Dennis Magao, Sr. v. Dolores Messier (2011)

MEMORANDUM OF DECISION

The appellant, Dennis Magao, Sr., appeals from the decree of the Hebron Court of Probate approving the payment of $12,557.50 to Messier and Associates, Inc. by Delores Messier, conservatrix of the estate of her mother, Claire Magao.   The appellant is the widower of Claire Magao and father of the conservatrix.   The payment under scrutiny was for real estate development services rendered by Messier and Associates, Inc. for a project in which the appellant, his wife, his daughter, and her husband, Robert Messier, were partners.   The grounds for appeaI are that the conservatrix paid the bill after the statute of limitations had expired and the decree was “contrary to both the evidence and the law.”

On May 29, 2007, Delores Messier was appointed conservatrix of the person and estate of her mother.   On July 1, 2008, the conservatrix filed an interim accounting with the probate court which covered the period from May 29, 2007, to May 28, 2008.   The accounting disclosed the payment to Messier and Associates, Inc., of $12,557.50.   The conservatrix applied for approval of this interim accounting to which the appellant objected.   With the consent of the parties, Hebron Probate Judge Camposeo referred the matter to former probate judge Kevin Connors under General Statutes § 45a–123.

The sole objection to the application pertains to the payment to Messier and Associates, Inc. That corporation was owned and operated by the conservatrix and her husband and performs engineering and surveying work.

Referee Connors held an evidentiary hearing on the application on January 13, 2009, which hearing was recorded and transcribed.   He filed a report with the Hebron Court of Probate on December 16, 2009, which contains the following findings:

1.  The services of the engineering firm in question were rendered pursuant to a plan of land development in which the conserved person and her husband participated.

2. The services were rendered prior to the commencement of the conservatorship but not paid for until after the conservatorship was in place.

3. The services that were rendered added value to the subject property in which the conserved person has or had an interest.

4. The services of the engineering firm were engaged at a time when the conserved person and her husband were capable of making financial decisions and capable of otherwise managing their financial affairs.

5. Although the conservator and her husband are part owners of the firm that was paid, the obligation, if any, to pay for its services arose out of an engagement entered into by the conserved person and her husband and not by the conservator on behalf of the conserved person.

6. The amount of the bill represents fair value for the services rendered.

7. The attorney for the conserved person does not object to the prior payment by the conservator of the invoice in question.

8. In all other respects, the accounting is true and correct.

The referee also recommended that the interim accounting be approved.   Based on this report, Judge Camposeo approved the accounting on December 30, 2009.   On February 3, 2010, the appellant appealed to the Superior Court.

Under General Statutes §§ 45a–186a and 45a–186b, an appeal to the Superior Court from a decree of a probate court made after a hearing on the record is confined to that record and is reviewed by the Superior Court in a manner akin to administrative appeals generally.   In particular, under § 45a–186b:

“The Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds that substantial rights of the person appealing have been prejudiced because the findings, inferences, conclusions or decisions are:  (1) In violation of the federal or state constitution or the general statutes, (2) in excess of the statutory authority of the Court of Probate, (3) made on unlawful procedure, (4) affected by other error of law, (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

In the present appeal, a review of the whole record discloses that the Hebron Probate Court's conclusion that the bill in question “represented fair value for the services rendered” was amply supported by reliable, probative, and substantial evidence.   Robert Messier was the only witness who testified at the hearing, and his testimony, if credited, established the factual basis for this conclusion.   The more vexing problem is whether the statute of limitations objection undermined the conservatrix's decision to pay the bill under scrutiny.

The referee's findings and recommendation recited above and Judge Camposeo's decree omit any discussion of the impact of any relevant statute of limitations.   The findings merely state that “[t]he amount of the bill represents fair value for the services rendered.”

This court, in its role mandated by §§ 45a–186a and 45a–186b, has no way of knowing whether the referee determined that no pertinent statute of limitations was implicated or that circumstances existed which tolled the running of an applicable statute of limitations or that the conservatrix legitimately declined to assert the bar of an otherwise applicable statute of limitation.   These unanswered questions are especially significant in this case.

The limited partnership, which obligated Claire Magao to contribute her share of “future engineering costs,” lacks a time limit for assessment of those costs.   The referee made no findings regarding whether the assessment could be imposed indefinitely in the future or had a reasonable time component.

Also, a conservator is a fiduciary whose relationship to her incapable “is characterized by a unique degree of trust and confidence.”  Luster v. Luster, 128 Conn.App. 259, 270 (2011).   She must act with scrupulous good faith and undivided loyalty.  “A fiduciary seeking to profit by a transaction ․ has the burden of showing that [she] has not taken advantage ․ and that the arrangement is fair and conscientious.”  Cadle Co. v. D'Addario, 268 Conn. 441, 457 (2004).   When self-dealing or a conflict of interest arises, the burden is on the fiduciary to prove fair dealing by clear and convincing evidence.  Id.

In the present case, the conservatrix engaged in self-dealing by paying $12,557.50 to a corporation owned by her and her husband.   Whether to take advantage of a statute of limitations or forego its protection posed a conflict of interest for the conservatrix for the same reason.   The report of the referee is bereft of consideration of these issues.

The appellant stated at the probate hearing that his objection was premised on the willingness of the conservatrix to ignore the statute of limitations when she paid the bill.   But the referee and the probate judge never addressed this issue.   The failure to adjudicate an objection that was timely raised before the probate court constitutes “other error of law” under § 45a–186b(4).

Consequently, the court remands the matter to the Hebron Court of Probate for further proceedings to address the appellant's objection concerning whether any statute of limitation applied and/or whether the failure to assert an applicable statute of limitations was legally permissible within the fiduciary responsibilities of the conservatrix at the time the bill was paid.

Sferrazza

Sferrazza, Samuel J., J.