Florence Haas v. Arthur Haas (2011)

MEMORANDUM OF DECISION

This case was tried before Judge John Downey, who heard most of the testimony and ordered a forensic accounting.   Unfortunately, Judge Downey left the judiciary before he could finish taking evidence and before he could issue a decision on the ultimate issues in the case.¹  Pursuant to General Statutes § 51–183f and our Appellate Court's decision in Stevens v. Hartford Accident & Indemnity Co., 29 Conn.App. 378, 615 A.2d 507 (1992), Judge Edward Karazin ordered that the case be assigned to a successor judge to act consistent with the law as determined by the successor judge.   The undersigned was subsequently assigned to finish the case.   The court has carefully read the transcript and become familiar with the file.   Subsequently the court took testimony from the forensic accountant and permitted both parties to cross-examine him since he was appointed pursuant to Judge Downey's court order.   The parties filed briefs which the court read carefully and have argued to the court.   This case has dragged on too long.   It is time to bring this action to a conclusion and give finality to its participants.

Under the provisions of Practice Book § 10–1 the court in a pre-trial conference asked the parties to amend the pleadings to conform to the evidence and to better reflect the basis on which the case was tried and briefed—namely fiduciary or confidential relationship and constructive fraud.²  The applicable complaint is the “Revised Third Amended Complaint.”

“[A] court may, despite pleading deficiencies, decide a case on the basis on which it was actually litigated and may, in such an instance, permit the amendment of a complaint, even after the trial, to conform to that actuality.”  Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 575, 715 A.2d 46 (1998).   The court has wide discretion regarding amendments before, during or after trial.  Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980).   Our Supreme Court recently reaffirmed that position.   Sherman v. Ronco, 294 Conn. 548, 554 n. 10, 985 A.2d 1042 (2010).

This case is not a “whodunit.”   The basic facts are clear.   Indeed, they are pretty much admitted by the defendant and by the defendant's counsel.   The court may, of course, rely upon the representation of an officer of the court in such matters.  “[A]ttorneys are officers of the court, and when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.”  (Internal quotation marks omitted.)  State v. Webb, 238 Conn. 389, 420, 680 A.2d 147 (1996).

Florence Haas, the plaintiff, now 88 years old, is the mother of Arthur Haas, the defendant.   For a long time the plaintiff's finances were handled by her husband.   When he retired he had a minority position in a family business and he was bought out by the remaining member of the business receiving $125,000.   He placed $50,000 in a brokerage account with A.G. Edwards and the balance of $75,000 was to be paid to his wife as a monthly pension for her retirement income.   Her husband took care of the stock transfers himself since his wife had little, if any, financial knowledge.

After the death of the plaintiff's husband in 1986, the defendant agreed to take his father's place managing his mother's financial affairs.   The defendant, who was a certified public accountant (CPA), agreed to serve his mother in a fiduciary relationship.   This included managing his mother's stocks, paying some of her bills and filing her tax returns.   He was an expert in such matters.   His mother knew little about stocks, taxes and finances.   The defendant lost his CPA license in 1987 but he did not share that knowledge with his mother.   Despite losing that license he continued to work as an accountant and continued to take his father's place, helping his mother.   As knowledgeable as the defendant was in such financial matters, the plaintiff was a babe in some very tall woods.   It is clear that the plaintiff relied upon her son to manage her stocks and to prepare her tax returns.   In fact, Arthur Haas did take over the job of handling her stocks, paying some of her bills and preparing her tax returns.   Indeed, he placed his name on the plaintiff's brokerage account in place of his father's name to make it easier for him to handle the stock transfers.

The A.G. Edwards stock account was handled by Andrew Bello.   Virtually all of his dealings with the plaintiff's account were with the defendant.   In 1997, the plaintiff's brokerage account was transferred from A.G. Edwards to Nutmeg Securities, with Bello remaining on as the advisor.   From June 1986 until the account was closed in 2000, all account statements were sent to the defendant, not to the plaintiff.

Even if the defendant and his counsel had not admitted the fiduciary relationship existed, the basic facts, the expertise and training of the defendant and the lack of financial knowledge on the part of the elderly plaintiff would have confirmed it.   But here there was more.   It was a relationship between an experienced son who was an accountant and his aging mother who was anything but experienced.   The defendant, moreover, was taking over for his father and carrying out his obvious wishes by taking care of his mother.   It was a confidential and fiduciary relationship of the most special kind.

There is no doubt that the plaintiff was justified in relying on her son as her fiduciary, just as there is no doubt that the defendant failed to file her tax returns for five consecutive years.   It is also clear that the plaintiff would not have incurred the Internal Revenue Service (IRS) tax problems had the defendant timely prepared and filed her tax returns.   The defendant admitted that he failed to prepare the plaintiff's tax returns for the years 1991, 1992, 1993, 1994 and 1995.   He did not, however, alert the plaintiff.   He admits that his actions were “wrong” and caused the plaintiff's financial upheaval, but he offers no reasonable explanation for his failure to file.   He testified that he was having personal problems at the time.   He claims he told his mother that she was on extension for unfiled tax returns.   However, he never told his mother that she could or should contact another tax accountant to handle her return.   Nor did he seek the help of another accountant or tax lawyer.   Moreover, he never gave the plaintiff an accounting of his dealings with her accounts, her bills or her tax returns.

As a result of the defendant's failure to prepare and file the plaintiff's tax returns, the IRS began to levy on assets from the plaintiff's accounts.   Bello informed the defendant of the September 19, 2000 seizure of the plaintiff's funds in the brokerage account in the amount of more than $70,400 and indicated that he should file appropriate documents to rectify the problem.   But the defendant failed to do so;  nor did he then inform the plaintiff of the seizure of the stock account.   On January 18, 2001, the IRS seized the money in another account with Merrill Lynch in the amount of $49,118.98 and also took $8,156.17 from the plaintiff's personal bank account on May 21, 2004.   The IRS also issued a garnishment against the plaintiff's Social Security retirement income and part-time wages and placed a tax lien on her house.

I.

In 2001, the plaintiff obtained the services of Attorney Samuel Starks for estate planning and to find out why she was not receiving Social Security checks.   Starks wrote to the defendant asking for his help so that he could prepare the plaintiff's tax returns and identify which assets the defendant continued to manage.   The defendant did not respond to this or other inquiries by Starks.   When asked in court why he did not respond to Starks, he testified he was embarrassed and upset and did not have all the information.   He admitted he was “wrong” but said he did not know what to do.

On April 1, 2002, Starks received an IRS letter asking for the plaintiff's 2000 tax return for alleged stock sales of $120,080 in income and $5,001 in dividends.   The required documentation, however, was not available to file the 2000 return because the defendant had it.   Starks subsequently filed the plaintiff's tax returns for 2001, 2002 and 2003 reporting the actual income received by the plaintiff for those years.

Subsequently, the plaintiff's successor counsel represented her at a due process hearing with the IRS due to the plaintiff's inability to pay her income taxes.   Following the hearing the IRS put a hold on any additional tax liens during the course of the plaintiff's lifetime, but the IRS may seek a post-death tax lien on her estate.   As of October 7, 2007 the plaintiff had a combined federal and state tax liability for the years in question in the amount of $160,595.34.   During this period the IRS levied upon $123,057.52 of the plaintiff's assets.

The plaintiff subsequently obtained the services of Keith H. Dommreis, a CPA, to prepare her tax returns starting with 1996.   All tax refunds owed to the plaintiff were immediately applied to her outstanding tax liabilities and all income from stock sales made to the plaintiff between 1996 and 2000 were attributed to the defendant.   Dommreis testified that the records in the defendant's possession were needed to file proper tax returns.

Between 2001 and 2008 the plaintiff and her attorney asked the defendant on many occasions to turn over documentation that could potentially reduce or eliminate the plaintiff's tax liabilities.   The defendant did not respond to any of these requests to help the plaintiff.   Nor did he cooperate with plaintiff's later trial counsel, contesting counsel's attempts to use the rules of disclosure.   Indeed, he even continued to drag out attempts by the court-appointed forensic accountant to get financial information by failing to produce some of his own bank account records that the accountant requested.   As of the final hearing, the defendant had also not made full payment for the fees of the forensic accountant as ordered by Judge Downey.

The defendant claimed that a fire in his home on December 9, 2004 destroyed many of the documents related to the plaintiff's case.   The coincidence, if such it was, is not helpful to the defendant's case.   The alleged fire is seen against the background of the defendant's refusal to cooperate with the plaintiff's attorneys;  against the background of the defendant's delaying to turn over requested documents needed by the plaintiff to rectify her situation with the IRS;  against the background of the defendant's failure to turn over the tax basis of stocks until the time of trial;  against the background of a letter that the defendant produced at trial that the court found the plaintiff never received;  and against the background of the defendant's failure to come forward and reclaim and rescue the plaintiff's funds, although he had the information necessary to achieve that.   Considering this background, the defendant's testimony—that he had a fire in his house, that it happened to be in the area of the house where he had his office, and that it happened in the area of the office where the plaintiff's records were contained—is frankly overly suspicious.   Against the above-mentioned background and the court's judgment on credibility, as that question is affected by the defendant's own actions, it is asking a lot to accept the heavy number of coincidences that the claim of destroyed documents entails.   The existence of a November 28, 2001 letter purportedly sent by the defendant to the plaintiff that was introduced on the last day of trial before Judge Downey came as a surprise to the plaintiff who unequivocally stated under oath that she never received it.   The court finds the plaintiff's statement credible.   On the question of credibility, the defendant was his own worst enemy.

II

The defendant raised a number of special defenses.   The prime defense is the statute of limitations.   The plaintiff's case is governed by the three-year statute found in General Statutes § 52–577.   See Krondes v. Norwalk Savings Society, 53 Conn.App. 102, 113, 728 A.2d 1103 (1999).   Under Section 52–577, the time within which a plaintiff may commence a cause of action begins to run not when the plaintiff discovers the injury but when the act or omission occurs.  Pagan v. Gonzalez, 113 Conn.App. 135, 139, 965 A.2d 582 (2009);  Piteo v. Gottier, 112 Conn.App. 441, 445, 963 A.2d 83 (2009).   The acts complained of occurred prior to the year 2001.   The plaintiff did not serve process upon the defendant until October 2005.   Therefore, this case is time-barred unless the plaintiff can avail herself of one of the statute tolling doctrines.   It is true that the defendant's mother could not bring herself to sue her son—her own flesh and blood—when her attorney recommended it.   Moreover, because of her IRS problems caused by her son, she had few funds available for expensive litigation.   Although in her 80s, she was working for approximately eight dollars an hour.   It was only when the consequences of her son's actions literally destroyed her hope for a comfortable end-of-life experience that she finally relented and filed a motion for a prejudgment remedy and subsequently filed suit against the defendant.   The PR was granted in 2005 against the defendant's property at 103 Idlewood Drive in Stamford.   Unfortunately, the statute of limitations had run its course before the suit was filed.

III

The plaintiff argues that the parties were engaged in a confidential or fiduciary relationship and that the statute of limitations is tolled by the defendant's continuing course of conduct and by the defendant's fraudulent concealment of the plaintiff's cause of action.³

This court has carefully reviewed the law of fiduciary or confidential relationships.   Our Supreme Court has held that “a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.”  (Internal quotation marks omitted.)  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000);  Konover Development Corp. v. Zeller, 228 Conn. 206, 219, 635 A.2d 798 (1994).   In cases where the court has refused to recognize a confidential relationship the parties were dealing at arms' length or were not engaged in a relationship of special trust and confidence.   This is not our case.   The law implies a confidential relationship where one party cannot fully protect her interests or where one party has a high degree of control over the property of another and the unprotected party has placed her trust and confidence in the other.   See Ward v. Lange, 1996 S.D. 113 ¶ 12, 553 N.W.2d 246 (1996).

To support a continuing course of conduct that tolls the statute of limitations requires evidence of a breach of a duty that remained in existence after commission of the original wrong related thereto.   That duty must not have terminated.  “Where we have 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.”  (Internal quotations marks omitted.)  Witt v. St. Vincent's Medical Center, 252 Conn. 363, 370, 746 A.2d 753 (2000);  see also Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 170, 947 A.2d 291 (2008).   Moreover, when the subsequent wrongful conduct provides the basis for imposing an ongoing duty, that conduct may include acts of omission as well as affirmative acts, provided the defendant has actual knowledge that his failure to act is damaging to the plaintiff.  Martinelli v. Fusi, 290 Conn. 347, 359, 963 A.2d 640 (2009).

There are a number of reasons that lead the court to its conclusion.   First, the defendant was in a dominant position relative to the plaintiff and had a duty to act for her benefit since the fiduciary relationship started in 1986.

Second, this was a parent-child relationship between a fiscally unsophisticated mother and a professional-accountant son.   It was one of those special relationships our courts have remarked on relative to the doctrine of continuing course of conduct.  “The status of a parent in relation to [her] child is different ․ from any other type of familial relationship.”   Buchholz's Appeal from Probate, 9 Conn.App. 413, 418, 519 A.2d 615 (1987).   “While the relationship between parent and child is not per se a fiduciary one, it does generate a natural inclination to repose great confidence and trust ․ Where that confidence and trust are abused, equity will intervene to remedy the wrong done ․” (Citation omitted, internal quotation marks omitted.)  Cohen v. Cohen, 182 Conn. 193, 203–04, 438 A.2d 55 (1980).

Third, the defendant actively concealed evidence of his culpability right up to the time of trial.   Even after this action started, he evaded cooperation with the discovery process, holding out important information until the trial started.   The defendant also did not share a spreadsheet with the plaintiff that outlined stock gains and losses between 1978 and 2001, which covered the years he failed to prepare and file tax returns.   An earlier disclosure of that document could have prevented at least some of the plaintiff's losses.   The document was highly relevant to the plaintiff's ability to defend against the IRS fund levies.   It is difficult to draw any conclusion other than that as a fiduciary, he had a duty to produce any or all relevant documents when they could have been used to protect his principal.   Incredibly, the defendant did not inform the plaintiff that the IRS decimated the Nutmeg Securities stock account when it happened.

His admission that he was afraid of being sued clearly shows he was on notice that the plaintiff could bring a lawsuit against him.   This was not the stale-claim situation that was responsible for spawning the statute of limitations.

Fourth, the defendant knew that under federal law there was a two-year window for the plaintiff to contest the IRS takings and secure the return of the plaintiff's funds.   Not only did he not cooperate with the plaintiff and her representatives but he did not even tell them they needed to act within a short period of time.   He was the only one who had the knowledge and information that could rectify the situation.   While he claimed that he did not have the information needed to complete his mother's tax returns, he was the person that handled the stock sales that led to her problems, and he was a professional accountant who knew what information was necessary to keep for tax purposes.   Not only did he refuse to share any information with Attorney Starks that he could use to rescue the plaintiff's funds, but he never referred the plaintiff to any tax professional who could help her.

Fifth, the defendant had an obligation to inform the plaintiff of his actions with regard to her assets.   At the very least, basic black letter law requires an accountant in a fiduciary relationship to file an accounting with his principal when the fiduciary relationship ends.   This was affirmed by defendant's counsel and Dommreis, the CPA, so testified.   See 1A C.J.S. 31–32, Accounting § 33 (2005) (a person who has a fiduciary relationship with an accountant is entitled to an accounting);  1A C.J.S. 35, Accounting § 36 (2005);  Mankert v. Elmatco Products, Inc., 84 Conn.App. 456, 460, 854 A.2d 766, cert. denied, 271 Conn. 925, 859 A.2d 580 (2004).  “The basis for a right to an accounting is supported by an allegation that a fiduciary relationship exists.”  Zuch v. The Connecticut Bank & Trust Co., 5 Conn.App. 457, 460, 500 A.2d 565 (1985) (citing C & S Research Corp. v. Holton Co., 36 Conn.Sup. 619, 621–22, 422 A.2d 331 (App.Sess.1980)).   That relationship, in and of itself, is sufficient to form the basis for that relief.  Id. Furthermore, an accountant must return records belonging to a client after a request from the client.  Linebaugh v. Helvig, 47 Or.App. 679, 685, 615 P.2d 366 (1980).

Sixth, the defendant did not cooperate fully with the court-appointed forensic accountant.   He did not turn over to him some of his own financial records for the year 2000 that were requested, including records of his disbursements.

It is abundantly clear that the defendant abused his mother's trust and confidence as her son and as her accountant and fiduciary within the meaning of Cohen v. Cohen, supra, 182 Conn. 203–04.   The combination of the special fiduciary relationship, the defendant's continued attempt to cover up his mistakes and withhold documentary evidence, his failure to come forward to save the plaintiff from the loss of her assets and his failure to give the plaintiff an accounting all lead to the conclusion that the defendant's continuing course of conduct led to a fiduciary duty that continued to exist long after the acts and omissions complained of.   Surely, the defendant knew that his continued failure to come forward with his knowledge, information and experience would decimate his mother's financial future.   Just as surely, the credible evidence leads to the conclusion that the later failure to contribute to saving his mother's fortune related back to the prior conduct which he knew or should have known he had a duty to cure.   The defendant's own conduct caused the continuance of the fiduciary relationship.   By any reasonable standard the defendant should have cooperated with Attorney Starks.   It was he alone who had the necessary stock information that the plaintiff desperately needed—and he was capable, by his own admission, of reversing the IRS levies.   The failure to give an accounting simply emphasizes what is already obvious to the court—the prolongation by a continuing course of conduct of the fiduciary relationship.⁴  The court therefore finds that the fiduciary relationship lasted until all of the significant stock information was revealed to the plaintiff.   The issue of the defendant's first and second statute of limitations defenses is found in favor of the plaintiff.PAGE 13]

IV

Moreover, the defendant cannot prevail on the balance of his six special defenses.   The third special defense based upon lack of consideration must fail.   The defendant did not prove what he alleges and the same is true of the fourth special defense.   This was an arrangement in which the plaintiff's son willingly replaced his deceased father in the role of his mother's financial guru as a family obligation.   The defendant did perform as agreed for a considerable period of time and as such led the plaintiff into a position of reliance upon him to her detriment.   He handled the stocks, paid bills and drew up and filed her tax returns.   She relied upon this, as she had a right to do.   It appears that promissory estoppel is an antidote to these special defenses, which fall of their own weight.

The fifth special defense alleges that he used all the funds he received to pay her creditors.   However, the court-appointed forensic accountant was unable to account for approximately $45,000 of the proceeds of the plaintiff's stocks.   There is a failure of proof with regard to this special defense.

The sixth special defense claims the plaintiff failed to mitigate her damages with the IRS during a two-year window established to permit taxpayers to prove they were wronged by IRS action.   First, the defendant failed to prove that either the plaintiff or her representatives knew of this rather obscure law within the prescribed time limit.   She was not then represented by a tax attorney.   Moreover, the defendant admitted he knew about the law and that if he had come forward and helped the plaintiff all of her money would have been returned.   As wrongful as was his failure to file tax returns, his refusal to come forward to save huge sums of money was even worse.   Everything his expert witness—a tax attorney and CPA—said about the plaintiff applied to the defendant who knew he could help, rather than to the plaintiff who did not know.   In fact, the court saw the testimony of this witness as an indictment of the defendant's conduct.

Finally, if the defendant is relying upon the equitable doctrine of laches, he relies in vain.   Regarding the defense of laches:  “First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant ․ The burden is on the party alleging laches to establish that defense.”  (Internal quotation marks omitted.)  R.F. Daddario & Sons v. Shelansky, 123 Conn.App. 725, 737, 3 A.3d 957 (2010).   In this case it was the defendant, not the plaintiff, who caused most of the delays, and the law has always required that “[o]ne who seeks equity must also do equity ․” LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983).   Since the defendant did not do equity with regard to the plaintiff, the defense of laches is not available to him.

V.

The first count was decided in the plaintiff's favor.   The court does not find that the plaintiff's second count sounding in regular fraud applies in this case.   In any event, a discussion of it is unnecessary since the plaintiff cannot collect twice for her losses.   That leaves the count sounding in constructive fraud which the court finds does apply to this case.

Once the existence of a special confidential or fiduciary relationship has been found—as it has been—the burden shifts to the fiduciary to prove fair dealing by clear and convincing evidence.  Cadle Co. v. D'Addario, 268 Conn. 441, 455–56, 844 A.2d 836 (2004);  Oakhill Associates v. D'Amato, 228 Conn. 723, 727, 638 A.2d 31 (1994).

The evidence produced in court by the forensic accountant that a review of the defendant's records revealed that there is approximately $45,000 unaccounted for makes it clear that the defendant has failed to meet this burden of proof.  Mitchell v. Mitchell, 31 Conn.App. 331, 335, 625 A.2d 828 (1993).

The defendant advanced North Carolina cases that hold constructive fraud requires proof that the defendant attempted to advance his own interests to the detriment of the plaintiff's interest.   Even if our Supreme Court should hold that a requirement of constructive fraud is the promotion by the defendant of his own “interests” to the detriment of the plaintiff, it is abundantly clear that the defendant's actions were an attempt to pursue his own interests.   The evidence reveals a pattern of continuous conduct that delayed the production of needed documents in order to conceal what he had done with the plaintiff's funds.   He clearly was afraid of being sued as he admitted, and his actions were very much to the plaintiff's detriment since he refused to cooperate in any way to ameliorate the plaintiff's heavy losses.   He was willing to allow his mother to come close to poverty in an attempt to protect himself.   Her interests were of no concern to him.   In pursuing his own interests, he did great damage to the interests of his principal, contrary to what we think of as just.

VI.

An accountant who is derelict in his duties can be liable for all losses resulting from that dereliction.  Franklin Supply Co. v. Tolman, 454 F.2d 1059, 1070–71 (9th Cir.1971).

The brokerage statement from the Nutmeg Securities account reveals that the IRS withdrew $70,495 from the plaintiff's account, leaving her with $4.12.   (Plaintiff's Ex. 15.)   On January 18, 2001, Merrill Lynch issued a check to the IRS for $49,118.98 from the plaintiff's account.  (Plaintiffs Ex. 16.)   Fleet National Bank informed the plaintiff on May 24, 2004, that it placed a tax levy on the plaintiff's account for $8,156.17 on May 21, 2004.   The total of federal tax levies was $127,770.15.   After accounting for overpayments, the total of federal tax levies was $123,057.52.  (Plaintiff's Ex. 33.)

The Connecticut Department of Revenue Services also levied $37,537.82 for unpaid taxes between 1991 and 1995 (Plaintiff's Ex. 33.)   Therefore, the total amount levied was $160,595.34.

At the February 15, 2011 hearing before this court, the forensic accountant Richard Finkel testified that he accounted for all but $45,522 of the disbursements the defendant made from the funds that came from the brokerage accounts.   After adding the unaccounted-for funds to the tax levies, the total amount the plaintiff lost is $206,117.34.   The court finds that the defendant's acts and omissions complained of were the proximate cause of the plaintiff's loss.

The court has been unable to find evidence regarding the plaintiff's actual tax liability, with the exception of a statement by the defendant himself that indicated that if there was proper filing, she owed little or nothing.   However, the court is left to guess about mitigation through taxation—and it cannot base decisions on guesses.   Therefore, the court has not deducted anything to account for legitimate taxation.

In the final count, the plaintiff asks for punitive damages.   Common-law punitive damages are “limited to the plaintiff's litigation expenses less taxable costs.”  Matthiessen v. Vanech, 266 Conn. 822, 826 n.5, 836 A.2d 394 (2003);  Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992).   During the proceedings the defendant's counsel admitted that the plaintiff's legal fees expended for dealing with the IRS seizure of funds were caused by the defendant.   The court agrees and awards an additional $17,500 in punitive damages.

Judgment is entered for the plaintiff in the amount of $206,117.34 and punitive damages in the amount of $17,500 for a total of $223,617.34.

BY THE COURT

Samuel S. Freedman, J.T.R.

FOOTNOTES

FN1. Judge Downey issued an “interim decision” in which he made many findings of fact and discussed some case law but did not decide the ultimate issues in the case.   While the court read the Downey decision, the court made its own findings of fact and law which may—or may not—agree with those in the “interim decision..  FN1. Judge Downey issued an “interim decision” in which he made many findings of fact and discussed some case law but did not decide the ultimate issues in the case.   While the court read the Downey decision, the court made its own findings of fact and law which may—or may not—agree with those in the “interim decision.

FN2. Practice Book § 10–1 reads in relevant part:  “[I]f in the opinion of the judicial authority the pleadings do not sufficiently define the issues in dispute, it may direct the parties to prepare other issues, and such issues shall, if the parties differ, be settled by the judicial authority.”   The amendment was also justified by the appearance of documentary evidence at trial that was not available earlier and the fact that the defendant never gave the plaintiff an accounting.   The case as originally tried before Judge Downey was, among other theories, tried and briefed on the basis of fiduciary or confidential relationship and Connecticut's doctrine of constructive fraud.   Therefore, in the interest of justice, the plaintiff's amendment as it appears in the Revised Third Amended Complaint is granted.   The court notes defense counsel's statement that he was not disputing, with respect to the brokerage account and taxes, that the defendant was acting as the plaintiff's fiduciary.   The amendment does not prejudice the defendant.   See Service Road Corp. v. Quinn, 241 Conn. 630, 636–37, 698 A.2d 258 (1997);  Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990)..  FN2. Practice Book § 10–1 reads in relevant part:  “[I]f in the opinion of the judicial authority the pleadings do not sufficiently define the issues in dispute, it may direct the parties to prepare other issues, and such issues shall, if the parties differ, be settled by the judicial authority.”   The amendment was also justified by the appearance of documentary evidence at trial that was not available earlier and the fact that the defendant never gave the plaintiff an accounting.   The case as originally tried before Judge Downey was, among other theories, tried and briefed on the basis of fiduciary or confidential relationship and Connecticut's doctrine of constructive fraud.   Therefore, in the interest of justice, the plaintiff's amendment as it appears in the Revised Third Amended Complaint is granted.   The court notes defense counsel's statement that he was not disputing, with respect to the brokerage account and taxes, that the defendant was acting as the plaintiff's fiduciary.   The amendment does not prejudice the defendant.   See Service Road Corp. v. Quinn, 241 Conn. 630, 636–37, 698 A.2d 258 (1997);  Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990).

FN3. The court does not find the fraudulent concealment claim under General Statutes § 52–595 helpful to the plaintiff's case in view of the time of the plaintiff's discovery of the existence of a cause of action.   The defendant clearly tried to conceal his culpability, but the plaintiff was advised to sue by Attorney Starks more than three years before she finally brought suit.   Connecticut also allows the tolling of the statute of limitations under the continuous representation doctrine.   To date, however, that has been limited to attorney-client representations.   See Piteo v. Gottier, supra, 112 Conn.App. 447–48..  FN3. The court does not find the fraudulent concealment claim under General Statutes § 52–595 helpful to the plaintiff's case in view of the time of the plaintiff's discovery of the existence of a cause of action.   The defendant clearly tried to conceal his culpability, but the plaintiff was advised to sue by Attorney Starks more than three years before she finally brought suit.   Connecticut also allows the tolling of the statute of limitations under the continuous representation doctrine.   To date, however, that has been limited to attorney-client representations.   See Piteo v. Gottier, supra, 112 Conn.App. 447–48.

FN4. Clearly the defendant, instead of remaining silent, should at the very least have given reasonable notice to the plaintiff, allowing time for the employment of another tax specialist.   Even if he had been unfairly discharged by the plaintiff—which was not the case—he should have taken steps to mitigate the consequences to the plaintiff.   Proper notice and the sharing of documents in evidence could have reduced the possibility of IRS problems.   While the court was impressed by defense counsel's herculean efforts on behalf of the defendant, his client's own actions, taken as a whole, seriously harmed his case..  FN4. Clearly the defendant, instead of remaining silent, should at the very least have given reasonable notice to the plaintiff, allowing time for the employment of another tax specialist.   Even if he had been unfairly discharged by the plaintiff—which was not the case—he should have taken steps to mitigate the consequences to the plaintiff.   Proper notice and the sharing of documents in evidence could have reduced the possibility of IRS problems.   While the court was impressed by defense counsel's herculean efforts on behalf of the defendant, his client's own actions, taken as a whole, seriously harmed his case.

Freedman, Samuel S., J.T.R.