Opinion
No. 4000487
December 20, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiff commenced this civil action against the defendant by complaint dated August 4, 2004. The plaintiff's complaint sets out four causes of action claiming conversion, common law negligence, breach of contract and a violation of CUTPA statutes. Defendant, after close of the pleadings, filed a motion for summary judgment on August 31, 2005.
This case involves a strained family relationship between the plaintiff and his elderly father. The plaintiff alleged, in November of 1989, a third party (purportedly his father) established an account with the defendant using his name and social security number. The account was funded with $30,000 worth of bonds secured by the Connecticut Housing Authority. The account remained in existence until June 5, 2001 when the funds in said account were withdrawn by someone other than the plaintiff. The plaintiff never signed any withdrawal, nor did the plaintiff authorize the defendants to permit any fund transfers from the account.
The plaintiff first became aware of the account when he received a federal tax form 1099 for calendar year 2001 in a letter with the father's handwriting on the envelope. The plaintiff learned from an agent of the defendant that the funds were transferred to an account in the name of his father and brother. The defendant cannot locate the investment account records due to their destruction in the ordinary course of the defendant's business.
The defendant contends the record established that there is no issue of material fact concerning donative intent. The defendant contends that deposit of the funds without evidence of intent does not qualify as a gift. Furthermore, even if intent can be found, the evidence presented lacks proof of delivery, actual or constructive.
The plaintiff claims to the contrary. The plaintiff claims that placing the bonds in an account with the plaintiff's social security number is sufficient proof of intent and delivery. The father has not been deposed. The plaintiff further argues that once the funds (bonds) were deposited in the plaintiff's account, they are presumed to be his. The defendant permitted the account to be drained purportedly by the plaintiff's father who was not the owner of the account and without his approval and consent. The defendant, through its normal business process has disposed of the account records with the plaintiff's father unable to presently testify due to his deteriorating physical condition. Furthermore, the plaintiff's father had funds placed in the son's name in the past in an investment account at another brokerage house. His father used the plaintiff's social security number. The plaintiff signed the card to open the account with the father controlling the deposit and withdrawals.
The parties appeared before the court for oral argument on November 14, 2005. The plaintiff conceded that the motion for summary judgment should be granted as to count two Common Law Negligence.
After review of the pleadings, briefs and deposition testimony of the plaintiff, the court concludes that count one Conversion, count two Negligence and count four CUTPA are barred on the basis of the statute of limitations. Our Supreme Court has held that the statute of limitations defense can be raised by way of a motion for summary judgment. Doty, et al v. Mucci, 238 Conn. 800 (1996).
I. Conversion (Count 1) and Negligence (Count 2)
General Statutes § 52-577, entitled "Action founded upon a tort," states: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." This section applies to actions for conversion, Nikolas v. Michaelis, 7 Conn.Sup. 405 (1939), as well as actions for negligence. Farnsworth v. O'Doherty, 85 Conn.App. 145, 149, 856 A.2d 518 (2004).
"This court has determined that [s]ection 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.) Farnsworth v. O'Doherty, supra, 85 Conn.App. 149. "The three year limitation period of § 52-577 begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn.App. 449, 451, 671 A.2d 1329 (1996). "When conducting an analysis under § 52-577, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed." (Internal quotation marks omitted.) Farnsworth v. O'Doherty, supra, 85 Conn.App. 150. Instances of fraudulent concealment of a cause of action will toll the statute of limitations accordingly. See, e.g. Krondes v. Norwalk Sav. Soc., 53 Conn.App. 102, 728 A.2d 1103 (1999). A court may consider the applicability of concepts of fairness and equity in determining the tolling of statute of limitations. Decorso v. Watchtower Bible and Tract Soc. of New York, Inc., 78 Conn.App. 865, cert. denied 266 Conn. 931, 837 A.2d 805 (2003). No claim of concealment or tolling consideration have been raised by the plaintiff. The act or omission of the defendant occurred no later than January 5, 2001 when the funds were withdrawn from the account held by the defendant by someone other than the plaintiff. The plaintiff commenced this action more than three years from said date. Therefore, the motion for summary judgment is granted as to counts one and two.
II. CUTPA (Count 4)
General Statutes § 42-110g(f), which governs actions brought under CUTPA's private remedy section, provides: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter." In Fichera v. Mine Hill Corp., 207 Conn. 204, 541 A.2d 472 (1988), the court held that § 42-110g(f) begins to run from the date of the violation rather than from the date of discovery. The act or omission of the defendant occurred no later than January 5, 2001 when the funds were withdrawn from the account held by the defendant by someone other than the plaintiff. The plaintiff commenced this action more than three years from said date. Therefore, the motion for summary judgment is granted as to count four.
III. Breach of Contract (Count 3)
With regard to the plaintiff's breach of contract claim, the defendant seeks summary judgment based on two grounds. First, the defendant claims there was no valid contract that the plaintiff can enforce. Second, the defendant claims there was no inter vivos gift made to the plaintiff.
"The law regarding the creation of contract rights in third parties in Connecticut is well settled . . . [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although we explained that it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary, . . . we emphasized that the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended." (Citations omitted; internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 580-81, 833 A.2d 908 (2003). This court notes that the defendant submitted no evidence, including the contract itself, for the court to evaluate.
Also, the question of whether there has been a proper inter vivos gift is squarely directed at the intention of the plaintiff's father. "To constitute a valid gift inter vivos of personal property, there must be not only a delivery of possession of the property but also an intent on the part of the donor that title shall pass immediately." Kukanskis v. Jasut, 169 Conn. 29, 34, 362 A.2d 898 (1975). "To support a factual conclusion of an executed intervivos gift, there would have to be a donative intention and at least a constructive delivery. It is true that the donative intention need not be expressed, nor the delivery made, in any particular form or mode." Hebrew University Ass'n. v. Nye, 148 Conn. 223, 232, 169 A.2d 641 (1961). The burden of proving the essential elements of a valid gift rests upon the party claiming the gift. Kriedel v. Krampitz, 137 Conn. 532, 534, 79 A.2d 181 (1951). "An intended inter vivos gift is not defeated because the donor also intended to postpone the enjoyment of it to a future date." Halisey v. Howard, 148 Conn. 466, 469, 172 A.2d 379 (1961). Also, an intended gift inter vivos cannot be defeated because donee was not informed of the gift. Id.
"The question of whether . . . it was the intention of the claimed donor immediately to transfer title . . . is one of fact for the determination of the trier." (Internal quotation marks omitted.) Kukanskis v. Jasut, supra, 169 Conn. 34-35.
"[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). "[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . [T]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion . . . Our Supreme Court has held that even with respect to motive, intent or good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact." (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 357, 783 A.2d 28 (2001).
This court finds that the intent of the plaintiff's father is a determinative fact as to both the issue of contract enforcement and whether there was an inter vivos gift. This court further finds that establishing the account in the name and social security number of the plaintiff and the mailing of the 1099 tax form is the factual predicate that raises a genuine issue of material fact regarding the intent of the plaintiff's father. Therefore, the motion for summary judgment as to count three is denied.
IV. Conclusion
Motion for summary judgment is granted as to counts one, two, and four. Motion for summary judgment is denied as to count three.