Stilkey v. Zembko

Citations

• 200 Conn. App. 165

Syllabus

The plaintiff sought to recover damages from the defendant for statutory theft in connection with her actions in withdrawing certain funds from a retirement account belonging to the plaintiff. The defendant had pre- viously represented the plaintiff in her divorce proceedings, as a result of which the plaintiff received one half of her former husband's pension funds, which were subsequently placed in an individual retirement account. Through the defendant's representation of the plaintiff, she obtained confidential information about the plaintiff and used it to with- draw money from the account without the plaintiff's knowledge or permission over a period of three years. In the defendant's answer, she raised the statute of limitations as a special defense, although she did not specify the statute on which she relied. The plaintiff did not plead the continuing course of conduct doctrine in avoidance of the special defense of the statute of limitations in pleadings or at trial and, instead, raised it in posttrial briefs. The trial court ruled in favor of the plaintiff, finding that she did not authorize the defendant to remove moneys from the IRA and that the defendant took those funds with the intent of depriving the plaintiff of those moneys. The trial court also rejected the defendant's statute of limitations defense, concluding that the continuing course of conduct doctrine, despite being improperly pleaded, operated to toll the three year statute of limitations. On appeal, the defendant claimed, inter alia, that the trial court abused its discretion in considering the plaintiff's continuing course of conduct argument despite improper pleading. Held: 1. The court did not abuse its discretion in applying the continuing course of conduct doctrine, as it was within its discretion to reach the merits of the plaintiff's continuing course of conduct claim once it was put before the court, and it was within the court's discretion to determine that no party was prejudiced