In re Probate Appeal of Tunick ( 2022 )

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IN RE PROBATE APPEAL OF STEPHEN TUNICK
(AC 43486)
Bright, C. J., and Moll and Bear, Js.
Syllabus
The plaintiff T appealed to the Superior Court from the decree of the Probate
Court approving the payment of attorney’s fees to the defendant D for
services rendered to certain cotrustees of a trust of which T was a
remainder beneficiary. In 2017, T filed the underlying probate appeal,
asserting that he was aggrieved by the decree. In 2019, the trial court
dismissed the appeal following a trial de novo, concluding that T had
failed to demonstrate that he was aggrieved because, inter alia, distribu-
tion of the attorney’s fees to D was premature in light of a pending
forensic accounting. Following the judgment of dismissal, but before
the plaintiff filed the present appeal, the successor trustee of the trust,
M, filed with the Probate Court a motion for advice, requesting permis-
sion to distribute trust funds to D for his attorney’s fees. The Probate
Court then issued a second decree allowing the distribution to D. T filed
another probate appeal to the Superior Court from the second decree,
which remains unresolved. Subsequently, T appealed to this court, claim-
ing that the trial court improperly concluded that he was not aggrieved
by the first probate decree and failed to consider certain trust documents
in rendering its judgment. Held that this court concluded that it need
not examine the merits of T’s claims, the appeal having been rendered
moot following the entry of the second probate decree; moreover, if
this court were to grant the relief requested by T, it would have been
purely academic because the first probate decree, wherein the Probate
Court authorized the payment of attorney’s fees to D, was superseded
by the second probate decree, wherein the Probate Court permitted M
to distribute the same funds to D, and, accordingly, the first probate
decree was no longer in effect and no practical relief could be afforded
to T as to that decree; furthermore, proceedings in the second probate
appeal, which encompassed the same claims raised by T in the first
probate appeal, remained ongoing.
Argued November 8, 2021—officially released October 4, 2022
Procedural History
Appeal from the decree of the Probate Court for
the district of Greenwich approving the payment of
attorney’s fees to the defendant Richard S. DiPreta,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the court, Sommer, J.;
judgment dismissing the appeal, from which the plain-
tiff appealed to this court. Appeal dismissed.
Laurel Fedor, for the appellant (plaintiff).
Cynthia Andrews DiPreta, for the appellee (defen-
dant).
Opinion
MOLL, J. The plaintiff, Stephen Tunick, appeals from
the judgment of the trial court dismissing his appeal
from a probate decree approving the payment of attor-
ney’s fees to the defendant, Richard S. DiPreta. On
appeal, the plaintiff claims that the court improperly
(1) concluded that he was not aggrieved by the probate
decree and (2) failed to consider certain trust docu-
ments in rendering its judgment. We do not reach the
merits of these claims because we conclude that the
probate decree at issue in this appeal was superseded
by a subsequent probate decree, which is the subject
of a separate probate appeal pending in the Superior
Court, and, therefore, we dismiss this appeal as moot.
The following facts, as found by the trial court or as
undisputed in the record, and procedural history are
relevant to our disposition of this appeal. The plaintiff
is a remainder beneficiary of a trust executed in 1981
by the plaintiff’s father, who died in 1997. At the time
of the father’s death, there were three cotrustees of the
trust: (1) the plaintiff; (2) the plaintiff’s sister, Barbara
Tunick (Barbara); and (3) the plaintiff’s mother, Sylvia
Tunick (Sylvia). On July 7, 2004, the Probate Court
for the district of Greenwich, Caruso, J., removed the
plaintiff as cotrustee of the trust. Thereafter, Barbara
and Sylvia continued to function as cotrustees of the
trust until June 11, 2013, when the Probate Court, Hop-
per, J., removed them from those roles and appointed
Richard J. Margenot as the successor trustee.
In March, 2015, the defendant filed with the Probate
Court a petition seeking approval and payment of attor-
ney’s fees for services that he had rendered to Barbara
and Sylvia in their capacities as cotrustees of the trust.
On March 7, 2017, the Probate Court issued a decree
approving the payment of $109,133.74 to the defendant
(2017 probate decree).
Soon thereafter, the plaintiff filed the underlying pro-
bate appeal in the Superior Court challenging the 2017
probate decree (2017 probate appeal). In his operative
complaint, which was his second revised complaint
filed on November 15, 2018, the plaintiff asserted that
he was aggrieved by the 2017 probate decree on the
basis of his belief ‘‘that the [attorney’s] fees have been
double billed and reimbursement has already been
made with prior distributions as accounted for in the
trust accountings. Such accountings are currently being
investigated pursuant to [a civil] action in the Superior
Court [commenced by the plaintiff in 2017; see Tunick
v. Tunick, Superior Court, judicial district of Fairfield,
Docket No. CV-XX-XXXXXXX-S (2017 civil action)]; for
breach of fiduciary duty against the former trustees of
the [trust]. The Probate Court has entered orders to
appoint an independent forensic accountant to deter-
mine indiscretions and/or illegal acts of the trustees.
Therefore, any distribution, if warranted, is premature
until the forensic accounting has been completed.’’1
On May 10, 2019, following a trial de novo, the trial
court, Sommer, J., issued a memorandum of decision
dismissing the 2017 probate appeal.2 The court con-
cluded that the plaintiff failed to demonstrate that he
was aggrieved by the 2017 probate decree because, as
he had asserted in his operative complaint, distribution
of the $109,133.74 sum to the defendant was ‘‘premature
in light of the pending forensic accounting’’3 referenced
in the plaintiff’s operative complaint. The court further
concluded that the claims raised by the plaintiff were
outside of the scope of the 2017 probate decree from
which he appealed. The court also declined to order
payment of the $109,133.74 sum to the defendant on
the ground that payment was premature in light of the
pending forensic accounting. Additionally, addressing
‘‘an issue of the procedure for application of payment
of attorney’s fees,’’ the court determined that, ‘‘because
. . . attorney’s fees are a personal obligation of [a] fidu-
ciary, in this case the trustees, the request for approval
and payment [of the $109,133.74 sum] from the trust
must be made by the trustees, not the payee attorney.’’
On October 11, 2019, after the court had denied a motion
for clarification and reargument that the plaintiff had
filed,4 the plaintiff filed this appeal taken from the May
10, 2019 judgment.
On June 3, 2019, following the May 10, 2019 judgment
but before the plaintiff had filed this appeal, Margenot,
acting in his capacity as successor trustee, filed with
the Probate Court a motion for advice, requesting per-
mission to distribute $109,133.76 in trust funds to the
defendant ‘‘in light of’’ the May 10, 2019 judgment dis-
missing the 2017 probate appeal. On July 1, 2019, the
Probate Court, Hopper, J., issued a decree allowing
the distribution of $109,133.76 to the defendant (2019
probate decree).5
Subsequently, the plaintiff filed with the Superior
Court an appeal from the 2019 probate decree. See
Tunick v. DiPreta, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S (2019
probate appeal). In his most recent complaint filed in
the 2019 probate appeal, which is his second revised
complaint filed on June 28, 2021, the plaintiff asserted as
follows with respect to the portion of the 2019 probate
decree authorizing payment of the $109,133.76 sum to
the defendant:
‘‘(i) The [plaintiff] has claimed that the [attorney’s]
fees have been double billed and reimbursement has
already been made with prior distributions as
accounted for in the trust accountings.
‘‘(ii) The [Probate] Court failed to take the double
billing into consideration, thereby reducing the defen-
dant’s claimed attorney’s fees owed.
‘‘(iii) Such accountings are currently being investi-
gated pursuant to [the 2017 civil action] . . . .
‘‘(iv) The Probate Court has entered orders to appoint
an independent forensic accountant to determine if
there are indiscretions and/or illegal acts of the [t]rust-
ees.
‘‘(v) The forensic accountant is appointed and work-
ing on the review.
‘‘(vi) Therefore, any distribution [of the attorney’s
fees] is erroneous . . . . The [plaintiff] has been
aggrieved by the distribution of said attorney’s fees
. . . .’’ (Citation omitted.) To date, the plaintiff’s claim
in the 2019 probate appeal concerning the $109,133.76
sum remains unresolved.6
The plaintiff raises two claims on appeal. First, he
asserts that the court improperly concluded that he was
not aggrieved by the 2017 probate decree. Second, he
asserts that the court improperly failed to consider cer-
tain trust documents before rendering the May 10, 2019
judgment. We need not examine the merits of these
claims because we conclude that this appeal has been
rendered moot following the entry of the 2019 probate
decree.7
‘‘Mootness implicates [the] court’s subject matter
jurisdiction and is thus a threshold matter for us to
resolve. . . . It is a well-settled general rule that the
existence of an actual controversy is an essential requi-
site to appellate jurisdiction; it is not the province of
appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . Because mootness implicates subject matter juris-
diction, it presents a question of law over which our
review is plenary. . . . Mootness presents a circum-
stance wherein the issue before the court has been
resolved or had lost its significance because of a change
in the condition or affairs between the parties. . . . A
case is moot when due to intervening circumstances
a controversy between the parties no longer exists.’’
(Internal quotation marks omitted.) Barber v. Barber,
193 Conn. App. 190, 220–21, 219 A.3d 378 (2019).
The plaintiff requests as relief on appeal that we
reverse the May 10, 2019 judgment and remand the case
to the Superior Court with direction to sustain the 2017
probate appeal taken from the 2017 probate decree or,
alternatively, to conduct a new trial. Granting such relief
would be purely academic. The 2017 probate decree,
wherein the Probate Court, in acting on a petition filed
by the defendant, authorized payment of the $109,133.74
sum to the defendant, was superseded by the 2019 pro-
bate decree, wherein the Probate Court, in resolving a
motion filed by Margenot, permitted Margenot to dis-
tribute the same funds to the defendant. See footnote
5 of this opinion. Accordingly, the 2017 probate decree
is no longer in effect and no practical relief can be
afforded to the plaintiff as to that decree, rendering
this appeal moot.8 See, e.g., Dempsey v. Cappuccino,
200 Conn. App. 653, 659, 240 A.3d 1072 (2020) (subse-
quent visitation orders superseded orders challenged
on appeal, rendering appeal moot); Thunelius v.
Posacki, 193 Conn. App. 666, 686, 220 A.3d 194 (2019)
(subsequent orders addressing appointment of guardian
ad litem for child superseded order challenged on
appeal, rendering portion of appeal moot). Moreover,
as we noted earlier in this opinion, proceedings in the
2019 probate appeal, which encompasses the same
claims raised by the plaintiff in the 2017 probate appeal,
remain ongoing. See Murphy’s Appeal from Probate,
22 Conn. App. 490, 496–97, 578 A.2d 661 (in affirming
Superior Court’s judgment dismissing plaintiff’s probate
appeals, which challenged orders concerning adminis-
tration of estate, as moot following distribution of
estate’s property and approval of final accounting,
agreeing with Superior Court’s conclusion that sepa-
rate, pending probate appeal taken by plaintiff from
approval of final accounting ‘‘sufficiently protect[ed]’’
plaintiff’s rights), cert. denied, 216 Conn. 823, 581 A.2d
1057 (1990).
The appeal is dismissed.
In this opinion the other judges concurred.
1
On June 12, 2018, in granting a motion to strike filed by the defendant,
the trial court, Jacobs, J., struck portions of the plaintiff’s original complaint
filed in the 2017 probate appeal. The plaintiff’s operative complaint contained
three subparagraphs that were intentionally left blank and not repleaded in
order to preserve his appellate rights. The June 12, 2018 decision is not at
issue in this appeal.
2
We observe that ‘‘[a]n appeal from a Probate Court to the Superior Court
is not an ordinary civil action. . . . When entertaining an appeal from an
order or decree of a Probate Court, the Superior Court takes the place of
and sits as the court of probate. . . . In ruling on a probate appeal, the
Superior Court exercises the powers, not of a constitutional court of general
or common law jurisdiction, but of a Probate Court. . . . When, as here,
no record was made of the Probate Court proceedings, the absence of a
record requires a trial de novo.’’ (Citation omitted; internal quotation marks
omitted.) Silverstein v. Laschever, 113 Conn. App. 404, 409, 970 A.2d 123(2009).
3
On January 31, 2017, the Probate Court, Hopper, J., in acting on a motion
to compel an independent forensic accounting filed by the plaintiff, issued
an order, with the agreement of the parties, appointing an accounting firm
to perform a forensic accounting ‘‘of all [t]rust finances from the period of
1997 to [September 11, 2013].’’
4
On May 30, 2019, the plaintiff filed a motion for clarification and reargu-
ment, which the court, Hernandez, J., denied on June 17, 2019. On June
26, 2019, the plaintiff filed a motion to reargue and to vacate Judge Hernan-
dez’ order, arguing that the motion for clarification and reargument should
have been adjudicated by Judge Sommer, who had rendered the May 10,
2019 judgment. Thereafter, on September 23, 2019, Judge Sommer issued
an order stating that ‘‘[t]he court confirms that it has considered the plaintiff’s
motion [for clarification and reargument] and the motion is denied.’’
5
There is a minute discrepancy between the $109,133.76 figure set forth
in the 2019 probate decree, as well as in Margenot’s motion for advice, and
the $109,133.74 figure set forth in the 2017 probate decree. We do not
consider this discrepancy to be of import, and we construe the attorney’s
fees at issue in the 2017 probate decree and the 2019 probate decree to be
one and the same. During the trial de novo held in the 2017 probate appeal,
the defendant testified that $109,133.74 was the sum that he sought vis-à-
vis the March, 2015 petition that led to the 2017 probate decree. Moreover,
in the motion for advice, Margenot sought permission to distribute trust
funds to the defendant ‘‘in light of’’ the May 10, 2019 judgment.
We also note that the 2019 probate decree addressed the payment of
other fees, which are not germane to this appeal.
6
On July 17, 2019, after the 2019 probate decree had been issued, the
plaintiff filed with the Superior Court in the 2017 probate appeal a motion
for contempt, asserting that Margenot improperly had disbursed trust funds
to the defendant in violation of a stay imposed by the court in this matter
on May 30, 2017, and without court approval. On December 9, 2019, the
court, Krumeich, J., issued a memorandum of decision in which it found
that, by way of a check dated July 10, 2019, Margenot had paid the defendant
$109,133.76, which the defendant then had deposited into his law firm’s
bank account. The court denied the motion for contempt, but ordered the
defendant to deposit $109,133.74 into a separate interest bearing account,
with such funds and any accrued interest not to be ‘‘disbursed until th[is]
appeal from Judge Sommer’s [May 10, 2019 judgment] has been decided
and the rights to receive the funds has been adjudicated or until further
order.’’ We note that the sum that Judge Krumeich found Margenot to have
paid to the defendant ($109,133.76) is not the same as the sum that Judge
Krumeich enjoined the defendant from disbursing ($109,133.74). As we
explain in footnote 5 of this opinion, this discrepancy is of no import.
7
On November 1, 2021, after the parties had filed their respective appellate
briefs and in advance of oral argument before this court, we ordered sua
sponte that ‘‘counsel should be prepared to address at oral argument how,
if at all, the proceedings in [the 2019 probate appeal] affect this appeal. This
includes, but is not necessarily limited to, whether the appeal should be
dismissed (1) for lack of aggrievement in the event the court concludes that
the plaintiff has in effect received the relief he requested in the trial court;
see In re Allison G., 276 Conn. 146, 158 [883 A.2d 1226] (2005); or, alterna-
tively, (2) on the ground that the appeal is moot because the underlying
probate order has been superseded by a subsequent probate order
addressing the same issue. See Thunelius v. Posacki, 193 Conn. App. 666,
686 [220 A.3d 194] (2019).’’ Because we conclude that this appeal is moot,
we need not address the issue of aggrievement.
8
After we had heard oral argument in this appeal, the plaintiff filed an
appeal with the Superior Court taken from a probate decree issued on
December 21, 2021. See Tunick v. DiPreta, Superior Court, judicial district
of Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S. This probate decree
addressed, inter alia, a separate application filed by the defendant seeking
the payment of attorney’s fees. In adjudicating the application, the Probate
Court, Hopper, J., authorized the payment of $140,252.69 to the defendant.
It is not clear whether the $140,252.69 sum encompasses the attorney’s fees
at issue in this appeal. Whatever the nature of the $140,252.59 sum may be,
our conclusion that this appeal is moot remains unchanged.