Virginia D'Addario v. David D'Addario

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Superior Court of Connecticut.

Virginia D'Addario v. David D'Addario

CV094027372

Decided: June 14, 2010

MEMORANDUM OF DECISION

The plaintiff, Virginia D'Addario, appeals from an order of the Probate Court for the District of Trumbull denying her motion to unseal interim accountings filed by the executors of the Estate of F. Francis D'Addario.

The appeal was tried to this court based on a stipulation of facts and documents.   Pursuant to that stipulation, the court finds the following facts.   On March 5, 1986, the decedent, F. Francis D ‘Addario, died intestate leaving a substantial estate that included real estate and business assets, as well as liabilities.   An estate was opened in the Probate Court for the District of Trumbull in 1986.   The plaintiff, Virginia D'Addario, is a daughter of the decedent, a beneficiary named in the decedent's will and a named beneficiary of a trust created by the decedent's will.   The defendants named in this appeal are the plaintiff's siblings, David D'Addario and Lawrence D'Addario executors of the estate, sons of the decedent and named beneficiaries of the trust;  Mary Lou D'Addario Kennedy, a daughter of the decedent and a named beneficiary under the trust;  the decedent's surviving spouse, Ann D'Addario, a named beneficiary under a marital trust which is a beneficiary of the estate, and the Trumbull Probate Court.

On November 30, 1987, the plaintiff and the executors of the estate entered into an extensive written agreement pursuant to which the plaintiff received a promissory note in the amount of $3.9 million together with interest thereon.   In return for and as consideration for the receipt of the promissory note, the plaintiff relinquished her rights to participate in or take part in the estate deliberations or decisions.   Specifically, the plaintiff agreed that “In consideration of the undertakings by the other parties to this [a]greement, and in recognition that this [a]greement and the undertakings of the parties to this [a]greement are extraordinary to the normal conduct of the business of the estate, [the plaintiff] hereby agrees that ․ she shall not be entitled to and will not participate in or take part in [e]state deliberations or decisions as regards the [e]state or its property.   She further waives any and all rights in equity and in law which may now or hereafter exist in her favor against the [e]xecutors as regards their administration of the [e]state and the validity of their decisions, including the rights to maintain a lawsuit of any nature against the [e]xecutors or the [e]state in any matters relating to the [e]state, its administration, the businesses or business interest of the [d]ecedent, or sales or dispositions of the [d]ecedent's properties, except for willful fraud, malfeasance or dishonesty.   Material data involving the [e]state will be furnished to counsel appointed by [the plaintiff] from time to time on a periodic basis.”   This agreement was approved by the Probate Court.

Notwithstanding this agreement, the plaintiff brought five probate appeals.   The executors thereupon brought a civil action in this court seeking an injunction prohibiting the plaintiff from pursuing the then pending probate appeals or filing other litigation precluded by the agreement.

After a trial on the merits, the court (Hodgson, J.), on March 1, 1991, enjoined the plaintiff from pursuing four of her five appeals.   The court, however, held that the executors had failed to prove that the plaintiff contractually relinquished her right to bring the fifth appeal, which was an appeal from an order of the Probate Court denying for lack of standing a motion she had filed, entitled “motion for additional disclosure,” in connection with an interim accounting filed by the executors.

For many years, the estate has been in litigation with the Cadle Company, a creditor of the estate.   On February 15, 2006, the Probate Court convened a status conference to determine the current status of creditor claims and to attempt to create a time table to advance, and eventually close the estate.   Neither the plaintiff nor her counsel was given notice of the conference.1  During the conference, the attorney for the estate and the attorney for Cadle Company discussed the progress of Cadle's Company's appeal of an order of the Probate Court.

The parties have further stipulated to the following facts.   At the February 15, 2006 status conference, it was agreed that once the Superior Court had disposed of Cadle Company's appeal, it would be appropriate for the estate to file interim and/or final accounts for disposition by the Probate Court.   However, this was not made an order of the Probate Court, as displayed by the court's General Index.   The only record of the status conference are the handwritten notes of the clerk of the court, Liz Frassenelli.2  After much discussion, it was agreed at the conference that, in order to advance the closing of the estate, the executors would begin to file interim annual accountings with the court provided the court agreed to seal any and all interim accountings filed until the parties and the court all agreed to unseal them.   The executors complied and filed seven interim accountings which were immediately sealed by the clerk.

On June 10, 2008, counsel for the plaintiff filed a motion to unseal the interim accountings.   On July 24, 2008, the Probate Court held a hearing on the motion and, on the same day, that court denied the motion.   The plaintiff filed the present appeal of this decision on January 12, 2009.

I

We begin with the standard of review.  “An 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.”  (Citations omitted;  internal quotation marks omitted.)  State v. Gordon, 45 Conn.App. 490, 494, 696 A.2d 1034, cert. granted on other grounds, 243 Conn. 911, 701 A.2d 336 (1997) (appeal dismissed October 27, 1998).   When, as here, no record was made of the Probate Court proceedings, the absence of a record requires a trial de novo.   See Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996).   Additionally, “[a]lthough the Superior Court may not consider events transpiring after the Probate Court hearing ․ it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered.”  (Citation omitted.)  In re Andrews' Appeal from Probate, 78 Conn.App. 429, 439 (2003).

The defendants' first claim is that the plaintiff lacked standing to bring this appeal because she waived her rights to do so in the 1987 agreement.3  Specifically, the defendants argue that the gravamen of the plaintiff's appeal is not an order of the Probate Court but a decision of the executors as regards the administration of the estate.   That is, the defendants contend that even if the Probate Court was desirous of their filing an interim account, it did not order them to do so and that they agreed to file such an account only if the Probate Court, in turn, agreed to seal that document.4  Therefore, the defendants argue, the decision to file interim accounts was actually a product of the defendants' decision-making process, not the court's, and that the plaintiff in the 1987 agreement waived her right to question the decisions of the defendants as executors and consequently lacks standing to maintain this appeal.   The defendants also argue that if the plaintiff wanted material data pertaining to the estate, her remedy was to ask them for that data.

“If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause ․ The concept of standing, as presented by the question of aggrievement, is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court ․ In order to establish standing to appeal from a probate matter, a party must show that he or she is aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law ․ General Statutes § 45a-186(a).   The test for determining whether a party has been aggrieved by a Probate Court decision is whether there is a possibility, as distinguished from a certainty, that some legally protected interest that [the party] has in the estate has been adversely affected ․ This interest may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant ․” (Citations omitted;  internal quotation marks omitted.)   McBurney v. Cirillo, 276 Conn. 782, 820-21, 889 A.2d 759 (2006).

“Waiver is the intentional relinquishment or abandonment of a known right or privilege ․ As a general rule, both statutory and constitutional rights and privileges may be waived ․ Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced ․ Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed ․ Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied ․ In other words, waiver may be inferred from the circumstances if it is reasonable to do so.”  (Citations omitted;  internal quotation marks omitted.)  Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 57-58, 970 A.2d 656, cert. denied sub nom.  Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 130 S.Ct. 500, 175 L.Ed.2d 348 (2009).

Resolution of the issue of whether the plaintiff waived her right to contest the sealing of the interim accounting turns on the language of the 1987 agreement.   Although that agreement was approved by the Probate Court, its interpretation is governed by contract principles.  Ahmadi v. Ahmadi, 294 Conn. 384, 390, 985 A.2d 319 (2009).  “[A] stipulation of the parties is to be regarded and construed as a contract ․ In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties ․” (Citations omitted;  internal quotation marks omitted.)  Sullivan v. Delisa, 101 Conn.App. 605, 621, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007).

“In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together ․ The contract must be construed to give effect to the intent of the contracting parties ․ This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained ․ [I]ntent ․ is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract ․ [Where] ․ there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law ․” (Citations omitted;  internal quotation marks omitted.)  Reichenbach v. Kraska Enterprises, LLC, 105 Conn.App. 461, 475-76, 938 A.2d 1238 (2008).   A “contract is ambiguous if [the] agreement on its face is reasonably susceptible of more than one interpretation.”  Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28, 36, 900 A.2d 513 (2006).

The court is not persuaded by the defendants' arguments.   In the 1987 agreement, the plaintiff waived any right to participate in estate deliberations or decisions and further waived her rights against the executors in connection with the administration of the estate, and the validity of their decisions, in eluding the rights to maintain a lawsuit of any nature against the executors or the estate in any matters relating to the estate and its administration, except in case of willful fraud, malfeasance or dishonesty.   The gist of her appeal, however, does not pertain to the actions of the executors.   Indeed, implicit in the appeal is her agreement with the executors' filing an interim accounting.   It is true that she disagrees with the executors' desire to keep that accounting under seal, but it is not from that desire that she appeals.   Rather, it is the decision of the Probate Court to seal the accounting, to not give her notice of its filing, and not to unseal it at her request from which she appeals.   These are not matters which are within the ambit of the waiver in the 1987 agreement, which did not surrender all of the plaintiff's rights with respect to the estate.5  To the contrary, the 1987 agreement states that “[m]aterial data involving the [e]state will be furnished to counsel appointed by [the plaintiff] from time to time on a periodic basis.” 6  The agreement also permits the plaintiff to commence suit against the executors or the estate for “willful fraud, malfeasance or dishonesty.”   Material data involving the estate, including interim accountings, may be necessary to determine the existence of fraud or dishonesty.

Additionally, while the original idea to seal the interim account may have originated with the executors, that position also did not pertain to deliberation or decisions regarding the estate or to any matters relating to its administration.   Rather, sealing the interim account pertained to the operation of the Probate Court, not the estate.   Such a decision by the court may be contrasted with decisions of the court approving actions of the executors, such as the retaining of attorneys, accountants or other experts, paying those experts, buying or selling property, making interim distributions and, generally, approving interim or final accountings.

The defendants concede that absent the 1987 agreement, the plaintiff, as an heir under the decedent's will, would have standing to challenge the order of the probate court agreeing to seal the interim accountings and denying the plaintiff's motion to unseal the accountings.

Accordingly, the court finds that the plaintiff as an heir at law of the decedent, is aggrieved by the action of the Probate Court and may maintain this appeal.

II

The court turns to the merits of the appeal.   The plaintiff claims that the Probate Court acted improperly in sealing the executors' interim accounting.   She argues that although Practice Book § 11-20A 7 is not strictly applicable to probate courts, this court should look to that provision as a “guide.”   Although the defendants discuss that they desired the interim accounting sealed because of the Cadle Company litigation, they provide no legal basis on which the Probate Court could seal that accounting.   Nonetheless, because the court determines that the interim accounting is not a “judicial document,” the court concludes that the accounting was properly sealed and should remain sealed.

We begin with the unremarkable observation that the Probate Court is a “court” in the sense of “[a] body in the government to which the public administration of justice is delegated.”  (Internal quotation marks omitted.)  Alcorn v. Fellows, 102 Conn. 22, 29, 127 A. 911 (1925).   Article Fifth § 1 of the Constitution of the State of Connecticut provides:  “The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish.   The powers and jurisdiction of these courts shall be defined by law.”   Inferior courts include probate courts.   See Walkinshaw v. O'Brien, 130 Conn. 122, 129, 32 A.2d 547 (1943).  “The Probate Court is a court of limited jurisdiction prescribed by statute ․” Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365 (2008).  “The Probate Court generally has no jurisdiction over equitable claims, the sole exception being when the equitable claim is incidental to, and connected with, the settlement of a particular estate.”  Bender v. Bender, 292 Conn. 696, 707, 975 A.2d 636 (2009).

Practice Book § 11-20A does not apply to Probate Courts.   Practice Book rules “are expressly limited in scope to practice and procedure in the Superior Court;  Practice Book § [1-1];  and do not purport to reach beyond such limits.”  (Internal quotation marks omitted.)  In re Samantha C., 268 Conn. 614, 639, 847 A.2d 883 (2004).   However, the Supreme Court has squarely held that “ § 11-20A codifies the common-law presumption of public access to judicial documents ․” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 292 Conn. 46.   That is, there is “a presumption of public access to court proceedings and records that remains a fundamental part of our judicial system today.”  Id., 34.  “With respect to documents, the presumption of public access never has extended to every document generated in the course of litigation.”  Id., 36.  “The presumption of public access applies only to ‘judicial’ documents and records.”  Id., 37.

“[J]udicial documents are those filed with a court upon which the court reasonably could rely in the performance of its adjudicatory function ․” Id., 47-48.   A governmental body performs an “adjudicative function” when it determines the rights, duties and obligations of specific individuals as created by past transactions or occurrences.   See Board of Supervisors v. Dept. of Revenue, 263 N.W.2d 227, 239 (Iowa 1978).

Courts in other jurisdictions which utilize the same definition of judicial document as that adopted by our Supreme Court in Rosado “have construed judicial documents to include ones filed in support of summary judgment motions, regardless of whether the motion has been granted, denied or even adjudicated;  Lugosch v. Pyramid Co. of Onondaga, [435 F.3d 110, 121 (2d Cir.2006) ];  status reports filed by court officers in connection with a court-mandated investigation;  United States v. Amodeo, [44 F.3d 141, 146 (2d Cir.1995) ];  audio recordings played in open court;  Commonwealth v. Upshur, [592 Pa. 273, 287, 924 A.2d 642 (2007) ];  arrest warrant affidavits filed with a magistrate;  Commonwealth v. Upshur, supra, 282;  and financial affidavits filed in connection with cases involving financial matters.   Associated Press v. New Hampshire, [153 N.H. 120, 134, 888 A.2d 1236 (2005) ].   Indeed, even materials filed in support of discovery motions have been held to be judicial documents.  Mokhiber v. Davis, [537 A.2d 1100, 1111 (D.C.1988) ].   In Mokhiber, the Court of Appeals for the District of Columbia noted that, because discovery motions have a significant impact on the eventual resolution of disputes, the public has an interest in monitoring such proceedings.  Id., 1112.   Although the court recognized that a party might prefer to keep discovered material private, it reasoned that, [b]y submitting pleadings and motions to the court for decision, one enters the public arena of courtroom proceedings and exposes oneself, as well as the opposing party, to the risk, though by no means the certainty, of public scrutiny.'  Id.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 292 Conn. 39-40.

However, to be a judicial document, the document must “relate” to the court's adjudicative function.  Clerk of the Superior Court v. Freedom of Information Commission, 278 Conn. 28, 53, 895 A.2d 743 (2006) (Palmer, J., concurring), cited with approval in Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 292 Conn. 43-44.   Thus, while in Rosado, the court found “that all of the documents, except for a handful of items are judicial documents,” id., 51;  it nonetheless found “a small number of documents, fifteen to be precise, that were not marked in support of any motion or other determination of the court and, therefore, could not have been relied upon in the course of adjudicatory action.   For example, the judicial documents logs list two deposition transcripts that were not filed in connection with any motion.   Such documents clearly are not judicial documents.”  Id., 51-52.

Here, too, the interim accounting was not filed “in connection with any motion” or proceeding.   While Probate Courts typically use interim accountings to approve such items as partial payment of legacies;  see Adams v. Williamson, 150 Conn. 105, 109, 186 A.2d 157 (1962);  In The Matter of Kirkpatrick, 77 P.3d 404, 405 (Wyo.2003);  Woods v. Woods, 36 P.3d 1142, 1144 (Wyo.2001);  and the payment of attorneys fees and fiduciary fees;  Silverstein v. Camposeo, Superior Court, judicial district of Tolland, Docket No. CV 05 4002560 (Sept. 15, 2008, Vacchelli, J.);  State v. Gordon, Superior Court, judicial district of Hartford, Docket No. CV 95 0551656 (May 13, 1996, Satter, J.);   Wolfgang v. Cowell, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 86 0084829 (Oct. 30, 1990, Katz, J.);   see also In re Estate of Funk, 355 Ill.App.3d 466, 475, 822 N.E.2d 20 (Ill.App. 4 Dist.2004), aff'd in part and rev'd in part sub nom.  United States v. Printy, 221 Ill.2d 30;  849 N.E.2d 366 (Ill.2006);  In re Estate of Goodwin, 511 So.2d 609, 611 (Fla.App. 4 Dist.1987);  In re Guardianship of L.R., 908 N.E.2d 360, 364 (Ind.App.2009);  that was not the case here.   The interim accountings were not ordered by the court,8 assuming it could have been, nor filed in connection with a motion or proceeding instigated by the executors or in response to a motion, objection, or proceeding instigated by any other party.   Rather, they were filed voluntarily as a result of a consensus following a status conference on the specific condition that it would be sealed until the parties and the court agreed to unseal them.   Upon the filing of the interim accountings, there was nothing before the Probate Court to adjudicate.   The interim accountings did not relate to the court's adjudicative function.   Therefore, interim accountings are not judicial documents and, accordingly, are not subject to the presumption of public access.

The appeal is dismissed.

By THE COURT,

Bruce L. Levin

Judge of the Superior Court

FOOTNOTES

1.  FN1. On March 4, 1991, Attorney Allan M. Cane had filed an appearance for the plaintiff with the Probate Court in the matter of the estate and requested that copies of all correspondence and pleadings be forwarded to him.   Attorney Cane remains the plaintiff's attorney.

2.  FN2. That handwritten note states in relevant part:  “[P]arties agreed that annual accts would be filed under seal & held by this court pending the outcome of the Superior Court appeal ․ no formal decree ․

3.  FN3. The 1987 agreement provides in relevant part that the plaintiff “waives any and all rights in equity and in law ․ against the executors as regards their administration of the Estate and the validity of their decisions, including the rights to maintain a lawsuit of any nature against the Executors or the Estate in any matters relating to the Estate, its administration, the businesses or business interest of the Decedent, or sales or dispositions of the Decedent's properties, except for willful fraud, malfeasance or dishonesty.”

4.  FN4. The reason the interim accounting had to be sealed, according to the defendants' statements at argument on March 31, 2010, is that when they had filed interim accountings in the past, Cadle Company “would then file objections ․ they'd bring forensic account[ants], they would object to everything under the sun that was in the estate, they would object to matters that had been previously approved ․ and it became a circus and the estate said, your Honor, does Cadle even have standing to come and make these objections?”   The defendants argue that they agreed to file interim accountings so long as they remained under seal “pending the disposition of the Cadle appeal ․” Cadle agreed.

5.  FN5. The facts of the present case may be compared with Williams v. Cleaveland, 76 Conn. 426, 56 A. 850 (1904), in which the court held that a surviving spouse, who by prenuptial agreement “had renounced all claim which he might have had to his wife's property by reason of their marriage, and had agreed that in case of her death he would make no claim to any right or interest in any part of her estate”;  id., 429;  had no interest in his wife's estate and therefore had no right to appeal from a decision of the probate court concerning that estate.  Id., 430.

6.  FN6. Notably, the one probate appeal of the plaintiff which Judge Hodgson in 1991 declined to enjoin, because it was not shown to be barred by the waiver, was an appeal from “a ruling by the Probate court denying for lack of standing a motion [the plaintiff filed [en]titled Motion for Additional Disclosure in connection with an interim accounting filed by the executors of the estate.”   D'Addario v. D'Addario, Superior Court, judicial district of Fairfield, Docket No. 278623 (April 14, 1991, Hodgson, J.) [3 Conn. L. Rptr. 833].   The plaintiff did not waive her right to maintain this appeal.

7.  FN7. Practice Book § 11-20A provides in relevant part:  “(a) Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public. (b) Except as provided in this section and except as otherwise provided by law, including Section 13-5, the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited. (c) Upon written motion of any party, or upon its own motion, the judicial authority may order that files, affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in viewing such materials.   The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest.   An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order.”

8.  FN8. In certain circumstances, the Probate Court is authorized to order and approve interim accountings.  General Statutes § 45a-98(6) authorizes accountings from executors, administrators, etc. “to the extent provided for in section 45a-175.”  General Statute § 45a-175(a), in turn, gives the Probate Court jurisdiction over jurisdiction over “interim and final accounts” for fiduciaries of inter vivos trusts in certain circumstances.  General Statutes § 45a-177 requires periodic accounts “at least once during each three year period” for “[a]ll conservators, guardians, persons appointed by the Court of Probate to sell land of minors and trustees, including those entrusted with testamentary trusts unless excused by the will creating the trust.”   The defendants, in this case, are designated as “executors,” and therefore, are not subject to this statutory mandate.   Thus, the plaintiff has not identified any statute authorizing the Probate Court to order an interim accounting in these circumstances.

Levin, Bruce L., J.

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