Solon v. Slater ( 2021 )

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LINDA YOFFE SOLON v. JOSEPH M.
SLATER ET AL.
(AC 42931)
Alvord, Elgo and Alexander, Js.
Syllabus
The plaintiff sought damages from the defendants, the son of her deceased
husband, M, and M’s attorney, J, for, inter alia, tortious interference
with contractual relations relating to an antenuptial agreement executed
by the plaintiff and M and tortious interference with her right of inheri-
tance from M’s estate. The plaintiff and M entered into the antenuptial
agreement a few days prior to their marriage. Approximately six months
later, M was diagnosed with cancer and told that he had less than one
year left to live. Before undergoing palliative surgery in 2013, M signed
a will that was prepared by J. The plaintiff alleges that she and M
discussed amending the antenuptial agreement to provide that certain
of M’s assets, including their marital home, would be transferred to the
plaintiff at the time of his death and that M memorialized the intended
changes in a handwritten note the day after he signed the 2013 will.
Although the plaintiff and M both engaged attorneys to represent them
in negotiations pertaining to the modification of the antenuptial agree-
ment, it was never amended. In early 2014, M signed a second will that
was prepared by an estate planning attorney. It did not reflect the
discussed modifications to the antenuptial agreement and instead left
his residuary estate to a trust benefitting his two adult children from a
prior marriage, including his son. Following M’s death, J submitted an
application to the Probate Court for the admission of the 2014 will. The
plaintiff objected, claiming that, at the time of its execution, M lacked
testamentary capacity and was under the undue influence of the defen-
dants. The Probate Court held an evidentiary hearing and determined
that there was insufficient evidence to prove either of the plaintiff’s
claims. The plaintiff then commenced the present action, claiming that
the defendants manipulated M to prevent him from amending the ante-
nuptial agreement and the 2014 will. The defendants filed motions for
summary judgment arguing that the plaintiff’s claims were barred by
the doctrines of res judicata and collateral estoppel because they pre-
viously had been adjudicated and decided by the Probate Court. On the
basis of the collateral estoppel effect of the Probate Court decree, the
trial court granted the defendants’ motions for summary judgment and
rendered judgment thereon, from which the plaintiff appealed to this
court. Held that the trial court properly rendered summary judgment
in favor of the defendants on the basis of the doctrine of collateral
estoppel with respect to the plaintiff’s tortious interference claims
because the claims presented issues identical to those actually litigated
and necessarily determined by the Probate Court: following a full eviden-
tiary hearing, the Probate Court admitted the 2014 will over the plaintiff’s
objection because it determined that there was insufficient evidence to
show that the disposition of the estate in the 2014 will was the result
of undue influence; moreover, the plaintiff’s tortious interference claims
that were raised in the trial court relied on the same factual predicate
offered in support of her undue influence claim in the Probate Court,
namely, whether the defendants’ alleged conduct rose to a level of
impropriety sufficient to support a finding of tortious conduct; further-
more, because the plaintiff did not appeal from the Probate Court decree,
it was considered a final judgment for the purposes of collateral estoppel.
Argued January 7—officially released May 18, 2021
Procedural History
Action to recover damages for, inter alia, tortious
interference with contractual relations, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Povodator,
J., granted the defendants’ motions for summary judg-
ment with respect to certain counts of the complaint;
thereafter, the plaintiff withdrew the remaining counts
of the complaint; judgment for the defendants, from
which the plaintiff appealed to this court. Affirmed.
Eric D. Grayson, for the appellant (plaintiff).
William N. Wright, with whom, on the brief, was
John W. Cannavino, for the appellees (defendants).
Opinion
ALVORD, J. This appeal arises out of an action by
the plaintiff, Linda Yoffe Solon, in which she alleges
that the defendants, Joseph M. Slater and Joshua Solon,
tortiously interfered with (1) contractual relations
regarding an antenuptial agreement executed by the
plaintiff and her deceased husband, Michael Solon
(decedent), and (2) the plaintiff’s right of inheritance
from the decedent’s estate.1 On appeal, the plaintiff
claims that the trial court erred in rendering summary
judgment in favor of the defendants on the basis that
her claims were barred by the doctrine of collateral
estoppel by virtue of a prior decree of the Probate Court.
We disagree and, accordingly, affirm the judgment of
the trial court.2
The following facts and procedural history are rele-
vant to this appeal. The plaintiff and the decedent first
met in December, 2010. In May, 2013, they were married.
At the time of the marriage, the decedent had two adult
children from a previous marriage: a son, Joshua Solon,
and a daughter, Carly Solon. Slater was both a longtime
friend and attorney of the decedent.
On or about May 22, 2013, just prior to getting mar-
ried, the plaintiff and the decedent executed an ante-
nuptial agreement. The antenuptial agreement pro-
vided, inter alia, for the plaintiff to have a life estate
interest in the real property located at 49 Alexandra
Drive in Stamford (Stamford home). The antenuptial
agreement further provided that the decedent’s estate
would be responsible for paying the mortgage, property
taxes, utilities, and associated expenses and repairs at
the Stamford home.
In November, 2013, approximately six months after
the plaintiff’s marriage to the decedent, the decedent
was diagnosed with pancreatic cancer. The prognosis
was that he had less than one year left to live. The
decedent elected a surgical course of treatment. Prior
to surgery, he met with Slater concerning the prepara-
tion of a last will and testament. On November 8, 2013,
the decedent signed a last will and testament prepared
by Slater (2013 will).
After undergoing the surgery, the decedent met with
an estate planning attorney, Howard S. Tuthill III, con-
cerning his estate plan. On February 6, 2014, Tuthill
prepared a second will for the decedent (2014 will).
Shortly after the decedent’s early November diagno-
sis, the plaintiff and the decedent discussed amending
their antenuptial agreement. The plaintiff alleged that
the decedent provided her with a handwritten note
dated November 9, 2013 (November note), the day after
the decedent executed the 2013 will, which purportedly
memorialized the intended changes to the antenuptial
agreement. The November note indicated: ‘‘I want to
get the 200k plus annuity[,] [the plaintiff] will get [the]
ETrade acct[,] [the plaintiff] will get approx 90–110k
dollars.’’
Thereafter, in early 2014, the decedent engaged Attor-
ney Edward Nusbaum to represent him in negotiations
pertaining to modifying the antenuptial agreement. The
plaintiff was represented in the negotiations by Attor-
ney Arnold Rutkin. Although Nusbaum and Rutkin dis-
cussed the proposal set forth in the November note,3
the negotiations ultimately failed and the plaintiff and
the decedent never amended their antenuptial agree-
ment.
On March 13, 2014, the decedent left the Stamford
home to reside at the home of his former wife, Lori
Solon, on Long Island (Long Island home). The plaintiff
characterized his departure as ‘‘essentially a kidnap-
ping’’ by the defendants, such that the decedent was
‘‘forcibly removed’’ from the Stamford home, in the
‘‘complete control and custody’’ of the defendants, and
‘‘subject to undue influence and manipulation’’ by them.
The defendants produced evidence to the effect that
the decedent’s departure from the Stamford home was
volitional.
From March 13, 2014, until the date of his death, the
decedent resided at the Long Island home. During that
time, he communicated with the plaintiff on a few occa-
sions by e-mail, text message, and telephone; these com-
munications were primarily initiated by the plaintiff.4
The decedent died on April 19, 2014.
On or about June 4, 2014, Slater submitted an applica-
tion to the Probate Court for the admission of the 2014
will.5 The plaintiff filed an objection to its admission,
claiming that the decedent executed the 2014 will under
the defendants’ undue influence6 and also that the dece-
dent had lacked testamentary capacity to execute the
documents.
On October 6, 2014, while the Probate Court proceed-
ings were still pending, the plaintiff commenced an
action in the Superior Court against the defendants,
both individually and in Slater’s fiduciary capacity as
administrator of the decedent’s estate (first action).
Solon v. Slater, Superior Court, judicial district of Stam-
ford-Norwalk, Docket No. CV-XX-XXXXXXX-S (May 12,
2015). Her complaint set forth the following five counts,
all sounding in tort: (1) tortious interference with con-
tractual relations; (2) tortious interference with right
of inheritance; (3) intentional infliction of emotional
distress; (4) negligent infliction of emotional distress;
and (5) negligence. Specifically, the plaintiff alleged
that the defendants, by way of manipulation, prevented
the decedent from amending the antenuptial agreement
or revising his will for the benefit of the plaintiff. As
relief, the plaintiff sought the total value of the assets
of the decedent’s estate that were listed in the Novem-
ber note: $850,000, representing the value of the title
to the Stamford home; $240,500, representing the pro-
ceeds of an annuity held by the decedent; $100,000 from
an E-Trade account held by the decedent; $100,000 from
the decedent’s bank account; and $5,000,000, represent-
ing the decedent’s 50 percent ownership interest in
his family’s business, B&F Electric Motors, Inc. (Solon
estate assets).
The defendants moved to dismiss the first action on
the ground that the Probate Court had not yet ruled on
the admission of the 2014 will and, therefore, there was
no justiciable controversy. By memorandum of decision
dated May 12, 2015, the court, Heller, J., dismissed the
first action against the defendants for lack of subject
matter jurisdiction. The court explained that the Solon
estate assets were subject to the jurisdiction of the
Probate Court: ‘‘All of the property that the plaintiff
argues would have passed to her on the decedent’s
death, but for the defendants’ improper conduct, is pres-
ently subject to the jurisdiction of the Probate Court.
. . . [S]hould the Probate Court admit the February,
2014 will to probate over the plaintiff’s objection, find-
ing that the decedent was not subject to the defendants’
undue influence, the Probate Court’s order will be a
final judgment for res judicata purposes, if no appeal
is taken, and the plaintiff’s claims in this action will be
barred.’’
On June 17, 2015, the Probate Court, Fox, J., held an
evidentiary hearing concerning the plaintiff’s objections
to the admission of the 2014 will. On August 20, 2015,
the Probate Court issued a decree admitting the 2014
will to probate over the plaintiff’s objections (Probate
Court decree). The Probate Court first determined that
‘‘the will was properly executed in accordance with
[General Statutes] § 45a-2517 and that there is insuffi-
cient evidence to show that the decedent did not have
the testamentary capacity to make the subject will at
the time of its execution in accordance with [General
Statutes] § 45a-250.’’8 (Footnote added.) Next, the Pro-
bate Court determined that ‘‘there is insufficient evi-
dence to show that the disposition of the decedent’s
estate in his [2014 will] was a result of undue influence.’’
The plaintiff did not appeal the Probate Court decree.
In making its determination, the Probate Court con-
sidered the following evidence with respect to the dece-
dent’s estate planning. The decedent’s 2014 will pours
his residuary estate into a revocable trust, naming his
children, Joshua Solon and Carly Solon, as the sole
beneficiaries. The decedent provided for the plaintiff
under the antenuptial agreement. The plaintiff testified
that she knew that the decedent was reviewing estate
planning documents with his attorney in the period
from January 14 through February 6, 2014. She was
working during the day and, therefore, did not accom-
pany him to these meetings. However, Joshua Solon
and Slater took the decedent to four or five meetings
that he had with Tuthill.
The Probate Court considered the following evidence
with respect to the decedent’s marriage to the plaintiff
and their antenuptial agreement. The decedent and the
plaintiff first met in December, 2010, and then married
on May 23, 2013. The day before the marriage, the dece-
dent and the plaintiff entered into an antenuptial agree-
ment. The plaintiff testified that the decedent repeat-
edly told her he would ‘‘ ‘take care of her for life,’ ’’ and
that he intended to change the antenuptial agreement
to give her, inter alia, the Stamford home as well as two
generous bank accounts. To support her allegations, the
plaintiff provided the Probate Court with the November
note. The plaintiff testified that, in January and Febru-
ary, 2014, she and the decedent had consulted with
divorce attorneys to amend their antenuptial agreement
to conform to the terms of the November note. This
amended agreement, however, never was finalized.
The Probate Court considered the following evidence
with respect to the decedent’s diagnosis, treatment, and
overall health. The plaintiff testified that in November,
2013, six months after her marriage to the decedent, the
decedent received the diagnosis of late stage pancreatic
cancer. The decedent had palliative surgery, after which
he was prescribed strong pain alleviating drugs. The
plaintiff contended that the decedent was very sick and
heavily medicated.
The Probate Court considered the following evidence
with respect to the plaintiff’s and the defendants’ care
of and visitation with the decedent. Prior to March 13,
2014, the plaintiff testified that Joshua Solon often took
care of the decedent during the day when the plaintiff
was at work. Slater also frequently visited the decedent
at the Stamford home. The plaintiff further testified that
on March 13, 2014, when she came home from work,
the decedent was gone. Joshua Solon and Carly Solon
had taken him from the Stamford home. The plaintiff
stated that she was not allowed to see the decedent or
to ‘‘ ‘say goodbye.’ ’’ Joshua Solon and Carly Solon did
not inform her of the decedent’s death on April 19, 2014.
On September 2, 2015, the plaintiff commenced the
present action. On February 9, 2016, she filed a revised
complaint (operative complaint), which set forth the
same five tort counts contained in the first action: (1)
tortious interference with contractual relations; (2) tor-
tious interference with right of inheritance; (3) inten-
tional infliction of emotional distress; (4) negligent
infliction of emotional distress; and (5) negligence.9 Spe-
cifically, with respect to counts one and two of the
plaintiff’s operative complaint, the plaintiff alleged that
the decedent ‘‘was preparing either by [amendment to
the antenuptial agreement] or by will, to leave [the
plaintiff the Solon estate assets that were listed in the
November note].’’ The plaintiff maintained that the
decedent’s 2014 will was executed ‘‘under the influence
and control’’ of the defendants. The plaintiff further
maintained that the reason that the antenuptial agree-
ment was not modified was because on March 13, 2014,
the defendants, ‘‘acting individually and in concert, forc-
ibly removed and essentially kidnapped [the decedent]
from the marital home . . . so [that the decedent]
would be in their complete control and custody and
under their influence and manipulation.’’ The plaintiff
asserted that the defendants, ‘‘[b]y using their undue
influence and manipulation prior to the time [that] they
took [the decedent] from [the Stamford] home and
thereafter, while he was kept at an undisclosed location
. . . and incommunicado from [the plaintiff], the defen-
dants . . . interfered with [her] contractual relations
and expectancies, in that the terms of the [amendments
to the antenuptial agreement], which had been agreed
to, were never reduced to writing.’’
On April 20, 2017, the defendants separately moved
for summary judgment on the grounds that the plain-
tiff’s claims were barred by the doctrines of res judicata
and collateral estoppel because those claims had been
‘‘previously adjudicated and decided by the Probate
Court.’’ On July 7, 2017, the plaintiff filed a pleading
captioned ‘‘Plaintiff’s limited objection to the portion
of the defendants’ summary judgment motion dealing
with collateral estoppel.’’ On July 10, 2017, the court
heard argument on the pending motions for summary
judgment. On July 24, 2017, both parties submitted sup-
plemental memoranda addressing the potential for the
preclusive effect of a Probate Court decree based on
collateral estoppel.
On January 8, 2018, the trial court, Povodator, J.,
issued a memorandum of decision, in which it rendered
summary judgment in favor of the defendants on counts
one and two of the plaintiff’s complaint, tortious inter-
ference with contractual relations and tortious interfer-
ence with the right of inheritance, based on the collat-
eral estoppel effect of the Probate Court decree.10 The
court determined that the doctrine of res judicata did
not bar the plaintiff’s claims.11 In its memorandum of
decision, the court found that ‘‘[t]he first two claims—
tortious interference with contractual relations and
with a right of inheritance—are dependent on a level
of impropriety that is foreclosed by the Probate Court
order. There needs to be tortious conduct that interferes
with some right of the plaintiff, and the contractual
and inheritance-based claims seem to be necessarily
dependent on the claimed wrongfulness of conduct
directed to the [antenuptial] agreement and operative
will.’’ The court observed that the plaintiff’s claims
asserted in the Superior Court rested on ‘‘the same
factual predicate’’ as the plaintiff’s claims in the Probate
Court. Accordingly, the court held that, in light of the
Probate Court’s determination that the 2014 will ‘‘was
not the product of undue influence or lack of testamen-
tary capacity . . . [and] the interrelationship between
the [antenuptial] agreement and the will with respect
to the ultimate disposition of the decedent’s estate, the
claim [in this action] of some wrongfulness [concerning
the disposition of the decedent’s estate] cannot survive
the determination by the Probate Court that the will
properly reflected the final wishes of the decedent.’’
This appeal followed.12
Before addressing the plaintiff’s claim on appeal, we
note the applicable standard of review. ‘‘Practice Book
[§ 17-49] provides that summary judgment shall be ren-
dered forthwith if the pleadings, affidavits and any other
proof submitted show that there is no genuine issue as
to any material fact and that the moving party is entitled
to judgment as a matter of law. . . . In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party. . . . The party seeking summary judgment
has the burden of showing the absence of any genuine
issue [of] material facts which, under applicable princi-
ples of substantive law, entitle him to a judgment as a
matter of law . . . and the party opposing such a
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . . [T]he scope of our review of the trial court’s
decision to grant the [defendant’s] motion for summary
judgment is plenary. . . . Additionally, the applicabil-
ity of the doctrine of collateral estoppel presents a
question of law, over which this court’s review is also
plenary.’’ (Citation omitted; internal quotation marks
omitted.) Doyle v. Universal Underwriters Ins. Co., 179
Conn. App. 9, 13–14, 178 A.3d 445 (2017).
‘‘The fundamental principles underlying the doctrine
are well established. Collateral estoppel, or issue pre-
clusion, is that aspect of res judicata which prohibits
the relitigation of an issue when that issue was actually
litigated and necessarily determined in a prior action
between the same parties upon a different claim. . . .
For an issue to be subject to collateral estoppel, it must
have been fully and fairly litigated in the first action.
It also must have been actually decided and the decision
must have been necessary to the judgment. . . .
‘‘An issue is actually litigated if it is properly raised
in the pleadings or otherwise, submitted for determina-
tion, and in fact determined. . . . An issue is necessar-
ily determined if, in the absence of a determination of
the issue, the judgment could not have been validly
rendered. . . . To establish whether collateral estop-
pel applies, the court must determine what facts were
necessarily determined in the first trial, and must then
assess whether the [party] is attempting to relitigate
those facts in the second proceeding. . . . In order for
collateral estoppel to bar the relitigation of an issue in
a later proceeding, the issue concerning which relitiga-
tion is sought to be estopped must be identical to the
issue decided in the prior proceeding.’’ (Citation omit-
ted; emphasis in original; internal quotation marks omit-
ted.) Kimberly C. v. Anthony C., 179 Conn. App. 856,
861, 182 A.3d 106 (2018).
On appeal, the plaintiff claims that the trial court
erred in rendering summary judgment with respect to
the two tortious interference counts on the basis of
collateral estoppel barring the relitigation of issues
decided by the Probate Court decree. Specifically, the
plaintiff argues that she ‘‘did not have a full and fair
opportunity to litigate her tort claims seeking money
damages before the Probate Court, which only had juris-
diction to decide the questions of testamentary capacity
and undue influence [as] to the execution of the Febru-
ary 2014 will.’’ The plaintiff maintains that ‘‘since the
Probate Court . . . did not have jurisdiction, exclusive
or otherwise over . . . count [one], tortious interfer-
ence with a contractual expectancy or count [two],
tortious interference with the expectation of an inheri-
tance, there can be no collateral estoppel as a matter
of law . . . .’’13 (Internal quotation marks omitted.) In
response, the defendants contend that ‘‘[i]n both the
Probate Court proceeding and the Superior Court
action, the plaintiff claimed that . . . the defendants
engaged in wrongful conduct that constituted undue
influence in order to prevent the decedent from [amend-
ing the antenuptial agreement] and cause him to exe-
cute the [2014 will], thereby preventing the plaintiff
from receiving the Solon estate assets’’ that were listed
in the November note. The defendants further maintain
that ‘‘[t]his alleged wrongdoing is the dispositive issue
that is common to both the Probate Court proceeding
and this action. It was decided against the plaintiff in
the Probate Court following a full evidentiary hearing.
Consequently . . . the Probate Court decree precludes
the plaintiff’s tortious interference claims in the Supe-
rior Court action.’’ We agree with the defendants.
We begin by determining what facts were necessarily
determined in the Probate Court. See Kimberly C. v.
Anthony C., supra, 179 Conn. App. 861. The Probate
Court, after a full evidentiary hearing with respect to
the issue of whether the defendants exerted undue influ-
ence over the decedent, admitted the decedent’s 2014
will over the plaintiff’s objection, determining, inter alia,
that ‘‘there is insufficient evidence to show that the
disposition of the decedent’s estate in his [2014 will]
was a result of undue influence.’’
‘‘Undue influence is the exercise of sufficient control
over the person, the validity of whose act is brought in
question, to destroy his free agency and constrain him
to do what he would not have done if such control had
not been exercised. . . . It is stated generally that there
are four elements of undue influence: (1) a person who
is subject to influence; (2) an opportunity to exert undue
influence; (3) a disposition to exert undue influence;
and (4) a result indicating undue influence.’’ (Citation
omitted; internal quotation marks omitted.) Dinan v.
Marchand, 279 Conn. 558, 560 n.1, 903 A.2d 201 (2006).
The party claiming undue influence must show by a
fair preponderance of the evidence that the influence
was undue. See Vaicunas v. Gaylord, 196 Conn. App.
785, 803 n.5, 230 A.3d 826 (2020); Connecticut Civil Jury
Instructions 4.2-15, available at https://www.jud.ct.gov/
JI/Civil/Civil.pdf (last visited April 29, 2021).
‘‘The levels of susceptibility and pressure needed to
prove undue influence have been fully summarized by
[our Supreme Court].’’ Stanton v. Grigley, 177 Conn.
558, 565, 418 A.2d 923 (1979). ‘‘Pressure of whatever
character, whether acting on the fears or hopes—if so
exerted as to overpower volition without convincing
the judgment—is a species of constraint under which
no will can be made. Importunity or threats, such as the
[testator] has not the courage to resist, moral command
asserted and yielded to for the sake of peace and quiet,
or of escaping from distress of mind or social discom-
fort—these, if carried to a degree in which the free
play of the [testator’s] judgment, discretion, or wish, is
overborne, will constitute undue influence, though no
force was either used or threatened. . . . [Undue influ-
ence] is shown by all the facts and circumstances sur-
rounding the [testator], the family relations, the will,
[his] condition of mind, and of body as affecting [his]
mind, [his] condition of health, [his] dependence upon
and subjection to the control of the person influencing,
and the opportunity of such person to wield such an
influence. Such an undue influence may be inferred as
a fact from all the facts and circumstances aforesaid,
and others of like nature that are in evidence in the
case, even if there be no direct and positive proof of the
existence and exercise of such an influence.’’ (Internal
quotation marks omitted.) Lee v. Horrigan, 140 Conn.
232, 238–39, 98 A.2d 909 (1953). Furthermore, ‘‘[t]here
must be proof not only of undue influence but that its
operative effect was to cause the testator to make a will
which did not express his actual testamentary desires.’’
Lancaster v. Bank of New York, 147 Conn. 566, 573–74,
164 A.2d 392 (1960); Vaicunas v. Gaylord, supra, 196
Conn. App. 804.
In its decree, the Probate Court reviewed the evi-
dence submitted by the plaintiff in support of her claim
of undue influence. Specifically, the Probate Court
described the plaintiff’s evidence pertaining to her mar-
riage to the decedent, the decedent’s diagnosis, treat-
ment, and overall health, as well as the defendants’ care
and visitation of the decedent. In addition, the Probate
Court discussed the plaintiff’s evidence pertaining to
the antenuptial agreement, the decedent’s 2014 will, the
November note, the negotiations to amend the antenup-
tial agreement, the defendants’ involvement with the
decedent’s estate planning, as well as the events sur-
rounding the decedent’s departure from the Stamford
home. Considering all of the aforementioned evidence,
the Probate Court necessarily determined that this fac-
tual predicate presented by the plaintiff did not rise to
a level of impropriety by the defendants, ‘‘of whatever
character,’’ such as to affect the disposition of the dece-
dent’s estate. (Internal quotation marks omitted.) Lee
v. Horrigan, supra, 140 Conn. 238; see Lancaster v.
Bank of New York, supra, 147 Conn. 573–74.
We next assess whether the plaintiff is attempting
to relitigate in the present action the facts that were
necessarily determined in Probate Court. See Kimberly
C. v. Anthony C., supra, 179 Conn. App. 861. In the
present case, the plaintiff maintains two counts of tor-
tious interference against the defendants: (1) tortious
interference with contract and (2) tortious interference
with right of inheritance.
‘‘[F]or a plaintiff successfully to prosecute . . . an
action [for tortious interference,] it must prove that the
defendant’s conduct was in fact tortious. This element
may be satisfied by proof that the defendant was guilty
of fraud, misrepresentation, intimidation or molestation
. . . or that the defendant acted maliciously. . . . The
burden is on the plaintiff to plead and prove at least
some improper motive or improper means . . . on the
part of the [defendant]. . . . The plaintiff in a tortious
interference claim must demonstrate malice on the part
of the defendant, not in the sense of ill will, but inten-
tional interference without justification.’’ (Internal quo-
tation marks omitted.) Landmark Investment Group,
LLC v. Calco Construction & Development Co., 141
Conn. App. 40, 51, 60 A.3d 983 (2013); see also Hart
v. Hart, Superior Court, judicial district of Windham,
Docket No. CV-XX-XXXXXXX-S (May 11, 2015) (60 Conn.
L. Rptr. 399) (‘‘[g]iven the established elements of a
cause of action for tortious interference with contrac-
tual or beneficial relationships, the anticipated ele-
ments of a claim for tortious interference with an expec-
tancy of inheritance are as follows . . . (3) tortious
conduct by the defendant, such as fraud or undue influ-
ence’’). The plaintiff has the burden of proving tortious
interference by a preponderance of the evidence. Amer-
ican Diamond Exchange, Inc. v. Alpert, 101 Conn. App.
83, 105, 920 A.2d 357, cert. denied, 284 Conn. 901, 931
A.2d 261 (2007).
In support of her claims of tortious interference, the
plaintiff relies on the same factual predicate that she
offered in support of her undue influence claim in Pro-
bate Court. Namely, the plaintiff alleges that the dece-
dent’s 2014 will was executed ‘‘under the influence and
control’’ of the defendants. The plaintiff further main-
tains that the reason that the antenuptial agreement was
not modified was because the defendants, on March
13, 2014, ‘‘acting individually and in concert, forcibly
removed and essentially kidnapped [the decedent] from
the marital home . . . so [that the decedent] would be
in their complete control and custody and under their
influence and manipulation.’’ The plaintiff asserts that
the defendants, ‘‘[b]y using their undue influence and
manipulation prior to the time [that] they took [the
decedent] from [the Stamford] home and thereafter
. . . the defendants . . . interfered with [her] contrac-
tual relations and expectancies, in that the terms of the
[amendments to the antenuptial agreement] . . . were
never reduced to writing.’’
Common to a successful prosecution of both of the
plaintiff’s tortious interference claims is the issue of
whether the defendants’ alleged conduct rises to a level
of impropriety that is sufficient to support a finding of
tortious conduct. The Probate Court, however, already
has determined that the aforementioned factual predi-
cate on which the plaintiff relies to support her tortious
interference claims does not rise to a level of impropri-
ety, of whatever character, by the defendants such as
to affect the disposition of the decedent’s estate. In the
Probate Court proceedings and in the present action,
the plaintiff had the burden of proving the impropriety
of the defendants’ conduct by a preponderance of the
evidence. See Vaicunas v. Gaylord, supra, 196 Conn.
App. 803 n.5; Connecticut Civil Jury Instructions, supra,
instruction 4.2-15. Furthermore, as our Supreme Court
has recognized that the legal theories of tortious inter-
ference and undue influence both encompass a broad
range of behavior; see Lee v. Horrigan, supra, 140 Conn.
238; American Diamond Exchange, Inc. v. Alpert,
supra, 101 Conn. App. 91; the plaintiff was not precluded
in the Probate Court proceedings from presenting evi-
dence of the defendants’ improper conduct that would
be relevant to her claims in the present action.
The Probate Court, after a full evidentiary hearing
with respect to the issue of whether the defendants
exerted undue influence over the decedent, admitted
the decedent’s 2014 will over the plaintiff’s objection.
The defendants’ conduct that was alleged by the plain-
tiff in the Probate Court to constitute undue influence
is the same conduct that was alleged by the plaintiff in
the present action to constitute tortious interference.
The plaintiff did not appeal from the Probate Court
decree. The Probate Court decree, therefore, is a final
judgment for the purpose of the doctrine of collateral
estoppel. See General Statutes § 45a-24 (‘‘[a]ll orders,
judgments and decrees of courts of probate, rendered
after notice and from which no appeal is taken, shall
be conclusive and shall be entitled to full faith, credit
and validity and shall not be subject to collateral attack,
except for fraud’’); Heussner v. Day, Berry & Howard,
LLP, 94 Conn. App. 569, 576, 893 A.2d 486 (‘‘our case
law is clear that Probate Court decrees are final judg-
ments for the purpose of the doctrines of res judicata
and collateral estoppel’’), cert. denied, 278 Conn. 912,
899 A.2d 38 (2006).
Our review of the record indicates that the plaintiff
presents the identical issue in the present action that
was actually litigated and necessarily determined by
the Probate Court. We conclude that the plaintiff is
attempting to relitigate the propriety of the defendants’
conduct with respect to the disposition of the dece-
dent’s estate, and, therefore, the court properly applied
the doctrine of collateral estoppel with respect to
counts one and two of the plaintiff’s complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See footnote 9 of this opinion.
2
The plaintiff additionally challenges the propriety of the trial court’s
denial of her November 21, 2016 motion for an order of compliance and/or
to compel and for sanctions. That motion sought to compel the production
of documents, primarily, e-mails and their attachments, that the defendants
withheld or redacted under a claim of privilege. Because we conclude that
the court properly rendered summary judgment in favor of the defendants
on the basis of collateral estoppel, we need not address the question of
whether the court abused its discretion in denying the plaintiff’s motion
to compel.
3
The plaintiff alleged in her operative complaint that, on January 10, 2014,
Nusbaum sent Rutkin an e-mail confirming the handwritten instructions in
the November note. The January 10, 2014 e-mail stated in relevant part: ‘‘It
is my understanding that [the decedent] wishes to convey the property at
49 Alexandra Drive in Stamford to [the plaintiff], in which title will be held
as joint tenants with rights of survivorship. Upon [the decedent’s] death,
the mortgage on that residence will be paid off by the estate in full within
three months provided there are no complications in probating the estate.
Until such time as the mortgage is retired, the regular monthly payments
on the house will be the responsibility of the estate. [The decedent] will
also transfer his current E-Trade brokerage account from his sole name to
[the decedent and the plaintiff], as joint tenants with rights of survivorship.
[The plaintiff] will also receive the proceeds from [the decedent’s] annuity
currently held by American Legacy in the amount of $240,500. The Webster
Bank checking account, presently held jointly by [the plaintiff] and [the
decedent], will become hers with a guarantee of $100,000 upon his death.’’
4
In her operative complaint, the plaintiff relied on the alleged infrequency
of her communications with the decedent to support her argument that the
decedent’s departure from the Stamford home was involuntary. The plaintiff
further relied on the purported content of an April 19, 2014 telephone call
between the plaintiff and the decedent, in which the decedent allegedly
ended the conversation by saying, ‘‘I have to go—they are coming.’’ The
defendants produced evidence to the effect that the decedent had the ability
to communicate with the plaintiff during this time, as well as other evidence
to the effect that the decedent’s departure from the Stamford home was vol-
untary.
5
The decedent had designated Slater as executor under the 2014 will. As
a result of the anticipated delay in administering the decedent’s estate, the
Probate Court, Caruso, J., appointed Slater as temporary administrator.
6
In the present action, the plaintiff testified in her deposition that the
basis for her claim in the Probate Court was that Slater exercised undue
influence over the decedent ‘‘[b]ecause he was giving [the decedent] advice.’’
The plaintiff further testified that Joshua Solon exercised undue influence
over the decedent because he ‘‘arrange[d] the appointment’’ with Tuthill
pertaining to the decedent’s estate plan and attended that appointment with
the decedent.
7
General Statutes § 45a-251 provides: ‘‘A will or codicil shall not be valid
to pass any property unless it is in writing, subscribed by the testator
and attested by two witnesses, each of them subscribing in the testator’s
presence; but any will executed according to the laws of the state or country
where it was executed may be admitted to probate in this state and shall
be effectual to pass any property of the testator situated in this state.’’
8
General Statutes § 45a-250 provides: ‘‘Any person eighteen years of age
or older, and of sound mind, may dispose of his estate by will.’’
9
The complaint in the present action was nearly identical to the complaint
filed in the first action but for the fact that, in the first action, the plaintiff
also had sued Slater in his fiduciary capacity as administrator of the dece-
dent’s estate.
10
The court denied the motions for summary judgment with respect to
counts three through five of the plaintiff’s complaint, finding that neither
res judicata nor collateral estoppel applied to those claims and that the
defendants’ argument that there was no evidence to support the emotional
distress and negligence claims was premature.
The plaintiff filed a motion to reargue the defendants’ motions for sum-
mary judgment with respect to counts one and two of the plaintiff’s com-
plaint. In a memorandum of decision dated April 2, 2018, the court denied
the plaintiff’s motion to reargue.
The plaintiff subsequently withdrew counts three through five as against
Slater and Joshua Solon, respectively.
11
On appeal, the defendants argue that the trial court’s judgment should be
affirmed on the alternative ground that counts one and two of the plaintiff’s
complaint are barred by the doctrine of res judicata on the basis of the
Probate Court’s admission of the 2014 will over the objections of the plaintiff.
Because we affirm the court’s dismissal of counts one and two on the ground
of collateral estoppel, we need not address the defendants’ alternative
ground for affirmance.
12
On May 13, 2019, the plaintiff filed an appeal from the court’s rendering
of summary judgment in favor of Slater on counts one and two. On May
31, 2019, the plaintiff filed an appeal from the court’s rendering of summary
judgment in favor of Joshua Solon on counts one and two, which was treated
as an amended appeal by this court.
13
We note that the plaintiff blurs the distinction between the doctrine of
res judicata, which concerns claim preclusion, and the doctrine of collateral
estoppel, an aspect of res judicata that concerns issue preclusion. See Heus-
sner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 573–74, 893 A.2d
486 (‘‘The common-law doctrine of collateral estoppel, or issue preclusion,
embodies a judicial policy in favor of judicial economy, the stability of
former judgments and finality. . . . Collateral estoppel means simply that
when an issue of ultimate fact has once been determined by a valid and
final judgment, that issue cannot again be litigated between the same parties
in any future lawsuit.’’ (Emphasis added; internal quotation marks omitted.)),
cert. denied, 278 Conn. 912, 899 A.2d 38 (2006).