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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-third party plaintiff, Kevin

P. Hill, appeals from the judgment in favor of the third

party defendant, Annapurna K. Duleep, rendered by

the trial court after a two day bench trial.1 The court

concluded that the plaintiff’s claims were barred by the

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 of equitable

estoppel. We disagree and affirm the judgment of the

trial court.

The court’s memorandum of decision and the record

reveal the following facts and procedural history. The

plaintiff and 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

commenced a dissolution action. A judgment of dissolution was rendered on April 14, 2004, which incorporated

the parties’ separation agreement. In connection with

the judgment, the parties filed updated financial affidavits that listed their assets and liabilities. The separation

agreement provided that neither party 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 or hereafter contracted by each of them.’’

Approximately one month prior to the judgment of

dissolution,the defendant, withoutthe plaintiff’s knowledge, 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 at the Bank of America.5 The plaintiff

was not aware that the defendant had opened this line

of credit because the bank statements were being sent

to her address in New York City. The parties had agreed

that, after the divorce was finalized, the formerly joint

checking account would be taken over by the 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.
On April 14, 2004, the day that the judgment of dissolution was rendered, the plaintiff went to a local branch

office ofthe Bank ofAmerica and had his name removed

from the joint checking account. He later discovered

that as of April 5, 2004, the balance on the cash reserve

loan account associated with the formerly joint checking account was more than $8000. The defendant continued 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 motion to cite in the defendant as a party,

the third party complaint was served on the defendant

on November 26, 2007. The initial third party complaint

was comprised of one count that alleged that the 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, was
barred by § 52-577. The court determined that the statute of limitations began to run, at the latest, on January

13, 2005, when Bank of America 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. The plaintiff filed an amended third party complaint 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 of the action by the defendant

or by the doctrine of equitable estoppel. Accordingly,

the court rendered judgment in favor of the 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

pursuant to the parties’ separation agreement. The separation 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

should have applied the statute of limitations applicable

to actions for indemnification. In his appellate brief,

the plaintiff cites General Statutes § 52-598a6 and makes

the following claim: ‘‘Based upon a claim for indemnification, the earliest the three (3) year statute of limitations would begin to run was from the date of settlement

[with DiscoverBank], March 26, 2009. Clearly the claims

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

entered into a separation agreement with the 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 of our claims for relief, where
we’re claiming indemnification of damages 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 a claim, 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

was an agreement to indemnify? You have to have either

an agreement to indemnify alleged in a count or you

have to have a statute allowing indemnification. Those

are the only two bases forindemnification that the 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

and attached to the divorce decree and judgment, 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

result of certain actions? I don’t see it. And eitherthere’s

a statute that provides indemnification or there’s an

agreement alleged, by which you’re entitled to indemnification. I don’t see it. The court could be wrong, but

I don’t see it, and untilI see itin a count ofthe complaint,

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 show me something that says that I’m wrong, 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

the plaintiff’s posttrial brief, there was no claim or argument addressed to § 52-598a, which is the statute of

limitations applicable to actions for indemnification.

The court did not address § 52-598a in its memorandum

of decision 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 for indemnification. He did not 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

timely because his amendment to add the second count

related back to the filing of the initial third party complaint,(2)the plaintiff fraudulently concealed the action

from him, thereby extending the time forfiling his claim,

and (3) the statute of limitations was tolled by the

doctrine of equitable estoppel. The plaintiff did not prevail on his claims as presented to the trial court and

now attempts to resurrect on appeal a claim that the

trial court previously rejected. ‘‘[A] party cannot present

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 that these 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 other judges concurred.
1 The plaintiff, Discover Bank, also known as Discover Card, commenced

this action against the defendant, Kevin P. Hill, seeking to collect the 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 plaintiff and

Duleep as the defendant in this opinion.

2 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.’’

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 of the cause of action 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. of America, 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 at the time when the person entitled to 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 either judgment 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 account to satisfy the amount owed under

the cash reserve loan account.

8 The amended third party complaint dated January 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 Discover card debt in the plaintiff’s name without his consent;(4)refused

to make payments on the debt; (5) incurred the debt prior to 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 of America. 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 dissolution judgment; (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 indemnify the plaintiff for his loss or liability

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.