DiMichele v. Perrella ( 2015 )

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DAVID DIMICHELE v. GARY F. PERRELLA
(AC 36748)
DiPentima, C. J., and Keller and Norcott, Js.
Argued February 19—officially released July 28, 2015
(Appeal from Superior Court, judicial district of
Waterbury, Roche, J.)
Thomas A. Amato, for the appellant (defendant).
Stephanie E. Cummings, for the appellee (plaintiff).
Opinion
NORCOTT, J. The defendant, Gary F. Perrella,
appeals from the judgment of the trial court rendered
in favor of the plaintiff, David DiMichele. On appeal,
the defendant claims that the court improperly rendered
judgment in favor of the plaintiff on the first count
of the plaintiff’s complaint, alleging fraud and deceit,
because (1) the defendant is not liable to the plaintiff
under any theory of fraud, (2) General Statutes §§ 52-
572b and 52-572f bar the first count, and (3) the plaintiff
did not commence his fraud action within the three
year statute of limitations set forth in General Statutes
§ 52-577. We agree with the defendant’s first claim and
reverse in part the judgment of the trial court.1
The record reveals the following facts and procedural
history. The plaintiff married Josinete DiMichele on
August 13, 1994.2 He raised two children with her, a
daughter and a son, who were born in 1996 and 1998,
respectively. The plaintiff had a parent-child relation-
ship with both of the children and provided for them
from the time they were born.
At the time each child was born, DiMichele and the
defendant were both aware that the defendant, and not
the plaintiff, was the biological father of both children.
DiMichele had a paternity test conducted for the oldest
child in January, 1997, when the child was about three
months old. She also had a paternity test conducted
for the second child in 2006, about eight years after his
birth. The paternity tests indicated that the defendant
was the biological father of both children.
From the time the children were born, DiMichele
took them to visit the defendant at least once a week.
She then stopped the visits in July, 2006. On March 1,
2007, the defendant commenced an action in family
court against DiMichele in which he sought visitation
with the children. In the course of that action, the defen-
dant acknowledged that he was the biological father of
the children. DiMichele also confirmed that the defen-
dant was the biological father. The plaintiff discovered
that the defendant was the biological father of the chil-
dren on or about April 16, 2007, when he found a piece
of mail with DiMichele’s name on it pertaining to the
family court action. He asked DiMichele about the mail-
ing, and she then informed him of the paternity of
the children.
The plaintiff commenced the present action against
the defendant through a complaint dated April 14, 2010,
almost three years after DiMichele informed him that
he was not the biological father of the children. The
complaint alleged fraud in the first count, intentional
infliction of emotional distress in the second count,
negligent infliction of emotional distress in the third
count, and unjust enrichment in the fourth count. The
defendant subsequently filed a motion to strike the com-
plaint in its entirety for failure to state any claims for
which relief could be granted. The court, Trombley, J.,
denied the defendant’s motion to strike as to the first
three counts of the complaint and granted it as to the
fourth count.
The defendant thereafter filed an answer and special
defenses dated March 10, 2011. He filed an amended
special defenses on June 16, 2011. He next filed a motion
to implead DiMichele, alleging that she was liable for
all or part of the plaintiff’s claim against him under
the theories of contribution and/or apportionment. The
court, Ozalis, J., granted the defendant’s motion to
implead, and DiMichele was joined to the action as a
third party defendant. On December 2, 2011, the defen-
dant filed a motion for summary judgment and
requested that the court render judgment against the
plaintiff on all three remaining counts of the complaint.
The court, Trombley, J., denied the defendant’s motion.
The court held a bench trial on the merits of the three
remaining counts of the plaintiff’s complaint on August
6, 7, and 8, 2013. On January 29, 2014, the court held
an additional hearing in which it discussed the parties’
posttrial memoranda with them and heard argument
on the applicable law. In a memorandum of decision
dated April 16, 2014, the court, Roche, J., rendered judg-
ment in favor of the plaintiff on count one of the com-
plaint, alleging fraud and deceit, and in favor of the
defendant and DiMichele on counts two and three, alleg-
ing intentional infliction of emotional distress and negli-
gent infliction of emotional distress. The court awarded
the plaintiff $30,000 in damages, to be entered against
the defendant and DiMichele pari delicto, in the amount
of $15,000, plus court costs. This appeal by the defen-
dant followed.3
The defendant claims that the court improperly ren-
dered judgment in favor of the plaintiff on the first count
of the complaint, alleging fraud and deceit, because the
defendant is not liable to the plaintiff under any theory
of fraud. The defendant argues that the only potentially
applicable theory of fraud is fraud by silence or conceal-
ment. He further argues that the plaintiff cannot recover
under a theory of fraud by silence or concealment
because the defendant had no duty to disclose to the
plaintiff that the plaintiff was not the biological father
of the children. The plaintiff, on the other hand, argues
that the defendant had a duty to disclose because the
plaintiff, as the psychological parent of the children,
and the defendant, as the biological parent, shared a
special relationship. We agree with the defendant that
he did not have a duty to disclose to the plaintiff the
paternity of the children.
We now turn to the applicable standard of review.
‘‘The elements of a fraud action are: (1) a false represen-
tation was made as a statement of fact; (2) the statement
was untrue and known to be so by its maker; (3) the
statement was made with the intent of inducing reliance
thereon; and (4) the other party relied on the statement
to his detriment.’’ (Internal quotation marks omitted.)
Reville v. Reville, 312 Conn. 428, 441, 93 A.3d 1076
(2014). It is undisputed that the defendant did not make
any statements, fraudulent or otherwise, to the plaintiff
between the time the plaintiff married DiMichele in
August, 1994, and the time he discovered the paternity
of the children in April, 2007. Accordingly, the plaintiff
may only recover under a theory of fraud by silence
or concealment.
‘‘It is, of course, true that, under certain circum-
stances, there may be as much fraud in a person’s
silence as in a false statement. . . . Mere nondisclo-
sure, however, does not ordinarily amount to fraud.
. . . It will arise from such a source only under excep-
tional circumstances. . . . To constitute fraud on that
ground, there must be a failure to disclose known facts
and, in addition thereto, a request or an occasion or a
circumstance which imposes a duty to speak.’’ (Cita-
tions omitted.) Egan v. Hudson Nut Products, Inc., 142
Conn. 344, 347, 114 A.2d 213 (1955). Thus, we must
determine whether the defendant had a duty to disclose
to the plaintiff that the plaintiff was not the biological
father of the children. ‘‘The issue of whether a duty
exists is a question of law . . . which is subject to
plenary review.’’ (Citations omitted.) LePage v. Horne,
262 Conn. 116, 123, 809 A.2d 505 (2002).
‘‘A duty to disclose may be imposed by statute or
regulation . . . or such a duty may arise under com-
mon law.’’ (Citation omitted.) Glazer v. Dress Barn,
Inc., 274 Conn. 33, 85, 873 A.2d 929 (2005). Under the
common law, a duty to disclose ‘‘is imposed on a party
insofar as he voluntarily makes disclosure. A party who
assumes to speak must make a full and fair disclosure
as to the matters about which he assumes to speak.’’
(Internal quotation marks omitted.) Duksa v. Middle-
town, 173 Conn. 124, 127, 376 A.2d 1099 (1977). Addi-
tionally, ‘‘[w]hether or not there is a duty to disclose
depends on the relationship of the parties . . . or, to
put it in another way, whether the occasion and circum-
stances are such as to impose a duty to speak.’’ (Citation
omitted.) Roberts v. Paine, 124 Conn. 170, 175, 199 A.
112 (1938). A duty to disclose will arise if the parties
share a ‘‘special relationship.’’ Flannery v. Singer Asset
Finance Co., LLC, 312 Conn. 286, 313, 94 A.3d 553
(2014) (defendant and plaintiff stood in relation of buyer
and seller and, as such, there was no special relationship
between them that imposed upon defendant duty to
disclose to plaintiff any deception attendant to trans-
action).
In the present case, the plaintiff has not cited to any
statutes or regulations that imposed on the defendant
a duty to disclose to the plaintiff the paternity of the
children. Furthermore, the defendant did not assume
a duty to disclose by speaking to the plaintiff about the
children, as it is undisputed that the parties did not
communicate with each other before the plaintiff dis-
covered the children’s paternity in April, 2007. Thus, a
duty to disclose can only be imposed on the defendant
if the parties shared a special relationship prior to April,
2007. We conclude that they did not.
In general, a special relationship that imposes a duty
to disclose exists ‘‘where the parties stand in some
confidential or fiduciary relation to one another, such
as that of principal and agent, executor and beneficiary
of an estate, bank and investing depositor, majority and
minority stockholders, old friends, or numerous others
where special trust and confidence is reposed. In addi-
tion, certain types of contracts, such as those of surety-
ship or guaranty, insurance, partnership and joint
adventure, are recognized as creating something in the
nature of a confidential relation, and hence as requiring
the utmost good faith, and full and fair disclosure of
all material facts.’’ W. Keeton et al., Prosser and Keeton
on the Law of Torts (5th Ed. 1984) § 106, pp. 738–39.
The plaintiff argues that he shared a special relation-
ship with the defendant, which imposed on the defen-
dant a duty to disclose the children’s paternity, because
the plaintiff is the psychological parent of the children
and the defendant is the biological parent. The plaintiff
does not cite to, and we have not found, any legal
authority to support his argument. Rather, our Supreme
Court’s case law lends support to the defendant’s argu-
ment that he did not have a duty to disclose. In Flannery
v. Singer Asset Finance Co., LLC, supra, 312 Conn.
313, our Supreme Court noted that a vendor-vendee
relationship does not, by itself, constitute a special rela-
tionship. In a vendor-vendee relationship, the parties
interact with each other for the purpose of executing
a sale and purchase. According to our Supreme Court,
this interaction does not give rise to a special relation-
ship unless the vendor ‘‘stand[s] in such a relationship
of trust and confidence to the vendee that it is his duty
to make a full disclosure.’’ (Internal quotation marks
omitted.) Egan v. Hudson Nut Products, Inc., supra,
142 Conn. 348. Put differently, a relationship between
two parties does not constitute a special relationship
unless that relationship is one of ‘‘trust and confidence.’’
Id.; W. Keeton, supra, § 106, pp. 738–39. We therefore
decline to recognize a special relationship of ‘‘trust and
confidence’’ between the parties in the present case,
where the record reveals that, prior to the plaintiff’s
discovery of the children’s paternity, no relationship
existed between them.
We conclude that the parties in this case did not
share a special relationship, and thus the defendant did
not have a duty to disclose the children’s paternity to the
plaintiff. Accordingly, the court improperly rendered
judgment in favor of the plaintiff on the first count of
the complaint, alleging fraud and deceit.
The judgment is reversed in part and the case is
remanded with direction to render judgment for the
defendant on the first count of the plaintiff’s complaint;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Because we agree with the defendant’s first claim and reverse in part
the judgment on that ground, we do not reach the defendant’s second or
third claims.
2
For purposes of this opinion, we refer to David DiMichele as the plaintiff
and to his wife, Josinete DiMichele, as DiMichele.
3
DiMichele did not appeal from the judgment.