Opinion
CV156030030S
12-03-2018
Lois R. STILKEY v. Elizabeth A. ZEMBKO
UNPUBLISHED OPINION
PETER EMMETT WIESE, JUDGE
I
PROCEDURAL HISTORY
This action was originally brought by Lois R. Stilkey through a complaint dated July 15, 2015, against her former attorney, Elizabeth Zembko. She alleged in that complaint that Ms. Zembko had represented her in a divorce proceeding from her former husband, Maynard Stilkey. Ms. Stilkey contended that the defendant gained access to personally identifiable information and used it to unlawfully remove funds from a Prudential Financial annuity account. Ms. Stilkey received fifty percent of her former husband’s retirement account in the divorce proceeding. Ms. Stilkey sought damages pursuant to General Statutes §§ 52-564,
General Statutes § 52-564 states: "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." General Statutes § 52-565 states: "Any person who falsely makes, alters, forges or counterfeits any document, or knowingly utters as true, any document falsely made, altered, forged or counterfeited shall pay double damages to any party injured thereby."
On March 30, 2016, Lois Stilkey died. A motion dated January 17, 2017, to substitute the probate court appointed administratrix was filed with the court. Following the granting of the motion, a revised complaint dated May 1, 2017 became the operative complaint. The administratrix of the estate is identified as Pamela Rustigian. The claims of wrongdoing remain the same as in the original complaint.
Elizabeth Zembko, in her answer and special defense denies the claims being made and asserts that the "[P]laintiff’s cause of action is barred by the [s]tatute of [l]imitations." Thereafter, in a May 11, 2017 reply to the special defense, the plaintiff asserts that she "denies the special defense ..."
The case was tried to the court on November 1, 2017. During the trial, the parties presented the testimony of witnesses and introduced into evidence a number of exhibits. Thereafter, the parties filed with the court several post-trial briefs.
II
DISCUSSION
A. Facts
Based upon the credible evidence presented, the court finds the following relevant facts.
1 Lois Stilkey died on March 30, 2016. Pamela Rustigian is her sister. Ms. Rustigian was appointed by the Berlin Probate Court to be the administratrix of her sister’s estate on November 16, 2016. Ms. Stilkey died after the commencement of this lawsuit.
2. Ms. Stilkey had been married to Maynard Stilkey. They were divorced in October 2003. (Plaintiff’s Exhibit 7.) As a part of the dissolution, the parties executed a Qualified Domestic Relations Order ("QDRO"). Ms. Stilkey received a fifty percent interest in her ex-husband’s Iron Workers’ Local 15 and 424 Annuity Fund. The QDRO contains Ms. Stilkey’s personally identifiable information, including social security number, date of birth, home address and telephone number.
3. Elizabeth Zembko was an attorney and had been employed by the law firm of Ericson, Scalise and Mangan during the years of 1988 through November 2003. Ms. Zembko represented Ms. Stilkey in the divorce. Ms. Zembko had access to all of the personally identifiable information contained in the QDRO. Id.
4. Ms. Zembko formerly was married to Michael Budney. They lived at 11 Townsend Road, Farmington, Connecticut. Ms. Stilkey never lived at that address.
5. The funds obtained from the QDRO were invested in a Prudential IRA. (Plaintiff’s Exhibit 4.) The IRA enrollment form lists Ms. Stilkey’s mailing address as 11 Townsend Road, Farmington, Connecticut. Id. p. 1 Ms. Zembko is identified as the "Primary Beneficiary" of the IRA account in the event of Ms. Stilkey’s death. Id. p. 6.
6. Ms. Zembko maintained a checking account with Webster Bank. (Plaintiff s Exhibit 1.) During the period of October 2010 to January 2013, Ms. Zembko made twenty-four telephone calls to Prudential. (Plaintiff’s Exhibits 6, 6a.) These calls were recorded by Prudential. During the calls, Ms. Zembko followed the same scheme. She would identify herself as Lois Stilkey; Ms. Zembko would then instruct the Prudential representative to disburse to her funds from the account. She requested that the checks be sent to 11 Townsend Road, Farmington, Connecticut. (Plaintiff’s Exhibits 5, 6.)
7. Ms. Zembko deposited nineteen of the twenty-four Prudential checks into her Webster checking account. (Plaintiff’s Exhibit 1.) A number of the checks were endorsed "Lois R. Stilkey pay to the order of Elizabeth Zembko." Other checks were endorsed with similar language. Id.
8. The total amount of funds disbursed in the twenty-four checks was $155, 002.18. (Plaintiff’s Exhibits 2, 4.) The total amount of unauthorized withdrawals deposited in Ms. Zembko’s Webster checking account was $101, 501.31. (Plaintiff’s Exhibit 4.) The dates, check numbers and amounts of withdrawals from Prudential Financial account number 38215285 are as follows:
DATE
CHECK NUMBER
AMOUNT
10/12/10
3492166885
$39, 296.51
12/06/10
3492223625
$3, 654.56
01/26/11
3492280681
$17, 550.24
10/05/11
3492539905
$6, 000.00
10/25/11
3492559838
$3, 000.00
01/04/12
3492635008
$13, 000.00
03/20/12
3492718958
$1, 000.00
04/10/12
3492734476
$2, 000.00
05/18/12
3492771867
$1, 000.00
06/13/12
3492797236
$1, 000.00
07/25/12
3492837565
$1, 000.00
08/06/12
3492848118
$1, 000.00
08/21/12
3492864165
$1, 000.00
08/29/12
3492873832
$1, 000.00
09/24/12
3492897103
$1, 000.00
10/09/12
3492911370
$1, 500.00
10/26/12
3492928679
$1, 000.00
11/21/12
3492951248
$1, 000.00
01/03/13
3492995712
$5, 500.00
TOTAL
$101, 501.31
9. Ms. Stilkey maintained a Webster Bank account. Five of the Prudential disbursement checks were deposited into this account. (Defendant’s Exhibits A, B, C, D.) The total amount deposited into Ms. Stilkey’s Webster Bank account was $56, 500.80. Ms. Stilkey was not a woman of financial means. The Prudential funds were a source of income to her.
10. Ms. Stilkey did not authorize Ms. Zembko to take $101, 501.31 of her Prudential account monies. Ms. Zembko took these funds with the intent to deprive Ms. Stilkey of her monies. The theft represented an ongoing scheme to appropriate the monies and deplete the Prudential account owned by Ms. Stilkey.
11. Ms. Zembko was called as a witness by plaintiff’s counsel. The court advised her of the constitutional rights against self-incrimination. Ms. Zembko was asked a number of detailed questions about the Prudential transactions. On each occasion she declined to answer stating "upon advice of counsel, I hereby invoke my fifth amendment right."
B. Applicable Law
1. Statutory Theft-General Statutes § 52-564
"Statutory theft under [General Statutes] § 52-564 is synonymous with larceny under General Statutes § 53a-119 ... Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner." (Internal quotation marks omitted.) Papallo v. Lefebvre, 172 Conn.App. 746, 757, 161 A.3d 603 (2017). Thus, the elements to establish statutory theft "are the same as the elements required to prove larceny, pursuant to General Statutes § 53a-119 ... It must be shown that (1) there was an intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner ... The essential cause of action is a wrongful exercise of dominion over personal property of another." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 138 Conn.App. 695, 713, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013).
"[S]tatutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Papallo v. Lefebvre, supra, 172 Conn.App. 757. "Intent may be inferred by the fact finder from the conduct of the defendant ... [I]t is well established that the question of intent is purely a question of fact ... Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct ... Intent may also be inferred from the surrounding circumstances ... The use of inferences based on circumstantial evidence is necessary because direct evidence of the [defendant’s] state of mind is rarely available ... Intent may be gleaned from circumstantial evidence such as ... the events leading up to and immediately following the incident." (Citation omitted; internal quotation marks omitted.) Fernwood Realty, LLC v. AeroCision, LLC, 166 Conn.App. 345, 359, 141 A.3d 965, cert. denied, 323 Conn. 912, 149 A.3d 981 (2016). To be entitled to an award of treble damages as provided in § 52-564, a plaintiff is required to prove his or her claim of statutory theft by a preponderance of the evidence. Stuart v. Stuart, 297 Conn. 26, 44, 996 A.2d 259 (2010).
2. Statute of Limitations-Waiver
A claim that an action is barred by the lapse of the applicable statute of limitations is a special defense that must be specially pleaded pursuant to Practice Book § 10-50. Practice Book 10-3(a) provides: "When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." A statute of limitations defense may be deemed waived where the party fails to plead the applicable statute relied upon. See, e.g., Ramondetta v. Amenta, 97 Conn.App. 151, 162, 903 A.2d 232 (2006); Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn.App. 688, 697-98, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). 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." The time limitation set forth in § 52-577 is procedural, rather than jurisdictional, and may be waived. See Avon Meadow Condominium Ass’n, Inc. v. Bank of Boston Connecticut, supra, 698. Nevertheless, "our courts have repeatedly recognized that the rule embodied in Practice Book § 10-3 is directory and not mandatory." Ramondetta v. Amenta, supra, 162. As long as the opposing party is sufficiently apprised of the nature of the claim or special defense, the failure to comply with the directive in Practice Book 10-3(a) will not bar recovery. See id.
In Altfeter v. Naugatuck, 53 Conn.App. 791, 802, 732 A.2d 207 (1999), an individual defendant failed to plead the applicable statute of limitations as a special defense in his answer to the amended complaint and did not identify the applicable statute in his motion for summary judgment. The defendant however specifically cited General Statutes § 52-576(a) as the legal basis for his motion in his memorandum of law in support of the motion for summary judgment. Id. Although the Appellate Court noted that the "better method" is to identify in the pleading the applicable statute of limitations as required by Practice Book 10-3(a); id., 802 n. 9; the defendant’s failure to do so was ultimately found to be harmless because of the subsequent discussion of the statute in his memorandum of law. Id., 802.
In Ramondetta v. Amenta, supra, 97 Conn.App. 161-64, the plaintiffs’ statute of limitations defense to the counterclaim was deemed waived because it was inadequately pleaded. The plaintiffs merely pleaded that "The [d]efendant’s claims are barred by the applicable [s]tatute of [l]imitations." (Internal quotation marks omitted.) Id., 161. In concluding that the trial court properly treated the defense as waived, our Appellate Court discussed how the case was distinguishable from Altfeter: "At no time did the plaintiffs identify the specific statute of limitations that allegedly barred the defendant’s counterclaim. It is unclear whether the plaintiffs themselves understood precisely which statute of limitations applied, as evidenced by the lack of analysis of the statute of limitations issue in their post-trial memorandum of law. That analysis consisted of the following sentence: ‘Clearly, the statute of limitations for an oral agreement is three (3) years, with a limitation for a written agreement being six (6) years.’ No further discussion of law or facts followed ...
"At no point from the filing of the defendant’s counterclaim to the rendering of judgment by the court did the plaintiffs identify the applicable statute on which they relied. That infirmity is fatal to the plaintiffs’ claim. The underlying purpose of affirmative pleading is to apprise the court and the opposing party of the issue to be tried ... Consistent with that purpose, a party raising a statute of limitations defense must identify the statute that allegedly is applicable. In pleading such a defense, the bare assertion that ‘the applicable statute of limitations’ bars a particular action is inadequate to apprise the court or the opposing party sufficiently of the nature of the defense. Because the plaintiffs failed at any time to identify the applicable statute on which they relied, the court properly treated their defense as waived." (Citation omitted.) Ramondetta v. Amenta, supra, 97 Conn.App. 163-64.
3. Tolling-Continuing Course of Conduct Doctrine
Section 52-577 is an occurrence statute and "[w]ith such statutes, the limitations 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 certain circumstances, however, [our Supreme Court] [has] recognized the applicability of the continuing course of conduct doctrine 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 ... Consistent with that notion, [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." (Citations omitted; internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 311, 94 A.3d 553 (2014). "[T]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong ... Where [our Supreme Court] [has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act." (Emphasis added; internal quotation marks omitted.) Id., 312.
Although later wrongful conduct that is related to the original wrongful act may toll the statute of limitation, some claims may be disallowed "when the instances of wrongdoing comprising the course of conduct are separated by a gap that exceeds the length of the applicable statute of limitations. In such cases, although the course of conduct postdating such a gap may remain actionable (so long as the action is timely commenced from the last instance of misconduct), recovery is barred for the instances of misconduct predating the gap ... In other words, in a tort action, following an initial wrong, the subsequent activity triggering tolling itself must occur before the three-year statute of limitations has run, to effectively toll it." (Citations omitted; internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, supra, 312 Conn. 315-16.
4. Fifth Amendment-Exercise of Privilege against Self-Incrimination
"The fifth amendment privilege against self-incrimination not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings ... The privilege does not, however, forbid the drawing of adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them. The prevailing rule is that the fifth amendment does not preclude the inference where the privilege is claimed by a party to a civil cause." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Olin Corp. v. Castells, 180 Conn. 49, 53-54, 428 A.2d 319 (1980).
C. Analysis
1. Plaintiff’s Claim
On the basis of the evidence submitted at trial, the court finds that the plaintiff has proven by a preponderance of the evidence that the defendant had the requisite intent to deprive Ms. Stilkey of her monies for her own appropriation and benefit. The defendant had access to the plaintiff’s personally identifiable information from her representation of the plaintiff in her divorce. The Prudential account enrollment firm lists the defendant’s address rather than the plaintiff’s as the mailing address. Of even more significance is the fact the defendant impersonated the plaintiff during twenty-four recorded phone calls to Prudential and instructed Prudential to disburse funds via check sent to her address. Twenty-four checks were disbursed, nineteen of which she deposited into her Webster checking account. Finally, the defendant was called as a witness and when asked questions regarding the probative evidence against her, she refused to answer, invoking her fifth amendment right against self-incrimination. The court infers from the defendant’s silence a tacit admission that she stole from Ms. Stilkey. See Olin Corp. v. Castells, supra, 180 Conn. 53.
The defendant wrongfully deposited nineteen checks into her Webster checking account totaling $101, 501.31. Because the plaintiff has proved her statutory theft claim by a preponderance of the evidence, that amount qualifies for trebling under § 52-564. Accordingly, the plaintiff is entitled to damages in the amount of $304, 503.93.
2. Defendant’s Statute of Limitations Special Defense
The defendant pleaded as a special defense that the "Plaintiff’s cause of action is barred by the Statute of Limitations." Ordinarily, such a bare assertion would be found inadequate and the defense considered waived. See, e.g., Ramondetta v. Amenta, supra, 97 Conn.App. 161-63; Avon Meadow Condominium Ass’n, Inc. v. Bank of Boston Connecticut, supra, 50 Conn.App. 698. Similarly, the defendant’s failure to again identify the specific statute in her first post-trial brief would generally render the defense waived. In her first brief, however, the defendant does specify a time limitation of three years, albeit without a statutory citation, and provides facts and analysis. This is distinguished from Ramondetta, where in their post-trial memorandum of law, the plaintiffs raised two different time limitations without any statutory citation or any factual or legal discussion. Ramondetta v. Amenta, supra, 163. Although the plaintiff in the present case largely responded to the defendant’s post-trial brief by arguing that the statute of limitations defense has been waived, she does argue that the action was brought within three years of the date the defendant ceased stealing, indicating that the plaintiff was aware of the basis of the defendant’s special defense. See Caruso v. Bridgeport, 285 Conn. 618, 627-28, 941 A.2d 266 (2008) (determining that defendants were aware of true basis for plaintiff’s action where they pointed out in motion to dismiss incorrect citation in plaintiff’s complaint).
Finally, the defendant in the present case, unlike the plaintiffs in Ramondetta, did subsequently identify the statute upon which she relies, in her second post-trial brief dated September 17, 2018. As the Appellate Court noted in Altfeter, the "better method" would have been to identify the applicable statute in pleading her special defense as required by Practice Book § 10-3(a): This failure, however, is not fatal in light of her subsequent discussion of § 52-577. See Altfeter v. Naugatuck, supra, 53 Conn.App. 802. The court in Ramondetta repeatedly emphasized that at no time did the plaintiffs identify the specific statute of limitations on which they relied; Ramondetta v. Amenta, supra, 97 Conn.App. 163; in the present case, however, the defendant did not fail to at any point identify the specific statute of limitations. Indeed, she did identify the specific statute and subsequently, both parties were given the opportunity to brief the issue of tolling. Accordingly, the court concludes that the defendant did not waive her statute of limitations defense.
The court now turns to whether the continuing course of conduct doctrine operates to toll the statute of limitations set forth in § 52-577. As previously discussed, "[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." (Internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, supra, 312 Conn. 311. In the present action, the wrong sued upon are checks withdrawn without authorization from the Prudential account by the defendant. The evidence establishes that the defendant was engaged in a scheme to impersonate Ms. Stilkey and steal her monies until January 4, 2013, the date the last check deposited into the defendant’s checking account was withdrawn. Although there were occasional gaps between check withdrawals, no gap exceed the length of the applicable statute of limitations, here the three years pursuant to § 52-577. See Flannery v. Singer Asset Finance Co., LLC, supra, 315. The longest gap between checks was approximately nine months and, therefore, the statute of limitations was tolled by the defendant’s subsequent misconduct. See id. The defendant’s theft was not complete until January 4, 2013, and this action, having been commenced by service on July 16, 2015, is within the limitations period set forth in § 52-577.
The defendant argues that the court need not reach the merits of the plaintiff’s continuing course of conduct argument because it was not specially pleaded and raised for the first time in a post-trial brief. The court rejects the defendant’s argument. The defendant herself did not identify the specific statute on which she relied for her statute of limitations defense until her second post-trial brief. The court will not fault the plaintiff for failing to plead the continuing course of conduct doctrine in avoidance of the defendant’s special defense, when that special defense was a bare assertion that the "Plaintiff’s cause of action is barred by the Statute of Limitations." Both parties have erred in their pleadings but however imperfectly they have each pleaded, the issues have been placed before the court and the merits will be reached. See Flannery v. Singer Asset Finance Co., LLC, supra, 312 Conn. 300-03.
III
CONCLUSION
For the reasons stated, the court enters judgment in favor of the plaintiff in the amount of $304, 503.93, plus taxable costs.