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******************************************************DISCOVER BANK v. KEVIN P. HILL (AC 34966)
Lavine, Alvord and Bishop, Js. Argued March 11—officially released May 13, 2014 (Appeal from Superior Court, judicial district of

Ansonia-Milford, Hiller, J.)
Daniel D. Skuret III

, with whom was Patrick D.Skuret, for the appellant (defendant-third party plaintiff).
Jonathan E. Von Kohorn, with whom, on the brief,
was Tara L. Von Kohorn, for the appellee (third party defendant Anapurna Duleep).Opinion ALVORD, J. The defendant-thirdpartyplaintiff, Kevin P. Hill, appeals from thejudgment in favor ofthe third party defendant, Annapurna K. Duleep, rendered by the trial court after a two day bench trial.1 The court concludedthatthe plaintiff’s claims were barred bythe three year statute of limitations set forth in General Statutes § 52-577.2 On appeal, the plaintiff claims that the court improperly (1) failed to apply the statute of limitations applicable to actions for indemnification, (2) concluded that the relation back doctrine was not applicable to the second count of his amended complaint because it alleged an entirely new cause of action,3 (3) failed to conclude that General Statutes § 52-5954 was applicable because the defendant had fraudulently concealed the existence of the cause of action, and (4) failed to conclude that the statute of limitations had been tolled by the doctrine ofequitable estoppel. We disagree and affirm the judgment of the trial court.
The court’s memorandum ofdecision and the record reveal the following facts and procedural history. The plaintiffand the defendant were married on August 28, 1998. The parties separated in the fall of 2003, and the defendant left the marital residence. The plaintiff commencedadissolutionaction. AjudgmentofdissolutionwasrenderedonApril 14, 2004, whichincorporated the parties’ separation agreement. In connection with thejudgment, the parties filed updated financial affidavitsthatlistedtheirassetsandliabilities. Theseparation agreementprovidedthat neitherparty had incurred liabilities other than those reflected in the affidavits and that neither party would incur future liabilities for which the other party would be liable. The agreement additionally provided that each party would ‘‘keep the other free, harmless and indemnified of and from any and all debts, charges and liabilities heretofore orhereafter contracted by each of them.’’ Approximately one month prior to the judgment of dissolution,thedefendant,withouttheplaintiff’sknowledge, opened a Discover card account in the plaintiff’s

name and transferred $5000 of debt from her personal American Express card to the Discover card. At or about the same time, the defendant also opened a cash
reserve loan account connected with the parties’ joint checking account atthe Bank ofAmerica.5 The plaintiff
was not aware that the defendant had opened this line of credit because the bank statements were being sent to heraddressin NewYork City. Thepartieshadagreed that, after the divorce was finalized, the formerlyjoint checkingaccountwouldbetakenoverbythe defendant and would remain in her name only. For that reason, the plaintiff had opened his own personal checking account with the Bank of America in March, 2004.OnApril 14, 2004, the daythat thejudgment ofdissolutionwas rendered, theplaintiffwentto alocalbranch officeoftheBankofAmericaandhadhisnameremoved from the joint checking account. He later discovered that as ofApril 5, 2004, the balance on the cash reserve loan account associated with the formerlyjoint checkingaccountwasmorethan$8000. Thedefendantcontinued to draw on the cash reserve loan account after the divorce and owed the Bank of America more than $10,000 by November 3, 2004.
On January 13, 2005, the plaintiff attempted to use the debit card connected with his personal Bank of America checking account. When it was declined, he went to an automatic teller machine (ATM) to check
on his available balance. The ATM receipt indicated that he had a zero balance in his personal account. On January 14, 2005, upon further inquiry, he was told that the Bank of America had transferred $10,671.24, the funds in his personal account, to pay the balance due and owing on the defendant’s cash reserve loan account.
Discover Bank filed a small claims action against the plaintiff on October 23, 2006, seeking to recover $3340.15, which was the outstanding balance on the Discover card account. The plaintiff filed a motion to transfer the matter to the regular civil docket, which
was granted on April 16, 2007. After the court granted the plaintiff’s motionto cite in the defendant as aparty, the third party complaint was served on the defendant
on November 26, 2007. The initial thirdparty complaint
was comprised ofone countthat allegedthatthe defendant had fraudulently opened the Discover card account. On January 15, 2008, which was within thirty days of the return date, the plaintiff filed an amended third party complaint pursuant to Practice Book § 10- 59. The amended third party complaint added a second count, which alleged that the defendant had opened a cash reserve loan account with the Bank of America, incurred debt in the plaintiff’s name without his consent, and concealed the action from the plaintiff. Thereafter, Discover Bank settled its claim against the plaintiff for $3340 and withdrew its complaint against him on July 21, 2009. The case proceeded to trial on the third party complaint on January 5 and February 3, 2012. The parties filed posttrial briefs, and,
on August 6, 2012, the court issued its memorandum of decision. The court concluded that both counts of the plaintiff’s action sounded in civil fraud and were governed by the three year statute of limitations set forth in § 52-577. The court found that the third party action with respect to the Discover card account had not been commenced within that requisite time period.
The court also found that count two, pertaining to the Bank of America cash reserve loan account, wasbarred by § 52-577. The court determined that the statute oflimitations began to run, atthe latest, onJanuary 13, 2005, when Bank ofAmerica transferred $10,671.24 from the plaintiff’s personal checking account to pay the outstanding balance on the cash reserve loan account. The initial third party complaint did not include a claim with respect to the cash reserve loan account. Theplaintifffiledanamendedthirdpartycomplaint to include that entirely new cause of action on January 15, 2008, which was outside the requisite three year period. The court further concluded that the statute of limitations had not been tolled by the alleged fraudulent concealment ofthe action by the defendant
or by the doctrine of equitable estoppel. Accordingly, the court renderedjudgment in favor ofthe defendant. This appeal followed.
The plaintiff’s first claim is that the court improperly concluded that his action was time barred by § 52-577, which is the tort statute of limitations. The plaintiff argues that he had raised claims of indemnification pursuanttotheparties’separationagreement. Theseparation agreement had been incorporated into the judgment of dissolution and contained an indemnification clause. He claims that, because it was undisputed that the defendant failed to include the Discover card account debt and the Bank of America cash reserve loan account debt on her financial affidavit, the court shouldhave appliedthestatute oflimitationsapplicable to actions for indemnification. In his appellate brief, theplaintiffcites General Statutes § 52-598a6andmakes the following claim: ‘‘Based upon a claim forindemnification, the earliest the three (3) year statute of limitationswouldbegintorunwasfromthedateofsettlement [withDiscoverBank], March26, 2009. Clearlytheclaims for indemnification were commenced within the applicable time period.’’7
The court’s memorandum of decision does not include an analysis of the indemnification claim. A review of the trial transcript, however, discloses that the court and the parties’ counsel discussed the indemnification provision found in the separation agreement. On the first day of trial, when the plaintiff was on the witness stand, the defendant’s counsel objected when the plaintiff’s counsel asked the plaintiff if he had enteredinto aseparation agreementwiththe defendant at the time of the dissolution. The following colloquy took place among the court and the parties’ counsel: ‘‘[The Defendant’s Counsel]: Objection. Objection, Your Honor. Relevancy with respect to the separation agreement. It is not covered by any of the two counts
on plaintiff’s complaint. ‘‘The Court: Counsel? ‘‘[The Plaintiff’s Counsel]: It is covered, Your Honor. It is also covered by way ofour claims for relief, wherewe’re claiming indemnification ofdamages pursuant to the separation agreement; it says that on the last page, Your Honor. ‘‘The Court: You have a count for indemnification? ‘‘[The Plaintiff’s Counsel]: We do have a claim for indemnification, Your Honor. ‘‘[The Defendant’s Counsel]: There is no count for indemnification, Your Honor, not in the two counts.

* * * ‘‘The Court: Is there a count for breach of an agreement or breach of an agreement to pay, from which indemnification might result? ‘‘[The Plaintiff’s Counsel]: We did make aclaim, Your Honor. Specifically we requested indemnification pursuant to the separation agreement entered into. ‘‘The Court: That’s a claim. Do you have a factual count explaining why you’re entitled to indemnification?

* * * ‘‘The Court: Where is there an allegation that there
wasanagreementtoindemnify?Youhavetohave either
an agreement to indemnify alleged in a count or you have to have a statute allowing indemnification. Those
aretheonlytwobasesforindemnificationthatthe court knows of. ‘‘[The Plaintiff’s Counsel]: Okay, Your Honor. In our complaint, we specifically indicated the fact that she
never disclosed to the court on her financial affidavit andattachedtothe divorce decreeandjudgment, which is incorporated in the separation agreement, which I
was getting to, was a copy of the financial affidavits, Your Honor, and

. . . . ‘‘The Court: Whoa. Whoa. Whoa. Plain and simple, is there a count in the complaint saying there was an agreement to indemnify for any losses suffered as a resultofcertainactions?Idon’tseeit.Andeitherthere’s

a statute that provides indemnification or there’s an agreement alleged, bywhichyou’re entitledto indemnification. I don’t see it. The court could be wrong, but Idon’tseeit, anduntilIseeitinacountofthecomplaint, I don’t think we have to go into it. So let’s go and continue on the testimony of the witness. ‘‘[The Plaintiff’s Counsel]: Okay. ‘‘The Court: Okay. ‘‘[The Plaintiff’s Counsel]: But it’s a full exhibit and I should say a reply to their special defenses addresses that to Your Honor. And specifically, which we filed according to your allowing to amend, it specifically indicates it’s in reply to their special defense. We do allege the divorce decree in agreement

. . . .‘‘The Court: [Counsel] let’s stop. Let’s move on. ‘‘[The Plaintiff’s Counsel]: Okay. ‘‘The Court: I could be wrong and maybe tonight you’ll showme somethingthatsaysthatI’mwrong, that you have enough in there as an allegation and count for indemnification. I don’t see it.8 So for now let’s proceed with the testimony. ‘‘[The Plaintiff’s Counsel]: Okay. Thank you, Your Honor.’’
The issue was not raised again during the trial. In theplaintiff’sposttrialbrief, therewasno claimorargument addressed to § 52-598a, which is the statute of limitations applicable to actions for indemnification. The court didnot address § 52-598ainits memorandum ofdecision because it was not an issue in the case. The plaintiff, if he intended to pursue that claim, should have presented the argument to the trial court that his amended third party complaint sufficiently alleged an action forindemnification. He didnot and, instead, presents that claim to this court for review.
The plaintiff did not try his case to the trial court on the theory that his action was governed by the statute of limitations set forth in § 52-598a. After the court expressed its opinion that the third party complaint failed to allege an action for indemnification, the plaintiff focused on his arguments that (1) the Bank of America cash reserve loan account claim was made timelybecause his amendmentto addthe second count related back to the filing ofthe initial third party complaint, (2)theplaintifffraudulentlyconcealedtheaction fromhim,therebyextendingthetimeforfilinghisclaim, and (3) the statute of limitations was tolled by the doctrine ofequitable estoppel. Theplaintiffdidnotprevail on his claims as presented to the trial court and
now attempts to resurrect on appeal a claim that the trialcourtpreviouslyrejected. ‘‘[A] partycannotpresent
a case to the trial court on one theory and then seek appellate relief on a different one

. . . .’’ (Internal quotation marks omitted.) Albemarle Weston Street, LLC

v. Hartford, 104 Conn. App. 701, 709, 936 A.2d 656 (2007). Accordingly, we decline to review this claim.
With respect to the remaining claims of the plaintiff
on appeal, we conclude thatthese issues were analyzed and resolved properly in the trial court’s complete and well reasoned memorandum of decision. See Discover Bank v. Hill, 53 Conn. Supp. 257, A.3d (2014). We adopt that decision as the proper statement of the relevant facts, issues and applicable law, as it would
serve no useful purpose for us to repeat the discussion contained therein. See, e.g., Pellecchia v. Killingly, 147 Conn. App. 299, 301–302, 80 A.3d 931 (2013).
The judgment is affirmed.
In this opinion the otherjudges concurred.1 The plaintiff, Discover Bank, also known as Discover Card, commenced this action againstthe defendant, Kevin P. Hill, seeking to collectthe unpaid balance on a credit card account. While the action was pending, Hill filed

a motion to cite in Annapurna K. Duleep as a party defendant, which was granted by the court, Levin, J., on November 5, 2007. Hill filed a third party complaint against Duleep on November 29, 2007. Thereafter, Discover Bank and Hill reached a settlement, and Discover Bank withdrew its complaint against Hill on July 21, 2009. The case proceeded to trial on the third party complaint. For the sake of convenience, we refer to Hill as the plaintiffand Duleep as the defendant in this opinion.

2 General Statutes § 52-577 provides: ‘‘No action founded upon atort shall be brought but within three years from the date of the act or omission complained of.’’

3 Under the relation back doctrine, ‘‘a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity ofthe cause ofaction remains substantially the same.

. . . If a new cause of action is alleged in an amended complaint

. . . it will [speak] as of the date when it was filed.’’ (Internal quotation marks omitted.)Austin-Casares v. Safeco Ins. Co. ofAmerica, 310 Conn. 640, 656, 81 A.3d 200 (2013).

4 General Statutes § 52-595 provides: ‘‘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 therefor atthe time whenthe person entitledto sue thereon first discovers its existence.’’

5 The Bank of America was then known as Fleet Bank.

6 General Statutes § 52-598a provides: ‘‘Notwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by eitherjudgment or settlement.’’

7 The plaintiff does not state when the statute of limitations set forth in § 52-598a would begin to run with respect to the cash reserve loan account. There was no evidence of any ‘‘judgment or settlement’’ with the Bank of America. As previously noted, Bank of America transferred the plaintiff’s funds from his personal checking accountto satisfythe amount owed under the cash reserve loan account.
8 The amended third party complaint datedJanuary 11, 2008, which is the operative complaint, has two counts. The first count is addressed to the Discover card account and alleged that the defendant: (1) fraudulently opened the account; (2) transferred her personal debt of $5000 from her American Express card account to the Discover card account; (3) incurred the Discovercarddebtintheplaintiff’snamewithouthisconsent; (4) refused to make payments on the debt; (5) incurred the debtpriorto the dissolution judgment; and (6) failed to list the debt on her financial affidavit. The first count does not mention the separation agreement or allege that the defendant was obligated to indemnify the plaintiff for his loss or liability in connection with the Discover card account. The second count is addressed to the cash reserve loan account with the Bank ofAmerica. In that count, the plaintiff alleged that the defendant: (1) obtained $10,671.24 in connection with the cash reserve loan account; (2) used the money for her own personal use; (3) incurred the debt in the plaintiff’s name without his consent; (4) refused to make payments on the debt; (5) incurred the debt prior to the dissolutionjudgment; (6) continued to incur additional debt in connection with the cash reserve loan account after the parties’ divorce was finalized; (7) failed to list the debt on her financial affidavit; and (8) requested that the bank send the statements to her New York City address in order to conceal the debt from the plaintiff. The second count does not mention the separation agreement or allege that the defendant was obligated to indemnifythe plaintiffforhis loss orliability in connection with the cash reserve loan account. In the third party complaint’s prayer for relief, the plaintiff requested ‘‘[i]ndemnification pursuant to the [s]eparation [a]greement entered into with [the plaintiff] on April 14, 2004.’’ As the trial court correctly observed, however, a cause of action for indemnification was not alleged in either count of the third party complaint. Simply including indemnification as a remedy sought in the prayer for relief did not convert the plaintiff’s civil fraud action into an action for indemnification. The prayer for relief does not constitute a cause of action.