Linda Kidder, Successor Conservator Estate v. Peter Anderson et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 127)

The present action involves the nature and scope of the duty of a court-appointed conservator of an estate to the estate.   The defendants, Peter Anderson and the Anderson Law Firm, P.C., move for summary judgment on the grounds that Anderson is entitled to quasi-judicial immunity as a court-appointed conservator and that there exists no precedent “that a court-appointed conservator has a duty to supervise or oversee the conduct of another fiduciary who is separately bound to act in the beneficiary's interest.”   The plaintiff, Linda Kidder, the successor conservator of the estate of Ilona Kauppinen (Kauppinen's estate), opposes summary judgment on the grounds that the defendants were negligent in performing their fiduciary duties by failing “to ascertain, inventory, protect and preserve the assets of their ward,” and the defendants are not entitled to quasi-judicial immunity because their “conduct was neither authorized nor approved by the Probate Court.”

On September 17, 2010, the plaintiff filed a single-count complaint against the defendants.   In the complaint, the plaintiff alleges the following facts.   Anderson served as the court-appointed conservator of the Kauppinen estate from February 17, 2000, until August 24, 2009.   Anderson served in the capacity of conservator of Kauppinen's estate as an attorney employed by the Anderson Law Firm, P.C., and Anderson Law Firm, P.C. was paid a fee for the services.   The plaintiff is the successor conservator of Kauppinen's estate, and she was appointed by the Norwich Probate Court on August 24, 2009.

The plaintiff further alleges that the defendants were in a fiduciary relationship with Kauppinen and were responsible for overseeing the financial affairs of Kauppinen.   Specifically, the defendants were responsible for “administering, managing and/or protecting the real and personal property, tangible property, business property, trust assets, benefits and income accruing to the benefit of ․ Kauppinen.”   The defendants negligently performed their duties as conservator, in one or more of the following ways:  by failing to ascertain and verify the status and condition of the trust assets;  by failing to protect the assets of the trust for which Kauppinen was a beneficiary;  by failing to investigate the trustee's conduct and by failing to discover the trustee's misdeeds when they knew or should have known that the trustee was misusing and stealing the trust assets.   Kauppinen suffered severe economic injuries, as well as physically and emotionally, because of the defendants' negligence and deviation from the standard of care.

These allegations of negligence arise out of the defendants' alleged failure to discover that F. Robert LaSaracina, the trustee of the trusts that Kauppinen was a beneficiary of, was stealing from the trusts.   The plaintiff in her affidavit avers that during Anderson's time as conservator, Kauppinen's sole source of income was from rental properties owned and leased by the trusts.   The plaintiff avers that LaSaracina had mortgaged the rental properties and taken the proceeds, that LaSaracina was not distributing to Kauppinen's estate her one-third share of the trust income and that he was issuing checks to Kauppinen's estate that had to be returned for insufficient funds.   The plaintiff further avers that Anderson knew that LaSaracina was not honoring his obligation to distribute the trust income equally and Anderson knew that checks were being returned for insufficient funds, but Anderson was inattentive in bringing this to the attention of the Probate Court until 2008.

On August 21, 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 as well as various exhibits on December 7, 2012.   The defendants filed a reply on January 4, 2013.   The exhibits will be discussed as necessary in the discussion section of this memorandum.   The court heard argument on the matter at short calendar on February 4, 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 that summary judgment should enter in their favor for essentially two reasons.   First, the defendants argue that Anderson is entitled to judicial immunity, and, second, the defendants argue that Anderson did not have a duty to oversee the conduct of another fiduciary, i.e., the trustee, who is separately bound to act in the best interest of Kauppinen.   With regard to the judicial immunity argument, the defendants argue that Anderson cannot be held personally liable for his actions as a court-appointed conservator when his actions were authorized or approved by the Probate Court.   The defendants further argue that their quasi-judicial immunity argument is supported by public policy because the judicial system has in place sufficient safeguards to protect a conserved person from a conservator of the estate's negligence.   The defendants argue that multiple parties may contest a periodic or final accounting by a conservator of the estate, which can protect the rights of the conserved person, and the Probate Court may terminate the conservatorship.   The defendants argue that the Probate Court's approval of the final accounting filed by Anderson, which was not appealed by the plaintiff or Kauppinen, was implicit acceptance by the Probate Court that Anderson fulfilled his duties as conservator.   The defendants argue that the Anderson Law Firm, P.C. cannot be vicariously liable for a wrong that does not exist.

The plaintiff argues in opposition to summary judgment 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.¹  In their reply, the defendants argue that the plaintiff has failed to establish that any genuine issues of material fact exist and the defendants remain entitled to judgment as a matter of law because they have offered sufficient evidentiary support establishing that Anderson is entitled to quasi-judicial immunity, and the plaintiff has offered no evidentiary support to the contrary.

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 defendants' 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, 304 Conn. 234, 250–52, 40 A.3d 240 (2012).  “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 plaintiff's responses to the defendants' interrogatories and request for production of documents, the affidavit of Anderson, a letter from Anderson to Judge Salafia regarding his retirement from law and his resignation as conservator, an excerpt of the plaintiff's deposition, the final accounting submitted by Anderson and the November 5, 2009 order of the Probate Court.   In opposition to summary judgment, the plaintiff submitted her affidavit, the transcript of Anderson's deposition transcript, the September 21, 2010 order and decree of the Norwich Probate Court.

The November 5, 2009 order of the Probate Court indicates that Anderson filed a final accounting and that the Probate Court found that notice was given and the final accounting was true and correct.   The Probate Court ordered that “[s]aid Final Account be and hereby is allowed and approved and shall be recorded and filed.”   The plaintiff counters with the deposition testimony of Anderson, in which Anderson admits that he did not receive annual accountings from LaSaracina as was required by the trust agreement, admits that he does not believe that he received any tax returns, admits that he did not perform any title searches on the rental properties that were producing income for the trusts of which Kauppinen was a beneficiary nor did he check on the properties despite driving past them at least once a week and admits that he did not request a hearing on the lack of accountings or the lack of equal distribution of the income of the trusts to the beneficiaries until 2008.

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.

FOOTNOTES

FN1. The plaintiff also argues that the defendants are not entitled to quasi-judicial immunity because Anderson was acting as an attorney for Kauppinen's estate in addition to his role as conservator of Kauppinen's estate, which is evidenced by the submission of periodic accountings that label Anderson's fee as attorneys fees.   The defendants counter that Anderson did not enter into an attorney-client relationship and did not represent Kauppinen on legal matters, which Anderson avers to in his affidavit.   As the parties' other arguments are dispositive of this motion, the court will not address this argument..  FN1. The plaintiff also argues that the defendants are not entitled to quasi-judicial immunity because Anderson was acting as an attorney for Kauppinen's estate in addition to his role as conservator of Kauppinen's estate, which is evidenced by the submission of periodic accountings that label Anderson's fee as attorneys fees.   The defendants counter that Anderson did not enter into an attorney-client relationship and did not represent Kauppinen on legal matters, which Anderson avers to in his affidavit.   As the parties' other arguments are dispositive of this motion, the court will not address this argument.

Cosgrove, Emmet L., J.