Ferri v. Powell-Ferri , 326 Conn. 438 ( 2017 )

 MICHAEL J. FERRI, TRUSTEE, ET AL. v.
NANCY POWELL-FERRI ET AL.
(SC 19432)
(SC 19433)
Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.*
Syllabus
The plaintiffs M and A, the trustees of two trusts established for the sole
benefit of the defendant F, sought a declaratory judgment to determine,
inter alia, whether they were authorized to decant certain assets from
one trust to the other. Specifically, the plaintiffs transferred a substantial
portion of the assets from the first trust, which permitted F to withdraw
principal, to a second trust, which did not. The defendant P, who had
previously filed a separate action seeking the dissolution of her marriage
to F, filed a counterclaim seeking a judgment declaring that the plaintiffs
lacked authority to decant and alleging, inter alia, breach of fiduciary
duty. The trial court determined that the plaintiffs were not authorized
to decant 75 percent of the assets in the first trust because F had a
vested, irrevocable interest in those assets. The trial court ordered the
plaintiffs to restore that amount to the first trust and awarded P attor-
ney’s fees. In separate appeals, the plaintiffs and F claimed that the trial
court had incorrectly determined that the plaintiffs lacked authority to
decant, that P lacked standing to challenge the plaintiffs’ actions, and
that the trial court improperly awarded attorney’s fees to P. In her cross
appeal, P claimed that the trial court improperly declined her request
to remove M from his position as a trustee and also asserted, as an
alternative ground for affirmance, that the second trust should be treated
as self-settled. Thereafter, this court certified certain novel questions
of Massachusetts law to the Massachusetts Supreme Judicial Court
regarding, inter alia, the plaintiffs’ authority to decant. Held:
1. The trial court incorrectly determined that the plaintiffs did not have
authority to decant assets from the first trust: on the basis of the Massa-
chusetts Supreme Judicial Court’s thorough and well reasoned decision
in response to this court’s certified questions, this court concluded
that, under Massachusetts law, the plaintiffs were empowered to decant
substantially all of the assets from the first trust to the second trust.
2. The trial court correctly determined that P had standing to challenge the
plaintiffs’ actions and to assert a counterclaim: the issue of standing is
procedural and, therefore, governed by Connecticut law, under which
P had a colorable claim of injury sufficient to confer standing because
the decanting of assets from the first trust, which could be included in
the marital estate, directly affected the dissolution court’s ability to
make equitable financial orders; moreover, the plaintiffs having named
P as a defendant in their declaratory judgment action and having
acknowledged that she claimed an interest in the trusts assets, P had
a right to be heard on the remedy that the plaintiffs sought.
3. The trial court abused its discretion in awarding attorney’s fees to P: in
the absence of evidence demonstrating bad faith or other egregious
conduct by the plaintiffs, P had failed to demonstrate that the present
case qualified for an exception to the general rule that each party must
bear his or her litigation expenses; the trial court’s partial reliance on
a Massachusetts statute (chapter 215, § 45) to award P attorney’s fees
was misplaced, that statute having authorized an exception to the general
rule only in cases originating in a probate court.
4. This court could not conclude that the trial court had abused its discretion
in declining to remove M from his position as a trustee on the ground
that he had a conflict of interest that compromised his ability to adminis-
ter the second trust: the plaintiffs had the authority to decant assets
from the first trust, and, in the absence of actual proof of M’s breach
of fiduciary duty, the mere assertion of a cause of action for such
breach against M in his capacity as a trustee did not support the remedy
of removal.
5. P could not prevail on her claim that the judgment of the trial court
should be affirmed on the alternative ground that, because F had been
entitled to withdraw 75 percent of the assets from the first trust, the
second trust was effectively self-settled; in light of the trial court’s
undisputed factual finding that F took no active role in planning, funding,
or creating the second trust, this court could find no authority for the
proposition that the second trust should be considered self-settled.
Argued November 12, 2015—officially released August 8, 2017
Procedural History
Action for a judgment declaring that the plaintiffs,
as trustees, had validly exercised their authority to
transfer certain assets from one trust to another trust
and that the named defendant had no right, title or
interest in the trust to which the assets were transferred,
brought to the Superior Court in the judicial district of
Hartford, where the case was transferred to the judicial
district of Middlesex; thereafter, the named defendant
filed a counterclaim; subsequently, the court, Munro,
J., granted the named defendant’s motion to strike an
affidavit, denied the plaintiffs’ motion for summary
judgment, granted in part the named defendant’s motion
for summary judgment, rendered judgment thereon in
favor of the named defendant on certain counts of her
counterclaim, and ordered certain other relief; there-
after, the plaintiffs appealed and the named defendant
cross appealed, and the defendant Paul John Ferri, Jr.,
filed a separate appeal. Reversed in part; judgment
directed.
Dominic Fulco III, with whom was John W. Larson,
for the appellants and cross appellees in SC 19432, and
the appellees in SC 19433 (plaintiffs).
Kenneth J. Bartschi, with whom were Karen L. Dowd
and, on the brief, Thomas P. Parrino and Laura R.
Shattuck, for the appellee an cross appellant in SC
19432, and the appellee in SC 19433 (named defendant).
Jeffrey J. Mirman, with whom, on the brief, was
Alexa T. Millinger, for the appellant in SC 19433 (defen-
dant Paul John Ferri, Jr.).
Opinion
EVELEIGH, J. These appeals arise from a declaratory
judgment action filed by the plaintiffs, Michael J. Ferri
and Anthony J. Medaglia, who are the trustees of a trust
created by Paul John Ferri, Sr., in 1983 (1983 trust)
solely for the benefit of his son, the defendant, Paul
John Ferri, Jr. (Ferri).1 Specifically, the plaintiffs sought
a judgment declaring that they were authorized to
decant certain assets from the 1983 trust and that the
named defendant, Nancy Powell-Ferri, had no right,
title, or interest in those assets. On appeal, the plaintiffs
and Ferri assert, inter alia, that the trial court incorrectly
concluded that the plaintiffs did not have authority to
decant the 1983 trust because Ferri had a vested and
irrevocable interest in its assets. We disagree. In light
of the opinion issued by the Massachusetts Supreme
Judicial Court in response to this court’s certified ques-
tions; see Ferri v. Powell-Ferri, 476 Mass. 651, 72 N.E.3d
541 (2017); we conclude that, under Massachusetts law,
it was proper for the plaintiffs to have decanted assets
from the 1983 trust, and, therefore, we reverse the judg-
ment of the trial court on that issue. We also reverse
the trial court’s award of attorney’s fees to Powell-Ferri
in this matter. We affirm the judgment of the trial court
in all other aspects.
The following facts and procedural history are rele-
vant to this appeal. ‘‘Powell-Ferri filed an action for
dissolution of her marriage to Ferri on October 26, 2010
. . . . Ferri is the sole beneficiary of [the 1983 trust,
which was] created by his father, Paul John Ferri, Sr.
. . . . The plaintiffs were named as trustees of the 1983
trust. Michael Ferri is Ferri’s brother and business
partner.
‘‘The 1983 trust provides that, after Ferri attained the
age of thirty-five, he would have the right to withdraw
principal from the trust in increasing percentages
depending on his age. In March, 2011, while the underly-
ing dissolution action was pending, the plaintiffs cre-
ated a second trust whose sole beneficiary was Ferri
(2011 trust). The plaintiffs then distributed a substantial
portion of the assets in the 1983 trust to the 2011 trust.2
‘‘Unlike the terms of the 1983 trust, the terms of the
2011 trust do not allow Ferri to withdraw principal.
Instead, under the terms of the 2011 trust, the plaintiffs
have all of the control and decision-making power as
to whether Ferri will receive any of the trust income
or assets.
‘‘The trial court found that Ferri did not have a role
in creating the 2011 trust or decanting any of the assets
from the 1983 trust. The trial court further found that
it was undisputed that Ferri took no action to recover
the trust assets when Michael Ferri informed him of
the creation of the 2011 trust and the decanting of
the assets. The trial court characterized the reasoning
behind this inaction as follows: ‘[Ferri] does not want
to [bring a legal action against] his family . . . and he
believes the [plaintiffs] are acting in his best interest.’
‘‘After the plaintiffs created the 2011 trust and trans-
ferred the assets from the 1983 trust to it, they instituted
the present declaratory judgment action seeking a rul-
ing from the court that they had validly exercised their
authority in transferring the assets and that Powell-
Ferri had no interest in the 2011 trust assets. Powell-
Ferri filed a counterclaim asserting claims of common-
law and statutory fraud, civil conspiracy, and seeking a
declaratory judgment. After the trial court struck counts
alleging fraud and conspiracy, Powell-Ferri filed a sec-
ond amended counterclaim, later revised, asserting
claims of breach of fiduciary duty, breach of loyalty,
tortious interference with an expectancy, and seeking
a declaratory judgment, as well as [a cross complaint
alleging that Ferri had breached his duty to preserve
marital assets during the pendency of their marital dis-
solution action by failing to take any affirmative steps
to contest the decanting of certain assets from a trust by
the plaintiffs].’’ (Footnote in original.) Ferri v. Powell-
Ferri, 317 Conn. 223, 225–26, 116 A.3d 297 (2015).3
The trial court agreed with Powell-Ferri that the plain-
tiffs were not allowed to decant assets from the 1983
trust because Ferri had a vested irrevocable interest in
75 percent of those assets and that, therefore, the 1983
trust document did not authorize the plaintiffs to decant
that portion of the trust. The trial court determined that
Massachusetts law allowed for decanting, generally, but
only if the specific trust language gave the plaintiffs
absolute and uncontrolled discretion or an analogous
power. The trial court held that the 1983 trust, which
granted the plaintiffs the power to ‘‘segregate irrevoca-
bly,’’ did not encompass the type of absolute power
necessary to decant the 1983 trust. Instead, the court
held that in construing the ‘‘segregate irrevocably’’ lan-
guage, it needed to look at the entire context of the
trust document. The court decided that because the
language ‘‘segregate irrevocably for later payment to
[Ferri]’’ was followed by a paragraph stating that the
plaintiffs ‘‘shall pay to [Ferri] . . . as he may from time
to time request in writing,’’ the 1983 trust made clear
that the funds were for payment to Ferri and that the
plaintiffs were obligated to pay if and when Ferri
requested payment. The trial court further stated that,
even though Ferri had not requested a distribution from
the 2011 trust, the plaintiffs could avoid paying him
under the terms of the 2011 trust, which would frustrate
the payment provisions of the 1983 trust.
Although the trial court found that the decanting vio-
lated the terms of the 1983 trust, it did not order restora-
tion of the entire 1983 trust. Instead it ordered the
plaintiffs to restore 75 percent of the assets to the 1983
trust. The court found that, at the time of decanting,
Ferri did not have any right to direct, control or receive
25 percent of the trust corpus, and, therefore, the plain-
tiffs were authorized to decant that portion of the 1983
trust. These appeals followed.4
On appeal, the plaintiffs and Ferri claim that, under
Massachusetts law, the plaintiffs were authorized to
decant the entirety of the 1983 trust. Specifically, the
plaintiffs and Ferri assert that Massachusetts law
allowed the decanting because the terms of the 1983
trust unambiguously granted the plaintiffs such power.
The plaintiffs and Ferri further claim that Ferri’s unexer-
cised right of withdrawal did not restrict the plaintiffs
ability to decant. Next, the plaintiffs and Ferri claim that
Powell-Ferri lacked standing to challenge the plaintiffs’
actions. Finally, the plaintiffs and Ferri claim that Pow-
ell-Ferri was not entitled to an award of attorney’s fees.
In her cross appeal, Powell-Ferri claims that the trial
court improperly refused to remove Michael Ferri from
his position as a trustee of the 1983 trust. Powell-Ferri
also asserts, as an alternative ground for affirming the
judgment of the trial court, that the 2011 trust was
effectively self-settled. We address each of these ques-
tions in turn.
I
The resolution of the first issue in this appeal pre-
sented a novel issue of Massachusetts trust law—
namely, whether the trial court correctly determined
that the plaintiffs did not have authority to decant the
assets of the 1983 trust. Therefore, we certified the
following three questions to the Massachusetts
Supreme Judicial Court: (1) ‘‘Under Massachusetts law,
did the terms of [the 1983 trust] empower [the plaintiffs]
to distribute substantially all of its assets . . . to [the
2011 trust]?’’ (2) ‘‘If the answer to [the first question]
is ‘no,’ should either [75 percent] or [100 percent] of
the assets of the 2011 [t]rust be returned to the 1983
[t]rust to restore the status quo prior to the decanting?’’
(3) ‘‘Under Massachusetts law, should a court, in inter-
preting whether [Paul John Ferri, Sr.] intended to permit
decanting to another trust, consider an affidavit [from
him], offered to establish what he intended when he
created the 1983 [t]rust?’’ The Massachusetts Supreme
Judicial Court answered the first and third questions
in the affirmative.5 Ferri v. Powell-Ferri, supra, 476
Mass. 663–64. We adopt the Massachusetts Supreme
Judicial Court’s thorough and well reasoned decision
in full.6 On the basis of that decision, we conclude that
the trial court incorrectly determined that the plaintiffs
did not have authority to decant the 1983 trust and,
accordingly, reverse the judgment of the trial court on
that issue.7
II
The plaintiffs and Ferri also claim that the trial court
incorrectly concluded that Powell-Ferri had standing
to challenge the plaintiffs’ actions of decanting the 1983
trust and to assert her counterclaims against the plain-
tiffs in connection with their actions as trustees. Specifi-
cally, the plaintiffs and Ferri claim that, because Powell-
Ferri is not a beneficiary of the 1983 trust, she cannot
challenge the plaintiffs’ actions as trustees. We disagree.
The trial court determined that Powell-Ferri had
standing to challenge the plaintiffs’ actions related to
the 1983 trust. The trial court concluded that ‘‘[t]he
1983 trust is marital property under Connecticut law.
Therefore, [Powell-Ferri] had an inchoate interest in
that property, both for itself and for the value it repre-
sented in the equitable distribution of the entire estate
by and between the parties. That is, in fashioning the
orders, the court would be cognizant of the trust value
as it apportioned both other assets and as it determined
any alimony order that might enter.’’ (Footnote
omitted.)
We begin by setting forth our standard of review.
Although the choice of law provision in the 1983 trust
dictates that matters of substance will be analyzed
according to Massachusetts law, procedural issues such
as the standard of review are governed by Connecticut
law. See Montoya v. Montoya, 280 Conn. 605, 612 n.7,
909 A.2d 947 (2006). The issue of standing is also a
procedural issue and is, therefore, governed by Con-
necticut law.8 People’s United Bank v. Kudej, 134 Conn.
App. 432, 438, 39 A.3d 1139 (2012) (applying Connecti-
cut law to issue of standing under contract with choice
of laws provision indicating that substantive matters
should be governed by Massachusetts law).
‘‘Standing is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . When
standing is put in issue, the question is whether the
person whose standing is challenged is a proper party
to request an adjudication of the issue . . . . Standing
requires no more than a colorable claim of injury; a
[party] ordinarily establishes . . . standing by allega-
tions of injury. Similarly, standing exists to attempt to
vindicate arguably protected interests. . . .
‘‘Standing is established by showing that the party
claiming it is authorized by statute to bring suit or is
classically aggrieved. . . . The fundamental test for
determining aggrievement encompasses a well-settled
twofold determination: first, the party claiming
aggrievement must successfully demonstrate a specific,
personal and legal interest in [the subject matter of
the challenged action], as distinguished from a general
interest, such as is the concern of all members of the
community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Smith v. Snyder,
267 Conn. 456, 460–61, 839 A.2d 589 (2004).
‘‘The issue of standing implicates subject matter juris-
diction . . . . [I]t is the burden of the party who seeks
the exercise of jurisdiction in his favor . . . clearly to
allege facts demonstrating that he is a proper party to
invoke judicial resolution of the dispute. . . . Because
a determination regarding the trial court’s subject mat-
ter jurisdiction raises a question of law, our review
is plenary.’’ May v. Coffey, (Internal quotation marks
omitted.) 291 Conn. 106, 113, 967 A.2d 495 (2009).
Powell-Ferri did not ‘‘set the judicial machinery in
motion.’’ Smith v. Snyder, supra, 267 Conn. 460. The
plaintiffs did that when they filed their declaratory judg-
ment action seeking a post hoc ratification of their
decision to decant the 1983 trust. The plaintiffs named
Powell-Ferri as a defendant and acknowledged that she
claimed an interest in the trust assets. In view of this
fact, Powell-Ferri had a right to be heard. See, e.g.,
Kerrigan v. Commissioner of Public Health, 279 Conn.
447, 450 n.3, 904 A.2d 137 (2006) (noting that parties
enjoy ‘‘the full panoply of rights’’ such as right to file
brief and to participate in oral argument). While the
plaintiffs may have only requested the relief they
wanted, once they put the question before the court
concerning the validity of their actions, the court had
the authority to fashion appropriate relief. See Pamela
B. v. Ment, 244 Conn. 296, 308–309, 709 A.2d 1089 (1998).
Therefore, we conclude that Powell-Ferri had a right
to be heard on the remedy as well.
Powell-Ferri has standing to challenge the plaintiffs’
actions because their actions regarding the 1983 trust
directly affect the dissolution court’s ability to make
equitable financial orders in the underlying dissolution
action. Under Connecticut law, the 1983 trust was a
marital asset because Ferri had an absolute right to
withdraw up to 75 percent, and later 100 percent, of
the principal, which constituted a ‘‘sufficiently con-
crete’’ right to include the trust assets in the marital
estate. Bender v. Bender, 258 Conn. 733, 749, 785 A.2d
197 (2001). Pursuant to General Statutes § 46b-81, the
dissolution court had authority to assign any and all of
these assets from Ferri to Powell-Ferri. Further, pursu-
ant to General Statutes § 46b-82, the dissolution court
had to consider these assets in fashioning alimony.
Thus, the trial court’s resolution of the declaratory judg-
ment action had a direct impact on Powell-Ferri’s rights
in the underlying dissolution action. Accordingly, she
had a colorable claim of injury, which is all that was
required to confer standing to challenge the decanting.
Further, the plaintiffs’ reliance on the Restatement
(Third) of Trusts is unavailing. Specifically, the report-
er’s note on § 94 of the Restatement (Third) of Trusts,
which pertains to the question of standing, explicitly
provides that the rule established is ‘‘consistent in prin-
ciple with § 200 of Restatement [(Second) of Trusts]
. . . .’’ Comment (d) to § 200 of the Restatement (Sec-
ond) of Trusts, in turn, provides as follows: ‘‘A person
who has an interest in the subject matter of trust,
although he is not a beneficiary of the trust, can main-
tain a suit against the trustee to prevent injury to his
interest in the subject matter of the trust. This is not
a suit, however, to enforce the trust. Thus, if the trustee
of a term for years threatens to commit waste, the
remainderman can maintain a suit to enjoin him.’’ In
the present case, it is claimed that the plaintiffs’ actions
have frustrated Powell-Ferri’s equitable claims to a mar-
ital asset, namely, the 1983 trust. Therefore, she had
the right to take action to protect her interest.
Accordingly, we conclude that the trial court cor-
rectly determined that Powell-Ferri had standing to
challenge the plaintiffs’ actions in decanting the 1983
trust and to bring her counterclaim for relief against
the plaintiffs.
III
The plaintiffs and Ferri also challenge the decision
of the trial court to award attorney’s fees. We declined
to certify this issue to the Massachusetts Supreme Judi-
cial Court because it did not present a novel question
of Massachusetts law. The plaintiffs and Ferri assert
that the trial court mistakenly applied Massachusetts
law rather than Connecticut law, and that Connecticut
law does not allow for an award of attorney’s fees. In
the alternative, they claim that, even if Massachusetts
law applies, it does not authorize an award of attorney’s
fees. We conclude that, under the law of either state,
the trial court improperly awarded attorney’s fees in
the present case.
We begin with the standard of review applicable to
this claim. ‘‘This court reviews a trial court’s decision
to award attorney’s fees for an abuse of discretion. . . .
This standard applies to the amount of fees awarded
. . . and also to the trial court’s determination of the
factual predicate justifying the award. . . . Under the
abuse of discretion standard of review, [w]e will make
every reasonable presumption in favor of upholding the
trial court’s ruling, and only upset it for a manifest
abuse of discretion. . . . [Thus, our] review of such
rulings is limited to the questions of whether the trial
court correctly applied the law and reasonably could
have reached the conclusion that it did.’’ (Citation omit-
ted; internal quotation marks omitted.) Lyme Land
Conservation Trust, Inc. v. Platner, 325 Conn. 737, 759,
159 A.3d 666 (2017).
First, we disagree with the parties that the resolution
of this issue requires us to determine whether Massa-
chusetts or Connecticut law applies. Instead, we con-
clude that the law of both states on awarding attorney’s
fees is consistent because both states follow the Ameri-
can rule.
As we recently explained, ‘‘[w]hen it comes to attor-
ney’s fees, Connecticut follows the American Rule. . . .
Pursuant to that rule, attorney’s fees and ordinary
expenses and burdens of litigation are not allowed to
the successful party absent a contractual or statutory
exception.’’ (Citation omitted; internal quotation marks
omitted.) Id., 759–60; see also ACMAT Corp. v. Greater
New York Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d
697 (2007). Similarly, ‘‘[t]he usual rule in Massachusetts
is that the litigant must bear his own expenses . . . .
This is the so-called American [r]ule.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
Wilkinson v. Citation Ins. Co., 447 Mass. 663, 669, 856
N.E.2d 829 (2006). Both states have few exceptions to
the rule; for example, a specific contractual provision
or a statute may provide for recovery, and both states
allow recovery for bad faith or other egregious conduct.
ACMAT Corp. v. Greater New York Mutual Ins. Co.,
supra, 582; Police Commissioner v. Gows, 429 Mass.
14, 17–18, 705 N.E.2d 1126 (1999). In the present case,
there was no finding of bad faith or other egregious
conduct on the part of the plaintiffs.9
The trial court applied Massachusetts law to the issue
of attorney’s fees, relying on In re Estate of King, 455
Mass. 796, 920 N.E.2d 820 (2010), and Massachusetts
General Laws c. 215, § 45, to justify its award of fees
in the absence of bad faith or egregious conduct. This
reliance was misplaced. Although Massachusetts law
does contain a statutory exception to the American
rule that allows for an award of attorney’s fees in the
absence of bad faith, this exception applies only to
cases originating in a probate court. Under § 45, the
Probate Court has discretion to shift fees and costs
even if the claims and defenses of the losing party were
not wholly insubstantial and frivolous.10 In In re Estate
of King, supra, 803 n.12, the Massachusetts Supreme
Judicial Court ‘‘expressly recognized that in this limited
context, § 45 gives the Probate Court authority that is
not available to the Superior Court . . . in the exercise
[of its equitable] jurisdiction.’’ See also Wong v. Luu,
472 Mass. 208, 220 n.21, 34 N.E.3d 35 (2015) (holding
that statute applies only in probate proceedings).
In the present case, Powell-Ferri has not demon-
strated that the present case qualifies for an exception
to the general rule that each party must each bear his
or her own expenses of litigation. Accordingly, we con-
clude that the trial court abused its discretion in award-
ing attorney’s fees.
IV
Powell-Ferri claims that the trial court abused its
discretion in refusing to remove Michael Ferri as a
trustee because he has an untenable conflict of interest
that compromises his ability to administer the trust.
Powell-Ferri claims that, because she has counter-
claimed against him for breach of fiduciary duty, and
the claim survived the plaintiffs’ motion to strike,
Michael Ferri is exposed to personal liability if the claim
succeeds. Powell-Ferri further claims that the threat
of personal liability impairs his ability to execute his
fiduciary duty objectively. We disagree.
‘‘Whether grounds exist for an executor’s removal is
a question addressed to the sound discretion of the
Probate Court. . . . On appeal from probate, the trial
court may exercise the same discretion de novo,
reviewing the facts relating to the propriety of removal
without regard to the Probate Court’s decision. . . .
Our task, then, is to determine whether the trial court
abused its discretion in refusing to remove the defen-
dant as executor of the . . . estate.
‘‘An important aspect of an executor’s fiduciary
responsibility is the duty to maintain an undivided loy-
alty to the estate. . . . [O]ne interested in an estate
has the right to have its representative wholly free from
conflicting personal interests . . . . When the execu-
tor of an estate places itself in a position where its
interests conflict with those of the estate, the executor’s
ability to represent fairly the interests of the estate is
irreparably tainted. When [such] a situation appears
. . . it is the positive duty of the court to remove the
executor . . . .’’ (Citations omitted; internal quotation
marks omitted.) Ramsdell v. Union Trust Co., 202 Conn.
57, 65, 519 A.2d 1185 (1987).11
Powell-Ferri requested that the trial court remove
Michael Ferri as a cotrustee of the 2011 trust since she
had brought a fiduciary duty counterclaim against him
in his capacity as trustee. The trial court, reviewing the
record before it, denied the removal request. In so
doing, the trial court found as follows: ‘‘Such a remedy
is not appropriately addressed to the [plaintiffs]. As of
yet, there has been no finding of a breach of duty by
them, notwithstanding Powell-Ferri’s vigorous argu-
ment that such a finding has already been made by
this court. . . . There is no specter of harmful conduct
imminent or proposed by the [plaintiffs]. These reme-
dies [of removal] are denied.’’ (Citation omitted.)
In her cross appeal, Powell-Ferri does not, and can-
not, attack that factual finding by the trial court. Rather,
she argues that the mere assertion of a cause of action
for breach of fiduciary duty against one of the cotrus-
tees gives rise to a remedy of removal of the cotrustee.
As the trial court concluded, however, those allegations,
without actual proof, do not support removal of a
trustee. Furthermore, in light of the Massachusetts
Supreme Judicial Court’s conclusion that the plaintiffs
had the authority to decant the 1983 trust, we cannot
conclude that the trial court abused its discretion in
failing to remove Michael Ferri as a trustee.
V
Powell-Ferri asserts, as an alternative ground for
affirmance, that, because Ferri was entitled to 75 per-
cent of the trust at the time of the divorce, the 2011
trust was effectively self-settled. We disagree.
In support of her claim, Powell-Ferri cites the rule
that ‘‘[a] trust which names the settlor as a beneficiary
is invalid to the extent of the settlor’s beneficial inter-
est.’’ In re Brooks, 217 B.R. 98, 103 (Bankr. D. Conn.
1998). The trial court rejected this argument in one
sentence, determining that the rule did not apply in this
case because Ferri was the settlor of neither the 1983
trust, which was created by his father, nor the 2011
trust, which was created by the plaintiffs.
Because resolution of this issue turns on construing
trust language and applying legal principles, it is subject
to plenary review. Palozie v. Palozie, 283 Conn. 538,
547, 927 A.2d 903 (2007). General principles of Connecti-
cut self-settled trust law, as reflected in Greenwich
Trust Co. v. Tyson, 129 Conn. 211, 219, 27 A.2d 166
(1942), illustrate that ‘‘[t]he attempt of a man to place his
property in trust for his own benefit under limitations
similar to those which characterize a spendthrift trust
is a departure from the underlying basis for the creation
of such trusts.’’ Under Connecticut law, a trust is self-
settled if a settlor places his or her assets into trust for
his or her own benefit. Id. In the present case, however,
there is no dispute that the plaintiffs created the 2011
trust and decanted the 1983 trust assets without
informing the beneficiary in advance and without his
permission, knowledge, or consent. Because the benefi-
ciary of the 2011 trust had no involvement whatsoever
in the creation or funding of the 2011 trust, the trust
cannot be self-settled under Connecticut law.
Although Powell-Ferri acknowledges that § 3 (1) of
the Restatement (Third) of Trusts, defines the settlor
as ‘‘[t]he person who creates a trust,’’ she notes that
comment (a) to that rule recognizes that ‘‘[i]n some
contexts significant questions may arise concerning the
person who is properly to be treated as the settlor of a
trust.’’ However, comment (f) to § 58 of the Restatement
(Third) of Trusts discusses those ‘‘[c]ircumstances in
which [a] beneficiary is [the] settlor’’ and provides in
relevant part that, in addition to a situation in which a
beneficiary ‘‘actually conveyed the property to the trust
or executed the trust instrument, or was designated as
settlor,’’ a beneficiary also may be deemed to be the
settlor if ‘‘the beneficiary pay[s] the consideration in
return for which another transferred the property to
fund the trust.’’ Similar to Connecticut case law, these
principles recognizes that a beneficiary can only be
deemed to be a settlor of a trust if he or she has some
affirmative involvement with the creation or funding of
the trust. In the present case, the trial court determined
that, although Ferri may have been entitled to withdraw
the funds, he was still required to request the moneys
from the plaintiffs, which was never done. Therefore,
it was proper, as held by the Massachusetts Supreme
Judicial Court, for the plaintiffs to have decanted the
entire trust. See Ferri v. Powell-Ferri, supra, 476 Mass.
661–62. In the 2011 trust, any distribution of funds rests
in the discretion of the plaintiffs.
In light of the trial court’s finding that Ferri took no
active role in planning, funding, or creating the 2011
trust, we can find no authority for the proposition that
it should be considered self-settled. Accordingly, we
reject Powell-Ferri’s alternative ground for affirmance.
The judgment is reversed with respect to the plain-
tiffs’ authority to decant the 1983 trust and the case is
remanded with direction to render summary judgment
in favor of the plaintiffs on the counts of their complaint
seeking a declaratory judgment; the judgment is also
reversed with respect to Powell-Ferri’s motion for attor-
ney’s fees and the case is remanded with direction to
deny that motion; the judgment is affirmed in all
other respects.
In this opinion the other justices concurred.
* This case was originally argued before a panel of this court consisting
of Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson.
Thereafter, Justice Zarella retired from this court and did not participate in
the consideration of the case. The listing of judges reflects their seniority
status on this court as of the date of oral argument.
1
We note that, although Medaglia subsequently resigned from his position
as trustee, he remains a plaintiff in the underlying action. On June 11, 2013,
the trial court granted a motion seeking to add a new trustee, Maurice T.
FitzMaurice, as a party plaintiff. Because the facts underlying this appeal
do not involve FitzMaurice, in the interest of simplicity, we refer to Michael
Ferri and Medaglia collectively as the plaintiffs and individually by name.
2
‘‘Ferri testified in his deposition that he thought the 1983 trust was worth
between $60 and $70 million at some point before this transfer.’’ Ferri v.
Powell-Ferri, 317 Conn. 223, 225 n.2, 116 A.3d 297 (2015).
3
The trial court granted summary judgment in favor of Ferri on the cross
complaint, which had alleged that Ferri breached his duty to preserve marital
assets during the pendency of the dissolution action by failing to take any
affirmative steps to contest the decanting. The trial court granted summary
judgment on the ground that Powell-Ferri had failed to plead a legally
sufficient cause of action, and we affirmed that decision on appeal. Ferri
v. Powell-Ferri, supra, 317 Conn. 226–28, 116 A.3d 297 (2015).
4
The plaintiffs and Ferri appealed, and Powell-Ferri cross appealed, from
the judgment of the trial court to the Appellate Court. We then transferred
these appeals to this court pursuant to General Statutes § 51-199 (c) and
Practice Book § 65-1.
5
During the trial, the plaintiffs sought to introduce an affidavit from Paul
John Ferri, Sr., declaring that he intended for the plaintiffs to have the
power to decant the 1983 trust at any time. He stated that he ‘‘intended to
give to the [plaintiffs] the specific authority to do whatever he or she believed
to be necessary and in the best interest of [Ferri] with respect to the income
and principal . . . notwithstanding any of the other provisions . . . .’’ The
affidavit also stated that, even though the 1983 trust allows for Ferri to
request increasing amounts of principal as he aged, the plaintiffs nevertheless
could, and indeed should, irrevocably set aside the trust principal if they
believed that it was in Ferri’s best interest. Powell-Ferri objected to the
affidavit as parol evidence and the trial court agreed. Specifically, the trial
court found that the affidavit was parol evidence and was not necessary to
the disposition of the case because the 1983 trust document was clear and
unambiguous. In its decision, the Massachusetts Supreme Judicial Court
indicated that it would have been proper for the trial court, pursuant to
Massachusetts law, to have considered this affidavit. Ferri v. Powell-Ferri,
supra, 476 Mass. 663. Because this issue was resolved by the Massachusetts
Supreme Judicial Court, we need not address it further in this opinion.
6
On appeal, Powell-Ferri also claims that the accounting of the 1983 trust
should have included the entire fair market value of the trust. Because the
Massachusetts Supreme Judicial Court upheld the decanting, we need not
consider this claim. See Ferri v. Powell-Ferri, supra, 476 Mass. 661–62.
7
Because the Massachusetts Supreme Judicial Court concluded that the
plaintiffs had the authority to decant the 1983 trust and we reverse the
judgment of the trial court as it relates to that issue, including the order of
the trial court requiring the plaintiffs to restore 75 percent of the assets
to the 1983 trust, we need not address Powell-Ferri’s claim regarding the
restoration order. See Ferri v. Powell-Ferri, supra, 476 Mass. 661–62.
8
In reaching its conclusion, the trial court determined that, because the
issue of standing is substantive, the law of Massachusetts was applicable to
the determination of standing. We disagree that Massachusetts law governs
whether Powell-Ferri had standing to bring her claims in the present case.
Therefore, the cases cited by the plaintiffs and Ferri are inapposite to a
consideration of standing based on Connecticut law.
9
Powell-Ferri cites cases purporting to establish exceptions to the Ameri-
can rule that authorize an award of attorney’s fees in the present case. These
cases are inapposite. In the first case, Mangiante v. Niemiec, 98 Conn. App.
567, 568, 910 A.2d 235 (2006), the Appellate Court upheld an award of
attorney’s fees to a beneficiary who established that a trustee had breached
her fiduciary duty. In the present case, Powell-Ferri has failed to establish
that the plaintiffs had breached their fiduciary duty. In the second case,
Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 417–19, 279
A.2d 726 (1971), a few beneficiaries, at their own expense, benefitted an
entire class of beneficiaries by successfully restoring assets to a trust. We
held that, under the facts presented in that case, the beneficiaries could be
awarded attorney’s fees from the trust because there was an actual and
direct benefit to the trust. Id., 423-25. Because the Massachusetts Supreme
Judicial Court upheld the decanting, Powell-Ferri ultimately did not restore
any assets to the 1983 trust and, thus, provided no benefit to its corpus.
10
Massachusetts General Laws c. 215, § 45, provides in relevant part: ‘‘In
contested cases before a probate court or before the supreme judicial court
on appeal, costs and expenses in the discretion of the court may be awarded
to either party, to be paid by the other, or may be awarded to either or both
parties to be paid out of the estate which is the subject of the controversy,
as justice and equity may require. In any case wherein costs and expenses,
or either, may be awarded hereunder to a party, they may be awarded to
his counsel or may be apportioned between them. . . .’’ (Emphasis added.)
11
‘‘Although executors . . . are not trustees, they occupy a position in
many respects analogous [to trustees] . . . .’’ (Internal quotation marks
omitted.) Hall v. Schoenwetter, 239 Conn. 553, 559, 686 A.2d 980 (1996).