Zolton Nemeth v. Jeffrey Van Kirk (2013)

MEMORANDUM OF DECISION

FACTS AND PROCEDURES

In 1984, the plaintiff was arrested for allegedly assaulting and kidnaping his girlfriend, Jacqueline Sieg. The plaintiff then retained the defendant, who at that time, was a practicing attorney, to defend him in the criminal case.   The defense was successful, and the plaintiff was acquitted of all the charges.   Ms. Sieg then brought a civil action against the plaintiff, and the plaintiff was represented by the defendant.   The defendant advised the plaintiff that he could settle said civil action for nuisance value, $3,000.   The plaintiff then paid the $3,000 to the defendant for the settlement.   The defendant confirmed the settlement by a letter to the plaintiff in 1986.   However, the defendant did not settle the civil case even though he advised the plaintiff that he had done so, and the defendant retained the $3,000 for his own use.   He stole $3,000 from the plaintiff and committed fraud against him.

The plaintiff then moved to California for a brief period of time and returned to this area, all the time believing that he was no longer liable to Ms. Sieg in the civil case.   To his surprise, on January 6, 2005, the plaintiff received notice that a judgment lien in the amount of $35,000 had been lodged against his house as a result of Ms. Sieg obtaining a default judgment in the civil case in Waterbury Superior Court.   With interest, the judgment was in excess of $100,000.   At that point, the plaintiff became aware that the defendant had never forwarded the money to Ms. Sieg or settled the civil case.

In 1993 the defendant's license to practice law was suspended and it has not been reinstated.

Trial was held before this Court on April 18, 2013, at which time the defendant, who had answered the plaintiff's complaint by neither admitting nor denying the allegations but leaving the plaintiff to his proof, and amended his answer to file special defenses of the Statutes of Limitation.   The plaintiff vigorously objected to the amendments since the case had been pending for more than five years, but the Court, in an effort to allow the defendant all of his rights, permitted the amendments of the Statutes of Limitations.

Following a one-day trial, the parties filed briefs on or about May 8, 2013.   The plaintiff filed a reply brief dated May 21, 2013, but the defendant did not file a reply brief.

ISSUES AND FINDINGS

1. The plaintiff has brought this action in four counts.   The first count is negligence, the second count breach of fiduciary duty, the third count civil theft under CGS Sec. 52–564 and the fourth count, violation of the Connecticut Unfair Trade Practices Act (“CUTPA”).

2. The Court finds for the defendant on the first count of negligence because what the defendant did was not negligence, but an intentional and wilful theft of money.

3. The Court finds for the plaintiff on the count alleging breach of fiduciary duty.   The defendant was clearly in a superior position as the plaintiff's attorney and breached the trust imposed upon him as the attorney for the plaintiff.

4. The Court finds for the plaintiff on count three, civil theft.   Civil theft has been defined as larceny under the criminal statute of CGS Sec. 53a–119, which states, in pertinent part:

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.

The actions of the defendant as described above is civil theft found by clear and convincing evidence.¹

5. The Court finds for the plaintiff under the CUTPA statutes.   The defendant's conduct certainly fits the cigarette rule by being deceitful and against public policy and is clearly a violation of CUTPA.

6. THE DEFENDANT'S SPECIAL DEFENSES OF STATUTES OF LIMITATIONS.

The Statute of Limitations on all of the counts is three years.   See CGS Sec. 52–577 and the CUTPA statutes.

7. Were the Statutes of Limitations tolled by the fraudulent concealment of the plaintiff's cause of action in this case?

The short answer is yes.

The Court finds by clear and convincing evidence that the defendant violated CGS Sec. 52–595 which reads as follows:

If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable, therefore, at the time when the person entitled to sue thereon first discovers its existence.

The plaintiff had no notice of the defendant's perfidy until he received notice of the judgment lien on January 6, 2005, and had no reason to believe that he was liable to Ms. Sieg until then.   By the defendant's actions and inaction, he clearly fraudulently concealed from the plaintiff the existence of his cause of action against the defendant, this case.   The Statutes of Limitations, therefore, did not begin to run until January 6, 2005.   This means that the plaintiff had until January 6, 2008 to bring this action, and based upon the marshal's return of service, the defendant was served with a summons and complaint in this matter on December 26, 2007, thereby initiating this suit prior to the expiration of the Statutes of Limitations.   It is clear from the facts stated above, the plaintiff's testimony, the exhibits and the defendant's silence that the defendant fraudulently concealed the existence of the plaintiff's cause of action against him.   The defendant was aware of the facts necessary to establish the cause of action and the defendant had intentionally concealed those facts from the plaintiff.   The defendant's actions and inaction were clearly directed to the very point of obtaining the delay in the plaintiff filing this action.   All of this has been proven by clear, precise and unequivocal evidence.   See Byrn v. Burke, 112 Conn.App. 262, 272 (2009).

Moreover, the principle of equitable estoppel also tolled the Statutes of Limitations under CGS Sec. 52–577.

8. To Which Counts Were the Statutes of Limitation Tolled?

The Court has already eliminated count one in negligence.   Under Fichera v. Mine Hill Corporation, 207 Conn. 204 (1988), fraudulent concealment cannot be applied to CUTPA.   Accordingly, the Statutes of Limitations was not tolled in the case of count four, CUTPA.

The Statutes of Limitations was tolled on count two, breach of fiduciary duty and count three, civil theft.

9. DAMAGES:

Based in part on plaintiff's Exhibit 21, the Court finds the following damages suffered by the plaintiff:

1. The original settlement money of $3,000 plus interest $ 7,800

2. The amount paid to settle Ms. Sieg's civil claim $ 22,500

3. Legal fees and court costs $ 3,285

TOTAL:  $ 33,585

In count two, breach of fiduciary duty, the Court awards

$33,585, plus punitive damages of $10,000, totaling $ 43,585.²

4. In count three, civil theft, CGS Sec. 52–564, the Court

trebles the amount of damages (but not including the

punitive damages) in the total amount of $100,755.

CONCLUSION

The Court finds for the defendant on count one as to common negligence and count four, CUTPA, for the reasons stated above.

The Court awards $43,585 on count two, breach of fiduciary duty and on count three, civil theft, judgment is entered against the defendant on behalf of the plaintiff, in the amount $100,755.

Rittenband, JTR

FOOTNOTES

FN1. In the case of Stuart v. Stuart, 297 Conn. 26 (2010), the Connecticut Supreme Court held that the standard of proof for a claim for treble damages under the Civil Theft Statute is by a preponderance of the evidence.   That has certainly been met in this case..  FN1. In the case of Stuart v. Stuart, 297 Conn. 26 (2010), the Connecticut Supreme Court held that the standard of proof for a claim for treble damages under the Civil Theft Statute is by a preponderance of the evidence.   That has certainly been met in this case.

FN2. The Court finds that that defendant showed a reckless indifference and a wanton and intentional violation of plaintiff's rights.   See Dunn v. Peter Leepson, 79 Conn.App. 366–71 (2003)..  FN2. The Court finds that that defendant showed a reckless indifference and a wanton and intentional violation of plaintiff's rights.   See Dunn v. Peter Leepson, 79 Conn.App. 366–71 (2003).

Rittenband, Richard M., J.T.R.