Jacek I. Smigelski v. Mark A. Dubois (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 114)

The self-represented plaintiff, Jacek I. Smigelski, commenced this action by Complaint dated October 22, 2010 against the defendant, Mark A. Dubois, then the Chief Disciplinary Counsel for the State of Connecticut.   The plaintiff seeks a new trial on professional misconduct charges which stem from a 2008 presentment action brought against him by the defendant.¹  Those proceedings resulted in the plaintiff's suspension from the practice of law.

On October 2, 2012, the defendant filed a Motion for Summary Judgment along with a memorandum of law and supporting evidence.   The defendant's evidence consists of:  (1) affidavits; ²  (2) transcripts; ³  and (3) various pleadings and decisions stemming from the procedural posture of this case.⁴

The plaintiff filed a memorandum of law and supporting evidence in opposition on October 23, 2012.   The plaintiff's evidence consists of:  (1) an affidavit; ⁵  (2) transcripts; ⁶  and (3) documentary evidence.⁷  The parties presented oral argument before the court on January 22, 2013.

The defendant argues that the court should grant summary judgment in his favor because no genuine issue of material fact exists on the following issues:  (1) That the real estate appraisal upon which the plaintiff bases his Complaint is not newly discovered evidence;  (2) That the judgment against the plaintiff was not obtained by fraud;  and (3) That even if the evidence demonstrated that the defendant possessed the aforementioned appraisal at the time of trial, its non-disclosure to the plaintiff did not violate his due process rights.

I

FACTS

The plaintiff served as legal counsel for Stanley Kosiorek, both individually and as the executor of the estate of Stanislaw Kosiorek (the estate), Stanley's father, regarding the transfer of property located at 28 Terra Road in Plainville, Connecticut (the property).   The plaintiff was retained on June 15, 2006, via a written retainer agreement.⁸  The property was transferred to Bronislawa Kosiorek, Stanislaw Kosiorek's widow, six weeks before his death.   Stanley Kosiorek and his siblings, including Kazimierz Kosiorek, believed the transfer to be the result of undue influence or an outright forgery by their father's widow, who had married their father less than a year before his death and was nineteen years his junior.   The Kosiorek siblings were trying to recover the property as an asset of the estate.   The plaintiff eventually assisted in them in negotiating a settlement agreement with Bronislawa Kosiorek in August 2006, pursuant to which the estate acquired the property by quitclaim deed, in exchange for a $35,000 payment.

Once the estate acquired the property, it sold it to Adam and Kylie Kosiorek for $212,500.   Adam Kosiorek is Stanley Kosiorek's son.   The estate also contributed a $42,500 gift of equity to the buyers as a down payment for their mortgage.   The sale closed on December 21, 2006, with net proceeds to the estate of $155,300.82.  (Defendant's Exhibit [Exh.] B, Settlement Statement,⁹ United States Department of Housing and Urban Development, p. 1.) Stanley Kosiorek executed the paperwork involved with the sale in his fiduciary capacity and authorized a check in that amount to “Jacek Smigelski, Trustee.”

On December 26, 2006, Stanley Kosiorek went to the plaintiff's office on, to collect the money payable to the estate after the closing, minus the plaintiff's legal fees, and received a check from the plaintiff in the amount of $88,462.50.   The plaintiff explained that he was entitled to a one-third contingency fee of $65,833.33 as based on the property's value of $257,000.¹⁰  (Defendant's Exh. B, Monetary Document dated December 26, 2006.)   In response, Kazimierz Kosiorek, Stanley Kosiorek's brother, initiated grievance proceedings against the plaintiff.

Subsequent to the filing of the aforementioned grievance, the defendant brought professional misconduct charges against the plaintiff, alleging that he violated the rules of professional conduct by charging an excessive legal fee in connection with the transfer of property.   Judgment was rendered against the plaintiff in the professional misconduct action, for, inter alia, “charg[ing] an unreasonable fee for performing legal services ․ by using a set of disputed and unreasonable numbers upon which to calculate the contingency fee to which he was arguably entitled,” and “convert[ing] funds of the Estate of Stanislaw Kosiorek to his own use at a time when he knew that the Probate Court had not approved the disbursal of those funds and knew that there was an actual or likely dispute over his entitlement to the funds.” ¹¹  Disciplinary Counsel v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV 08 4019323 (August 31, 2009, Pittman, J.) ¹² The procedural history of the presentment action, prior to litigation in the Superior Court, also involved determinations against the plaintiff by (1) a disciplinary grievance panel (panel) and (2) a reviewing committee (committee).

In 2007, prior to the defendant bringing the presentment action, Stanley Kosiorek, as the executor of the estate, brought a separate cause of action against the plaintiff.¹³  A September 29, 2006 real estate appraisal of the property, which had been performed in connection with Adam Kosiorek's application for a mortgage to purchase the property, was used as evidence in that trial.   That appraisal, which listed the fair market value of the property at $254,000, was not used as evidence in the presentment trial.¹⁴  In his complaint for a new trial, the plaintiff alleges the following:  In finding probable cause that the plaintiff violated certain rules of professional conduct, the panel substantially relied on the $257,000 figure, the “gross value of real estate” or the “market analysis” of the property, which the plaintiff used to calculate his legal fee.   Similarly, the committee, in concluding that “the gross judgment or settlement” used by the plaintiff in determining his legal fee was inflated and unreasonable, also substantially relied on the $257,000 market analysis of the property.   The court, in the 2008 presentment action, also substantially relied on the $257,000 figure to the detriment of the plaintiff.

Plaintiff also claims during all relevant times, Stanley Kosiorek was aware of the existence of the September 29, 2006 appraisal, but intentionally failed to disclose it and fraudulently manipulated the court, the panel, the committee, his brother Kazimierz Kosiorek and the plaintiff in order to pervert or subvert the truth during the professional misconduct proceedings.   He further alleges that the defendant knew or should have known about the appraisal, but negligently or intentionally failed to disclose it to the panel, the Committee, the court or the plaintiff.

In addition, the plaintiff alleges that during the trial of the 2008 presentment action, Stanley Kosiorek intentionally committed a serious and material act of perjury or a material misrepresentation of a material fact on the court by testifying that there was another appraisal of the property and that it came in at “one seventy.”   According to the plaintiff, this testimony was fraudulent, intentionally false and a material misrepresentation of a material fact or an outright fraud committed on the court, the panel and the committee.   He further claims that the alleged fraud committed by Stanley Kosiorek, and additionally the defendant in eliciting Stanley Kosiorek's testimony, implicates Rules 3.3 ¹⁵ and 3.4 16 of the Connecticut Rules of Professional Conduct, and involves the due process rights of the plaintiff, if, in fact, the defendant knew or should have known of the existence of the September 29, 2006 appraisal.   He claims that because the disciplinary process is quasi-criminal, the defendant was and is under a duty to disclose exculpatory information;  a duty which stems from the due process clause of the fourteenth amendment of the U.S. Constitution and the due process provision of the Connecticut Constitution.   He further claims that because the court found that “[t]he bank determined that it would provide financing of $170,000 to the younger Kosioreks upon a sale at the fair market value of the property which the bank had determined to be $212,500, in accordance with the bank's appraisal,” the fraud goes to the core of the proceedings, as the court's observation was based on the fraudulent testimony of Stanley Kosiorek and not based on true facts as now known.   The plaintiff alleges that the judgments of the panel, the committee and the court would have been different had they known the truth about the additional appraisal of $254,000, as it is virtually identical to the figure of $257,000.   It appears to be his position that the $254,000 appraisal somehow serves to make the contingency fee he charged reasonable, in that it lends further evidence to the higher fair market value of the property.   As a result, the plaintiff requests that the judgment against him be set aside and that he be allowed a new trial or, in the alternative, that the charges against him be dismissed.

II

DISCUSSION OF LAW

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].” ¹⁷  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “A material fact is a fact that will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Grasso v. Connecticut Hospice, Inc., 138 Conn.App. 759, 764, 54 A.3d 221 (2012).

A) Does the September 29, 2006 Appraisal Constitute New Evidence?

The court first considers the issue of whether the September 29, 2006 appraisal upon which the plaintiff bases his claim for a new trial qualifies as new evidence under § 52–270(a).¹⁸  In his memorandum of law in support of his Motion for Summary Judgment, the defendant asserts that the September 29, 2006 appraisal does not qualify as new evidence because it does meet the criteria set forth in General Statutes § 52–270 because the plaintiff did not exercise due diligence to uncover it.¹⁹

The plaintiff presents an extended fact-based argument in his memorandum of law in opposition to the Motion for Summary Judgment, arguing that the appraisal in question should be considered newly discovered evidence entitling him to a new trial, and that he exercised due diligence by doing everything reasonable, if not everything possible, to uncover it.

“A petition for a new trial under § 52–270 is a proceeding essentially equitable in nature ․ It is authorized, and its scope is limited, by the terms of the statute ․ The salutary purpose of the statute is that if a party has a meritorious defense and has been deprived of reasonable opportunity to present it, he ought to be permitted to make it upon another trial ․ General Statutes § 52–270 sets forth the limited circumstances in which a new trial will be granted.   The petitioner [for a new trial] has the burden of proving by a preponderance of the evidence that he is entitled to a new trial on the grounds claimed ․ A petition for a new trial [under § 52–270] is addressed to the discretion of the trial court and will never be granted except upon substantial grounds.   As the discretion which the court is called upon to exercise is not an absolute but a legal one, [the Appellate Court] will upon appeal set aside its action when it appears that there was a misconception on its part as to the limits of its power, that there was error in the proceedings preliminary to the exercise of its discretion, or that there was clear abuse in the exercise of its discretion.”  (Citations omitted;  internal quotation marks omitted.)  Jacobs v. Fazzano, 59 Conn.App. 716, 722–23, 757 A.2d 1215 (2000).

“The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established.   The [plaintiff] must demonstrate, by a preponderance of the evidence, that:  (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence;  (2) it would be material on a new trial;  (3) it is not merely cumulative;  and (4) it is likely to produce a different result in a new trial ․ This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final, and should not be disturbed by post trial motions except for a compelling reason ․ In determining the potential impact of new evidence, the trial court must weigh that evidence in conjunction with the evidence presented at the original trial ․ It is within the discretion of the trial court to determine, upon examination of all the evidence, whether the petitioner has established substantial grounds for a new trial, and the judgment of the trial court will be set aside on appeal only if it reflects a clear abuse of discretion.”  (Citations omitted;  internal quotation marks omitted.)  Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987).

“In determining whether a new trial should be granted because of newly discovered evidence, a [plaintiff] must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence ․ Due diligence does not require omniscience ․ Due diligence means doing everything reasonable, not everything possible ․ The petitioner for a new trial must be diligent in his efforts fully to prepare his cause for trial;  and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Williams v. Commissioner of Correction, 41 Conn.App. 515, 528–29, 677 A.2d 1 (1996).  “[T]he party seeking [a] new trial and not the other party or his attorney in the underlying action, is required to exercise due diligence as a condition precedent to obtaining relief under § 52–270 ․ [T]he case law that the demonstration of due diligence rests on the petitioner for a new trial, applies to entitlement to that relief under the whole statute including the ‘other reasonable cause’ provision.”  Jacobs v. Fazzano, supra, 59 Conn.App. 725–26.  “The burden of showing due diligence [rests] solely and throughout on the plaintiff.”  Id., 727.  “[D]ue diligence is the petitioner's burden and [is] not to be shared with the opposing party.”   Id., 732;  see also Terracino v. Fairway Asset Management, Inc., 75 Conn.App. 63, 76–77, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003) (“[D]ue diligence is always the petitioner's burden and is not to be shared with the opposing party ․ [I]t is solely the [plaintiff's] burden to prove that [he] exercised due diligence to discover the evidence prior to trial, which is in accordance with § 52–270 and the applicable case law.”   (Citation omitted.))

In support of its Motion for Summary Judgment, the defendant attaches the affidavit of Elizabeth M. Rowe, assistant bar counsel, which states that she reviewed the grievance complaint, with attached exhibits, against the plaintiff, and that it included the HUD–1 form showing an appraisal payment by L.R. Evjen Appraisal Services.  (Defendant's Exh. B, Affidavit of Elizabeth M. Rowe, p. 2.) She affirms that a copy of the grievance complaint and exhibits, including the HUD–1 form, was sent to the plaintiff by certified mail and was not returned.  Id., p. 2. She also affirms that the plaintiff filed an answer to the grievance complaint.  Id.

It is undisputed that the appraisal by L.R. Evjen Appraisal Services, listed on the HUD–1 form, is the appraisal at issue.  (See Defendant's Exhibit B;  Plaintiff's Exhibit 4.) The plaintiff reasonably could have discovered the appraisal in the defense of the 2008 presentment action against him.   The L.R. Evjen appraisal is dated September 29, 2006, and the HUD–1 form is dated December 21, 2006.  (Defendant's Exhibit B;  Plaintiff's Exhibit 4.) The HUD–1 form clearly shows, albeit without the appraisal value listed, that the appraisal was conducted by L.R. Evjen Appraisal Services.  Id. The defendant has presented evidence that it sent the HUD–1 form, which listed the appraisal in dispute, to the plaintiff, as an exhibit attached to the grievance complaint.   It is clear to the court that the plaintiff had the opportunity to investigate the appraisal and use it during the trial of the 2008 presentment action, as the appraisal is listed on the HUD–1 form and was completed before the presentment trial commenced, and failed to do so.   The plaintiff has not presented any evidence that he did not receive the HUD–1 form or that it was unreasonable for him to have discovered the value of the appraisal in his defense at the original trial.²⁰

The defendant has produced evidence to show the nonexistence of any genuine issue of material fact as to his claim that the September 29, 2006 appraisal does not constitute newly discovered evidence because the plaintiff reasonably could have discovered the appraisal at the time of his trial through the exercise of due diligence.   The plaintiff has not met his burden in rebuttal.   In view of the fact that the court deems this issue dispositive, it declines the address the defendant's other arguments.²¹

Therefore, the court finds that there is no genuine issue of material fact regarding the issue that the plaintiff reasonably could have discovered the September 29, 2006 appraisal in the exercise of due diligence in preparation for his 2008 presentment trial and, as a result, the appraisal does not constitute newly discovered evidence, entitling the defendant to judgment as a matter of law on this issue.

B) Was the Judgment Against Plaintiff Obtained by Fraud?

The plaintiff's second claim is that the judgment against him was obtained by fraud.   The plaintiff argues in opposition that the appraisal in question was not properly disclosed at the appropriate times, under both statutory and common law principles, which constituted a fraud upon the court.   The defendant argues that the judgment was not obtained by fraud because there is no genuine issue of fact regarding the fact that it did not possess the appraisal.

“Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed.”  (Internal quotation marks omitted.)  Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991).  “Although General Statutes § 52–270 permits the court to grant a new trial upon proof of reasonable cause, the circumstances in which reasonable cause may be found are limited ․ The basic test of reasonable cause is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal ․ A new trial may be granted to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident ․ Due diligence is a necessary condition to success in prosecuting a petition for a new trial ․ Under § 52–270 the exercise of due diligence is a condition precedent to a finding of reasonable cause ․ ‘Reasonable’ is a relative term which varies in the context in which it is used, and its meaning may be affected by the facts of the particular controversy ․ It is also synonymous with ‘[e]quitable, fair, just.’  ․ [Section 52–270] does not furnish a substitute for, nor an alternative to, an ordinary appeal, but applies only when no other remedy is adequate and when in equity and good conscience relief against a judgment should be granted.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Jacobs v. Fazzano, supra, 59 Conn.App. 723–24.

Under the common law, the standard for a new trial for fraud is different.   “Where an unsuccessful party has been prevented, by fraud or deception, from exhibiting fully his case and shows that there never has been a real contest in the trial or hearing of the case, a new suit may be sustained to set aside and annul the former judgment and open the case for a new and fair hearing ․ To have a judgment set aside on the basis of fraud which occurred during the course of the trial upon a subject on which both parties presented evidence is especially difficult ․ The question presented by a charge of fraud is whether a judgment that is fair on its face should be examined in its underpinnings concerning the very matters it purports to resolve.   Such relief will only be granted if the unsuccessful party is not barred by any of the following restrictions:  (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered.  (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud.  (3) There must be clear proof of the perjury or fraud.  (4) There must be a substantial likelihood that the result of the new trial will be different.²²  ․ Furthermore, the granting of such relief must not unfairly jeopardize interests of reliance that have taken shape on the basis of the judgment.”  (Citations omitted.)  Varley v. Varley, 180 Conn. 1, 2–4, 428 A.2d 317 (1980).

The defendant submits evidence, in the form of multiple affidavits, that it did not have the appraisal or consider it relevant to the prosecution of the plaintiff during the 2008 presentment action.   In one affidavit, Attorney Rowe, assistant bar counsel, affirms that she reviewed the entire public record of the grievance complaint, and although it contained the HUD–1 statement showing a payment to L.R. Evjen Appraisal Services, it did not contain a copy of the appraisal.  (Defendant's Exh. B, pp. 1–2.)   In another affidavit that the defendant provides, Suzanne B. Sutton, assistant disciplinary counsel, affirms that she tried the 2008 presentment action before both the Superior Court and the Appellate Court, and that the appraisal was brought up to Stanley Kosiorek during trial.  (Defendant's Exh. G, Affidavit of Suzanne B. Sutton, pp. 1–2.)   Attorney Sutton also affirms that the plaintiff was questioned about the HUD- 1 statement, and testified that he had reviewed it.  Id., p. 2. Additionally, Attorney Sutton affirms that she never saw the L.R. Evjen appraisal, reviewed the entire file which did not contain the appraisal and never attempted to obtain the appraisal because she did not consider it relevant to the grievance.  Id.

Although the plaintiff makes a variety of accusations in his memorandum of law in opposition to the Motion for Summary Judgment, the court finds these accusations to be unsubstantiated by the evidence presented.   The plaintiff presents no evidence that creates a genuine issue of material fact as to whether the defendant had the appraisal and suppressed it or participated in any way with witnesses to subvert the truth about the appraisal.

As to Stanley Kosiorek's response under oath that an appraisal of the property came in at “one seventy,” the evidence shows that this response was stricken during the trial of the 2008 presentment action.   This testimony, which was supplied to the court by both the defendant (Exh. F) and the plaintiff (Exh. 12), is as follows:

Q: Okay. And do you know what that appraisal came in at, the value?

A: One seventy.

Mr. Sullivan:  Objection, Your Honor.   It's hearsay.

The Court:  Well, it asks for a yes or no question.   Do you know calls only for a yes or no answer.

Ms. Sutton:  Yes.

The Court:  So, do you know, yes?

The Witness:  Yes.

The Court:  Okay. What's the next question, if any?

Q: And—

Mr. Sullivan:  I move that the prior answer be stricken, Your Honor.

The Court:  It may be stricken.

(Defendant's Exh. F, Transcript of Disciplinary Counsel v. Smigelski, pp. 124–25;  Plaintiff's Exh. 12, Transcript of Disciplinary Counsel v. Smigelski, pp. 124–25.)   While the plaintiff concedes that this response was stricken in his memorandum in opposition to the Motion for Summary Judgment, his arguments as to its fraudulent effect are unpersuasive.

As to the plaintiff's claim that Stanley Kosiorek provided fraudulent testimony regarding his knowledge of the contingency fee clause of the fee agreement, the court does not find this claim to be material or relevant.   The court, in Disciplinary Counsel v. Smigelski, supra, Superior Court, Docket No. CV 08 4019323, did not credit Stanley Kosiorek's testimony's that he was “only presented with the second page of the two-page agreement for his signature and not the first page that contains the contingency fee portion of the agreement.”  Id. The court, even discrediting this testimony, still found against the plaintiff.   Therefore, this testimony does not go to the core of the proceedings, and is not relevant to the plaintiff's complaint for a new trial, as that testimony was not taken into consideration during the original trial on this matter.

The plaintiff makes numerous claims of fraud perpetrated on the court against various actors in his memorandum in opposition to the Motion for Summary Judgment, but these claims are unsubstantiated by the evidence he has presented.   The plaintiff has not produced any evidence, separate from these unsubstantiated claims, that raises a genuine issue of material fact as to the issue of fraud.

Therefore, the court finds that there is no genuine issue of material fact and that defendant is entitled to judgment as a matter of law on plaintiff's claims of fraud.

C) Were Plaintiff's Due Process Rights Violated?

Finally, the court addresses the plaintiff's concerns about the due process he received in the presentment action against him.   In moving for summary judgment, the defendant argues that even if it did have the appraisal prior to the presentment trial, it would not have been required to disclose it to the plaintiff.   The plaintiff argues that under the principles articulated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), his due process rights were implicated.

“Because a grievance hearing is quasi-criminal in nature, [the court] look[s] to criminal law to resolve the [plaintiff's] claim.”  Statewide Grievance Committee v. Johnson, 108 Conn.App. 74, 81, 946 A.2d 1256, cert. denied, 288 Conn. 915, 954 A.2d 187 (2008).  “The United States Supreme Court has held [in Brady ] that a prosecutor's failure to disclose evidence material to guilt or punishment violates due process, thereby entitling the defendant to a new trial.”  Duart v. Department of Correction, 303 Conn. 479, 487, 34 A.3d 343 (2012).  “In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the United States Supreme Court identified the three essential components of a Brady claim, all of which must be established to warrant a new trial:  The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;  that evidence must have been suppressed by the State, either willfully or inadvertently;  and prejudice must have ensued ․ Under the last Brady prong, the prejudice that the defendant suffered as a result of the impropriety must have been material to the case, such that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”  (Citations omitted;  internal quotation marks omitted.)  State v. Skakel, 276 Conn. 633, 700, 888 A.2d 985 (2006).

“[I]t is well established that evidence is not considered to have been suppressed within the meaning of the Brady doctrine if the [plaintiff] or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence ․ The rationale underlying this exception to the state's disclosure obligation under Brady is obvious:  Brady is designed to assure that the [plaintiff] is not denied access to exculpatory evidence known or available to the state but unknown or unavailable to him ․ It is not intended either to relieve the [plaintiff] of [his] obligation diligently to seek evidence favorable to [him] or to permit the [plaintiff] to close its eyes to information likely to lead to the discovery of such evidence ․ See, e.g., United States v. LeRoy, [687 F.2d 610,] 618–19 [ (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983) ] (defendant cannot prevail under Brady if he was on notice of essential facts that would have enabled him to take advantage of exculpatory evidence but he failed to do so).”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  State v. Skakel, supra, 276 Conn. 701–02 (finding that evidence “will not be deemed to have been suppressed by the state ․ if the defendant or the defendant's trial counsel reasonably was on notice of the [evidence's] existence but nevertheless failed to take appropriate steps to obtain it”).

“In part because [attorney disciplinary proceedings] are adversary proceedings of a quasi-criminal nature ․ attorneys subject to disciplinary proceedings are entitled to due process of law ․ A license to practice law is a property interest that cannot be suspended without due process ․ Due process, however, is a flexible concept, and a determination of the particular process that is due depends on the nature of the proceeding and the interests at stake ․

“In attorney disciplinary proceedings, two interests are of paramount importance.   On the one hand, we must not tie the hands of grievance committees and trial courts with procedural requirements so strict that it becomes virtually impossible to discipline an attorney for any but the most obvious, egregious and public misconduct.   On the other hand, we must ensure that attorneys subject to disciplinary action are afforded the full measure of procedural due process required under the constitution so that we do not unjustly deprive them of their reputation and livelihood ․

“Our law historically has vested broad discretion in trial courts with respect to attorney disciplinary proceedings ․ [C]ourts are, as they should be, left free to act as may in each case seem best in this matter of most important concern to them and to the administration of justice ․ Once a complaint has been made against an attorney, the court controls the situation and procedure, in its discretion, as the interests of justice may seem to it to require ․ This discretion, however, must not be exercised at the expense of an attorney's right to procedural due process.

“Before discipline may be imposed, an attorney is entitled to notice of the charges, a fair hearing and an appeal to court for a determination of whether he or she has been deprived of these rights in some substantial manner.”   (Citations omitted;  internal quotation marks omitted.)  Statewide Grievance Committee v. Botwick, 226 Conn. 299, 306–08, 627 A.2d 901 (1993).

In the present case, the court notes that the plaintiff went through a process that included hearings before the panel, the committee, a court trial in the Superior Court and an appeals process to the Appellate Court.   As the court found in Disciplinary Counsel v. Smigelski, supra, Superior Court, Docket No. CV 08 4019323, “[t]he trial in this matter lasted two days.   The [plaintiff] was ably represented by legal counsel.   In addition to a full opportunity to cross examine the petitioner's witnesses and confront the petitioner's evidence, the [plaintiff] presented witnesses on his own behalf including an expert witness on the issue of the reasonableness of the [plaintiff's] fee.   And the [plaintiff] testified on his own behalf.”  Id.

The evidence presented shows that the existence of the appraisal at issue was properly disclosed to the plaintiff when the HUD–1 form was sent to him as part of the grievance complaint.  (Defendant's Exh. B, p. 2.) Attorney Rowe affirms that a copy of the HUD–1 form listing the appraisal was sent to the plaintiff in this matter.  Id. Attorney Sutton affirms that the HUD–1 form and appraisal were both disclosed and testified to during the trial of the presentment action and that she did not pursue further action on the appraisal because she did not deem it relevant.  (Defendant's Exh. G, pp. 1–2.)   The plaintiff has not produced any evidence rebutting the defendant's evidence that he received the HUD–1 form, knew about the HUD–1 form and knew about the appraisal at issue.   Under the exception to the Brady doctrine as articulated by our Supreme Court in State v. Skakel, the HUD–1 form showing the appraisal at issue was properly disclosed to the plaintiff, and it was up to the plaintiff to use due diligence to discover the appraisal's relevance and worth.

Therefore, the court finds that no genuine issue of material fact exists and finds that the defendant is entitled to judgment as a matter of law on the issue of whether plaintiff's due process rights were violated.

III

CONCLUSION

For the foregoing reasons, the defendant's Motion for Summary Judgment is hereby granted in its entirety.

James W. Abrams, Judge

FOOTNOTES

FN1. Disciplinary Counsel v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV 08 4019323..  FN1. Disciplinary Counsel v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV 08 4019323.

FN2. These include:  (1) a copy of the signed and sworn affidavit of Elizabeth M. Rowe, assistant bar counsel, taken on March 16, 2012, with relevant exhibits;  and (2) a copy of the signed and sworn affidavit of Suzanne Sutton, assistant disciplinary counsel, taken on October 1, 2012..  FN2. These include:  (1) a copy of the signed and sworn affidavit of Elizabeth M. Rowe, assistant bar counsel, taken on March 16, 2012, with relevant exhibits;  and (2) a copy of the signed and sworn affidavit of Suzanne Sutton, assistant disciplinary counsel, taken on October 1, 2012.

FN3. These include:  (1) A certified copy of transcript excerpts of proceedings before the committee in Kosiorek v. Smigelski, dated July 12, 2007;  and (2) a certified copy of a transcript excerpt of the presentment trial, Disciplinary Counsel v. Smigelski, dated April 30, 2009..  FN3. These include:  (1) A certified copy of transcript excerpts of proceedings before the committee in Kosiorek v. Smigelski, dated July 12, 2007;  and (2) a certified copy of a transcript excerpt of the presentment trial, Disciplinary Counsel v. Smigelski, dated April 30, 2009.

FN4. These include:  (1) a copy of Disciplinary Counsel v. Smigelski, supra, 124 Conn.App. 81;  (2) a copy of the committee's decision in Kosiorek v. Smigelski, dated July 18, 2008;  (3) a copy of the civil case detail of Disciplinary Counsel v. Smigelski, supra, Superior Court, Docket No. CV 08 4019323;  (4) Judge Pittman's memorandum of decision in the presentment trial, Disciplinary Counsel v. Smigelski, dated August 31, 2009;  (5) a copy of the plaintiff's motion for reconsideration en banc and memorandum of law in support thereof in Disciplinary Counsel v. Smigelski, dated October 6, 2010;  (6) a copy of the plaintiff's motion for permission to file supplement to the motion for reconsideration en banc in Disciplinary Counsel v. Smigelski, dated October 26, 2010 and a copy of the plaintiff's supplement to the motion for reconsideration en banc, dated October 21, 2010, with appendix;  (7) a copy of the defendant's opposition to motion for permission to file supplement to the motion for reconsideration en banc in Disciplinary Counsel v. Smigelski, dated November 15, 2010 and the defendant's response to supplement to the motion for reconsideration en banc, dated October 27, 2010;  and (8) a copy of the Appellate Court's denial of the plaintiff's motion for reconsideration en banc, dated December 8, 2010, and a copy of the Appellate Court's denial of the plaintiff's motion for permission to file supplement to the motion for reconsideration en banc, dated December 8, 2010..  FN4. These include:  (1) a copy of Disciplinary Counsel v. Smigelski, supra, 124 Conn.App. 81;  (2) a copy of the committee's decision in Kosiorek v. Smigelski, dated July 18, 2008;  (3) a copy of the civil case detail of Disciplinary Counsel v. Smigelski, supra, Superior Court, Docket No. CV 08 4019323;  (4) Judge Pittman's memorandum of decision in the presentment trial, Disciplinary Counsel v. Smigelski, dated August 31, 2009;  (5) a copy of the plaintiff's motion for reconsideration en banc and memorandum of law in support thereof in Disciplinary Counsel v. Smigelski, dated October 6, 2010;  (6) a copy of the plaintiff's motion for permission to file supplement to the motion for reconsideration en banc in Disciplinary Counsel v. Smigelski, dated October 26, 2010 and a copy of the plaintiff's supplement to the motion for reconsideration en banc, dated October 21, 2010, with appendix;  (7) a copy of the defendant's opposition to motion for permission to file supplement to the motion for reconsideration en banc in Disciplinary Counsel v. Smigelski, dated November 15, 2010 and the defendant's response to supplement to the motion for reconsideration en banc, dated October 27, 2010;  and (8) a copy of the Appellate Court's denial of the plaintiff's motion for reconsideration en banc, dated December 8, 2010, and a copy of the Appellate Court's denial of the plaintiff's motion for permission to file supplement to the motion for reconsideration en banc, dated December 8, 2010.

FN5. A copy of the signed and sworn affidavit of the plaintiff, taken on October 22, 2012, with attached documentation..  FN5. A copy of the signed and sworn affidavit of the plaintiff, taken on October 22, 2012, with attached documentation.

FN6. These include:  (1) a copy of a transcript excerpt from Kosiorek v. Smigelski, dated October 1, 2010, with an unsigned certification page;  (2) an uncertified copy of a transcript excerpt from Kosiorek v. Smigelski, dated October 7, 2010;  (3) a copy of transcript excerpts from Kosiorek v. Smigelski, dated October 5, 2010, with an unsigned certification page;  (4) an uncertified copy of transcript excerpts from Disciplinary Counsel v. Smigelski, dated April 30, 2009;  (5) a certified copy of transcript excerpts from Disciplinary Counsel v. Smigelski, dated April 30, 2009;  and (6) a copy of transcript excerpts from Kosiorek v. Smigelski, dated October 5, 2010, with an unsigned certification page.   In the plaintiff's affidavit, he affirms the following:  “The original transcripts of testimony from the collection action had the original signatures of the court reporter, Lisa M. Dombrowski.   The undersigned was also given electronic copy of such transcripts, without the original signatures.   The original transcripts with the original certification pages were given to the Appellate Court clerk as required.   The copies of those transcripts attached to this memorandum are true and accurate copies taken from the electronic version of those transcripts.”.  FN6. These include:  (1) a copy of a transcript excerpt from Kosiorek v. Smigelski, dated October 1, 2010, with an unsigned certification page;  (2) an uncertified copy of a transcript excerpt from Kosiorek v. Smigelski, dated October 7, 2010;  (3) a copy of transcript excerpts from Kosiorek v. Smigelski, dated October 5, 2010, with an unsigned certification page;  (4) an uncertified copy of transcript excerpts from Disciplinary Counsel v. Smigelski, dated April 30, 2009;  (5) a certified copy of transcript excerpts from Disciplinary Counsel v. Smigelski, dated April 30, 2009;  and (6) a copy of transcript excerpts from Kosiorek v. Smigelski, dated October 5, 2010, with an unsigned certification page.   In the plaintiff's affidavit, he affirms the following:  “The original transcripts of testimony from the collection action had the original signatures of the court reporter, Lisa M. Dombrowski.   The undersigned was also given electronic copy of such transcripts, without the original signatures.   The original transcripts with the original certification pages were given to the Appellate Court clerk as required.   The copies of those transcripts attached to this memorandum are true and accurate copies taken from the electronic version of those transcripts.”

FN7. These include:  (1) a copy of a document titled “Attorney–Client Representation Contingent Fee Agreement,” between the plaintiff, Stanley Kosiorek and Stanley Kosiorek as the executor of the estate of Stanislaw Kosiorek, dated June 15, 2006;  (2) a copy of a signed document by Kazimierz Kosiorek dated December 29, 2006;  (3) a copy of a settlement statement of Adam Kosiorek and Kylie A. Kosiorek, dated December 21, 2006;  (4) a copy of an appraisal of real property located at 28 Terra Road for Travis Home Loans as of September 29, 2006, by Raymond Hardy;  (5) a copy of a letter from William J. Sweeney, Jr. to the plaintiff, dated January 16, 2007;  (6) a copy of a letter from William J. Sweeney, Jr. to Stanislaw Kosiorek and Kazimierz Kosiorek, dated January 4, 2007;  (7) a copy of a memorandum of decision from Disciplinary Counsel v. Smigelski by Judge Pittman, dated Augnst 31, 2009;  and (8) a copy of a document dated October 23, 2012, regarding third amended disbursements of the estate of Stanislaw Kosiorek in Wisniewski v. Kosiorek, Superior Court, judicial district of New Britain, Docket No. CV 04 4000453..  FN7. These include:  (1) a copy of a document titled “Attorney–Client Representation Contingent Fee Agreement,” between the plaintiff, Stanley Kosiorek and Stanley Kosiorek as the executor of the estate of Stanislaw Kosiorek, dated June 15, 2006;  (2) a copy of a signed document by Kazimierz Kosiorek dated December 29, 2006;  (3) a copy of a settlement statement of Adam Kosiorek and Kylie A. Kosiorek, dated December 21, 2006;  (4) a copy of an appraisal of real property located at 28 Terra Road for Travis Home Loans as of September 29, 2006, by Raymond Hardy;  (5) a copy of a letter from William J. Sweeney, Jr. to the plaintiff, dated January 16, 2007;  (6) a copy of a letter from William J. Sweeney, Jr. to Stanislaw Kosiorek and Kazimierz Kosiorek, dated January 4, 2007;  (7) a copy of a memorandum of decision from Disciplinary Counsel v. Smigelski by Judge Pittman, dated Augnst 31, 2009;  and (8) a copy of a document dated October 23, 2012, regarding third amended disbursements of the estate of Stanislaw Kosiorek in Wisniewski v. Kosiorek, Superior Court, judicial district of New Britain, Docket No. CV 04 4000453.

FN8. The retainer agreement included a section that read as follows:  “ATTORNEY FEE:  It is agreed that the fee for legal services rendered by Smigelski, will be based on an hourly charge of $225.00 per hour or it will be contingent upon recovery of benefits and shall be ONE–THIRD of the gross judgment or settlement, which ever amount is greater ․ A retainer of $5,000.00 is hereby acknowledged.”  (Plaintiff's Exhibit [Exh.] 1, Attorney–Client Representation Contingent Fee Agreement, pp. 1–2.).  FN8. The retainer agreement included a section that read as follows:  “ATTORNEY FEE:  It is agreed that the fee for legal services rendered by Smigelski, will be based on an hourly charge of $225.00 per hour or it will be contingent upon recovery of benefits and shall be ONE–THIRD of the gross judgment or settlement, which ever amount is greater ․ A retainer of $5,000.00 is hereby acknowledged.”  (Plaintiff's Exhibit [Exh.] 1, Attorney–Client Representation Contingent Fee Agreement, pp. 1–2.)

FN9. Hereinafter referred to as “the HUD–1 form.”.  FN9. Hereinafter referred to as “the HUD–1 form.”

FN10. This figure apparently is derived from a comparative market analysis of the property performed in 2005.   On May 7, 2007, during proceedings before the Probate Court, the plaintiff recalculated his legal fee based on a property value of $212,500, the price the property actually sold for, but somehow arrived at the same legal fee of $65,833.33..  FN10. This figure apparently is derived from a comparative market analysis of the property performed in 2005.   On May 7, 2007, during proceedings before the Probate Court, the plaintiff recalculated his legal fee based on a property value of $212,500, the price the property actually sold for, but somehow arrived at the same legal fee of $65,833.33.

FN11. The court found that the plaintiff violated Rules 1.5(a) and 1.15(b) of the Connecticut Rules of Professional Conduct.   These rules cover fees and the safekeeping of property..  FN11. The court found that the plaintiff violated Rules 1.5(a) and 1.15(b) of the Connecticut Rules of Professional Conduct.   These rules cover fees and the safekeeping of property.

FN12. The plaintiff appealed to the Appellate Court, which affirmed the trial court's decision in Disciplinary Counsel v. Smigelski, 124 Conn.App. 81, 4 A.3d 336 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004 (2011)..  FN12. The plaintiff appealed to the Appellate Court, which affirmed the trial court's decision in Disciplinary Counsel v. Smigelski, 124 Conn.App. 81, 4 A.3d 336 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004 (2011).

FN13. Kosiorek v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV 07 4014607..  FN13. Kosiorek v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV 07 4014607.

FN14. The appraisal's existence was, however, referenced in Stanley Kosiorek's testimony..  FN14. The appraisal's existence was, however, referenced in Stanley Kosiorek's testimony.

FN15. Connecticut Rule of Professional Conduct 3.3 provides in relevant part:  “(a) A lawyer shall not knowingly:  (1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer ․ (3) Offer evidence that the lawyer knows to be false.   If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in subsections (a) and (b) continue at least to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 ․”.  FN15. Connecticut Rule of Professional Conduct 3.3 provides in relevant part:  “(a) A lawyer shall not knowingly:  (1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer ․ (3) Offer evidence that the lawyer knows to be false.   If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in subsections (a) and (b) continue at least to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 ․”

FN16. Connecticut Rule of Professional Conduct 3.4 provides in relevant part:  “A lawyer shall not:  (1) Unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.   A lawyer shall not counsel or assist another person to do any such act;  (2) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;  (3) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;  (4) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;  (5) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused;  or (6) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:  (A) The person is a relative or an employee or other agent of a client;  and (B) The lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.  (7) Present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.”.  FN16. Connecticut Rule of Professional Conduct 3.4 provides in relevant part:  “A lawyer shall not:  (1) Unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.   A lawyer shall not counsel or assist another person to do any such act;  (2) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;  (3) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;  (4) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;  (5) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused;  or (6) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless:  (A) The person is a relative or an employee or other agent of a client;  and (B) The lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.  (7) Present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.”

FN17. Practice Book § 17–45 provides in relevant part:  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like ․ Any adverse party shall ․ file opposing affidavits and other available documentary evidence.   Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”.  FN17. Practice Book § 17–45 provides in relevant part:  “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like ․ Any adverse party shall ․ file opposing affidavits and other available documentary evidence.   Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings.”

FN18. General Statutes § 52–270(a) provides:  “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases.   The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”.  FN18. General Statutes § 52–270(a) provides:  “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases.   The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”

FN19. The defendant also argues that the appraisal was not material to the defense of the plaintiff's case and that it is completely irrelevant to the court's other findings of misconduct..  FN19. The defendant also argues that the appraisal was not material to the defense of the plaintiff's case and that it is completely irrelevant to the court's other findings of misconduct.

FN20. In Plaintiff's Exhibit 8, a transcript excerpt from the trial of Kosiorek v. Smigelski, supra, Superior Court, Docket No. CV 07 4014607, the plaintiff submits a colloquy that he had with the court in which he states:  “I'm going to claim that in fact there was an appraisal.   It was unknown to me.”  (Plaintiff's Exhibit 8, Transcript, p. 120.)   However, the plaintiff offers no explanation as to why it was unknown to him, nor does he offer any evidence to rebut the defendant's contention that the HUD–1 form, listing the fee for the appraisal, was sent to him along with the rest of the grievance complaint.   The plaintiff presents the court with transcript excerpts, dated October 7, 2010, from the trial of Kosiorek v. Smigelski, supra, Superior Court, Docket No. CV 07 4014607.   (Plaintiff's Exhibit 8.) The excerpts detail how the plaintiff attempts to inquire with Evjen about the appraisal that he brings into dispute in the present case.   As that appraisal was dated September 29, 2006, and was listed on the HUD–1 form dated December 21, 2006, the court sees no reason why that appraisal, with due diligence, was not discoverable during the 2008 presentment action against the plaintiff..  FN20. In Plaintiff's Exhibit 8, a transcript excerpt from the trial of Kosiorek v. Smigelski, supra, Superior Court, Docket No. CV 07 4014607, the plaintiff submits a colloquy that he had with the court in which he states:  “I'm going to claim that in fact there was an appraisal.   It was unknown to me.”  (Plaintiff's Exhibit 8, Transcript, p. 120.)   However, the plaintiff offers no explanation as to why it was unknown to him, nor does he offer any evidence to rebut the defendant's contention that the HUD–1 form, listing the fee for the appraisal, was sent to him along with the rest of the grievance complaint.   The plaintiff presents the court with transcript excerpts, dated October 7, 2010, from the trial of Kosiorek v. Smigelski, supra, Superior Court, Docket No. CV 07 4014607.   (Plaintiff's Exhibit 8.) The excerpts detail how the plaintiff attempts to inquire with Evjen about the appraisal that he brings into dispute in the present case.   As that appraisal was dated September 29, 2006, and was listed on the HUD–1 form dated December 21, 2006, the court sees no reason why that appraisal, with due diligence, was not discoverable during the 2008 presentment action against the plaintiff.

FN21. The court is compelled to express its view that the charging a contingent fee in a land transfer matter is grossly inappropriate under any circumstance, but particularly where the fee is tied to the value of the property, thus rendering the appraisal at issue immaterial and irrelevant in any presentment action..  FN21. The court is compelled to express its view that the charging a contingent fee in a land transfer matter is grossly inappropriate under any circumstance, but particularly where the fee is tied to the value of the property, thus rendering the appraisal at issue immaterial and irrelevant in any presentment action.

FN22. In Duart v. Dept. of Correction, 303 Conn. 479, 491–92, 34 A.3d. 343 (2012), our Supreme Court reformulated the language of the fourth Varley prong.  “Upon consideration, we see no reason why the victim of fraud or discovery misconduct in a civil case should be treated more or less favorably than the victim of nondisclosure in a criminal case.   Therefore, we disavow the phrasing employed in Varley and rephrase the fourth prong to require a movant to demonstrate a reasonable probability, rather than a substantial likelihood, that the result of a new trial will be different.   Furthermore and consistent with Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], we interpret ‘reasonable probability’ to mean a probability sufficient to undermine confidence in the outcome;  id.;   or, in other words, that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”  (Internal quotation marks omitted.)  Id..  FN22. In Duart v. Dept. of Correction, 303 Conn. 479, 491–92, 34 A.3d. 343 (2012), our Supreme Court reformulated the language of the fourth Varley prong.  “Upon consideration, we see no reason why the victim of fraud or discovery misconduct in a civil case should be treated more or less favorably than the victim of nondisclosure in a criminal case.   Therefore, we disavow the phrasing employed in Varley and rephrase the fourth prong to require a movant to demonstrate a reasonable probability, rather than a substantial likelihood, that the result of a new trial will be different.   Furthermore and consistent with Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], we interpret ‘reasonable probability’ to mean a probability sufficient to undermine confidence in the outcome;  id.;   or, in other words, that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”  (Internal quotation marks omitted.)  Id.

Abrams, James W., J.