Geno Piacentini et al. v. Probate Appeal (2010)

MEMORANDUM OF DECISION RE JOANN PIACENTINI'S MOTION FOR SUMMARY JUDGMENT (105.00)

This case, an appeal from probate, presents issues arising from its juxtaposition with two prior cases initiated by the appellants here, Geno and Frank Piacentini (the brothers) against their sister JoAnn Piacentini arising out of the brothers' allegations that JoAnn mishandled their mother's assets and exerted undue influence in the formation of their mother's will.   The mother, Pauline died in 2002.   The primary issue is whether, and how, to apply the doctrine of collateral estoppel in connection with JoAnn's motion for summary judgment.

In the first case (first appeal), the brothers appealed from the Norwalk Probate Court's orders of June 21, 2002 complaining that the Probate Court incorrectly admitted the Last Will and Testament of Pauline and incorrectly admitted JoAnn as executrix of Pauline's estate (CV 02 0190644.)   The brothers claimed the will was the product of JoAnn's undue influence and that JoAnn should not be executrix because she had conflicts of interest and had co-mingled her funds with Pauline's.   After considerable discovery, the first appeal was withdrawn in 2005.

The second case began in 2003 when the brothers instituted a civil action (civil case) against JoAnn that was eventually tried to the court in 2009 before Judge Trial Referee D'Andrea.   After a seven-day trial the court entered judgment for JoAnn and against the brothers on the numerous claims alleged.   Geno Piacentini v. JoAnn Piacentini, Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 03 0195866 (June 10, 2009).   This decision was affirmed by the Appellate Court in a per curiam decision.  122 Conn.App. 902 (2010).

This appeal from Probate Court (second appeal) was commenced by the brothers in 2006 after the Honorable Anthony DePanfilis in the district of Norwalk allowed and approved JoAnn's account as executrix, ordered distribution of the estate of Pauline, and denied the brothers' motion to remove JoAnn as executrix.   The appeal has languished.   The reasons for appeal filed by Geno and Frank in 2006 allege that JoAnn lived in the family home without paying rent or contributing to expenses, that she co-mingled her late mother's income and accounts, treated her mother's money as her own, and placed her mother's income into her own account, failed to inventory her mother's personal property, and deprived her brothers of their appropriate one-third share of the estate.   The brothers state that an impartial third party rather than JoAnn, should have been appointed fiduciary, and the account should not have been accepted by the probate court.   These reasons were fully denied in JoAnn's answers filed in November 2007.   Nothing of consequence has occurred in the second appeal since 2007, perhaps because the parties were heavily engaged in the civil case.

It is well recognized that an appeal from an action of a Probate Court is a de novo appeal, i.e. the Superior Court tries the facts and issues ab initio.   In Connecticut it has been held by the Connecticut Supreme Court that “[i]n an appeal from probate there is a trial de novo in which the appellant has the opportunity to present any evidence which could have been offered in the probate court, whether or not it was actually offered.”  Prince v. Sheffield, 158 Conn. 286, 294 (1969).   In Baskin's Appeal from Probate, 194 Conn. 635 (1984) the Connecticut Supreme Court noted that Prince v. Sheffield, supra, caused a substantial change in the “nature of an appeal from probate.”  Id. 641.

Now before the court in the second appeal is JoAnn's motion for summary judgment dismissing the second appeal which relies largely on the decision of Judge D'Andrea rendered in 2009.   The motion for summary judgment contends that Judge D'Andrea's decision in the civil case resolved the same issues between the same parties as are raised in this appeal, and therefore the doctrines of res judicata and collateral estoppel bar the re-litigation of these claims by the brothers in this probate appeal.   The brothers, on the other hand, dispute that their claims in this appeal are barred.  “The doctrine of collateral estoppel, or issue preclusion, provides that if ‘an issue of fact or law is actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the same parties, whether on the same or different claim’ ․ Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 367 ․ (1992).”  Upjohn Company v. Planning & Zoning Commission, 224 Conn. 82, 93 (1992).

In order to sort through the parties' conflicting contentions, it is necessary to ascertain exactly what Judge D'Andrea decided, and what was affirmed by the Appellate Court.   At the outset, Judge D'Andrea noted the unrevised and unamended complaint in the civil case was not a model of clarity.   The same can be said for the brothers' reasons for appeal which serve as the appellants' pleading in this case.   See Baskin's Appeal from Probate, 194 Conn. 635, 642-43 (1984);  Practice Book § 10-76(a).   Nevertheless, Judge D'Andrea held that all claims against JoAnn for conduct as executrix of her mother's estate that were, or could have been, made in the Probate Court by the brothers were denied.   The Probate Court denial represents a final judgment, and on the principles of res judicata and collateral estoppel, Judge D'Andrea held “those claims [by the brothers] are barred in this case,” citing Gaynor v. Payne, 261 Conn. 585, 595, 596 (2002).   Judge D'Andrea continued that the brothers' claims that JoAnn breached a fiduciary duty prior to her mother's death could be raised before him because they were not barred by the Probate Court decision, citing Gaynor v. Payne, supra, 261 Conn. 598.   As noted, such claims were tried and found wanting.

Therefore, this court finds that the appellants, Geno and Frank, are entitled to litigate and are not barred by collateral estoppel from pursuing those claims in the second appeal that arise from the Probate Court's 2006 orders and explicitly were not decided by Judge D'Andrea in the Superior Court case CV 03 0195866.

Turning now to specific points raised by the pending summary judgment motion.   First, in the second count of their civil case the brothers sought an accounting from JoAnn, and a constructive trust placed on monies purportedly wrongfully transferred to JoAnn by her mother during the mother's life time.   This contention was fully litigated in the civil action and soundly rejected by Judge D'Andrea.   To the extent such an accounting is sought in this appeal, (see second and third paragraphs of Reasons for Appeal), it is barred by the doctrine of collateral estoppel.   The accounting made byJoAnn as executrix to, and accepted by, the Probate Court (see fourth paragraph of Reasons for Appeal), it is properly part of the second appeal and not subject to dismissal by summary judgment.

Second, the claim that JoAnn failed to inventory her mother's personal property as set forth in the third paragraph of the Reasons for Appeal is properly part of the appeal and will not be dismissed on summary judgment on this record.   Nevertheless, the appellants should be aware that there is reasonably convincing evidence in this case that a proper inventory was filed, and that the allegations contained in the civil action about the inventory showing no jewelry or personal property (see complaint, ¶¶ 22-24) are not true, and therefore such allegations should be pursued again in the second appeal only with a sense of trepidation.

Third, JoAnn argues that summary judgment should be granted dismissing any claim that the Probate Court should have appointed a disinterested third party as executrix of Pauline's estate because that issue is moot.   The court partially agrees with that contention.   In the first appeal, CV 02 0190644, the brothers stated in their Supplemental Revised Reasons for Appeal dated June 4, 2003, that they were aggrieved by the Probate Court orders of June 21, 2002 admitting of JoAnn as executrix because of an alleged conflict of interest, and JoAnn's alleged breach of fiduciary duties.   This appeal was withdrawn in 2005 without any Superior Court decision.   In August 2006, the Probate Court entered its final decrees, respecting Pauline's estate, and this second appeal was filed thereafter.   It appears that the August 2006 decrees included an order denying a motion by the brothers to remove JoAnn as executrix.   Nevertheless, the effective order installing JoAnn as executrix was issued in 2002 and was included as an issue on appeal in the brothers' first appeal.   When Geno and Frank withdrew that appeal they lost the opportunity to effectively challenge JoAnn's initial appointment as executrix.   Now eight years after JoAnn became executrix, and four years after the estate has been closed, an appeal of the Probate Court's failure to appoint someone other than JoAnn as executrix seems seriously out of date.   In their reasons for appeal filed in the first appeal, Geno and Frank opposed JoAnn's appointment because of an alleged conflict of interest arising out of her purported influence on Pauline's will and co-mingling of Pauline's funds.   These are allegations involving conduct prior to Pauline's death and were generally found unproven by Judge D'Andrea.   In their reasons for appeal in the second appeal, the brothers state an “impartial third party should have been appointed as fiduciary.”   Perhaps it is a problem of semantics.   It is difficult for the court to tell whether the brothers are appealing the original appointment of JoAnn, the denial of a motion to remove her, or both.

This court concludes that the brothers' withdrawal of their appeal of the initial appointment of JoAnn, coupled with the fact that undoing the initial appointment would not effect any substantive change makes any effort to appeal that appointment moot.   The court further concludes that the basis of appealing the initial appointment was JoAnn's alleged conduct prior to Pauline's death-claims which were fully litigated before, and rejected by Judge D'Andrea, and therefore the brothers are collaterally estopped from appealing her appointment again.   Thus, to the extent the brothers seek to appeal the initial appointment (which is suggested by the language in their Reasons for Appeal), that portion of the appeal is dismissed.   However, if the appellants are seeking only to appeal the denial of their motion to remove JoAnn, that is an appropriate aspect of a de novo appeal and summary judgment is denied.   Summary judgment is also denied as to the appeal of the Probate Court's acceptance of the executor's accounting.

Parties and counsel are advised, given the age of this case and the discovery already taken in related matters, that a pre-trial conference will be scheduled in the near future and a fairly imminent trial date will be chosen at that conference.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

Adams, Taggart D., J.