Tunick v. Tunick

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STEPHEN M. TUNICK v. BARBARA TUNICK ET AL.
                (AC 45085)
                         Moll, Seeley and Lavine, Js.

                                   Syllabus

The plaintiff, who was a remainder beneficiary of a revocable trust, which
    included a corpus of, inter alia, antique automobiles, sought damages
    from the defendants, his sisters, B and R, and from D, the administrator
    of the estate of S, the plaintiff’s mother, in connection with the adminis-
    tration 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. D and B filed motions to strike the counts that alleged that a contract
    had been breached, which the trial court granted, and, thereafter, the
    defendants filed separate motions for summary judgment on the ground
    that the plaintiff’s claims were time barred pursuant to the three year
    tort statute of limitations (§ 52-577). While the motions for summary
    judgment were pending, the plaintiff filed a revised complaint that added
    a count against B sounding in unjust enrichment, alleging that B, by a
    continuing course of conduct, breached the trust agreement by, inter
    alia, misappropriating and diverting assets, principal and income from
    the plaintiff. The trial court granted the motions for summary judgment
    filed by R and D, having determined that they met their burden of
    showing that the plaintiff’s claims were time barred by § 52-577. The
    trial court also granted in part the motion for summary judgment filed
    by B; the count of unjust enrichment was not adjudicated in that ruling.
    The court determined that there was no evidentiary basis for the plain-
    tiff’s claims that the statute of limitations in § 52-577 was tolled by the
    continuous course of conduct doctrine, and it concluded that no genuine
    issues of material fact existed as to when the plaintiff’s cause accrued
    and when his action was commenced. On the plaintiff’s prior appeal to
    this court, this court affirmed the trial court’s granting of summary
    judgment in favor of R and D but did not address on the merits the
    plaintiff’s challenges to the trial court’s rendering of summary judgment
    in part in favor of B, reasoning that a final judgment as to B was lacking
    because the unjust enrichment count of the complaint remained pending.
    Thereafter, the trial court granted B’s motion to strike the unjust enrich-
    ment count on the ground that it was time barred by § 52-577, and the
    plaintiff appealed to this court. Held:
1. The trial court improperly granted B’s motion to strike the unjust enrich-
    ment count of the revised complaint on the ground that it was time
    barred by § 52-577: a claim of unjust enrichment sounds neither in tort
    nor in contract but is an equitable claim for relief, not subject to any
    statute of limitations, and, instead, is subject to the equitable doctrine
    of laches; moreover, B’s argument that § 52-577 applied because the
    unjust enrichment claim contained tort like allegations was unsupported
    by our jurisprudence.
2. The plaintiff could not prevail on his claim that the trial court improperly
    granted B’s motion for summary judgment, that court having determined
    that no genuine issues of material fact existed as to whether § 52-577
    was tolled by the operation of the continuing course of conduct doctrine;
    in the present case, B’s alleged failure to account for antique automobiles
    and unspecified automobile parts did not constitute a continuous series
    of events that gave rise to a cumulative injury, and the plaintiff failed
    to establish the existence of a genuine issue of material fact as to
    whether B committed a continuous breach of the fiduciary duty she
    owed to remainder beneficiaries that resulted in an enhanced injury to
    the plaintiff.
        Argued October 11—officially released December 20, 2022

                             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 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 summary
judgment filed by the defendant Roberta G. Tunick et
al. and rendered judgment thereon, from which the
plaintiff appealed to this court, Keller, Elgo and Lavery,
Js.; subsequently, the court, Truglia, J., denied the
plaintiff’s motion to open the judgment, and the plaintiff
filed an amended appeal to this court, which dismissed
the appeal in part and affirmed the judgment in all other
respects; thereafter, the court, Hon. Dale W. Radcliffe,
judge trial referee, granted the named defendant’s
motions to strike and for summary judgment and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Reversed in part; further pro-
ceedings.
  William W. Taylor, for the appellant (plaintiff).
  Christina M. Volpe, with whom, on the brief, was
Thomas P. O’Dea, Jr., for the appellee (named defen-
dant).
                          Opinion

   LAVINE, J. The plaintiff, Stephen M. Tunick, appeals
from the judgment of the trial court rendered in favor of
the defendant Barbara Tunick.1 On appeal, the plaintiff
contends that the court improperly granted the defen-
dant’s (1) motion to strike and (2) motion for summary
judgment. We agree with the first claim and disagree
with the second claim. Accordingly, we reverse in part
and affirm in part the judgment of the trial court.
   In Tunick v. Tunick, 

, 517–22, 

 (2020), cert. denied, 

, 

 (2021), this court detailed the facts, as gleaned from
the pleadings, affidavits, and other proof submitted,
viewed in the light most favorable to the plaintiff, which
we now summarize. In 1981, David H. Tunick (settlor)
established the David H. Tunick revocable trust (trust).

. The trust corpus included, among other things,
antique automobiles. 

 The primary beneficiaries of
the trust were the settlor and his wife, Sylvia G. Tunick
(Sylvia), and their three children—the plaintiff, the
defendant, and Roberta G. Tunick (Roberta)—who
were named as remainder beneficiaries. 

 The plaintiff
and the defendant initially were appointed as cotrustees
of the trust, and, in 1993, the trust was amended to
include Sylvia as a third cotrustee. 

 The trust provided
in relevant part that Sylvia would become the sole pri-
mary 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, the defendant, 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 the defendant filed an application with the
Probate Court to remove the plaintiff as a trustee. 

The court removed him as a trustee, ordering that he
deliver any property belonging to the trust to the
remaining trustees and that the antique automobiles be
sold. 

 517–18. Sylvia and the defendant acted as
cotrustees of the trust from July 7, 2004, until June 11,
2013, when the Probate Court issued an order removing
them as cotrustees.2 

. Sylvia died in 2015, and
Richard S. DiPreta was appointed as the administrator
of her estate. 

   The plaintiff thereafter commenced the present
action in 2016 and alleged the following in his twelve
count second revised complaint: breach of fiduciary
duty against the defendant and Sylvia;3 conversion, civil
theft in violation of General Statutes § 52-564, and fraud-
ulent misrepresentation against the defendant, Sylvia,
and Roberta; and breach of contract against the defen-
dant. The defendant filed a motion to strike the breach
of contract count, arguing that it was legally insufficient
as a matter of law because a trust is not a contract. The
defendant also filed a motion for summary judgment,
in which she argued that the counts against her alleging
breach of fiduciary duty, conversion, civil theft, and
fraudulent misrepresentation were time barred pursu-
ant to the three year tort statute of limitations, General
Statutes § 52-577.4 The defendant also argued that she
was entitled to summary judgment on the breach of
contract count. Roberta and DiPreta filed separate
motions for summary judgment and argued that the
counts against them were time barred by § 52-577. In
his memorandum of law in opposition to the three
motions for summary judgment, the plaintiff argued,
among other things, that the time limitation in § 52-577
was tolled by a continuing course of conduct.
   The court, Truglia, J., granted the defendant’s motion
to strike the breach of contract count. While the
motions for summary judgment were pending, the plain-
tiff filed a third revised complaint, which, notably, omit-
ted the breach of contract claim against the defendant
and added a claim of unjust enrichment in its place. The
court, Truglia, J., thereafter, granted the defendant’s
motion for summary judgment on the counts in the
second revised complaint against the defendant alleging
breach of fiduciary duty, conversion, civil theft, and
fraudulent misrepresentation. In response to a motion
for articulation filed by the plaintiff, the court clarified
that it had not rendered summary judgment as to the
new twelfth count of the third revised complaint, which
alleged unjust enrichment. The court granted in full the
motions for summary judgment filed by Roberta and
DiPreta.
   Thereafter, the plaintiff appealed to this court, claim-
ing, among other things, that genuine issues of material
fact existed as to whether the claims in his complaint
were time barred under § 52-577. Tunick v. Tunick,
supra, 201 Conn. App. 516–17. This court affirmed the
trial court’s judgment granting the motions for summary
judgment filed by Roberta and DiPreta and dismissed
the portion of the plaintiff’s appeal challenging the trial
court’s granting in part the defendant’s motion for sum-
mary judgment. Id., 522–24. In 2021, the plaintiff filed
a fifth revised complaint, which alleged, in count twelve,
unjust enrichment.5 The defendant moved to strike the
unjust enrichment count of the fifth revised complaint,
arguing that it was time barred by § 52-577. The court,
Radcliffe, J., granted the motion. Thereafter, pursuant
to Practice Book § 10-44, the defendant filed a motion
for judgment on the stricken unjust enrichment count,
which was the remaining count of the complaint
directed to the defendant that was not disposed of by
the court’s granting of the defendant’s motion for sum-
mary judgment.6 The court granted the motion and ren-
dered judgment in favor of the defendant. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
                             I
   The plaintiff claims that the court improperly granted
the defendant’s motion to strike the unjust enrichment
count of the fifth revised complaint on the ground that
it was time barred by § 52-577. We agree.
   In the twelfth count of the fifth revised complaint,
the plaintiff alleged that the defendant breached her
fiduciary duties under the trust agreement by, among
other things, failing to turn over trust assets, and
thereby unjustly enriched herself to the detriment of
the plaintiff.7 In granting the motion to strike, the court
determined that the three year tort statute of limitations
in § 52-577 applied so as to bar the unjust enrichment
claim, as it did not allege a contractual dispute but,
rather, involved allegations of tortious conduct.
‘‘Whether a particular action is barred by the statute of
limitations is a question of law to which we apply a
plenary standard of review.’’ Federal Deposit Ins. Corp.
v. Owen, 

, 

, cert.
denied, 

, 

 (2005).
   Generally, a motion to strike is not the proper proce-
dural vehicle for raising a claim that an action is time
barred by the lapse of a statute of limitations. Forbes
v. Ballaro, 

, 239–40, 

(1993). In the present case, however, we turn our focus
away from procedural concerns to an even more funda-
mental issue. In Reclaimant Corp. v. Deutsch, 

, 

 (2019), our Supreme Court held that
‘‘unjust enrichment is not a legal claim sounding in
either tort or contract—it is an equitable claim for relief.
As an equitable claim, its timeliness is not subject to a
statute of limitations but, rather, to the equitable doc-
trine of laches.’’ 

; see 

 (for purposes of laches,
courts in equitable proceedings may look by analogy
to statute of limitations but are not obligated to adhere
to those limitations). The court concluded that unjust
enrichment claims are not barred by the three year
limitation period in § 52-577. Id., 614.
   We agree with the plaintiff that his claim for unjust
enrichment against the defendant is not subject to a
statute of limitations. The defendant’s argument—that
§ 52-577 applies because the unjust enrichment count
contains tort like allegations of breaches of fiduciary
duties—is creative, but unavailing. Reclaimant Corp.
makes no exception to its holding that unjust enrich-
ment claims are not bound by a statute of limitations.
A claim of unjust enrichment, which sounds neither in
tort nor in contract, is an equitable claim for relief that
is not subject to any statute of limitations, including
§ 52-577. Id., 613–14. Because the unjust enrichment
count was not a tort claim and was not time barred by
§ 52-577, we conclude that the court improperly granted
the motion to strike on that basis.
                             II
  The plaintiff next claims that the court improperly
granted the defendant’s motion for summary judgment
as to the counts of the second revised complaint8 alleg-
ing breach of fiduciary duty, conversion, civil theft, and
fraudulent misrepresentation because genuine issues
of material fact exist as to whether § 52-5779 was tolled
by the continuing course of conduct doctrine. We dis-
agree.
  We begin with the standard of review and relevant
legal principles. When reviewing a decision of a trial
court to grant a motion for summary judgment, ‘‘[t]he
facts at issue are those alleged in the pleadings . . . .
Practice Book § 17-49 provides that summary judgment
shall be rendered forthwith if the pleadings, affidavits
and any other proof submitted show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. In
deciding a motion for summary judgment, the trial court
must view the evidence in the light most favorable to
the nonmoving party. . . . Our review of the trial
court’s decision to grant the defendant’s motion for
summary judgment is plenary.’’ (Citation omitted; inter-
nal quotation marks omitted.) Tunick v. Tunick, supra,

   ‘‘The continuing course of conduct doctrine operates
to delay the commencement of the running of an other-
wise applicable statute of limitations. . . . When pre-
sented 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) commit-
ted an initial wrong upon the plaintiff; (2) owed a contin-
uing duty to the plaintiff that was related to the alleged
original wrong; and (3) continually breached that duty.
. . . 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.’’
(Citations omitted; internal quotation marks omitted.)
Id., 535–36.
   In ruling on the motions for summary judgment, the
trial court determined that the three year limitation
period in § 52-577 commenced in 2013 and had expired
by the time the plaintiff commenced the action in 2017.
In rejecting the plaintiff’s argument that the relevant
limitation period was tolled under the continuing course
of conduct doctrine, the court reasoned in its memoran-
dum of decision that ‘‘[t]he gravamen of the plaintiff’s
complaint is that [the defendant] and [Sylvia’s estate]
are liable to him for breach of fiduciary duties as trust-
ees. Through a continuing course of conduct, beginning
in 1997 and ending in 2013, the plaintiff alleges that
[the defendant] and Sylvia, acting alone or together,
improperly dissipated trust assets by prematurely dis-
tributing funds out of the trust to themselves, thereby
intentionally misappropriating and diverting principle,
income and assets that should have passed to him as
a remainderman of that trust. He also alleges that [the
defendant] and Sylvia engaged in self-dealing and/or
intentionally and carelessly handled the trust assets.’’
As to the defendant and Sylvia, who were both trustees
and against whom the plaintiff alleged claims for breach
of fiduciary duty, conversion, civil theft, and fraudulent
misrepresentation, the court stated: ‘‘[T]he court agrees
that all of the plaintiff’s allegations of wrongdoing in
the complaint describe conduct by [the defendant, Syl-
via, and Roberta] from 1997 to 2013. . . . The plaintiff
does not contest [their] assertions that [the defendant]
and [Sylvia] ceased acting as trustees in June, 2013. . . .
In short, [the defendant, DiPreta and Roberta] have met
their preliminary burden 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 limitations has been tolled to May 5, 2017,
the date of service. . . . [T]he court rejects all the toll-
ing arguments advanced by the plaintiff. . . . The court
. . . finds no evidentiary basis for the plaintiff’s claims
that the statute of limitations is tolled by the continuous
course of conduct doctrine . . . .’’ (Footnote omitted.)
   In the plaintiff’s previous appeal, this court did not
address on the merits the plaintiff’s challenge to the
trial court’s rendering of summary judgment in part in
favor of the defendant, reasoning that a final judgment
was lacking because the unjust enrichment count of
the complaint remained pending.10 Tunick v. Tunick,
supra, 201 Conn. App. 522–24. In affirming the trial
court’s granting of the motions for summary judgment
filed by Roberta and DiPreta, this court rejected the
plaintiff’s argument that genuine issues of material fact
existed as to whether § 52-577 was tolled by the opera-
tion of the continuing course of conduct doctrine.
Id., 531–53.
   In addressing the plaintiff’s claim that the court
improperly granted the motion for summary judgment
filed by DiPreta as to the claims concerning Sylvia, who,
for purposes of the unjust enrichment claim, is situated
similarly to the defendant, this court in the previous
appeal determined that the trial court properly had
determined that the application of the continuing
course of conduct doctrine was not warranted. Id., 534–
49. This court determined that, because Sylvia had
served as a trustee from 1993 to June 11, 2013, she
owed a continuing fiduciary duty to the plaintiff, as a
remainder beneficiary of the trust, to account for trust
assets and that her duty did not end immediately upon
her removal as a trustee on June 11, 2013. Id., 537–42.
We noted, however, regarding the third prong of the
continuing course of conduct doctrine, that the relevant
question was ‘‘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.’’ Id., 542.
This court determined that the pleadings contained no
specific allegations of a continuing breach of a fiduciary
duty after Sylvia’s removal as a trustee in June, 2013,
except with respect to the issue of antique automobiles
and parts, and that ‘‘the failure to account for the two
antique automobiles and unspecified automobile parts
does not constitute a continuous series of events that
give rise to a cumulative injury.’’ Id., 548. This court
determined that the plaintiff had not established the
existence of a genuine issue of material fact regarding
whether Sylvia and DiPreta committed a continuous
breach of the fiduciary duty owed to remainder benefici-
aries that resulted in an enhanced injury to him and
concluded that the court properly determined that the
application of the continuing course of conduct doc-
trine was not warranted. Id., 541–49.
   In the present appeal, the plaintiff argues that genuine
issues of material fact exist as to whether § 52-577 was
tolled by the continuing course of conduct doctrine and
focuses on the defendant’s alleged failure to account
for antique automobiles and parts to support his con-
tention. We disagree with the plaintiff and are not per-
suaded by his argument that the continuing course of
conduct doctrine applies as to the defendant because,
unlike Sylvia, the defendant ‘‘is still alive and has the
ability to retain an auto[s] of her choosing . . . .’’ The
alleged injury is the same as to both Sylvia and the
defendant. As with Sylvia, the only specific allegations
made by the plaintiff of a continuing breach of a fidu-
ciary duty owed to him by the defendant after she
ceased being a trustee in June, 2013, concerned the
failure to account for antique automobiles and parts.
The reasoning stated in Tunick for why the trial court
properly determined that the continuing course of con-
duct doctrine did not operate to toll § 52-577 as to Sylvia,
applies also to the defendant. As this court reasoned
in Tunick with respect to Sylvia, we now conclude in
the present appeal as to the defendant that the alleged
failure to account for antique automobiles and unspeci-
fied automobile parts does not constitute a continuous
series of events that give rise to a cumulative injury
and the plaintiff has not established the existence of a
genuine issue of material fact as to whether the defen-
dant committed a continuous breach of the fiduciary
duty she owed to remainder beneficiaries that resulted
in an enhanced injury to the plaintiff. See Tunick v.
Tunick, supra, 201 Conn. App. 548–49. Accordingly, we
conclude that the court properly determined that the
application of the continuing course of conduct doc-
trine was not warranted as to the defendant.
  The judgment is reversed only with respect to the
granting of the defendant’s motion to strike count
twelve of the plaintiff’s fifth revised complaint and the
case is remanded for further proceedings according to
law; the judgment is affirmed in all other respects.
      In this opinion the other judges concurred.
  1
     The plaintiff initially commenced this action against his sisters, Barbara
Tunick and Roberta G. Tunick (Roberta). Also named as defendants were
Richard S. DiPreta, coadministrator of the estate of the plaintiff’s mother,
Sylvia G. Tunick, who died in 2015, and Edward Axelrod, coadministrator
of the estate of Sylvia G. Tunick. Subsequently, the plaintiff withdrew the
action as against Axelrod, and the court’s rendering of summary judgment
in favor of Roberta and DiPreta previously was affirmed by this court. See
Tunick v. Tunick, 

, 517–22, 

 (2020), cert.
denied, 

, 

 (2021). Consequently, Barbara Tunick
is the only defendant participating in this appeal. For clarity, in this opinion
we refer to Barbara Tunick as the defendant.
   2
     The Probate Court appointed Richard J. Margenot as the successor
trustee.
   3
     The claims concerning Sylvia were brought against DiPreta, in his capac-
ity as administrator of Sylvia’s estate, and relate to actions taken by Sylvia
as cotrustee of the trust.
   4
     General Statutes § 52-577 provides that ‘‘[n]o action founded upon a tort
shall be brought but within three years from the date of the act or omission
complained of.’’
   5
     In this complaint, the plaintiff also alleged against the defendant, for
purposes of preservation of rights for appellate review, breach of fiduciary
duty, conversion, civil theft and misrepresentation/fraud.
   6
     Practice Book § 10-44 provides in relevant part: ‘‘Within fifteen days after
the granting of any motion to strike, the party whose pleading has been
stricken may file a new pleading; provided that in those instances where
an entire complaint, counterclaim or cross complaint, or any count in a
complaint, counterclaim or cross complaint has been stricken, and the party
whose pleading or a count thereof has been so stricken fails to file a new
pleading within that fifteen day period, the judicial authority may, upon
motion, enter judgment against said party on said stricken complaint, coun-
terclaim or cross complaint, or count thereof. . . .’’ See also Lavette v.
Stanley Black Decker, Inc., 

, 469 n.6, 

 (2022)
(‘‘As a general rule, [a]fter a court has granted a motion to strike, the plaintiff
may either amend his pleading [pursuant to Practice Book § 10-44] or, on
the rendering of judgment, file an appeal. . . . The choices are mutually
exclusive [as] [t]he filing of an amended pleading operates as a waiver of
the right to claim that there was error in the sustaining of the [motion to
strike] the original pleading.’’ (Internal quotation marks omitted.)).
   7
     ‘‘Plaintiffs seeking recovery for unjust enrichment must prove (1) that
the defendants were benefited, (2) that the defendants unjustly did not pay
the plaintiffs for the benefits, and (3) that the failure of payment was to
the plaintiffs’ detriment.’’ (Internal quotation marks omitted.) Schirmer v.
Souza, 

, 

 (2011).
   8
     A final disposition was rendered on all counts of the underlying complaint
by the court’s granting of a partial summary judgment as to the defendant
on the second revised complaint and by the striking of the unjust enrichment
count against the defendant on the fifth revised complaint. See footnote 10
of this opinion. Accordingly, we address in this appeal the plaintiff’s claims
regarding the court’s decisions as to the defendant on both the second
revised complaint and fifth revised complaint.
   9
     See footnote 4 of this opinion.
   10
      In the present appeal, the plaintiff argues that, if we reverse the judgment
of the court granting the defendant’s motion to strike, then we cannot review
his second claim due to the lack of a final judgment. In striking the unjust
enrichment count and subsequently rendering judgment thereon, the trial
court rendered judgment on the remaining count of the complaint directed
to the defendant that was not disposed of by the court’s granting of the
defendant’s motion for summary judgment. See footnote 6 of this opinion.
Because there has been a final disposition as to all counts of the underlying
complaint, a final judgment exists for purposes of appeal. See Krausman
v. Liberty Mutual Ins. Co., 

, 687, 

 (2020) (‘‘an
appeal challenging an order issued during the pendency of a civil action
ordinarily must wait until there has been a final disposition as to all counts
of the underlying complaint’’).