Simon Lebo v. Carl Anderson et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 111)

The present action involves the nature and scope of the duty owed by a court-appointed conservator of an estate to that estate.   The defendants, Carl Anderson and the Anderson Law Firm, P.C., move for summary judgment on the grounds that there exists no genuine issue of material fact that the defendants did not owe a duty to discover that a trustee was stealing trust assets and that the defendants are immune from suit because their actions were authorized and approved by the Probate Court.   The plaintiff, Simon Lebo, as guardian ad litem for Frederick Kauppinen, Jr., opposes summary judgment on the grounds that the defendants were negligent in carrying out their fiduciary duties and that the defendants are not entitled to quasi-judicial immunity because their actions were not authorized or approved by the Probate Court.

On September 16, 2011, the plaintiff filed a single-count complaint against the defendants alleging the following facts.   The defendant Carl Anderson is an attorney, who is employed by the defendant Anderson Law Firm, P.C., and has been the court-appointed conservator of the estate of Kauppinen (Kauppinen's estate) since 1995.   The defendants have a fiduciary relationship with Kauppinen and have a responsibility to oversee and administer the assets accruing to Kauppinen's benefit.

The plaintiff further alleges that the defendants were negligent in the performance of their duties as conservator of the estate in one or more of the following ways:  by failing to ascertain and verify the status and condition of the trust assets that were for the benefit of Kauppinen;  by failing to manage and protect the trust assets that were for the benefit of Kauppinen;  by failing to investigate and discover the conduct of the trustee who administered the trusts for the benefit of Kauppinen;  by failing to report the conduct of the trustee to the Norwich Probate Court;  and by failing to supervise adequately Kauppinen's financial affairs.   The plaintiff alleges that Kauppinen suffered physical and emotional harm and that Kauppinen was entitled to trust benefits and was deprived such benefits.

On August 28, 2012, the defendants filed their motion for summary judgment accompanied by a memorandum of law in support as well as various exhibits.   The plaintiff filed a memorandum of law in opposition on January 14, 2013, accompanied by various evidence.   The defendants filed a reply on January 30, 2013.   The evidence submitted by the parties will be discussed as necessary in the discussion section of this memorandum.   The court heard argument on the matter at short calendar on March 11, 2013.

DISCUSSION

“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.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   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].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendants argue in support of summary judgment that the statutorily-defined duties of a court-appointed conservator do not extend to discovering the alleged criminal wrongdoing of the trustee, F. Robert LaSaracina, who had absolute discretion over how the trusts were managed.   The defendants argue that their duty is limited to the duties set forth in General Statutes § 45a–655 and that there can be no liability for alleged mismanagement of an estate if the circumstances are outside the control of the conservator.   The defendants argue that Carl Anderson carried out all of his statutory duties and that he received monthly checks from LaSaracina, thus, Carl Anderson had no reason to suspect any wrongdoing and the alleged criminal wrongdoing by LaSaracina was not within the scope of the risk of any of the alleged inattentiveness by Carl Anderson.   The defendants further argue that the defendants had no duty to control LaSaracina's conduct and the relationship between the conservator and trustee does not fall within an exception;  therefore, the defendants did not owe a duty to Kauppinen's estate to control the actions of LaSaracina.   The defendants argue that the trust agreement does not provide for a mechanism to force the trustee to report to the conservator of an estate.   Moreover, the defendants argue that they are entitled to quasi-judicial immunity because their accountings have been approved by the Probate Court and the alleged inactions do not fall with the scope of the unauthorized or unapproved actions as set forth in Gross v. Rell, 304 Conn. 234, 40 A.3d 240 (2012), because the defendants cannot be held liable for failing to act when there existed no duty to act.

The plaintiff counters the defendants failed to ascertain, preserve and protect the assets of Kauppinen's estate, which is the definition of fiduciary negligence, and the defendants are not entitled to quasi-judicial immunity because their conduct was neither authorized or approved by the Probate Court.   In their reply, the defendants argue that the plaintiff does not specifically address the defendants' arguments and that the transcript of the deposition of Peter Anderson, a former member of the Anderson Law Firm, P.C., which was taken for a different lawsuit, cannot be used to impute knowledge to Carl Anderson.   The defendants argue that the plaintiff sets forth no evidence to contradict the sworn statements of Carl Anderson in his affidavit, which was submitted to the court on January 11, 2013.

A court-appointed conservator of the estate's duties are set forth in General Statutes § 45a–655(a), which provides:  “A conservator of the estate appointed under section 45a–646, 45a–650 or 45a–654 shall, within two months after the date of the conservator's appointment, make and file in the Court of Probate, an inventory, under penalty of false statement, of the estate of the conserved person, with the properties thereof appraised or caused to be appraised, by such conservator, at fair market value as of the date of the conservator's appointment.   Such inventory shall include the value of the conserved person's interest in all property in which the conserved person has a legal or equitable present interest, including, but not limited to the conserved person's interest in any joint bank accounts or other jointly held property.   The conservator shall manage all the estate and apply so much of the net income thereof, and, if necessary, any part of the principal of the property, which is required to support the conserved person and those members of the conserved person's family whom the conserved person has the legal duty to support and to pay the conserved person's debts, and may sue for and collect all debts due the conserved person.   The conservator shall use the least restrictive means of intervention in the exercise of the conservator's duties and authority.”

With respect to the quasi-judicial immunity argument, “[i]n general terms, a conservator of the estate is required to manage the conservatee's estate for the benefit of the conservatee ․ “[The Supreme Court has] repeatedly recognized, however, that when the Probate Court has expressly authorized or approved specific conduct by the conservator, the conservator is not acting on behalf of the conservatee, but as an agent of the Probate Court ․ Accordingly, when the conservator has obtained the authorization or approval of the Probate Court for his or her actions on behalf of the conservatee's estate, the conservator cannot be held personally liable.”  (Citations omitted.)   Gross v. Rell, supra, 304 Conn. 250–52.  “Because conservators are acting as the agents of the Probate Court when their acts are authorized or approved, their function is not merely comparable to those of officials who have traditionally been afforded absolute immunity at common law ․ rather, they function as the Probate Court.   Accordingly, imposing liability on a conservator for acts authorized or approved by the Probate Court would chill that court's ability to make and carry out fearless and principled decisions regarding the conservatee's care and the management of his or her estate.”   (Citation omitted;  emphasis in original;  internal quotation marks omitted.)   Id., 252.

The Supreme Court “conclude[d] that conservators are entitled to quasi-judicial immunity from liability for acts that are authorized or approved by the Probate Court ․ “When the conservator's acts are not authorized or approved by the Probate Court, however, [the Supreme Court saw] no reason to depart from the common-law rule that the conservator of the estate is not acting as the agent of that court, but as the fiduciary of the conservatee, and, as such, may be held personally liable.”  (Citation omitted.)  Id., 253–54.

In the present case, the defendants have submitted as evidence the trust agreement establishing the trust of which Kauppinen is a beneficiary, the February 25, 1995 appointment of Carl Anderson, the accountings filed by Carl Anderson, Carl Anderson' affidavit as well as documents relating to the criminal conduct of LaSaracina.   In opposition, the plaintiff filed the affidavit of Linda Kidder, the transcript of the deposition of Peter Anderson and various accountings and Probate Court orders.

The issues in this case do not involve the failure of the defendants to properly supervise or oversee the conduct of the wayward trustee.   The issue is whether the defendants properly conducted themselves when inventorying the estate of the ward and properly informing themselves as to the equitable rights the ward had in relation to the trust.   The plaintiff argues that had the defendants properly informed themselves that the misdeeds of the trustee would have been discovered at an earlier point in time and the loss to the estate would have been mitigated.   In viewing the evidence in the light most favorable to the plaintiff, the evidence submitted by the plaintiff establish that there exist questions of fact regarding whether the defendants faithfully and carefully carried out their fiduciary duty in collecting and managing the assets of Kauppinen's estate.   The actions that the defendants claim were approved by the Probate Court are acts and/or omissions that were not brought to the attention of the Probate Court, and there can be no ratification or approval of an action that is unknown by the Probate Court.   The existence of these questions of fact prevent the defendants from being cloaked with quasi-judicial immunity.

With respect to the defendants' argument that they did not owe Kauppinen's estate a duty to discover the misdeeds of LaSaracina, “[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)   Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A 2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003);  accord Sic v. Nunan, 128 Conn.App. 692, 699, 18 A.3d 667 (2011).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A 2d 857 (1975).

In the present case, the duty owed by a conservator of the estate is set forth in § 45a–655.   Generally, this requires a conservator of the estate to manage the financial affairs of the conserved person for the conserved person's benefit.   See, e.g., Gross v. Rell, supra, 304 Conn. 252.   The defendants submitted an excerpt of the plaintiff's deposition wherein she states that the duty owed by Anderson was pursuant to § 45a–655.   The defendants argue that such a statutory duty did not include discovering that LaSaracina, a fiduciary with a separate duty to Kauppinen's estate, was stealing from the trusts.   The defendants duty arises from the duty to inform themselves of the nature of the ward's estate.   The plaintiff argues that had they done so the misdeeds of the trustee would have been discovered.   There exist questions of fact regarding whether the actions, inactions or both by the defendants with respect to his management of Kauppinen's estate breached the duty that he owed to Kauppinen's estate.   These issues of fact and the ultimate conclusion of negligence cannot be resolved by this motion for summary judgment.   See Michaud v. Gurney, supra, 168 Conn. 434.   Moreover, as questions of fact exist as to alleged negligence by the individual defendant, the defendant law firm may be vicariously liable.   Accordingly, the defendants are not entitled to judgment as a matter of law and their motion for summary judgment must be denied.

CONCLUSION

Based on the foregoing reasons, the defendants' motion for summary judgment is denied.

Cosgrove, J.

Cosgrove, Emmet L., J.