Marsha B. Taylor, fka Marsha B. Hartford et al. v. Stephen Barberino et al. (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

In this three count amended complaint, plaintiffs Marsha Taylor and Draskinis & Reims, P.C., allege in the third count that defendant accounting firm, Seward and Monde, were negligent in failing to maintain records of certain Barbarino trusts and failed to account for the financial actions of these trusts.   The plaintiff Marsha Taylor (formerly known as Marsha Petruzelli) is a beneficiary of both the “Marsha B. Taylor Accumulation Trust” and the “Marsha B. Petruzelli Spray Trust”, the “Barbarino trusts”.   The plaintiff Draskinis and Reims, P.C. works as a trustee to both of the trusts, which were created by the defendant Stephen Barberino, who is the father of the plaintiff Taylor.

On March 22, 2010, defendant Seward and Monde moved for Summary Judgment on the ground that it was never engaged to maintain or keep such records or “to be the trust's bookkeeper” and that it was engaged solely for the preparation of tax returns.   Plaintiffs filed an objection on June 10, 2010, followed by a reply memorandum by defendant on June 17, 2010, followed by a supplemental objection memorandum on June 21, 2010.

In this case there is no written agreement specifying what service the defendant accounting firm was to provide to the trusts.   The, defendant was apparently employed on a yearly basis by way of an oral agreement and acted as accountant from approximately 1983 to 2006.   If there is a genuine issue of material fact as the content or nature of these annual agreements, it must be found in the many affidavits and deposition excerpts submitted by both parties.

The defendant submitted the affidavits of Donald Kobs, CPA, and Gayle Carbone, CPA, both employees of the defendant and the primary individuals responsible for handling the trusts' tax returns.   Kobs' affidavit notes that the defendant “was not engaged to maintain trust records or manage or account for trusts' day-to-day financial activities,” (Affidavit of Donald Kobs, ¶ 5) and also that the defendant “has never maintained, nor was it engaged to maintain, trust records or to manage or account for the Trusts' financial activities.”   (Kobs Aff. ¶ 6.) Kobs also states in his affidavit that in March 1989, the defendant was retained to review financial statements for the trusts based upon balance sheets dated December 31, 1998.   This review was “less in scope than an audit,” as the defendant was not asked to express an opinion of the financial statement as a whole.  (Kobs Aff. ¶ 7.) Kobs states this was the last such review prepared by the defendant for the trusts.   Finally, Kobs states that in the “many years” he worked for the defendant that he was involved in “accounting and tax preparation services for the trusts,” and that in preparing those tax returns he was provided annually with “historical financial information” of the trusts, but neither he nor the defendant were ever engaged to perform “bookkeeping services or the day-to-day maintenance of the trusts' books and records.”  (Kobs Aff. ¶ 9.) Carbone's affidavit is more succinct, but reiterates that “[the defendant] was not engaged to maintain trust's records, keep the trusts' books on a day-to-day basis, or manage or account for the trusts' financial activities.”  (Affidavit of Gayle Carbone, ¶ 4.)

Additionally, the defendant provided portions of the deposition testimony of Stephen Barberino.   In that deposition, Barberino notes that the documents related to the trust were located at his dealership, because “that's where the office was that ran [the properties that were owned by the trusts.]”   (Deposition of Stephen Barberino, November 11, 2008, page 39, lines 10-11.)   He also states that he handled the matters pertaining to the properties of the trusts in an office located at his dealership.  (Barberino Dep., 39:  19-22, November 13, 2008.)   Barberino does state that “Seward and Monde has been the accountant for the trust,” (Barberino Dep., 43:  16-17, November 13, 2008) but also that they only had access to the information insofar as “what they would review at the end of the year ․” (Barberino Dep., 43:  24-25, November 13, 2008.)   He also states that his office would provide the trusts' documents to the defendant so that they could create the tax returns for the trusts.   (Barberino Dep., 149:  14-22, November 13, 2008.)

The defendant argues that the above-cited evidence verifies that the defendant's only interaction with the documents of the trust occurred when they were handed a statement of the finances from Barberino, which was then used in preparation for the year-end tax returns and there is no evidence they interacted on any level with the operations of the trusts, and apparently did not even have access to the trusts' financial documents on an everyday basis.   Additionally, Barberino's testimony that the administration of the properties owned by the trusts took place at his office would support the defendant's argument that the accounting firm was not involved in such an endeavor.

The plaintiffs have submitted a litany of documents they rely on to establish a genuine issue of material fact in this case all attached to the Affidavit of Edward Draskinis, filed April 26, 2010.   A review of these documents shows that they cannot be considered as reliable to establish any facts to support plaintiffs' contentions.   Exhibits C and D are pages from somebody's deposition, but are devoid of any identifying details such as the name of the deposed, the date, or any other context.   In addition these pages have no mention of the defendant or of anything pertaining to the motion for summary judgment.   Exhibit A is a probate court document, and Exhibit B is a document appointing Stephen Barberino as trustee.   Neither document mentions the defendant, and rather, both cement the idea that the defendant was not involved with the administration of the trust's finances.   Exhibit E is a selection of the deposition testimony of one Pasquale Trotta, but does not identify who that person is, nor does it make even so much as a mention of the defendant Seward & Monde.   Exhibits F through I are portions of Stephen Barberino's deposition testimony, but again a review of these documents shows nothing relevant to the matters of the pending motion for summary judgment.   In short, the plaintiff has assembled forty-one exhibits worth of material, totaling 188 pages, yet there is no clear point as to the relevance of these materials, to establish liability of the defendants.   Many are unlabeled pages from deposition testimony, while others are financial or court documents that establish only who were the trustees and beneficiaries.   Curiously, there are also a large number of financial documents from plaintiff Draskinis & Reims, P.C., an accounting firm that is also the present trustee of the trusts in question.

Moreover, the affidavit of Edward Draskinis, CPA submitted as proof of the existence of a genuine issue of material fact does not appear to be valid.   “[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must:  (1) be based on ‘personal knowledge’;  (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).   In regard to Draskinis' affidavit, much of what is sworn to is not based on personal knowledge, nor does it constitute facts that would be admissible at trial.   Rather, much of the document consists of Draskinis' speaking about matters which he has only learned of through reviews of deposition testimony, and offering statements that sound more like legal arguments than statements of fact.   A party's conclusory statements, “in the affidavit and elsewhere ․ do not constitute evidence sufficient to establish the existence of disputed material facts.”  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).

To cite one example on page 11, ¶ 44 of the affidavit, Draskinis states that “Barberino, Jr. testified at deposition that Steward & Monda are the accountants that were handling the trusts since 1973 ․” This statement is not based on Draskinis' own personal knowledge, but rather a review of various documents provided to him which contain that information.   At least one Superior Court decision has noted that such affidavits are not valid to oppose a motion for summary judgment.   Mazureck v. Great American Ins. Co., Inc., Superior Court, judicial district of Hartford, Docket No CV 01-0177433 (February 10, 2005, Shuman, J.).

The defendant, through the affidavits of Donald Kobs and Gayle Carbone, have established that Steward & Monde was hired and employed in the sole capacity as the preparer of the trusts' tax returns, and apparently had no involvement with the day-to-day operation of the trusts' finances.   In a summary judgment argument, the existence of a genuine issue of material fact must be demonstrated by valid counter affidavits and concrete evidence.  Little v. Yale University, 92 Conn.App. 232, 235 (2005), cert. denied, 276 Conn. 936 (2006).   The plaintiffs, despite the presence of an affidavit filed by a plaintiff and a multitude of other documentary material, have not shown that there is any genuine issue of material fact present, as to other duties that were alleged to be undertaken or performed by defendant.

Motion for summary judgment granted.

Wagner, J., J.T.R.

Wagner, Jerry, J.T.R.