Emily Montanaro, Executrix (Estate of Ellen Berty) v. Dennis Gorelick, et al.

In this fraudulent conveyance case,
the trial court found that the statute of limitations
barred three counts of the plaintiff's seven count complaint
and rendered judgment thereon in favor of the
defendant Dennis Gorelick.2 The plaintiff3 appeals,
claiming that the court improperly ruled that her reply
was legally insufficient to plead a matter in avoidance
of the statute of limitations.4 The plaintiff attached to
her reply a copy of a Bankruptcy Court order that precluded
the defendant from raising the statute of limitations
as a defense.5 We affirm the judgment of the trial court because we conclude that although the reply was
legally sufficient, the court properly disregarded the
Bankruptcy Court order.

The following facts and procedural history are relevant
to the plaintiff's appeal. In August, 1996, the plaintiff,
Emily Montanaro, in her fiduciary capacity,
obtained a judgment against her nephews, Dennis Gorelick
and Glen Gorelick, in the amount of $147,716.06.
In December, 1996, Dennis Gorelick filed a bankruptcy
petition in the United States Bankruptcy Court for the
District of Connecticut. On November 18, 1997, the
plaintiff filed a motion for relief from the automatic
bankruptcy stay granted to Dennis Gorelick. The Bankruptcy
Court granted the plaintiff's motion, allowing
her to proceed with her action to collect the 1996 judgment.
The Bankruptcy Court also concluded that Dennis
Gorelick had waived the defense of the statute of
limitations and ordered that he ‘‘shall be estopped'' from
raising it in state court (estoppel order).6 On December
1, 1997, Dennis Gorelick timely filed a motion to vacate
that portion of the order that precluded him from raising
the statute of limitations as a defense. That motion
never was decided because the bankruptcy case was
dismissed in its entirety on January 8, 1998.

In March, 1998, the plaintiff commenced a fraudulent
conveyance action against the defendant, alleging that
he had made seven fraudulent transfers of real property
to family members to avoid, to hinder or to delay her
collection of the 1996 judgment. The defendant filed an
answer denying all claims of fraudulent conveyances
and asserted by way of a special defense that the statute
of limitations had run on each of the seven counts
pursuant to General Statutes § 52-552j.7 The plaintiff
then filed a reply to the special defenses that denied
them and offered ‘‘the attached order in support
thereof.'' That order was the relief from stay and the
estoppel order.

Following a six day trial, the parties filed briefs. At
that time, the plaintiff attached to her reply brief a
motion for leave to amend her reply to the defendant's
special defenses. The defendant filed an objection. In
a memorandum of decision, the court ruled in favor
of the defendant on counts one, two and four of the
complaint and refused to adjudicate the plaintiff's
motion for leave to amend her reply to the special
defenses. This appeal followed.

The plaintiff's primary claim is that the court improperly
found that she did not sufficiently plead matters
in avoidance of the statute of limitations defense. Specifically,
the plaintiff asserts that the language in her
amended complaint, as well as the language in the
attached Bankruptcy Court order, sufficiently apprised
the defendant and the trial court of her theory that the
bankruptcy order tolled the running of the statute of
limitations. Thus, the plaintiff argues, the defendant had fair notice and did not suffer undue prejudice or
surprise.

The defendant, in response, argues that the plaintiff
may not assert the bankruptcy order in avoidance of
the statute of limitations because it was not properly
pleaded. He further argues that the plaintiff did not
specifically plead the bankruptcy order until after the
trial, resulting in unfair notice, undue prejudice and
surprise.

The court concluded that the plaintiff's reply did not
satisfy the requirements set forth in Practice Book § 10-
28 because it did not apprise the defendant of the factual
basis for not filing her action within the statutory
period. The court further concluded that the plaintiff's
reply failed to conform to Practice Book § 10-57.9 That
failure left the court and the defendants ‘‘to speculate
as to whether the matter in avoidance is: (i) the binding
effect of the bankruptcy order because it is federal in
nature; (ii) the doctrine of tolling; (iii) the doctrines of
waiver and/or estoppel.'' In reaching its decision, the
court focused only on the facial insufficiency of the
plaintiff's reply and did not attempt to look at the pleadings
and the record as a whole. Although we do not
encourage this type of pleading, we conclude that the
reply was legally sufficient.

Initially, we note that ‘‘[t]he interpretation of pleadings
is always a question of law for the court''; (internal
quotation marks omitted) Daley v. Wesleyan University,
63 Conn. App. 119, 127, 772 A.2d 725, cert. denied,
256 Conn. 930, 776 A.2d 1145 (2001); and, thus, our
review is plenary. ‘‘Accordingly, we must determine
whether, as a matter of law, the [pleadings were] legally
sufficient.'' Cotto v. United Technologies Corp., 251
Conn. 1, 42, 738 A.2d 623 (1999).

Our court has noted in the past that ‘‘[t]he complaint
is required only to fairly put the defendant on notice
of the claims against him.'' (Internal quotation marks
omitted.) Lyons v. Nichols, 63 Conn. App. 761, 764, 778
A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244
(2001). ‘‘As long as the pleadings provide sufficient
notice of the facts claimed and the issues to be tried
and do not surprise or prejudice the opposing party,
we will not conclude that the complaint is insufficient
to allow recovery.'' (Internal quotation marks omitted.)
Dornfried v. October Twenty-Four, Inc., 230 Conn. 622,
629, 646 A.2d 772 (1994).

When we review the legal sufficiency of a pleading,
substance is considered over form. Our ultimate concern
is to assure substantial justice between the parties
and, thus, ‘‘[t]he modern trend, which is followed in
Connecticut, is to construe pleadings broadly and realistically,
rather than narrowly and technically. . . .
Although essential allegations may not be supplied by
conjecture or remote implication . . . the [pleading] must be read in its entirety in such a way as to give
effect to the pleading with reference to the general
theory upon which it proceeded . . . .'' (Citations omitted;
internal quotation marks omitted.) Id. Finally, the
practice of reading pleadings broadly applies to special
defenses as well. Doe v. Yale University, 252 Conn. 641,
683, 748 A.2d 834 (2000); see also Practice Book §§ 10-
110 and 10-2.

We acknowledge that it would have been a better
practice for the plaintiff to have specially alleged the
factual basis for her claim of avoidance of the statute of
limitations, rather than simply attaching the bankruptcy
order to her reply. Nevertheless, our review of the plaintiff's
pleading, in accordance with the foregoing legal
principles, satisfies us that the pleadings in no way
caused the defendant to suffer prejudice or surprise. It
is clear from the record that the plaintiff relied on the
Bankruptcy Court's order as a defense to the statute of
limitations. A fair reading of the whole of the pleadings
convinces us that the plaintiff's original reply provided
sufficient notice to the defendant and the court of the
plaintiff's factual basis and theory in support of her
claim of avoidance of the statute of limitations.

Although we conclude that the plaintiff's pleadings
were legally sufficient, that does not end our analysis.
The question remains whether the court improperly
concluded that the bankruptcy order did not preclude
the defendant from raising the statute of limitations as
a special defense.11

In deciding against the plaintiff, the court ruled that
the bankruptcy estoppel order was unenforceable. The
court based its conclusion on the following two critical
determinations: ‘‘First, this court does not construe the
bankruptcy order concerning the statute of limitations
as having a preclusive effect on this court. The court
is aware of no authority for a federal Bankruptcy Court
to limit or control a party's right to assert a defense in
a state court lawsuit. Such court clearly has the right
to determine the consequences for doing so when that
party subsequently seeks relief from that court. That,
however, is a matter for which this court has no
concern.

‘‘Second, the evidence demonstrates persuasively
that there exists a substantial question as to whether
[the defendant] knowingly and voluntarily waived the
defense. The court reaches this conclusion on the basis
of [the defendant's] testimony and the record of pleadings
before the Bankruptcy Court which evidences [his]
attempt to have that prohibition set aside.''

We need not decide whether the court properly concluded
that the Bankruptcy Court's order was unenforceable;
rather we will decide on a different ground.
It is well settled that ‘‘[t]his court can sustain a decision
on a theory different from that adopted by the trial court.'' Tevolini v. Tevolini, 66 Conn. App. 16, 32, 783
A.2d 1157 (2001). Here, the Bankruptcy Court's dismissal
of the defendant's petition before adjudication
of the motion to vacate the estoppel order terminated
the proceeding and rendered the estoppel order unenforceable.
12 Therefore, the plaintiff had no basis to interpose
that order in avoidance of the statute of
limitations defense.13

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Click the case caption above for the full text of the Court's opinion.

The judgment is affirmed.

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