assets of the estate and report thereon.
The need for a proper accounting arguably is at its
zenith when a trustee is removed, as removal is an
extraordinary measure. See, e.g., Cadle Co. v. D’Adda-
rio, 268 Conn. 441, 458, 844 A.2d 836 (2003) (‘‘The power
of removal of trustees . . . ought to be exercised spar-
ingly by the courts. There must be a clear necessity
for interference to save the trust property.’’ (Internal
quotation marks omitted.)); Phillips v. Moeller, supra,
148 Conn. 369 (‘‘[i]n no case ought the trustee to be
removed where there is no danger of a breach of trust’’
(internal quotation marks omitted)); Matter of Joan
Moran Trust, 166 A.D. 3d 1176, 1179, 88 N.Y.S.3d
590 (2018) (‘‘[r]emoval of a trustee . . . is a drastic
action, and courts are generally hesitant to exercise the
power to remove a fiduciary absent a clear necessity’’).
Logic dictates that the fiduciary duty of an outgoing
trustee to account for trust assets and to surrender
those assets to the successor trustee continues for some
period of time beyond the date of removal.
In light of the foregoing, we disagree with DiPreta’s
contention that Sylvia’s fiduciary duty to the plaintiff
immediately ceased upon her removal as a trustee on
June 11, 2013. We also note that, when it removed Sylvia
as a trustee on June 11, 2013, the Probate Court ordered
her ‘‘to file an account for the period from January 1,
2010, to the present.’’16 We therefore conclude that the
plaintiff has met his burden of establishing the second
prong of the continuing course of conduct test. On
the record before us, we conclude that Sylvia owed a
continuing fiduciary duty to account for trust assets
following her removal as a trustee on June 11, 2013.
b
We therefore turn our attention to the third prong of
the continuous course of conduct test, which requires
‘‘evidence of the breach of a duty that remained in exist-
ence after commission of the original wrong related
thereto.’’ (Internal quotation marks omitted.) Watts v.
Chittenden, 301 Conn. 575, 585, 22 A.3d 1214 (2011).
With respect to ‘‘what constitutes a continuing violation
of a breach’’ under that third prong; Saint Bernard
School of Montville, Inc. v. Bank of America, 312 Conn.
811, 838, 95 A.3d 1063 (2014); our Supreme Court has
stated: ‘‘[T]he continuing course of conduct doctrine
reflects the policy that, during an ongoing relationship,
lawsuits are premature because specific tortious acts
or omissions may be difficult to identify and may yet
be remedied. . . . 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 . . . . [In such a case] the
damages from each discrete act . . . 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.’’
(Citation omitted; internal quotation marks omitted.)
Id., 837–38. As applied to the present case, the question
is whether the plaintiff has presented an evidentiary
basis to establish a genuine issue of material fact as to
whether Sylvia and the estate continually breached the
fiduciary duty to account for trust assets following her
removal as a trustee in 2013.
The following facts are relevant to our analysis. In
his operative complaint, the plaintiff alleged that Sylvia
breached her fiduciary duty by failing to properly
account for certain expenditures and transactions
involving trust assets during her tenure as a trustee.17
DiPreta filed an answer on March 16, 2018, in which
he denied the substance of those allegations. In that
pleading, DiPreta also raised a statute of limitations
special defense pursuant to § 52-577, alleging in relevant
part that Sylvia ‘‘no longer had access to or control of
the [t]rust after June 11, 2013,’’ and that her ‘‘purported
continuous conduct, which is expressly denied, ended
on June 11, 2013,’’ when she was removed as a trustee.
On June 25, 2018, the plaintiff filed a reply to that
special defense. With respect to the continuing course
of conduct, the plaintiff alleged that Sylvia continued
to breach her fiduciary duty as follows: ‘‘[Sylvia has
failed] to turn over two automobiles and automotive
parts to the [successor trustee]. [Sylvia has] also failed
to return admittedly inappropriately taken funds from
the [t]rust. In addition, [Sylvia has] failed and/or refused
to turn over documents and records required to be kept
under Probate Court Rule 36.13.’’
In that reply, the plaintiff also acknowledged that
DiPreta had, in fact, filed an accounting with the Pro-
bate Court subsequent to Sylvia’s removal as a trustee.18
The Probate Court thereafter ordered, with the consent
of ‘‘all interested parties,’’ that ‘‘a forensic accountant
be retained to conduct an accounting of all trust
finances from the period of 1997 to September 11, 2013.’’
At no time has the plaintiff alleged a failure on the part
of Sylvia or DiPreta to comply with that forensic
accounting.
Although the plaintiff commenced this action after
DiPreta filed that accounting, the plaintiff’s pleadings
contain no specific allegations of a continuing breach
of a fiduciary duty subsequent to Sylvia’s removal as a
trustee, save for the issue of antique automobiles and
parts. The plaintiff has not identified, never mind
offered proof of, the ‘‘admittedly inappropriately taken
funds’’ or the ‘‘documents and records’’ referenced in
his reply. The record before us contains no admission
by Sylvia or DiPreta that any trust funds were inappro-
priately taken by Sylvia. Moreover, the plaintiff offered
no further explication of those generalized accusations
in his memorandum of law in opposition to the motions
for summary judgment.
In that memorandum of law, the plaintiff confuses
the relevant time period for purposes of the continuing
course of conduct analysis, arguing that ‘‘[a]ll of the
alleged misdeeds, breaches, and all illegal actions
occurred after’’ the Probate Court entered an order in
2004, in which the court (1) removed the plaintiff as a
cotrustee and (2) indicated that Sylvia and Barbara
would be removed as trustees following the sale of the
antique automobiles. It nonetheless remains that the
Probate Court did not remove Sylvia and Barbara as
trustees until nine years later in 2013. In applying the
third prong of the continuing course of conduct doctrine
to the present case, the relevant inquiry is not whether
Sylvia breached her fiduciary duty to the plaintiff prior
to her removal as a trustee, as those initial breaches
occurred beyond the time limitation of § 52-577. Rather,
the critical inquiry under the third prong asks whether
Sylvia committed a subsequent breach of a continuing
fiduciary duty following her removal as a trustee that
would operate to toll that statute of repose.
‘‘The facts at issue are those alleged in the pleadings.’’
(Internal quotation marks omitted.) Parnoff v. Aquar-
ion Water Co. of Connecticut, supra, 188 Conn. App.
164; see also U.S. Bank National Assn. v. Eichten, 184
Conn. App. 727, 745, 196 A.3d 328 (2018) (‘‘The purpose
of a special defense is to plead facts that are consistent
with the allegations of the complaint but demonstrate,
nonetheless, that the plaintiff has no cause of action.
. . . [T]he applicable rule regarding the material facts
to be considered on a motion for summary judgment is
that the facts at issue are those alleged in the pleadings.’’
(Internal quotation marks omitted.)). The only factual
allegations in the plaintiff’s pleadings of a continuing
breach of the fiduciary duty owed to remainder benefici-
aries that occurred subsequent to Sylvia’s removal as
a trustee concern the failure to account for certain
automobiles and parts. As a result, any other infirmities
in the accounting provided by DiPreta are immaterial
to the present dispute.19 See Nutmeg Housing Develop-
ment Corp. v. Colchester, 324 Conn. 1, 14 n.4, 151 A.3d
358 (2016) (‘‘[f]acts . . . not averred [in the plaintiff’s
pleadings] cannot be made the basis for a recovery’’
(internal quotation marks omitted)); White v. Mazda
Motor of America, Inc., 313 Conn. 610, 621, 99 A.3d
1079 (2014) (‘‘The principle that a plaintiff may rely
only [on] what he has alleged is basic. . . . It is funda-
mental in our law that the right of a plaintiff to recover
is limited to the allegations [in the pleadings].’’ (Internal
quotation marks omitted.)); Straw Pond Associates,
LLC v. Fitzpatrick, Mariano & Santos, P.C., supra, 167
Conn. App. 728 (‘‘[a] genuine issue of material fact must
be one which the party opposing the motion is entitled
to litigate under his pleadings and the mere existence
of a factual dispute apart from the pleadings is not
enough to preclude summary judgment’’ (emphasis
omitted; internal quotation marks omitted)).
Accordingly, we turn our attention to the plaintiff’s
claim that Sylvia and DiPreta continued to breach the
fiduciary duty owed to remainder beneficiaries by fail-
ing to account for two antique automobiles and automo-
bile parts that were assets of the trust.20 In opposing
DiPreta’s motion for summary judgment, the plaintiff
submitted a copy of an accounting inventory of the
trust dated July 11, 2002, at which time the plaintiff,
Sylvia, and Barbara served as cotrustees. In a section
captioned ‘‘Miscellaneous Assets,’’ that inventory listed
various automobiles, including a 1928 Model A and a
1948 MG-TC.21 The cover sheet to that 2002 inventory
contains a prefatory note, which states: ‘‘This account
has been prepared on behalf of two of the trustees,
[Sylvia] and [Barbara]. The remaining trustee, [the plain-
tiff], prepared the inventory of the automobiles con-
tained in the account. [Sylvia] and [Barbara] have rea-
son to believe that at least one of the automobiles
belonging to the trust has been omitted from that inven-
tory. Furthermore, certain of the automobiles have been
in the sole possession and control of [the plaintiff] dur-
ing the period of the accounting, and [Sylvia] and [Bar-
bara] have been denied access to these vehicles.
Accordingly, [Sylvia] and [Barbara] make no represen-
tations concerning these vehicles and disclaim any
responsibility for the accuracy of the information con-
tained herein relating to automobiles.’’ Although the
2002 inventory includes various items described as
‘‘Miscellaneous Assets,’’ it contains no reference to
automobile parts.
When the plaintiff was removed as a trustee in 2004,
the Probate Court ordered the cotrustees, including
Sylvia, to arrange for the sale of the antique automobiles
that belonged to the trust.22 In count two of the operative
complaint, the plaintiff alleged in relevant part that Syl-
via breached her fiduciary duty by failing to ‘‘safeguard
and provide an accounting of [t]rust cars, 1928 Model
A Roadster and 1948 MG-TC, resulting in the loss of
. . . valuable [t]rust assets . . . .’’ The plaintiff also
alleged that Sylvia breached her fiduciary duty ‘‘[b]y
selling [t]rust antique car parts and memorabilia with-
out . . . accounting for the proceeds from such
sales . . . .’’
In response to the statute of limitations special
defense raised by the defendants, the plaintiff alleged
that Sylvia engaged in a continuous course of conduct
by failing to account for the automobiles and parts in
question. The court rejected that claim and concluded
that the continuing course of conduct doctrine did not
apply. We agree with that determination.
Contrary to the plaintiff’s contention, the failure to
account for the two antique automobiles and unspeci-
fied automobile parts does not constitute a continuous
series of events that give rise to a cumulative injury.
See Watts v. Chittenden, supra, 301 Conn. 592. The
subsequent injury allegedly sustained by the plaintiff
following Sylvia’s removal as trustee is the very same
injury that the plaintiff incurred prior to her removal—
the failure to obtain an accounting of the automobile
assets in question. As our Supreme Court has explained,
when the continuous course of conduct doctrine is
implicated, ‘‘each incident increases the plaintiff’s
injury . . . .’’ (Emphasis added; internal quotation
marks omitted.) Id., 588. This court likewise has
observed that, in cases in which the doctrine applies,
the injury to the plaintiff ‘‘was perpetuated [and]
enhanced’’ by the subsequent breach of a continuing
duty. Sanborn v. Greenwald, supra, 39 Conn. App. 296.
No such increase or enhancement to the plaintiff’s
injury is present in this case.
This also is not a case in which the ‘‘specific tortious
acts or omissions’’ are difficult to identify. (Internal
quotation marks omitted.) Martinelli v. Fusi, supra,
290 Conn. 356. The issue of the antique automobile
assets long has been the subject of dispute between
the parties, and on which the Probate Court entered a
specific order in 2004, almost one decade prior to Syl-
via’s removal as a trustee. This case also is not one
in which ‘‘the situation keeps evolving after the act
complained of is complete, such as medical malpractice
. . . .’’23 Sanborn v. Greenwald, supra, 39 Conn. App.
298; see also Macellaio v. Newington Police Dept., 145
Conn. App. 426, 436, 75 A.3d 78 (2013) (continuing
course of conduct doctrine did not apply when plaintiff
failed to establish that ‘‘the alleged violation continued
to evolve’’ after initial wrong committed). The initial
breach of Sylvia’s fiduciary duty and the subsequent
breach of that duty following her removal as trustee
are one and the same—the failure to account for two
antique automobiles and unspecified automobile parts.
To paraphrase this court’s observation in Vaccaro v.
Shell Beach Condominium, Inc., supra, 169 Conn. App.
55, all of the injuries alleged by the plaintiff arise from
Sylvia’s failure to account for those assets at the time
that she was removed as a trustee in 2013, and the
plaintiff has identified no separate injuries that have
arisen as a result of any ongoing failure by Sylvia and
DiPreta to account for those assets.
Construing the pleadings and the materials before us
in the light most favorable to the nonmoving party; see,
e.g., NetScout Systems, Inc. v. Gartner, Inc., 334 Conn.
396, 408–409, 223 A.3d 37 (2020); we conclude that the
plaintiff has not established the existence of a genuine
issue of material fact as to whether Sylvia and DiPreta
committed a continuous breach of the fiduciary duty
owed to remainder beneficiaries that resulted in an
enhanced injury to him. Accordingly, the court properly
determined that this case did not warrant application
of the continuing course of conduct doctrine.
B
Fraudulent Concealment
The plaintiff also claims that a genuine issue of mate-
rial fact exists as to whether Sylvia, DiPreta, and
Roberta fraudulently concealed the plaintiff’s causes of
action against them, such that the statute of limitations
was tolled by the application of General Statutes § 52-
595. We disagree.
1
As a preliminary matter, we address a burden-shifting
argument raised by the plaintiff with respect to this
claim. It is well established that, when a defendant, in
moving for summary judgment on the basis of a statute
of limitations special defense, demonstrates that the
action was commenced outside of the statutory limita-
tion period, ‘‘the burden normally shifts to the plaintiff
to establish’’ a disputed issue of material fact on its
claim ‘‘that the [limitation] period has been tolled by an
equitable exception . . . .’’ (Internal quotation marks
omitted.) Flannery v. Singer Asset Financial Co., LLC,
supra, 312 Conn. 310; see also Bound Brook Assn. v.
Norwalk, 198 Conn. 660, 665, 504 A.2d 1047 (‘‘[t]o estab-
lish that the defendants had fraudulently concealed the
existence of their cause of action and so had tolled the
statute of limitations, the plaintiffs had the burden’’ of
proof), cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L.
Ed. 2d 36 (1986). Relying on Martinelli v. Bridgeport
Roman Catholic Diocesan Corp., 196 F.3d 409, 421 (2d
Cir. 1999),24 the plaintiff argues that, because the pres-
ent case involves a fiduciary relationship between the
parties, the burden should instead rest with the defen-
dants to demonstrate that they did not engage in fraudu-
lent concealment.
The plaintiff overlooks the fact that our Supreme
Court has not adopted the burden-shifting framework
articulated in Martinelli in the two decades since it was
decided. In Falls Church Group, Ltd. v. Tyler, Cooper &
Alcorn, LLP, 281 Conn. 84, 912 A.2d 1019 (2007), a
fraudulent concealment defense was raised in a case
in which a fiduciary relationship between the parties
was alleged. Our Supreme Court nonetheless held that
the burden of establishing fraudulent concealment
belonged to the party seeking to avail itself of that
tolling doctrine. Id., 105. This court has adhered to that
precedent in the years since, even when a fiduciary
relationship is alleged. See, e.g., Carson v. Allianz Life
Ins. Co. of North America, supra, 184 Conn. App.
326–28; cf. Hodges v. Glenholme School, United States
District Court, Docket No. 3:15-cv-1161 (SRU) (D. Conn.
September 13, 2016) (‘‘that burden-shifting approach
[articulated in Martinelli] has not been adopted by Con-
necticut courts’’), aff’d, 713 Fed. Appx. 49 (2d Cir. 2017).
Moreover, in Iacurci v. Sax, 313 Conn. 786, 793 n.9, 99
A.3d 1145 (2014), our Supreme Court declined to
address ‘‘a potentially shifting burden of proof in [fraud-
ulent concealment] cases’’ in accordance with Mar-
tinelli.
As an intermediate appellate tribunal, this court is
not at liberty to modify, reconsider, or overrule the
precedent of our Supreme Court. See Hartford Steam
Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s
& Cos. Collective, 121 Conn. App. 31, 48–49, 994 A.2d
262, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010),
and case law cited therein. Whether to alter the applica-
ble legal standard governing fraudulent concealment
claims remains the prerogative of this state’s highest
court. See, e.g., Verrillo v. Zoning Board of Appeals,
155 Conn. App. 657, 715, 111 A.3d 473 (2015) (‘‘if the
well established hardship standard is to be modified,
such modification is the prerogative of our Supreme
Court’’). We therefore decline the plaintiff’s invitation
to revisit that legal standard.
2
The plaintiff’s tolling defense is predicated on § 52-
595, our fraudulent concealment statute.25 To toll a stat-
ute of limitations thereunder, ‘‘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) inten-
tionally 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 omit-
ted.) Iacurci v. Sax, supra, 313 Conn. 799–800. Our
Supreme Court further has explained that, ‘‘[t]o meet
this burden, it [is] not sufficient for the plaintiffs to
prove merely that it [is] more likely than not that the
defendants had concealed the cause of action. Instead,
the plaintiffs [must] prove fraudulent concealment by
the more exacting standard of clear, precise, and
unequivocal evidence.’’ (Internal quotation marks omit-
ted.) Bartone v. Robert L. Day Co., 232 Conn. 527, 533,
656 A.2d 221 (1995).
In rendering summary judgment in favor of Roberta
and DiPreta, the court noted that it had ‘‘carefully
reviewed all of the correspondence, pleadings, rulings,
account statements, affidavits and deposition tran-
scripts submitted by the plaintiff in opposition to the
defendants’ motions. The motions filed in the Probate
Court action (and the defendants’ opposition to them)
establish that the parties’ litigation in the Probate Court
has been highly contested. They do not, even when
viewed in the light most favorable to the plaintiff, show
any intent on the part of the defendants to conceal
facts or support a finding that the defendants’ alleged
concealment was in any way directed toward delaying
commencement of an action against them.’’ On our
review of the record before us, we concur with that
determination. As this court noted in Macellaio v. New-
ington Police Dept., supra, 145 Conn. App. 434, a plain-
tiff’s ‘‘bare assertions’’ do not suffice ‘‘to establish [a]
factual predicate’’ for a fraudulent concealment
defense; evidence is required. In the present case, the
plaintiff has not provided clear and unequivocal evi-
dence that either Sylvia, DiPreta, or Roberta had actual
awareness of the facts necessary to establish the plain-
tiff’s causes of action or that they intentionally con-
cealed such facts from him. For that reason, the court
properly concluded that no genuine issue of material
fact existed with respect to his fraudulent conceal-
ment claim.
V
The plaintiff also claims that the court improperly
denied his motion to open the judgment. In that motion,
the plaintiff claimed that newly discovered evidence
warranted the opening of the summary judgment ren-
dered in favor of the defendants. Specifically, he
claimed that testimony from DiPreta during a Novem-
ber, 2018 Superior Court proceeding regarding an award
of attorney’s fees for work performed by DiPreta subse-
quent to Sylvia’s removal as a trustee directly contra-
vened DiPreta’s contention that Sylvia had no continu-
ing duty to the remainder beneficiaries following her
removal as a trustee on June 11, 2013. According to the
plaintiff, the judgment must be opened to permit him
to present that evidence in support of his claim that
Sylvia possessed a fiduciary duty that continued beyond
June 11, 2013.26
We conclude that the plaintiff’s appeal in this regard is
moot. ‘‘When, during the pendency of an appeal, events
have occurred that preclude an appellate court from
granting any practical relief through its disposition of
the merits, a case has become moot. . . . [T]he exis-
tence of an actual controversy is an essential requisite to
appellate jurisdiction; it is not the province of appellate
courts to decide moot questions, disconnected from the
granting of actual relief or from the determination of
which no practical relief can follow.’’ (Internal quota-
tion marks omitted.) State v. Nalewajk, 190 Conn. App.
462, 464–65, 211 A.3d 122 (2019). In part IV (B) (2)
(a) of this opinion, we determined that Sylvia owed a
continuing fiduciary duty to the remainder beneficiaries
to account for trust assets following her removal as a
trustee on June 11, 2013. Accordingly, no practical relief
can be afforded to the plaintiff. Simply put, the relief
the plaintiff is requesting is an opportunity to submit
further evidence that ostensibly supports a legal conclu-
sion already rendered by this court today. We, therefore,
dismiss that portion of the plaintiff’s appeal challenging
the propriety of the denial of his motion to open the
judgment.
The appeal is dismissed only as to the portions chal-
lenging the partial summary judgment rendered in favor
of Barbara and the denial of the plaintiff’s motion to
open the judgment; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
In his complaint, the plaintiff named as defendants his two sisters, Bar-
bara Tunick and Roberta Tunick, and Richard DiPreta, administrator of the
estate of the plaintiff’s mother, Sylvia Tunick, who died in 2015. For clarity,
we refer to them collectively as the defendants, and to Barbara Tunick,
Roberta Tunick, and Sylvia Tunick individually by their first names.
We note that the plaintiff properly named DiPreta as a party to this action
in his capacity as the administrator of Sylvia’s estate. But cf. American Tax
Funding, LLC v. Design Land Developers of Newtown, Inc., 200 Conn. App.
837, 845–48, A.3d (2020) (trial court lacked jurisdiction to render
judgment against estate, which is not legal entity, where complaint named
estate as defendant rather than executors of estate as parties in their repre-
sentative capacities). We also note that, after commencing this litigation,
the plaintiff subsequently moved to cite in Richard J. Margenot, successor
trustee of the David H. Tunick revocable trust, as a plaintiff, which motion
the court granted. Margenot has not participated in this appeal.
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
On August 15, 2019, the plaintiff requested permission to file a late
amended appeal for the purpose of challenging the propriety of the denial
of his motion to open the judgment, which this court granted. The plaintiff
thereafter filed this amended appeal.
4
We reiterate that the plaintiff’s operative complaint contained five counts
against Barbara. Count one alleged breach of fiduciary duty; count four
alleged conversion; count six alleged civil theft; count nine alleged ‘‘misrepre-
sentation/fraud’’; and count twelve alleged breach of contract against her.
Appellate review of the partial summary judgment rendered in favor of
Barbara on those counts must await resolution of the remaining unjust
enrichment count that the plaintiff has alleged against her. See Cheryl Terry
Enterprises, Ltd. v. Hartford, 262 Conn. 240, 246–47, 811 A.2d 1272 (2002).
5
In a similar action, the Rhode Island Supreme Court recently declined
‘‘the invitation to blur the distinction between gifting to a beneficiary directly
and doing so through a trust instrument.’’ Glassie v. Doucette, 157 A.3d
1092, 1099 (R.I. 2017). The appellant in that case was the executrix of the
estate of a third-party beneficiary under a property settlement agreement
entered into by her parents at the time that their marriage was dissolved,
which required the appellant’s father to create and fund a trust for her
benefit. Id., 1094. Although it was undisputed that the father created and
partially funded such a trust, the appellant brought an action sounding in
breach of contract due to the father’s alleged failure to fully fund the trust.
Id., 1094–95. The trial court concluded that the appellant lacked standing
to maintain that action and, on appeal, the Rhode Island Supreme Court
framed the issue as ‘‘whether the law of contracts or the law of trusts
[governed] the resolution of this dispute.’’ Id., 1094. The court held that
‘‘once the [t]rust was created, the law of trusts became the governing law.
From that point forward, [the appellant’s] status was that of a trust benefi-
ciary, not of a third-party beneficiary to a contract. Accordingly, [the appel-
lant] lacked the requisite standing to [maintain an action sounding in contract
against] her father’s estate for benefits she would have received based on
her status as the beneficiary of the [t]rust.’’ Id., 1100.
6
In this appeal, the plaintiff does not dispute that § 52-577 governs tort
claims brought by a beneficiary against a trustee. See generally 4 Restatement
(Third), Trusts § 98, p. 48 (2012) (‘‘[a] beneficiary may not maintain a suit
against a trustee for breach of trust if the beneficiary is barred from doing
so . . . by a statutory period of limitation’’); 4 A. Scott et al., supra, § 23.24.2,
p. 1785 (‘‘[i]n actions at law . . . courts simply applied the relevant statute
of limitations’’); see also Cone v. Dunham, 59 Conn. 145, 158, 20 A. 311
(1890) (‘‘[t]o exempt a trust from the bar of the statute of limitations . . .
it must be of the kind belonging exclusively to the jurisdiction of a court
of equity’’ (emphasis added; internal quotation marks omitted)).
7
As the court stated: ‘‘No obligation rested upon the [remainder beneficiar-
ies] of this trust fund to protect the sureties on this bond against the act
of the principal, prior to the death of the last life tenant . . . on February
26th, 1913. Until then the [remainder beneficiaries] could not be known;
and in the absence of fraud on their part prejudicial to the sureties, they
cannot be held in any degree responsible for the acts or omissions of this
testamentary trustee. . . . Nor can [they] be held responsible for the acts
or omissions of the life tenants. [Remainder beneficiaries] and life tenants
are not in privity. There is thus no possible basis for a claim of laches on
the part of these [remainder beneficiaries] . . . until after the decease of
the life tenant, for their right to enforce a final distribution began then.
Before that time a charge of laches on their part could not be sustained.’’
(Citation omitted.) State ex rel. McClure v. Northrop, supra, 93 Conn. 564–65.
8
As the court noted in its memorandum of decision, ‘‘[t]he plaintiff alleges
numerous wrongful actions by the defendants on behalf of the trust but
does not specify in every instance when these actions and failures to act
occurred.’’ Significantly, the operative complaint lacks any allegations of
wrongful conduct on the part of the defendants that transpired after June
11, 2013. For example, in paragraph 15 of the breach of fiduciary count
against Sylvia, the plaintiff sets forth a litany of alleged transgressions, for
which the plaintiff has alleged either (1) a specific date prior to June 11,
2013, or (2) no date whatsoever. Paragraph 18 of that count then alleges
that Sylvia ‘‘breached her fiduciary duty . . . by wrongfully causing funds
to be spent against the will and intent of the [trust] from 1997 through
2013, as stated in paragraph 15 above.’’ (Emphasis added.) Paragraph 13
of the conversion count against Roberta similarly alleges that, ‘‘[a]s a result
of [Roberta’s] misconduct from 1997 through 2013, the plaintiff has suffered
money damages.’’
9
In Northrop, our Supreme Court held that ‘‘the statute of limitation[s]
cannot run against [the trust beneficiaries] . . . until his trusteeship is ter-
minated . . . .’’ State ex rel. McClure v. Northrop, supra, 93 Conn. 563. It
is undisputed that Sylvia’s trusteeship was terminated on June 11, 2013,
more than three years prior to the commencement of this action.
10
In Northrop, the plaintiff commenced an action ‘‘to hold the principal
and [the] surety . . . upon a probate bond . . . .’’ State ex rel. McClure v.
Northrop, supra, 93 Conn. 562. As the Supreme Court noted in its decision,
‘‘[t]he sureties [abandoned] the claim that this action is barred by the statute
limiting actions against sureties on probate bonds to those brought within
six years from the final settlement and acceptance of the account of the
principal. General [Statutes (1918 Rev.) § 6156] [the statutory precursor to
§ 52-579].’’ State ex rel. McClure v. Northrop, supra, 564.
In Lindberg v. Godbout, Superior Court, judicial district of New Britain,
Docket No. CV-XX-XXXXXXX-S (May 14, 1996) (17 Conn. L. Rptr. 123, 124),
the plaintiff sought recovery on a probate bond ‘‘from the former [estate]
administrator and the bondholder.’’ Because ‘‘no final accounting [had] been
approved,’’ the court concluded that ‘‘the plaintiff’s cause of action is timely’’
under § 52-579.
11
General Statutes § 52-579 provides: ‘‘No action shall be maintained
against the surety on any probate bond unless brought within six years
from the final settlement of account of the principal in such bond and the
acceptance of such account by the Court of Probate; but this provision shall
not apply to minors who are parties in interest.’’
12
Whether to amend § 52-577 with respect to accountings pending before
the Probate Court remains the exclusive prerogative of the legislature. See,
e.g., Genesky v. East Lyme, 275 Conn. 246, 268, 881 A.2d 114 (2005) (Connect-
icut courts cannot read into legislation provisions that clearly are not con-
tained therein); Glastonbury Co. v. Gillies, 209 Conn. 175, 181, 550 A.2d 8
(1988) (‘‘[I]t is not the province of a court to supply what the legislature
chose to omit. The legislature is supreme in the area of legislation, and
courts must apply statutory enactments according to their plain terms.’’
(Internal quotation marks omitted.)).
13
In her March 16, 2015 deposition testimony, portions of which the plain-
tiff submitted as an exhibit in his opposition to the motions for summary
judgment, Barbara stated that ‘‘[m]y sister [Roberta] did the bookkeeping’’
for the trust. Roberta similarly testified at her February 27, 2015 deposition,
which also was submitted as an exhibit, that she provided assistance to
Sylvia by writing checks on behalf of the trust from 2005 until June 1, 2013.
14
Apart from the duty to account for the assets of the trust, the plaintiff
has not identified any legal duty that allegedly continued following Sylvia’s
removal as a trustee in 2013. We therefore confine our analysis to the
allegations in the operative complaint concerning Sylvia’s fiduciary duty to
account for trust assets. See footnote 17 of this opinion.
15
We recognize that, in 2019, the General Assembly enacted the Connecti-
cut Uniform Trust Code; General Statutes (Supp. 2020) § 45a-499aa et seq.;
which expressly recognizes a continuing duty on the part of a removed
trustee. For example, General Statutes (Supp. 2020) § 45a-499xx provides
in relevant part: ‘‘(a) . . . [U]ntil the trust property is delivered to a succes-
sor trustee or other person entitled to it, a trustee who has resigned or been
removed has the duties of a trustee and the powers necessary to protect
the trust property. (b) A trustee who has resigned or been removed shall
proceed expeditiously to deliver the trust property within the trustee’s pos-
session to the cotrustee, successor trustee or other person entitled to it.
. . .’’ Furthermore, pursuant to General Statutes (Supp. 2020) § 45a-499hhh
(a), a trustee is obligated to ‘‘keep adequate records of the administration
of the trust,’’ and pursuant to General Statutes (Supp. 2020) § 45a-499kkk
(c) is required to ‘‘send a report to the current beneficiaries . . . at least
annually and at the termination of the trust.’’ Because the effective date of
those enactments is January 1, 2020, they are inapplicable to our review.
16
At oral argument before this court, counsel for DiPreta conceded that
Sylvia had a legal duty to file an accounting subsequent to her June 11, 2013
removal as a cotrustee.
17
In paragraph 15 of the breach of fiduciary duty count of his operative
complaint, the plaintiff alleged that Sylvia, ‘‘by her continuing course of
conduct intentionally and/or carelessly and negligently [handled] the [t]rust
assets in the following particular ways . . .
‘‘(c) By failing to safeguard and provide an accounting of [t]rust cars,
1928 Model A Roadster and 1948 MG-TC . . . .
‘‘(f) By selling [t]rust antique car parts and memorabilia without disclosing
such sales, or accounting for the proceeds from such sales . . . .
‘‘(g) By failing to properly account for, and continually [distribute], [t]rust
cash to Victor Rakoczy for landscaping work performed on [nontrust] assets
in a continuing course of action from 2004 to 2013. . . .
‘‘(h) By failing to properly account for and continually distributing [t]rust
cash as a continuing course of conduct to Cesar Tupac for nontrust related
services from 2004 to 2013. . . .
‘‘(i) By failing to properly account for, and continually distributing, trust
cash as a continuing course of conduct to Temple Shalom for a nontrust
related expenditure. Such payments total $1000 in 2013. . . .
‘‘(j) By failing to properly account for cash distributions of principal and
income as a continuing course of conduct in the amount of $428,405.53,
resulting in the loss of a valuable trust asset from 2004 to 2009. . . .
‘‘(s) By failing to keep accurate books and records pertaining to the [t]rust
expenditures and distributions from 1997 through 2013. . . .
‘‘(v) By failing to properly account for the distribution of the 1959 Mercedes
Benz Roadster. . . .’’
For purposes of our continuing course of conduct analysis, those allega-
tions constitute the initial wrongs allegedly committed upon the plaintiff.
See Flannery v. Singer Asset Financial Co., LLC, supra, 312 Conn. 312.
18
Although the plaintiff states in his appellate reply brief that DiPreta
‘‘still [has] not complied with’’ the Probate Court’s order to provide an
accounting with the Probate Court, no such allegation is contained in his
operative complaint. Moreover, in both his reply to the statute of limitations
special defense raised by DiPreta and his principal appellate brief to this
court, the plaintiff conceded that DiPreta had ‘‘filed their accountings’’ with
the Probate Court, albeit in an allegedly belated manner. At oral argument
before this court, the plaintiff likewise acknowledged that DiPreta had filed
an accounting with the Probate Court in 2015.
19
We note that the proceedings before the Probate Court remained ongoing
at the time that both the present action and the motions for summary
judgment were filed. In that ancillary proceeding, the Probate Court is
empowered to ‘‘enforce the delivery to the successor fiduciary of any estate
held by the former fiduciary . . . .’’ General Statutes § 45a-244. General
Statutes § 45a-175 (h) confers jurisdiction upon the Probate Court over the
accountings of fiduciaries and provides in relevant part that ‘‘[i]n any action
under this section, the Probate Court shall have . . . all the powers available
to a judge of the Superior Court at law and in equity pertaining to matters
under this section.’’ Furthermore, parties to proceedings before the Probate
Court, such as the plaintiff, retain the right to appeal from any ‘‘order, denial
or decree of a Probate Court’’ pursuant to General Statutes § 45a-186.
20
The record before us indicates that, at all relevant times, the antique
automobiles and parts in question remained unaccounted for. In opposing
the motions for summary judgment, the plaintiff furnished an affidavit from
Margenot, in which he stated: ‘‘Part of my duties as the successor trustee
is to take control of the trust assets. I was ordered by the Probate Court
. . . to do an inspection of the ‘Tunick Property’ to look for two cars and/
or parts. I was unsuccessful in finding the two cars at issue, and only
found some nominal discarded car parts.’’ The plaintiff also submitted the
September 21, 2016 affidavit of Emanuel Dragone, owner of Dragone Classic
Motorcars, in which Dragone averred that, in 1985, he assisted the settlor
in moving truckloads of automobile parts worth more than $500,000 to be
stored at the Tunick family home in Greenwich.
DiPreta has offered no affidavit regarding the automobiles or parts in
question, which may be attributable to the fact that Sylvia died more than
two years prior to the commencement of this action. Moreover, the materials
in the record before us indicate that the plaintiff was very involved in
the settlor’s antique automobile business and, as the plaintiff stated in his
memorandum of law in opposition to summary judgment, he was ‘‘very
familiar . . . and extremely knowledgeable about the automobile collection
and auto parts.’’ The plaintiff nonetheless has not submitted a sworn affidavit
on his own behalf.
21
The 2002 inventory specifies a fair market value of $11,500 for the 1928
Model A and $14,000 for the 1948 MG-TC.
22
In its July 7, 2004 decree, the Probate Court stated in relevant part:
‘‘[I]n regard to certain trust assets, specifically the antique [automobiles],
they are to be sold, and that any [automobiles] that are kept by the beneficiar-
ies or remainder beneficiaries of the trust, the value of the [automobile]
shall be taken against the beneficiary’s share of the trust. Once the [automo-
biles] are sold, a corporate trustee will be appointed and the remaining
[t]rustees will resign . . . .’’ The 2002 inventory of trust assets, which the
plaintiff submitted in opposition to the motions for summary judgment,
listed twenty-one antique automobiles with a combined fair market value
of $795,450.
23
Although the continuing course of conduct doctrine has been applied
in medical malpractice cases; see, e.g., Witt v. St. Vincent’s Medical Center,
252 Conn. 363, 746 A.2d 753 (2000); we note that such actions are governed by
the limitation period contained in General Statutes § 52-584, which ‘‘begins
to run when the plaintiff discovers some form of actionable harm . . . .’’
(Internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn. App. 396,
405, 844 A.2d 893 (2004). For that reason, ‘‘the continuing course of conduct
doctrine has no application after the plaintiff has discovered the harm’’ in
actions subject to § 52-584. Id. Section 52-577, by contrast, is ‘‘solely a repose
statute and contains no discovery provision.’’ Id., 407.
24
In Martinelli, the United States Court of Appeals for the Second Circuit
held that, in cases involving a fiduciary, the burden shifts to the defendants
to disprove that they fraudulently concealed the existence of the plaintiff’s
cause of action. See Martinelli v. Bridgeport Roman Catholic Diocesan
Corp., supra, 196 F.3d 423.
25
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.’’
26
In response, DiPreta correctly notes that, at the time that Sylvia was
removed as a trustee, the Probate Court ordered her to submit a final
accounting. DiPreta thus argues that his testimony regarding the services
that he rendered on Sylvia’s behalf subsequent to her removal as a trustee
does not contravene that position.